SMD - Society for Manitobans With Disabilities

ACCESS TO PHYSICIAN PRACTICE INFORMATION

ONE TOOL FOR EMPOWERING
HEALTH CARE CONSUMERS

Lissa Donner

November, 1999

Revised
January, 2001

TABLE OF CONTENTS

Introduction.................................................................................................................................................................. 3

The Canadian Situation............................................................................................................................................. 4

Self-Regulating Professional Bodies - the Colleges of Physicians and Surgeons............................... 4

The College of Physicians and Surgeons of Manitoba................................................................................. 4

The Federation of Medical Licensing Authorities of Canada - Physician Revalidation........................ 8

The Manitoba Law Reform Commission........................................................................................................... 8

Legal Actions For Malpractice............................................................................................................................ 10

III. The American Situation................................................................................................................................. 10

IV. Why Access? Why Not?............................................................................................................................. 13

Conclusions................................................................................................................................................................. 15

BIBLIOGRAPHY........................................................................................................................................................... 18

APPENDIX 1 MASSACHUSETTS BOARD OF REGISTRATION IN MEDICINE SAMPLE SEARCH.... 19

ACCESS TO PHYSICIAN PRACTICE INFORMATION

ONE TOOL FOR EMPOWERING HEALTH CARE CONSUMERS

I. Introduction

Most recent Canadian work on access to health information has had two focuses: 1) the rights of patients to gain access to information about their own health, and 2) the rights of patients to protect their privacy, by controlling whom else may have access to information about them.

In its recent interim report, Health Canada’s Advisory Council on Health Info_structure, Connecting for Better Health: Strategic Issues comments on the importance of health information in promoting good health:

Information is power. Until recently, extensive health information has been available mainly to a limited number of decision makers within the health sector. The new information and communications technologies used in a health info-structure offer the promise of significant change. Over the next few years, high-quality information on health and the health-care system will become available to individuals and to all providers in the health sector. This information will offer all citizens the opportunity to take a more active role with respect to their own health and make possible a health care system which is dramatically more responsive to individual needs and more accountable to Canadians.[1]

The report goes on to state:

Information technology promises to make the health care system much more accountable to the public. The Internet already allows patients, caregivers and citizens to communicate more effectively with each other in their efforts to make health care providers and the system itself more responsive. Greater public access to data on health policy will strengthen these efforts. The technology can also be used to give people more and better health information, including directories and report cards on health care services and programs. This information will allow Canadians to become more informed consumers of health services and products, and take greater control of their own health.[2]

This paper deals with one issue of access to health care information, which was not directly addressed by the Advisory Committee on the Health Info-structure. To what information should patients have access about their physicians, or potential physicians? This is a relatively new area of discussion in Canada. However, in other countries, notably the United States, the debate is coming to an end, and information about the practice histories of physicians is becoming widely available.

This international shift in public attitudes was noted in a 1999 editorial in the British Medical Journal, in which Dr. Graham Buckley states:

When the public is not in a good position to judge the quality of a service, the training, qualifications and codes of ethics and behaviour of a self-regulated profession have traditionally provided the desired protection. However, these structural characteristics of a profession are no longer enough to reassure a less deferential and better informed public. This is true for all professions and for all developed countries.[3](emphasis added)

This paper will consider public access to two types of physician practice information, which would be of benefit to a less deferential and better informed public - disciplinary proceedings, conducted by the provincial colleges of physicians and surgeons and malpractice judgements through the courts.

There are some limitations to this information. Disciplinary proceedings and malpractice judgements are based on patient complaints. A complaints based system may not be the best tool for evaluating physician competence. While this information may not be sufficient to help patients make the best choices about their health care providers, it is valuable information, which should not be veiled in secrecy.

II. The Canadian Situation

A. Self-Regulating Professional Bodies - the Colleges of Physicians and Surgeons

In Canada, physicians are licensed, and their practice regulated, by the provincial colleges of physicians and surgeons (in Québec, le Collège des médecins du Québec). These self_governing bodies receive their authority from acts of their respective provincial legislatures. However, there are national standards for entry into medical practice, administered by three organizations: the Medical Council of Canada (for basic qualifications), the Royal College of Physicians and Surgeons of Canada (for specialists) and the College of Family Physicians of Canada (for family medicine).

A discussion of the self-regulatory system for professions is beyond the scope of this paper, the focus of which is on public access to information about the decisions of the self-regulatory bodies that govern physicians as well as to information about malpractice judgements against physicians.

Under current Canadian law, no public right to information about the practice history of physicians exists. One exception to this is in Québec, where legislation requires that all self_governing bodies publish information about all suspensions or restrictions on practice placed on the licences of their members. This information is required to be published in the Gazette and in notices in local newspapers.[4]

Complaints about physicians conduct or standards of practice are investigated by the provincial colleges of physicians and surgeons.

B. The College of Physicians and Surgeons of Manitoba

The CPS Manitoba has described its complaints investigation and disciplinary procedures, in a publication for physicians, as follows:

Over 3,000 problems are received by the College by telephone every year. The great majority of these can be dealt with by providing advice or sometimes a little preventative intervention. In addition, almost 400 more arrive as written complaints. The law requires that these proceed to the Complaints Committee for consideration. 70% are resolved by the Complaints Committee, and 30% proceed to further investigation; of these, only 1 in 10 proceeds to formal disciplinary action. Only these formal actions, which we report to you twice a year, result in a report being added to the physician's professional file. [5]

Using these estimates, written complaints by consumers result in physician discipline in three percent of cases in Manitoba. If telephone complaints are added, complaints result in disciplinary action in less than one half of one percent of cases.

In Manitoba, there are two types of disciplinary procedures - censures and discipline. Censure may result where the Investigation Committee has found that the physician has acted inappropriately. The CPS may censure a physician where the physician only if the physician agrees in advance to the finding of the Investigation Committee and if the Committee determines that no further action should be taken. If the physician does not agree, or if the Investigation Committee chooses not to offer a censure, then the matter may proceed to a hearing before the Inquiry Committee.

The Act specifies that hearings before the Inquiry Committee shall be public, except that the media may not report anything that would identify the physician who is the subject of the hearing. The physician may request a private hearing and the panel may agree to that request if it is satisfied that matters involving public security may be disclosed, or financial or personal or other matters may be disclosed at the hearing that are of such a nature that the desirability of avoiding public disclosure of those matters in the interest of any person affected or the public interest outweighs the desirability of adhering to the principle that meetings be open to the public. (Section 56.3)

It is noteworthy that one third of the members of both the Investigation Committee and the Inquiry Committee must be representatives of the public, who are not physicians.

The College of Physicians and Surgeons of Manitoba, may, at its sole discretion, release the name of a physician who is censured or disciplined for professional misconduct or misconduct in the care and management of a patient.

The CPS Manitoba policy on the publication of physician names is:

It is the policy of Council of the College of Physicians and Surgeons of Manitoba to publish details of all censures and disciplinary actions including the name of the subject physician. Their names are included in this publication unless Council, after considering the public interest and any special circumstances, orders that an exception be made to its usual policy.[6] (emphasis added)

This information is included, twice annually, in the Newsletter of the College of Physicians and Surgeons. The name will also be released upon receipt of an enquiry by the CPS. However, if the physician’s name has not been published, current practice is that the Registrar of the College may or may not advise a caller if the physician in question has been the subject of discipline by the College.

A review of the two most recent issues of the CPS Newsletter which included reports of nine disciplinary proceedings showed the following.

The November, 1998 issue included information about seven physicians. Six of these were censured. One was the subject of a hearing before the Discipline Committee. The names of the physicians involved were withheld in six of these seven cases, including where the physician:

had already been found guilty of sexual assault in a criminal court in this same matter;

had a sexual relationship with a patient;

did not administer the proper dose or follow the proper procedure in administering an anaesthetic to a child and when the child suffered complications, did not transfer the child to a suitable facility;

made an addition to the patient’s medical record, after the death of the patient and after he had been contacted by legal counsel for the patient’s family; and

while on call at a hospital emergency department, prescribed medication for a migraine, without examining the patient. The patient had meningitis and is now a quadraplegic.

The January, 1999 issue contains two cases, of which one contains the name of the physician. The case in which the information was withheld was again one in which the physician had a sexual relationship with a patient. This was the only case in which the non-publication of the physician’s name was attributed to the patient’s wish. Both of these physicians were offered, and accepted, a censure by the College, rather than formal discipline.

In the two cases where the physicians names were published, the first involved a physician who prescribed the wrong type of chemotherapy. The patient died as a result of the cancer. The second involved a physician who did not follow up on a patient’s history of a breast lump. The patient had breast cancer.

In the last year, therefore, in 78% of the cases, Manitoba CPS has chosen not to make public the names of physicians disciplined or censured.

The above noted policy specifies that names should be released unless after considering the public interest and any special circumstances, orders that an exception be made to its usual policy. In practice, the terms of a physician’s censure, including the publication or non-publication of a physician’s name, are determined after negotiations with the physician’s legal counsel. An examination of the reasons provided for keeping these names private is therefore in order.

The College published its reasons for not publishing the names of the physicians in these cases. Their reasons included:

1. There was no evidence of previous fault in anaesthetic competence.

2. The physician cooperated fully with the investigation.

3. The physician showed insight into the deficiencies of management and voluntarily discontinued the practice of anaesthesia.

4. The physician readily recognized the shortcomings and fully cooperated with the investigation. He was found to have insight into the gravity of the issue and there was no information to suggest any related instances.

5. The physician conceded his error and cooperated to ensure that the intent of the correct record was achieved. He showed insight into the gravity of the error and has provided assurances to comply with required record practice. There is no record of previous deficiency.

6. The physician’s name has already been published on previous occasions and is known to the press and public.

7. Publication at this time will add a further penalty.

8. This physician has been in practice for 28 years with no prior complaint. When he was first contacted he readily cooperated with the review and impressed the committee with his remorse and recognition of his faults. The committee was of the opinion that the process had had a significant educational impact and that the fault did not require publication to protect the public.

9. The circumstances of the case are such that the identification of the physician could cause them to be identified and be subjected to added distress. The Committee accordingly directed that the physician's name not be published.

10. The complainant in this case specifically required, as a condition of her cooperation, that the physician's name not be included. It was her belief that identification of the physician would adversely affect the relationship between her child and the physician. (The fact that the physician is the father of the child in question was stated in the decision.)[7] (emphases added)

While the policy of the College suggests that the names of physicians should be disclosed unless they should be withheld for reasons of public interest or special circumstances, it appears from the reasons given above that the College has given greater weight to protecting physicians from the potential embarrassment caused by disclosure than in giving health care consumers access to this information.

In 1999, the Medical Act was amended, mostly to allow the incorporation of physicians. Also included was an amendment to require that the results of every disciplinary proceeding in which a Panel has made a finding under Section 59.5" be included in the Register (Section 6(2) (d)).

Section 7 of the Medical Act also requires that the Medical Register be open and may be inspected by any person at any time during reasonable business hours.

This creates an interesting situation. The names of physicians censured or disciplined under the Medical Act may still be released at the sole discretion of the College. However, disciplinary findings under Section 59.5 of the Act are required to be recorded in the Register and the Register is available for public inspection. So health care consumers who are aware of this legislative provision, and who are able to attend the offices of the College in Winnipeg, and who can read print material, have access to this information. All others, who make enquiries to the College, may, or may not have access to this information, since Section 59.9 of the Act specifies that If the panel makes an order against the member under section 59.6 or 59.7, the college may also publish the members name.

C. The Federation of Medical Licensing Authorities of Canada - Physician Revalidation

The Federation of Medical Licensing Authorities of Canada (a national umbrella group representing the Medical Council of Canada, the Royal College of Physicians and Surgeons of Canada and the College of Family Physicians of Canada) has proposed a new system of physician revalidation, which it defines as enforcing standards of practice in the medical workplace by direct measures of doctors’ performance.[8]

The system which they have proposed, Monitoring and Enhancement of Physician Performance (MEPP) would involve three steps as follows:

Step 1 all doctors would be monitored regularly, in cycles of one to five years, using practice profile data such as prescribing practices, continuing medical education credits, patient encounter data, practice profiles and other data generated by activities like peer assessment ratings or patient surveys regarding quality of care.

Step 2 would apply only to those doctors identified as at some to moderate risk and could include audits of hospital practice or procedures, office audits and structured interviews by trained peers.

Step 3 would apply only to those doctors identified as at risk or in need as a result of Step 2 (estimated at about 2% of all doctors) and is similar to the current model of physician investigation and discipline.[9]

Unfortunately, there has been no suggestion that any of this information be made publicly available. However, in a recent article in the British Medical Journal, W. Dale Dauphinee, the Executive Director of the Medical Council of Canada, has acknowledged that consumers may not be content with this situation:

Two questions remain. If the MEPP model is formally implemented, how will members of the profession react? And in time, will the public be satisfied with these approaches, or will external pressures escalate to demand other strategies?[10] (emphasis added)

D. The Manitoba Law Reform Commission

In 1994, the Manitoba Law Reform Commission proposed changes to the existing system of professional self-regulation in its report entitled Regulating Professions and Occupations.

Like the MEPP proposal, they recommended that:

(s)elf-governing bodies should not rely solely on consumer complaints to identify breaches of practice standards. They should actively supplement consumer complaints with other forms of detection, including practitioner_initiated complaints, routine testing of practitioner competence and periodic practice checks.[11]

Self-regulating professional bodies have traditionally taken the position that the existing system of self-regulation and peer review are sufficient to protect the public interest.

But strong professional self-regulation and public access to information need not be mutually exclusive. The existing self-regulating system could be modified by provincial legislators to require public access to information about physician discipline and censure.

In Manitoba, some modifications were recommended by the Manitoba Law Reform Commission in its review of all regulated occupations and professions in the province. Some of its recommendations deal directly with the issue of public access to discipline information.

They are:

40. Self-governing bodies are not private organizations, but exercise powers granted to them by the Province of Manitoba for the purpose of protecting the public. Accordingly, all aspects of the operation of self-governing bodies should be governed by the principle of openness and accountability to the provincial government and to the people of Manitoba.

41. Annual reports to government should be mandatory for all self-governing bodies and should be made available to members of the public...(T)hey should include the following information...

(f) the number of complaints against practitioners filed in the past year and their disposition;

(g) the names of practitioners disciplined in the past year, the reasons for the discipline and the sanctions imposed.

43. Each self-governing body should have a register of members which sets out the names of member practitioners, their practising status and any restrictions or conditions on their practice. Government and the public should have access to this register, subject to the self_governing body’s right to prevent its use for commercial purposes.

44. The disciplinary hearings of self-governing bodies should be open to the public unless there are compelling reasons compatible with the public interest for keeping a particular hearing closed.

45. Governing bodies should be required to reveal practitioners’ disciplinary records for at least the three years preceding a request for information. In order to make this information meaningful, disciplinary ‘charges’ should reflect the particular actions for which the practitioner is being disciplined; vague descriptions should not be used.

46. Self-governing bodies should be required to publish in the Manitoba Gazette and in a newspaper widely distributed in the area in which a practitioner practises, information concerning the removal or suspension of a practitioner’s license or certificate or any restrictions or conditions which have been attached to practice. Self-governing bodies should be free to disseminate further information concerning the practice of a practitioner where revealing that information would be in the public interest.[12] (emphases added)

If implemented, these recommendations would certainly have created more public access and accountability. However, it is important to note that they apply only to disciplinary action. It is not clear if they were also intended to apply in cases where the Manitoba College of Physicians and Surgeons has censured, rather than disciplined, its members. Of the cases nine cases reviewed for this paper, the physician was formally disciplined in only one case. In the other eight cases, the CPS offered, and the physician accepted, a censure.

To summarize, information about disciplinary action against individual physicians is:

often not available;

controlled by a self-regulating professional body, which determines, within provincial legislation, what information should be publicly available;

not easily accessible to consumers who wish to use this information to make informed choices about their health care providers.

E. Legal Actions For Malpractice

Dissatisfied consumers may also take their complaints through the courts, as a suit for malpractice. Physicians purchase insurance coverage for malpractice claims. Judicial awards cannot affect the practice rights of a physician, but they can provide monetary compensation to complainants.

Malpractice judgements are a matter of public record, but to obtain the information, one must have knowledge of the particular case, and then search the court records. Malpractice judgements are not required to be reported to the College of Physicians and Surgeons. If a system of public access to physician practice information were to be adopted in Manitoba, this would have to change. But even without such a change, should not the self-regulating body governing the professional practice of physicians be aware of all cases where the courts find that physicians’ practices have harmed a patient? Without such automatic notification the CPS cannot investigate the incident and take the necessary steps to help the physician improve her/his practice, or to discipline the physician.

In summary, medical malpractice information is not easily available to consumers.

III. The American Situation

Until recently, the situation in the United States was much like Canada’s today. However, in recent years, the consumer health movement in the United States has succeeded in obtaining major changes to the legislation governing access to physician practice information in many states.

Massachusetts was the first state to enact such legislation, in 1996. Following a series of articles in the Boston Globe in 1994, the Massachusetts Teachers’ Association led the campaign to require the Massachusetts Board of Registration in Medicine (a state appointed body, and not a self-regulating professional body) to make physician practice information public. The legislation was sweeping in its scope. In addition to information about malpractice and disciplinary procedures, it would have required the release of other information, including, for example, mortality rates by physician. While the legislation passed the State legislature, the Governor refused to sign the bill and thus make it law.

The Governor did, however, establish a Committee to inquire and make recommendations, with retired judge Albert Kramer as its Chair. The other members of the Committee were Frances H. Miller, who holds dual appoints at Boston University in both the Schools of Law and Medicine and Dr. Aaron Lazare, Dean of the University of Massachusetts Medical School. The Committee reported in April, 1995 and recommended major changes to the system then in place and called for the public release of the following information:[13]

1. medical malpractice - The Committee recommended the release of medical malpractice court judgements, arbitration awards and insurance settlements. It also recommended that the Board should provide explanatory materials discussing the caveats in interpreting the data as it relates to competency; explain settlement practices (e.g. nuisance settlements) and place an individual’s malpractice history in context by comparing physicians within a medical specialty.

2. final disciplinary actions - The Committee recommended the release of all final disciplinary actions taken against physicians by hospitals or other health care facilities, including, but not limited to, restriction or revocation of staff privileges due to incompetence or other just cause.

3. oversight of disciplinary actions and risk management and quality assurance oversight - The Committee supported the confidentiality of the peer review process. However, they recommended that hospitals and other health care facilities report all dispositions in professional conduct cases whether or not there is a final determination that disciplinary action be taken; that hospitals and other health care facilities report all significant maloccurrences, whether or not harm results and that the Board be granted the confidential authority to inspect the internal documents of hospitals and other health care facilities to verify the accuracy and completeness of their disciplinary and incident reports.

4. criminal charges and convictions - The Committee recommended that the Board collect and disclose information about all physicians convicted of felonies in the past ten years, all convictions for serious misdemeanours (such as assault and battery, larceny, etc.)

5. physician chemical dependency - The Committee recommended that information about a physician’s chemical dependency should remain confidential, provided that it is not the subject of disciplinary action and that the physician is undergoing or has successfully completed a Board-ordered treatment program.

6. medical education and post-graduate training - The Committee recommended that information about a physician’s education and training should be public, but that details about academic and training performance should remain confidential. The Committee recommended exceptions to this if the physician failed to complete a residency training program or was expelled, suspended or invited to take a leave of absence due to competency or character concerns, where there had been procedural due process.

7. employment and credentialing information - The Committee recommended that employment and credentialing history information should be made public, including information from any U.S. state, about restrictions on a physician’s license or privileges, or resignation from practice, if the resignation was considered a disciplinary action or if it was offered to avoid investigation or disciplinary action, or denial of a medical license for any reason or restrictions on or denial of participation or enrollment because of issues related to competency or character in a system where a third party pays all or part of a patient’s bill.[14]

The Committee’s recommendations were accepted and this information is now publicly available, by phone and on the internet at http://www.docboard.org/ma/df/masearch.htm.

It is noteworthy that during the course of the public controversy surrounding the introduction of this legislation, the Massachusetts Medical Society reversed its position, supported the idea of the legislation and helped to draft it.

Prior to the introduction of the Massachusetts Physician Practice Profiles, each physician was contacted several times by the Board of Medical Examiners to confirm the information which the Board proposed to make public. As well, the courts were required to report all findings of malpractice to the Board, which also verified that information with the physicians in question. The process took eight months and cost approximately U.S. $275,000 to complete.

According to Jeb Fulham of the Massachusetts State Board of Medical Examiners, usage of the system has been high. In their first year of operation, with only a toll free number, consumers requested 85,000 profiles. In the year from May, 1996 to May, 1997, their web site registered 1,300,000 searches for physician information. In the current year, they expect this to rise to approximately 3,000,000 searches. After their web site had been operational for some time, they held a series of consumer focus groups to obtain feedback about the web site and to use that information to help re-design it. As a result of those focus groups, their data base will be changed to allow consumers to search by medical specialty. He advised that the Massachusetts Board receives many positive comments about their web site, including comments from people who made a decision to pursue surgery after finding no negative information about their surgeon in the data base. The web site has also been changed to allow hospitals to do on-line verification of physician licensure, which has reduced the administrative workload at the Board.[15]

Massachusetts is not alone. In this course of this project, 15 other states were found where the legislation requires that the bodies which regulate physician practice make some or all this information publicly available. These are Arizona, California, Colorado, Iowa, Kansas, Maine, Maryland, Minnesota, New York, North Carolina, Ohio, Oregon, Rhode Island, Texas and Vermont. Fifteen of these may be located through one central web site at http://www.docboard.org. Information about physicians in New York is separately available at http://www.health.state.ny.us/nysdoh/opmc/drmain.htm?

Some states also provide similar information about other health care providers, as follows:

Physician Assistants

Kansas

Minnesota

North Carolina

Oregon

Vermont

Acupuncturists

Minnesota

Oregon

Podiatrists

California

Kansas

Oregon

Vermont

Physical Therapists

Kansas

Minnesota

Osteopaths

Maine

North Carolina

Oklahoma

Oregon

Respiratory Therapists

Kansas

Minnesota

Kansas, which has the most wide ranging system of public disclosure of information about health care professionals, also provides information about chiropractors, occupational therapists, occupational therapists assistants and dental anaesthesiologists.

Information about nurses was not accessible through any of these systems, with the exception of North Carolina, where information is available about nurse practitioners. Research into the public disclosure of information about the professional practice history of nurses was beyond the scope of this paper.

In summary, the debate about access to physician practice information is close to conclusion in the United States, where many states now make this information routinely available. Despite much cross border communication, this is not well known in Canada, where there has been little public debate or discussion of these issues.

IV. Why Access? Why Not?

The major argument in favour of access to physician practice information is that health care consumers are competent to use properly presented physician practice information to assist them in making informed decisions about their choices of physicians.

The major arguments against access to such information are summarized below:

1. medical malpractice information isn’t a valid way to judge doctors

The largest studies of this question have been conducted by researchers from the Harvard School of Public Health. In 1991, they published data to show that medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care.[16] That is, most cases where patients were harmed as a result of what the authors termed a negligent adverse event, did not result in a malpractice settlement.

Some use this to argue against making this information more easily available to the public.[17]

Release of medical malpractice information should not be seen as the only type of information which health care consumers need to make informed choices. Medical malpractice information is not, by itself, sufficient. But it is one important piece of information consumers can use.

Releasing information, and providing the contextual information about malpractice settlements, such as is the current practice in Massachusetts, would address physicians’ concerns about the potential misinterpretation of the data, while still providing consumers with this information. (See Appendix 1 for a sample search, which includes information for consumers about the interpretation of malpractice information.)

2. disciplinary information is publicly available already

Some people believe that under the current system, the colleges of physicians and surgeons already make disciplinary information available.[18] The review of information provided by the Manitoba College of Physicians and Surgeons demonstrates that this is not the case. The policy of the Manitoba College does require that the names of physicians be released unless Council, after considering the public interest and any special circumstances, orders that an exception be made to its usual policy.[19] However, as noted above, in the last year, the College released the names of physicians censured or disciplined in only 22% of the cases.

3. other professions don’t release malpractice information

Some argue that since, other professions, such as lawyers, governed by self_regulating bodies, don’t release professional discipline information, physicians should not be held publicly accountable. For example, information about disciplinary action taken against lawyers by their professional bodies is not publicly available.

The issue here is whether or not physician practice information should be publicly available. Canada’s physicians could set a trend towards greater public accountability and transparency among all self_regulating professions.

The Manitoba Law Reform Commission has called for the public reporting of discipline information by all self_regulating professions in Manitoba. Manitoba’s newly established College of Midwives has done just that and will release the results of all disciplinary action, based on the stated belief that the public has the right to know whenever a complaint has led to any type of discipline.

4. this will drive good doctors out of high risk specialties

Some areas of medical specialization (for example, obstetrics and orthopaedic surgery) do carry with them increased risk and therefore increased malpractice claims. Physicians are currently required to obtain informed consent from patients and such informed consent should include a discussion of the risks and benefits of each procedure.

If medical malpractice information is presented in context, with good quality explanatory material (see for Appendix 1 Section VI), then consumers will be able to interpret the results and decide which physician is best for them.

Physicians may be initially threatened by the release of this information. In Massachusetts the process was made easier by the support of the Massachusetts Medical Society and its then President, Dr. Joseph Heyman, who personally supported the legislation despite the fact that his own publicly available record would include two malpractice claims. In jurisdictions such as California, where the local medical professional organization has opposed the introduction of the legislation, the process has been more difficult, but, in the end, successful, due to the lobbying efforts of consumer groups. In the three years since the legislation was enacted in Massachusetts, there have been a couple of cases where physicians with high malpractice payments in low malpractice specialties have tried to switch their areas of specialty. [20]

V. Conclusions

In Canada, consumer access to physician practice information is a relatively new concept. Canadians have traditionally not questioned their lack of access to this information and have accepted that those with access to this information will make the best decisions for them. But in Canada, as in other countries, this is beginning to change. There are a number of reasons for this shift in public attitudes, including:

1. The Canadian media has become more interested in the issue. Lisa Priest’s work in the Toronto Star and the documentary aired last year on CBC television’s National Magazine have raised public awareness.

2. Knowledge about the legislative and regulatory changes in the United States has increased among Canadians, and will continue to do so. The information highway allows anyone in Canada, or anywhere in the world, with internet access, to easily find the web site of the Association of State Medical Board Executive Directors, with access to physician practice records in fifteen states.

3. As the Canadian health care system changes, and governments place more emphasis on the responsibility of individuals for their own health, Canadians have begun to see their own role in the doctor/patient relationship change and are becoming more active, informed, health care consumers.

Access to physician practice information is one important type of information which will assist health care consumers. However, it should be stressed, that while it is useful, it is not, by itself, sufficient. Consumers need access to much more information about access to health care services the quality of those services, which we use, including information at the hospital, regional, provincial, inter-provincial, national and international levels and about the other important determinants of health.[21] Active consumer involvement will, in turn, lead to improvements in the quality of health care.

As Michael Rachlis and Carol Kushner have noted:

...Canadians are continually told that our health care system is the best, or one of the best. This rhetoric masks very serious quality problems stemming largely from the structure of health care delivery itself. It is our hypothesis that improvements in the quality of care and service require greater consumer participation in the development of health policy and the restructuring of health care delivery. In fact, consumer involvement may be absolutely essential to overcome the predictable resistance to change which will come from those who work in the system.[22]

The Advisory Committee on the Health Info-Structure has addressed this need for broader information, by calling for the creation of information resources for accountability and continuous feedback. Their report states that:

the national health info-structure should enable creation of strategic information resources, addressing everything from costs of health services and medical interventions to their impacts on health, or the influence of non_medical determinants of health. These new information resources should be the foundations for a new accountability throughout the health sector. By providing continuous feedback on the health impacts of medical interventions, health programs and services, this information should provide the basis for continuous improvement in the quality of health care. Such new information resources - some linked, some unlinked and surrounded by safeguards in order to protect personal health information - should be designed with a clear customer focus to serve, in addition to the public and health care providers, health researchers, health managers and policy makers.[23] (emphasis added)

Unfortunately, the Committee did not choose to include a discussion of the release of physician-specific information in its report. However, their general arguments in support of increased public access to improved information hold true in this case as well. Access to physician practice history information will increase accountability in the health sector and empower consumers to make more informed choices about their own health care.

The Manitoba Law Reform Commission directly addressed the issue of accountability when it stated:

One of the basic principles of a democracy is that those who hold delegated powers must be held accountable for their exercise. It follows, then, that self-governing bodies must be held accountable for their use of the powers granted to them...(P)ractitioners administering a regulatory regime find themselves in a conflict of interest; elected by their fellow practitioners, they nonetheless are to exercise their powers solely in the interests of the public. Even when their intentions are good, the consequences of the decisions of self-governing bodies may be detrimental to the public. Accountability will help to ensure that the public interest is served in their actions and improve public confidence that this is so...Openness on the part of self-governing bodies also has the effect of making available information which can be used by the public in choosing a particular service or practitioner. In light of the fact that consumers often lack sufficient information or training to make well-considered choices, we see this as an additional benefit of adopting a policy in which the goal of self-governing bodies should be to act as openly as possible.[24] (emphasis added)

Experience in the U.S. has shown that consumer pressure can be effective in increasing public access to physician practice history information. It has also shown that, once this information becomes public, consumers are keen to use it, as one additional piece of information to assist them in selecting the doctor best for them.

The attitude of physicians and their organizations has been critical. Where organizations representing physicians have opposed the necessary legislation, the process has been more difficult. In states such as Massachusetts, where physician organizations have participated in the process, their knowledge has helped to design a system which provides public access, but which also helps consumers to place information about discipline and malpractice in an appropriate context. The approach of organizations representing Canadian physicians remains unknown. Will they take a progressive role in this debate and use their knowledge to help build a public information system which based on increased accountability and transparency? Or will they use their influence to continue to limit public access, until a consumers’ health lobby forces legislative change?

BIBLIOGRAPHY

Brennan, TA, Sox, CM, Burstin, HR Relation between negligent adverse events and the outcomes of medical-malpractice litigation New England Journal of Medicine,

1996 Dec 26;335(26): 1963-7

Buckley, Graham, Revalidation is the answer, British Medical Journal 1999;319:1145-1146 and available at: http://www.bmj.com/cgi/content/full/319/7218/1145

Canadian Broadcasting Corporation,Grading the Doctors, originally broadcast on The National Magazine, October 15, 1998. Videotape available from Bowden’s Media Services at

1-800-363-1281

Dauphinee, W. Dale Revalidation of Doctors in Canada, British Medical Journal, 1999;319:1188-1190 (30 October) and available at: http://www.bmj.com/cgi/content/full/319/7218/1188

Health Canada, Advisory Council on Health Info-structure, Connecting for Better Health: Strategic Issues, Interim Report, September, 1998 and available at: http://www.hc_sc.gc.ca/ohih_bsi

Health Canada, Health Canada’s Women’s Health Strategy, March, 1999 and available at: http://www.hc-sc.gc.ca/pcb/whb

Kluge, Eike-Henner W. Informed consent in a different key: physicians’ practice profiles and the patient’s right to know, Canadian Medical Association Journal, May 4, 1999 and available at:

http://www.cma.ca/cmaj/vol%2D160/issue%2D9/1321.htm

Manitoba Law Reform Commission, Regulating Professions and Occupations, October, 1994

Naylor, C. David Reporting medical mistakes and misconduct Canadian Medical Association Journal, May 4, 1999 and available at: http://www.cma.ca/cmaj/vol%2D160/issue%2D9/1323.htm

Kramer, Hon. Albert, Lazare, Aaron and Miller, Frances Making Informed Choices About Doctors: A Report by the Advisory Committee on Public Disclosure of Physician Information, Report to the Secretary of Consumer Affairs and Business Regulation, Commonwealth of Massachusetts, April, 1995

Localio, AR, Lawthers, AG, Brennan, TA, Laird, NM, Hebert, LE, Peterson, LM, Newhouse, JP, Weiler, PC and Hiatt, HH, Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III, New England Journal of Medicine, 1991 Jul25;325(4):245-51

Priest, Lisa Operating in the Dark: Accountability in our Health Care System, Atkinson Foundation, 1999 and available at http://www.atkinsonfdn.on.ca

Rachlis, Michael and Kushner, Carol, Civic Lessons: Strategies for Increasing Consumer Involvement in Health Policy Development, prepared for the Evidence Based Decision-Making Working Group National Forum on Health, November, 1996

APPENDIX 1

MASSACHUSETTS BOARD OF REGISTRATION IN MEDICINE

SAMPLE SEARCH

MARC F. , M..D.

I. Physician Information

The information in sections I _ V has been provided by the physician.

Accepting new patients? Yes Accepts Medicaid? Yes

Primary work setting: Hospital

Business address: 101 CAMBRIDGE STREET

BURLINGTON, MA 01803_3741

Phone: 781_272_4667

Translation services available: None

Insurance Plans Accepted Hospital Affiliations

No insurance plans reported Winchester Hospital

II. Education & Training

Medical School: University of South Florida College of Medicine

Graduation Date: 1984

Post Graduate Training:

07/01/85 _ 06/30/89 STATE UNIV OF NY AT BUFFALO RESIDENT: OB/GYN

07/01/84 _ 06/30/85 MORRISTOWN MEMORIAL HOSPITAL INTERN: PEDIATRICS

III. Specialty

Obstetrics and Gynecology, No secondary specialty Listed

ABMS Board Certified: Obstetrics & Gynecology

IV. Honors and Awards

This physician has reported no awards.

V. Professional Publications

This physician has reported no publications.

VI. Malpractice Information

Some studies have shown that there is no significant correlation between malpractice history and a doctor's competence. At the same time, the Board believes that consumers should have access to malpractice information. In these profiles, the Board has given you information about both the malpractice history of the physician's specialty and the physician's history of payments.

The Board has placed payment amounts into three statistical categories: below average, average, and above average. To make the best health care decisions, you should view this information in perspective. You could miss an opportunity or high quality care by selecting a doctor based solely on malpractice history.

When considering malpractice data, please keep in mind:

Malpractice histories tend to vary by specialty. Some specialties are more likely than others to be the subject of litigation. This report compares doctors only to the members of their specialty, not to all doctors, in order to make individual doctor's history more meaningful.

This report reflects data for the last 10 years of a doctor's practice. For doctors practicing less than 10 years, the data covers their total years of practice. You should take into account how long the doctor has been in practice when considering malpractice averages.

The incident causing the malpractice claim may have happened years before a payment is finally made. Sometimes, it takes a long time for a malpractice lawsuit to move through the legal system.

Some doctors work primarily with high risk patients. These doctors may have malpractice histories that are higher than average because they specialize in cases or patients who are at very high risk for problems.

Settlement of a claim may occur for a variety of reasons which do not necessarily reflect negatively on the professional competence or conduct of the physician. A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.

You may wish to discuss information provided in this report, and malpractice generally, with your doctor. The Board can refer you to other articles on this subject.

Dr. F. specialty is Obstetrics and Gynecology

Dr. F. has been fully licensed in Massachusetts: 10 YEARS

Physicians licensed in this specialty: 1061

Number who made malpractice payments in the last ten years: 372 (35.06 Percent)

Number of payments for Dr. F.: 1

Payment details for Dr: F.

Date Category of Payment:

11/22/96 Above Average

VII. Disciplinary Actions

A. Criminal Convictions

The information in this section may not be comprehensive. The courts are now

required by law to supply this information to the Board.

Dr. F. has had no criminal convictions in the past ten years.

B. Hospital Discipline

This section contains several categories of disciplinary actions taken

by Massachusetts hospitals during the past ten years which are specifically

required by law to be released in the physician's profile.

Dr. F. has no record of hospital discipline in the past ten years.

C. Board Discipline

This section includes final disciplinary actions taken by the Massachusetts

Board of Registration in Medicine during the past ten years.

Dr. F. has not been disciplined by the Board in the past ten years.

Additional information about a physician, including

dismissed complaints, may be available by calling the

Massachusetts Board of Registration in Medicine

Phone 617_727_0773

Return to

Massachusetts Board of Registration in Medicine Physician Profile home page

Direct questions and comments about these results to

Massachusetts Board of Registration in Medicine

10 West Street, Boston MA 02111

Phone 617_727_1788

For direct response please use Email

This Board's data has been searched 1842721 times since 12/11/1997

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©Copyright 1997,1998,1999 Nicholas Hayer