Shaping your profile on the Web

More states are putting malpractice and disciplinary data on the Internet. By getting involved early in the process, doctors can influence what will appear.

By Wayne J. Guglielmo
Senior Editor

The Internet is a tool that more and more consumers are using to check out their current doctor or to shop for a new one.

Things were different just four years ago, when only Massachusetts made comprehensive online profiles available to consumers. The novelty sparked tremendous interest, and almost immediately other states adopted similar models. Today, nearly half the states give residents electronic access to physician data, including demographic breakdowns, education and training, and disciplinary and malpractice history.

Doctor reaction has been mixed. After four years, most Bay State physicians view profiles as "part of the landscape," according to Frank Fortin, a spokesman for the Massachusetts Medical Society. But for many physicians, profiles remain controversial, especially those that include malpractice history. "Physicians in high-risk areas of practice are more likely to be sued, but frequency of suit can't be equated with quality of care," says Pensacola, FL, psychiatrist Deborah Wear-Finkle, who favors limited public access to most physician data.

Few think the genie can be put back in the bottle, however. Instead, like their Massachusetts colleagues earlier, physicians in states like New York, Rhode Island, and Tennessee have taken matters into their own hands and helped pass legislation that aims to protect doctors while appeasing the public appetite for more and more data. And additional states are set to take up the debate in 2001.

Has the right balance been achieved? And what other issues face states as they set about making doctor data instantly accessible?

In the Bay and Ocean states, battle lines are drawn early

The credit—or blame—for introducing physician profiles to the nation belongs to an influential group of Massachusetts physicians. They didn't originate the idea, but they did stage a "pre-emptive strike" to ensure that others didn't create a program that was more physician-unfriendly than it needed to be.

In many ways, the mid-1990s debate in Massachusetts defined the battle lines for current skirmishes over physician profiling. At the heart of that debate was how—indeed whether—to post malpractice data.

Some influential members of organized medicine were dead set against disclosure. Their argument was the same one the AMA and other doctor groups have employed for years in opposing public access to the National Practitioner Data Bank: Such data, frequently misinterpreted, ends up maligning good doctors. (See below.)

Other equally influential doctors argued that malpractice histories could be disclosed, provided certain precautions were adopted. First, a physician's malpractice history should be compared to other doctors in the same specialty, not to all practicing doctors. Second, histories should be limited to the most recent 10 years. And third, payouts should be recorded as below, above, or at statistical averages, rather than as actual dollar amounts.

There were other areas of controversy, too. Some consumer advocates, for example, argued unsuccessfully that the disciplinary summary (criminal-, hospital-, and medical-board-related) should include pending complaints and closed cases that resulted in no action.

When the smoke finally cleared, the pragmatists within organized medicine had carried the day, but not before the hard-liners got additional language added to the profiles that warned, in part: "You could miss an opportunity for high quality care by selecting a doctor based solely on malpractice history."

The lessons learned in Massachusetts were not lost on doctors in nearby Rhode Island—one of the next two states to pass profiling legislation.

"After the Massachusetts bill passed in 1996, our leadership was convinced that profiling was going to be a hot topic in our legislature, too," says Steven DeToy, director of government relations for the Rhode Island Medical Society. "We met several times with our counterparts in Massachusetts to figure out what was good, bad, or indifferent about their law. We then wrote a proposal that balanced the interests of patients and doctors, and we did so in a way that regulators couldn't screw up."

Like the Massachusetts law, the Rhode Island bill, passed in 1997, excludes pending disciplinary complaints and actual dollar amounts of malpractice payouts. The malpractice section also warns consumers, in language similar to Massachusetts', that claims are settled "for a variety of reasons which do not necessarily reflect negatively on the professional competence or conduct of the physician."

In its comparison of malpractice risk, Rhode Island added a novel and controversial twist. Instead of comparing one physician with others in the same specialty, Rhode Island elected to compare the individual physician with physicians "who perform procedures and treat patients with a similar degree of risk." The effect is to lump physicians of different specialties into the same risk categories (or Insurance Services Office codes, as the insurance industry labels them).

Supporters of this methodology—including the Rhode Island Medical Society—argued that it was a better gauge of risk. Otherwise, the society pointed out, an FP with an obstetrical practice would be compared to FPs without such practices, making the FP's malpractice record for deliveries seem worse by comparison. But detractors insisted that, despite the merits of the ISO system, such a comparison would end up confusing consumers.

"It means something to the malpractice actuaries and to the people who set rates, but it means nothing to the general public," says Bruce W. McIntyre, general counsel of the Board of Medical Licensure and Discipline of the Rhode Island Department of Health. "How does a member of the public understand a malpractice claim against her doctor when that claim is being compared not to doctors in the same specialty, but to a diverse group of other doctors similarly situated? The answer is, she doesn't."

The fact that this potentially confusing provision of the bill made it through, says McIntyre, was the result of a "political decision" by the director of the health department, a principal supporter of the legislation, in response to a medical society demand.

What's been more troubling to some, however, are delays that have prevented full implementation of the almost 4-year-old law. Only partial data is available to consumers through a multistate Web site sponsored by Administrators in Medicine, part of the Association of State Medical Board Executive Directors (www.docfinder.org ). Also, the malpractice section of the profiles won't be available to Rhode Island consumers until early this fall.

Other states follow Massachusetts' lead

The same year Rhode Island passed its profiling bill, five other states—California, Florida, New Hampshire, Tennessee, and Texas—also passed some kind of profiling legislation. In New Hampshire and Tennessee, the new measures restricted the state to studying the feasibility of a profiling program. Florida's law was equally weak. But the following year, 1998, stronger profiling legislation was passed in Florida and Tennessee, as well as in Idaho and Virginia.

The Tennessee bill was among the most comprehensive. It closely followed the Massachusetts model, adopting virtually the same language to introduce the section on "liability claims." But unlike Massachusetts and Rhode Island, Tennessee imposes a $75,000 threshold on malpractice judgments and settlements to weed out frivolous lawsuits.

"We wanted to create a useful database for patients, not one for plaintiffs' attorneys to root around in and develop leads for future litigation," says Russ Miller of the Tennessee Medical Association.

The Tennessee bill didn't stop with physician data. "If we're going to profile physicians, let's profile everybody connected with patient care," Miller says. Besides allopathic and osteopathic physicians, Tennessee now posts similar profiles online for about 60 different species of health care professionals—from audiologists to midwives to X-ray technicians.

In a pioneering move, the state also mandates that information be posted about managed care organizations and hospitals. Hospital information includes facility license numbers and accreditation expiration dates. HMO information, which is maintained by the plans themselves, includes financial data, grievance procedures, and provider names. Up and running for about two years, the program hasn't elicited the kind of physician reaction medical society officials anticipated. "We expected our phones would be ringing off the hooks, but that hasn't happened," says Miller.

Mary Johnson, who oversees the profiling program for the Tennessee DOH, agrees: "We do many thousands of profiles, and I can count on maybe 10 fingers the number of doctors calling in voicing their objections."

Malpractice concerns in Arizona and New York

Since 1998, nine states have either passed new profiling bills or amended existing ones. Last year, for example, Arizona passed a law expanding its medical board's Web site to include malpractice data on individual physicians. The data presented are for the last five years and record only the number of "malpractice cases resulting in payment." No other detail or explanatory language is included.

Though it generally supports the Web site, the Arizona Medical Association didn't support the bill making malpractice data public. "We knew that type of information wasn't going to be very helpful to consumers, because it doesn't tell them any of the details of the malpractice case," says association spokesperson Andrea C. Smiley. "It's a partial picture that can easily be misconstrued."

Arizona is also among the few states to list open medical board investigations and dismissed cases. Even members of the medical board community don't think that's a good idea.

"Most complaints received by boards are dismissed because there's insufficient evidence, or because the complaint doesn't rise to the level of a disciplinary action, or because there's a jurisdictional dispute," says FP James R. Winn, executive vice president of the Federation of State Medical Boards. The public is thus left with the task of "interpreting an allegation," he adds. "And what does the public do with that information?"

New York's medical society wondered the same thing last October when state legislators ordered electronic posting of non-risk-adjusted malpractice settlements and judgments. "Information like this isn't reliable in a state like New York where you have thousands of plaintiffs' lawyers looking for a deep pocket to sue at every turn," says Michael Murphy, a spokesman for the Medical Society of the State of New York.

The New York law requires that the state health department list all malpractice judgments within the past 10 years. Settlements for this period must also be listed if the doctor has at least three, or if the commissioner of health deems their release crucial to patient decision-making.

The medical society did win on two other fronts. First, it narrowed hospital disciplinary actions posted on the Web to those involving "quality of patient care." Second, the society defeated a proposal to include HMO disciplinary actions. "In many cases, physicians are disciplined by their HMOs because they're fighting the good fight for their patients," says Murphy.

An Rx for doctors who fear profiles: Stay involved

The trend started in Massachusetts four years ago shows no signs of slowing down. Eight states have introduced profiling legislation already in 2001, according to the Health Policy Tracking Service of the National Conference of State Legislatures (Georgia, Hawaii, Illinois, Indiana, New Jersey, Ohio, Oregon, and Vermont).

Longer term, some experts think that the current hodgepodge of profiling sites—with some states opting to include more information than others—will move in the direction of greater uniformity.

To speed that process along, the Federation of State Medical Boards last year issued a report describing what a model profile should look like. Besides the usual demographic, educational, and licensing data, the federation recommended that state profiles include criminal convictions, disciplinary actions, and properly explained malpractice data, excluding dollar amounts of judgments, awards, and arbitrated settlements.

"I believe, at a minimum, states will eventually have this information," says federation chief James Winn. He believes states must also do a better job of educating consumers about what such data actually mean. To this end, the federation has issued a model consumer guide to physician profiles.

And what are the longer-term prospects for physician acceptance of profiles, state-based or otherwise? Says Winn: "Doctors are recognizing that profiles are something they're going to have to live with. And that's good, because when doctors are part of the system, they can make sure the information presented about them is accurate, balanced, and nondetrimental."

The data bank debate takes a new turn

Longtime proponents of keeping the National Practitioner Data Bank private ended last year feeling vindicated, if not totally victorious.

Throughout much of the year, Virginia GOP Rep. Tom Bliley had been crusading to open the data bank to the public. The AMA reacted with predictable ire, arguing that the data bank was so heavily weighted toward malpractice suits and settlements, rather than any other kind of information, that it painted a partial and often misleading picture. And, in any case, said the AMA, the task of providing physician data to consumers was better handled by the states.

The association also accused the Virginia representative (who didn't run for re-election) of retaliating against it for championing a strong Patients' Bill of Rights, something Bliley opposed.

Then, in mid-November, the US General Accounting Office issued a report that stunned everyone. The data bank, it concluded, is riddled with errors—duplicate entries, inaccurate data, incomplete and inappropriate information. Compounding the problem, government auditors said, the agency overseeing the data bank (the Division of Quality Assurance at the Department of Health and Human Services) has inadequate mechanisms to rectify the problems.

The AMA response to the news was, in effect, "We told you so."

But the debate may not be over. Recently, the Federation of State Medical Boards has opened its disciplinary data bank to the public. Also, if Congress forces the National Practitioner Data Bank to clean up its act—and perhaps even if it doesn't—advocates for greater public scrutiny may rise to fight another day.

 

Wayne Guglielmo. Shaping your profile on the Web. Medical Economics 2001;9:28.