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For physicians in Massachusetts and Florida, public disclosure of their malpractice history is a reality. Both states have adopted physician profiling laws that give consumers easy access to information on training, education, malpractice history, and disciplinary actions. Doctors in New York, California, and Wisconsin face similar laws in the near future.
While for many physicians this is nothing to worry about, for those doctors who have been sued particularly those in high-risk specialties such publicity can damage their business, especially if profiles are inaccurate or misleading.
Since Massachusetts became the first state to implement a physician profiling law in November, inaccuracy has been an ongoing problem. In fact, national outcomes expert David Nash, MD, of Philadelphia’s Thomas Jefferson University, referred to Massachusetts’ public disclosure of malpractice data as a venture by "the People’s Republic of Massachusetts" in a speech during the recent National Managed Care Congress in Washington, DC.
According to the Massachusetts Medical Society (MMS) in Boston, 32,000 calls have been made to the state’s profiling hotline since November, and 51,000 profiles have been sent out. There also have been more than 25,000 requests by physicians for profiles to be amended, says Joe Heyman, MD, FACOG, president of the MMS.
One of the biggest critics of the system, Barbara Rockett, MD, a surgeon in Brookline, MA, says 4,500 doctors called about profile mistakes on the first day the profiling line was operational.
The profiling system as a whole is misleading, argues another vocal Massachusetts critic, Leonard Morse, MD, chief medical officer at the Greater New Bedford Community Health Center. He notes that 92% of Massachusetts physicians have no liability claims at all.
The Massachusetts Board of Registration and Medicine in Boston, which provided that statistic, notes that of the 27,000 physicians in Massachusetts, only 1,800 have had malpractice suits, only 400 have had any board disciplinary action, and only five have received criminal convictions.
Rockett says you also have to consider that much of the litigation was against physicians in high-risk specialties, such as obstetrics or orthopedic surgery.
Information on disciplinary actions is inadequate because it doesn’t explain the reasons behind the action, Morse says. "And information on them is already available to the public through the board of medicine’s published disciplinary actions," adds the former MMS president.
So what can you do about profiling? That depends on whether your state has a profiling system or is just considering one, says Richard Bagby, MD, FACR, president of the Florida Medical Association (FMA) in Tallahassee and a radiologist practicing in Winter Park.
If you live in a state considering profiling legislation, Bagby says you should get involved immediately. Work with your medical societies to develop draft legislation (see story on the FMA’s input into legislation, p. 71), with your communities by writing letters to the local newspaper editor, and with your legislature through phone calls and letters. And examine your practice’s education of patients and staff.
Massachusetts’ experience has been a guide for the FMA, Bagby says. Its critics helped galvanize FMA members into being an integral part of the proposed legislation.
Once legislation is passed, it will be up to the doctor to make sure the profile is accurate and representative, Bagby says.
Aside from checking your profile, Bagby says you can take other action to ameliorate any adverse affects from a specific profiling law. Educating the public about the incidence of malpractice is one such action.
Information on the profiles’ limitations is vital for the public, Morse says. "Get your societies to educate the public," he says. "All of its promotional material should focus on letting the public know what is being proposed and what it means to them."
Even Bagby, who believes in the profiling system, notes that information provided in profiles can be misleading. For example, recent reports published in Florida newspapers all listed physicians with disciplinary or malpractice histories. "Many of the issues were trivial," he says. "If someone was late in sending in their license renewal application, their name appeared on the list."
Also on the list were many physicians who work in specialities that have very high litigation rates, Bagby says. "Eighty to 90% of the neurosurgeons in our state have been sued at least once."
The reports in Florida were based on information gleaned by the Agency for Health Care Administration (AHCA) in Tallahassee, says AHCA spokeswoman Colleen David. Last fall, the agency decided to consolidate information already available to the public. It was limited to a five-year disciplinary and malpractice history and to physicians who had three or more claims of at least $25,000 in that time period.
"We found that the public was demanding credible information to make health care choices," David says. "We receive calls daily for this kind of information."
She defends the report and the way most newspapers treated the information. "Only 2% of Florida doctors were listed," David says. "I think that it was a fair presentation."
If you live in a state where profiling is a reality, you can do little aside from ensuring your patients have accurate information about you and your practice, Bagby says. Be ready, willing, and able to explain to your patients anything untoward that appears in your profile. "Often, they don’t understand the realities of malpractice litigation," he says.
Heyman agrees. "Explain what happened and that medicine isn’t a guarantee of good results." In Massachusetts, doctors can use the services of the MMS patient/physician advocate, who can intercede if communication on this subject is difficult. The society also offers seminars to physicians on effective doctor/patient communication, which can help.
Heyman says that whatever the critics say, profiling benefits patients and has little long-term impact on your business. "I have possibly the most published profile in the state," Heyman says, noting that he has a lawsuit and two settlements on his record. "I still have a waiting list for patients."
"Just because your malpractice history is included doesn’t mean the whole profile has to be negative," Bagby adds. "People are more interested in whether you are board-certified, what HMOs you work with, and where you trained." Bagby notes that in 25 years of practice in Florida, he has never been asked about his malpractice history.
Neither has Rockett, who says her patients are more interested in how often she has done a procedure and what the outcomes have been.
Saying that profiling is bad won’t change things, Heyman says. "This is the real world. Doctors are being held accountable, and consumers want information. It is not if they should have it, but how they should see it. This may not be the best thing, but it is the law that was passed, and now we have to live with it."