[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
THE PATIENT PROTECTION ACT OF 2000
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
on
H.R. 5122
__________
SEPTEMBER 20, 2000
__________
Serial No. 106-159
__________
Printed for the use of the Committee on Commerce
__________
U.S. GOVERNMENT PRINTING OFFICE
67-118 WASHINGTON : 2000
COMMITTEE ON COMMERCE
TOM BLILEY, Virginia, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas RALPH M. HALL, Texas
FRED UPTON, Michigan RICK BOUCHER, Virginia
CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio FRANK PALLONE, Jr., New Jersey
Vice Chairman SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania BART GORDON, Tennessee
CHRISTOPHER COX, California PETER DEUTSCH, Florida
NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma ANNA G. ESHOO, California
RICHARD BURR, North Carolina RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California BART STUPAK, Michigan
ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York
GREG GANSKE, Iowa TOM SAWYER, Ohio
CHARLIE NORWOOD, Georgia ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma GENE GREEN, Texas
RICK LAZIO, New York KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming TED STRICKLAND, Ohio
JAMES E. ROGAN, California DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois THOMAS M. BARRETT, Wisconsin
HEATHER WILSON, New Mexico BILL LUTHER, Minnesota
JOHN B. SHADEGG, Arizona LOIS CAPPS, California
CHARLES W. ``CHIP'' PICKERING,
Mississippi
VITO FOSSELLA, New York
ROY BLUNT, Missouri
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland
James E. Derderian, Chief of Staff
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
(ii)
C O N T E N T S
__________
Page
Testimony of:
Churchill, T.J............................................... 32
Cleary, Patrick J., Vice President for Human Resource Policy,
National Association of Manufacturers...................... 96
Corlin, Richard F., President Elect, American Medical
Association................................................ 56
Fernandez, Ruben............................................. 29
Fox, Claude Earl, Administrator, Health Resources and
Services Administration, Department of Health and Human
Services, accompanied by Thomas Croft, Director, Division
of Quality Assurance, Bureau of Health Professions......... 90
Hachey, Christine............................................ 33
Henderson, Gloria Crawford, Director, Division of Medical
Quality Assurance, Florida Department of Health............ 93
Hicks, Kerry, Chief Executive Officer, HealthGrades.com...... 102
Hochman, Rodney F., Chief Medical Officer, Sentara
Healthcare, on behalf of American Hospital Association..... 61
Inlander, Charles B., President, People's Medical Society,
accompanied by Michael A. Donio, Director of Projects...... 41
Loniewski, Edward A., on behalf of American Osteopathic
Association................................................ 65
Plunkett, Travis B., Legislative Director, Consumer
Federation of America...................................... 50
Senese, Donald J., Director of Research, 60 Plus............. 100
Stewart, James B., Author.................................... 46
Sullivan, Nancy Achin, Executive Director, Board of
Registration in Medicine, Commonwealth of Massachusetts.... 87
Weintraub, Rachel, Staff Attorney, U.S. Public Interest
Research Group............................................. 71
Material submitted for the record by:
Bouillon, Jeanne, letter dated September 26, 2000, enclosing
material for the record.................................... 115
Salamendra, Arlene, letter dated September 25, 2000,
enclosing material for the record.......................... 113
Schryver, Herbert and Geraldine, letter dated September 26,
2000, enclosing material for the record.................... 114
Wyman, Ruth, letter dated September 26, 2000, enclosing
material for the record.................................... 113
(iii)
THE PATIENT PROTECTION ACT OF 2000
----------
WEDNESDAY, SEPTEMBER 20, 2000
House of Representatives,
Committee on Commerce,
Washington, DC.
The committee met, pursuant to notice, at 10:10 a.m., in
room 2123, Rayburn House Office Building, Hon. Tom Bliley
(chairman) presiding.
Members present: Representatives Bliley, Tauzin, Oxley,
Bilirakis, Upton, Stearns, Gillmor, Largent, Ganske, Norwood,
Coburn, Cubin, Shimkus, Fossella, Bryant, Dingell, Markey,
Pallone, Brown, Rush, Eshoo, Stupak, Engel, Sawyer, Green,
Strickland, DeGette, Barrett, Luther, and Capps.
Staff present: Charles Symington, majority counsel; Marc
Wheat, majority counsel; Kristi Gillis, legislative clerk;
Bridgett Taylor, minority professional staff; Brendan Kelsay,
minority professional staff; and Chris Knauer, minority
professional staff.
Chairman Bliley. The committee will come to order. The
Chair recognizes himself for an opening statement.
Today, we hold this hearing to examine H.R. 5122, the
Patient Protection Act of 2000. The Patient Protection Act
opens physician information in the National Practitioner Data
Bank to the public via the Internet free of charge. In doing
so, it gives patients a fundamental new tool, access to
important information about their doctors.
During my 20 years in Congress, I cannot remember an issue
as simple as this. The question is, do patients have a right to
know whether their doctor has a history of malpractice payments
and disciplinary actions?
At an earlier hearing on this subject, we heard testimony
from a young woman, a dentist herself, who was butchered by her
OB/GYN. He carved his initials on her abdomen. This man, Dr.
Allen Zarkin, continued to practice medicine for another 5
months before his license was revoked.
I ask my colleagues, do you not think patients had a right
to know about Dr. Zarkin's conduct? If it was your wife or
husband or daughter, would you not want to know?
I also understand that two of the doctors who are the
subjects of victim testimony today, are currently practicing.
When will this end? I believe consumers have a right to this
information.
In many other instances where the health and safety of
American consumers may be at risk, Congress often requires that
information about such risks be made available to the public.
Consumers have as much right to know about their physicians'
professional backgrounds as they do about the ingredients in a
snack food. Nowadays, most consumers are forced to choose a
physician from a list of providers or even the Yellow Pages,
doctors they might know next to nothing about.
The Federal Government already collects a large amount of
useful information in the National Practitioner Data Bank, a
data bank that was created with taxpayer dollars a decade ago.
The Data Bank contains the exact kinds of information that
consumers would want to know before choosing a doctor--
disciplinary actions and medical malpractice payments. Whether
we are speaking of parents expecting the birth of their first
child, a family choosing their primary care physician, an
individual selecting a surgeon before a major operation, or a
senior citizen relying on a practitioner for her unique health
care needs; all patients should have the tools to know whether
that doctor has a prior history of medical malpractice
payments, disciplinary sanctions by States' licensing boards,
or sanctions by hospital peer review boards.
Why has this information been kept from consumers for more
than 10 years? Because special interest groups here in
Washington, DC, have fought to keep it out of the hands of the
American people. I will not stand for this, and neither will
the American public. Doctors routinely require consumers to
give patient histories before treatment. I think patients
should have the right to obtain physician histories before
placing their very lives in the hands of a doctor.
This is why I have introduced the Patient Protection Act.
What information will consumers have access to when this bill
becomes law? The Data Bank's disciplinary information,
consisting of adverse actions taken against physicians'
licenses and hospital privileges, will be disclosed in the form
that it is currently maintained in the data bank, with minor
changes. Also, medical malpractice payment information, which
consists of judgments and settlements, will be disclosed with
explanatory information to compare physicians by specialty and
by State.
By placing the medical malpractice payment information in
context, the bill strikes the right balance between the needs
of patients and the needs of physicians. The bill also makes
one important addition to the Data Bank. It expands the
National Practitioner Data Bank to include felony and certain
misdemeanor convictions of physicians, information not
currently collected by the Data Bank.
I want to address the arguments made by those opposing the
bill. First, opponents claim consumers should not have access
to this ``raw'' data and that it is not useful as an indicator
of quality of care. If this is the case, then why did Congress
mandate that this information be collected in the first place
and used by hospitals and State licensing boards for the past
decade in making hiring decisions and competency evaluations?
If it is relied upon by these professionals, why can it not be
relied upon by the American people?
Opponents also argue that consumers would not understand
the information in the Data Bank, that it would be
misinterpreted by the average citizen. I reject the claim that
consumers cannot be trusted to understand and use this
information. With that said, the bill discloses medical
malpractice payment information in context to consumers.
Another attack on this bill comes dressed up as States
rights. The AMA has opposed this bill on the basis that States
should report the information to consumers. The bill is modeled
on the State efforts. Let me be plain. If the AMA supports
access to this information at the State level, why not at the
national level? Why would you want to limit the American public
to a hodgepodge of systems, capturing different types of
information, rather than one complete, consistent source that
already exists? Unfortunately, this is merely another
disingenuous argument made by the AMA. We have seen before that
the AMA State counterparts fight to weaken legislation at the
State level to block access to this information.
Some also argue that doctors may be unfairly reported to
the Data Bank. That is easily addressed. There is an appeals
process currently in place, and the bill provides physicians
additional safeguards by offering them the opportunity to
submit a statement of their own creation to give their side of
the story.
I have also heard the argument that, due to hospital
underreporting, the data in the NPDB is not accurate. First,
the fact that some hospitals may fail to report does not affect
the quality of the data already contained in the Data Bank. In
fact, we devoted an entire hearing in March of this year to the
administration of the Data Bank and heard testimony from HHS
that there is no problem with information quality.
Second, hospital discipline comprises merely 4 percent of
the Data Bank records. Despite all the inside-the-Beltway
chatter, I have pursued this issue for one reason only, it is
sound public policy. Given the remarkable growth and advances
of Internet communication, we now have the ability to give the
public, with the click of a button, access to useful
information about their doctors; days, hours, even minutes
before an appointment. The soundness of this policy is
demonstrated by looking at the diversity of the groups that are
supporting this legislation. We are building a broad coalition
that transcends traditional liberal versus conservative
ideology. The reason? This is the right thing to do.
I implore you, don't allow certain Washington, DC special
interests to keep this critical information from consumers.
There may be some opposition voiced to this legislation today,
but I would urge my colleagues when they are back in their
districts to ask their constituents whether they would want
this sort of information before seeking medical treatment. The
answer of course will be, yes, they do. I urge you to give it
to them.
Let me conclude by saying I do not think there is a more
honorable profession than the practice of medicine. I have
enjoyed the support of the AMA and many physicians from back
home in Richmond during all of my campaigns for Congress. I
continue to hold the medical profession in the highest regard.
This legislation is about protecting patients, not targeting
doctors.
I think the vast majority of practicing physicians are good
physicians. I also believe the vast majority of physicians
agree with the more than 90 percent of the American people who
believe disclosure of this type of information is an idea whose
time has come.
I would like to thank all of the witnesses for appearing
before the committee today, and I look forward to hearing their
testimony.
The Chair now recognizes the gentleman from Michigan, Mr.
Dingell.
Mr. Dingell. Good morning, Mr. Chairman, and thank you for
recognition. This is an important topic, and it is an important
hearing. I regret that you and I will have some modest
differences in views on this legislation, but I will work with
you to try and perfect it and see to it that we get information
rather than raw and doubtful data to the consumers of medical
services.
I think it is unfortunate that the timing of this
committee's interest in this matter has triggered fears by many
that there is some retaliatory approach here against doctors
for their steadfast support for a comprehensive and enforceable
Patients' Bill of Rights.
The relative swiftness of action here also has been
commented on by many as standing in stark contrast to the
absence of committee work on Medicare prescription drugs, the
Patients' Bill of Rights itself and protecting children from
tobacco addiction. But, in addition, our witnesses are here
today to talk about what is a very real problem, and I want to
make it clear that my personal respect and affection for you
does not indicate any lack of trust, affection, or respect for
you.
I will note that there are a relative handful of bad health
care practitioners. They do hurt people, and I think it is
important that we should talk about possible remedies for this
and seeing to it that American consumers are armed with good
information, rather than with speculative and doubtful and
unevaluated data which contributes nothing to their real
judgments as to who it is should care for them or whether they
are receiving proper care from responsible people in the
professions.
I want to thank the many witnesses that have traveled great
distances to be with us here today. In particular, I would like
to acknowledge those individuals on the first panel that are
willing to share with us some of the very tragic experiences
that they have had to either themselves or a loved one. Every
member in the room not only appreciates your willingness to
come here but also sympathizes with your losses and concerns.
What I hope today is that all will understand, however,
that our problem is to come to agreement on the best kinds of
information that will assist the public to best address how
they will make informed decisions about their medical
practitioners and the quality of their medical care.
Opening the National Practitioner Data Bank is not without
controversy. Those that seek open access by the public argue
that consumers have the right to make informed decisions. I am
in accord with that. Others argue that a haphazard use of such
information can be grossly misleading in its ability to predict
either doctor quality or competence or to assure the patients
that they are going to receive proper treatment. It is also
argued that open access may punish practitioners who have been
willing to engage in treating special high-risk populations or
those willing to provide certain high-risk procedures.
What we also hear is that the Data Bank also suffers from
serious underreporting by certain categories and that its
contents should not and cannot be solely relied upon as a
single factor for determining whether a doctor is trustworthy,
competent or harbors great evil and danger to the consuming
public.
The question before us is whether opening the NPDB is the
appropriate way to start getting more information to consumers.
There is also the question of whether NPDB is, in fact, a
device which has achieved the perfection that will both assure
the consumers of proper treatment and information but also
assure the practitioners that they are being fairly treated.
Because a person's good name is perhaps their most valuable,
treasured and cherished possession.
First, it is my understanding that many States now attempt
to provide a systematic approach to publicly accessible doctor
profiling systems. Already, according to the Federation of
State Medical Boards, more than half of State licensing boards
have begun physician profiling systems whereby information on
physician licensure, medical education and training,
disciplinary actions, criminal convictions and the like have
been assembled.
I think we need to know, how good are these efforts? Do
they really contribute to the well-being of the patient? Do we
know enough about these State efforts to reject them as a key
to the approach to solving this problem? Do they, in fact, work
and advise the consumers properly and do they solve the
problem? Would a nongovernmental clearinghouse work here or
would it be inadequate?
Second, what about underreporting by key segments to the
Data Bank? We do know that certain segments for whatever reason
do not report as frequently as they should. For example, almost
60 percent of the hospitals have never filed a single report
with NPDB. How is that possible, and what are the implications
for finding out the potential for misleading information if the
Data Bank were opened to the public? Does the bill address this
properly and adequately?
Third, do we really ultimately address the issue of
presenting data as sensitive as malpractice claims on doctors
fairly and in a way which truly reflects competency or quality
when insurance companies often force settlements? How will a
doctor with two or more specialties, one perhaps high-risk, be
presented to the public if he has a malpractice settlement in
one of these categories? Will the data be presented in a way
that properly weights the portions of the particular physician
specialty in a way that does not unfairly characterize ability?
What about doctors who perform innovative yet risky and
necessary procedures? These categories are prone to greater
malpractice exposure, yet it is not clear how the bill would
place a related malpractice claim in proper context.
Finally, today's risky procedure is tomorrow's low-risk
procedure. Because records stay in the NPDB for life, how will
once-risky procedures where a malpractice claim was involved be
viewed by the public many years later? Moreover, because
malpractice claims do not reflect a peer review process, is it
wise that this should be the dominant indicator used by the
public to choose or reject a practitioner?
Finally, let's address the question of costs. Would it
transform a Federal program, once mostly self-financed by users
fees, into a potentially costly program financed by the
taxpayer? Does it make sense to spend considerable time and
resources retooling a data repository that was never intended
to be used in this fashion? Or does it make more sense to
develop a new program, possibly at the State level, possibly at
the Federal level, which will provide the most reliable and
best information to the public so that the best judgment may be
made by the patient?
These are among the many questions that should be answered
before this legislation moves forward.
I thank the witnesses today and look forward to their
testimony; and, Mr. Chairman, I look forward to working with
you, my good friend, to achieve a satisfactory result to the
difficulties we confront today.
Thank you.
Chairman Bliley. I thank the gentleman, and I look forward
to working with him.
The Chair will announce that, without objection, all
members may insert a statement in the record. It is also the
chairman's intention to recognize the members in order of
appearance; and at this time I recognize the gentleman from
Michigan, Mr. Upton.
Mr. Upton. Thank you, Mr. Chairman. I am going to put my
full statement as part of the record and try to summarize it
briefly.
[The prepared statement of Hon. Fred Upton follows:]
Prepared Statement of Hon. Fred Upton, a Representative in Congress
from the State of Michigan
Mr. Chairman, we are going to hear from three individuals today who
have had terrible experiences with our health care system. No health
care system--and particularly one that is touted as offering the most
sophisticated, finest quality of care in the world--should tolerate
such conduct or permit such incompetence.
I think we all share a common goal here this morning. We want to
prevent these horrific cases. We want to ensure that all Americans
receive high quality health care, that all Americans can have faith
that the doctor who is operating them or their loved ones is competent,
and that all Americans have the information they need to make informed
choices of medical practitioners.
I am not at all convinced, however, that opening the National
Practitioner Data Bank is the answer to reaching the goal we share.
First, malpractice is not an especially good proxy for judging
competency. From its inception, the data bank was intended to be an
additional tool for states, hospitals, and insurers engaged in
licensing and credentialing decisions, not as a tool for use by the
general public in evaluating physician competence. The number and even
the size of malpractice payments may not necessarily indicate a
doctor's competence. Insurance companies often settle out of court
rather than go to trial even though there is compelling evidence that
the physician's care was appropriate. Doctors who take on the toughest
cases because they are highly skilled may have more malpractice suits
than others in their field. Doctors who are in high-risk fields, such
as obstetrics and neurology, may face more suits than their peers in
other areas of medicine. Doctors who are engaged in cutting edge
clinical research to develop and perfect what will be tomorrow's
routine standard of care may also have higher rates of malpractice
suits.
One has to wonder how many physicians, had they known that Congress
would open the data bank to the public, would have fought malpractice
suits through the court instead of settling them? This calls into
serious question the reliability of the data bank as a tool for
assessing physician competency.
Opening the data bank to the public--including trial lawyers--could
well discourage doctors from going into high-risk fields of medicine,
from delivering babies as part of their family medicine practices, and
from engaging in clinical research. These are outcomes that will
reduce, not enhance, access to care and quality of care. Opening the
data bank could well undermine our nation's pressing need to reduce
medical errors.
From its inception, the data bank was intended to be an additional
tool for states and hospitals and other health care providers engaged
in credentialing decisions, not as a tool for use by the general public
in evaluating physician competence. Opening the data bank to the
public--including trial lawyers--could discourage doctors from going
into high-risk fields of medicine, from delivering babies as part of a
family practice, or from engaging in clinical research. These are
outcomes that will reduce, not enhance, access to care and quality of
care both now and in the future.
Opening the data bank could also undermine our pressing need to
reduce medical errors in our nation's health care delivery system. In
its 1999 report, the President's Quality Commission noted that current
systems to improve the quality of care tend to focus too much on
individual practitioners and not enough on system problems. That was
brought home in a very dramatic way by the Institute of Medicine's
report on building a safer health care system, To Err is Human. This
report came to the startling conclusion that anywhere from 44,000 to
98,000 people die each year as a result of medical errors caused
largely by failures or glitches in systems of care. The report notes
that more people die from medical errors in a given year than from
motor vehicle accidents, AIDS, or breast cancer.
The report's major recommendation for correcting these problems in
the system is the reporting of errors-both serious errors resulting in
death or serious harm and less serious errors or ``near misses'' that
if uncaught, could have resulted in serious harm. The report notes that
effective reporting programs require the fostering of a climate that
encourages individuals to come forward and report errors rather than
covering them up out of fear of individual punishment or liability
suits. The IOM report recommended a nationwide mandatory system for
reporting serious errors with public disclosure and a voluntary
reporting system for less serious errors that would be protected from
public disclosure and litigation. However, the Agency for Health Care
Research and Quality, in its review of the report, came down against
any mandatory reporting requirement--finding that it could make matters
worse and that allowing disclosure of hospitals' and practitioners'
names would be counterproductive.
I agree with the Agency for Health Care Research and Quality. When
we created the bank, we assured doctors that we would not open the bank
to the general public, because the information requires interpretation
and because it could result in an explosion of malpractice suits. If we
break this commitment, how can we expect doctors and other health care
providers to trust us when we tell them that if they come forward and
report errors, they will not be singled out for punishment or be
opening themselves up wide to malpractice suits?
If we want to correct the serious problems in our health care
delivery system that undermine quality of care for tens of thousands of
Americans every year, and if we agree that confidential voluntary
reporting systems are the key to fixing our health care systems, then
we had better think very carefully about the message we'll be sending
if we open the Data Bank to the general public.
The states, rather than the federal government, have historically
and appropriately had the responsibility for licensing and regulating
health care providers to ensure that their residents are receiving
high-quality services from competent, well-trained practitioners. As we
will learn today, some states have already implemented comprehensive
physician profile systems which are specifically designed to provide
useful information to the general public, and other states are moving
in that direction. Further, it is my understanding that the Federation
of State Medical Boards is in the process of developing a comprehensive
national physician profile system that is expected to be in place
within a year or so. These systems are designed for public use and will
provide consumer-friendly information on all physicians licensed in the
states and the nation. By contrast, the National Practitioner Data Bank
includes only those physicians who have been subject to disciplinary
actions and malpractice suits,
Rather than trying to turn the National Practitioner Data Bank into
something that it was never intended to be, I hope that we will work
with the states to promote comprehensive physician profile systems and
with the Federation of State Medical Boards in that organization's
creation of a national, comprehensive, consumer-friendly data base on
all licensed physicians in the United States.
Mr. Upton. First of all, we are going to hear from three
individuals this morning about tragic experiences that they or
their loved ones have had with our Nation's health care system.
No health care system should tolerate such conduct or permit
such incompetence. We all share a common goal of preventing
such horrific cases and ensuring that all Americans have the
information that they need to make informed choices of medical
practitioners.
But I am not at all convinced that opening the National
Practitioner Data Bank is the way to reach that goal. In fact,
it could well work against improving the quality of health care
in this Nation, and there may be better and more timely ways to
provide the general public with the information needed to make
informed choices.
First, I would point out that the number or size of
malpractice suits and settlements is not an especially good
proxy for judging competency.
Second, opening the Data Bank to the general public could
work against our efforts to reduce medical errors and improve
health care quality by discouraging physicians and other health
care providers from reporting errors and working to eliminate
the causes of these errors in our systems of care.
Third, it has always been the States, not the Federal
Government, that has traditionally and appropriately had the
responsibility of regulating, licensing health care providers
and protecting consumers from incompetent and unlicensed
providers. A number of States either already have in place or
are working to put in place physician profiling systems that in
fact provide comprehensive information, including all
physicians licensed in the State, and are designed to be
consumer friendly.
Further, the Federation of State Medical Boards is working
with its members to create a national physician profiling
program that will be open to the general public and
specifically designed to provide the kind of information the
public needs to make informed choices. This effort could well
be up and going within even a year.
I would hope that, rather than trying to turn the National
Practitioner Data Bank into something that it was never
intended to be, that I hope we will work with the States and
the Federation to promote and strengthen their efforts.
I yield back the balance of my time.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes Mr. Brown.
Mr. Brown. I thank you, Mr. Chairman.
I would especially like to thank our witnesses for joining
us this morning and thank them for their courage and
willingness to come forward.
Mr. Chairman, I am glad this committee is taking time today
to look at the need for patient protections. It is tragic when
patients are actually harmed by services that were supposed to
help them, and it is unconscionable when that harm is
avoidable. That is why so many Americans are passionate about
the Patients' Bill of Rights--catch the similarity of title--
about the Patients' Bill of Rights, legislation which we passed
in this House but unfortunately has so far been buried by
Republican leadership in conference committee.
Doctors are held accountable for the decisions they make.
Information about malpractice suits is part of the National
Practitioners Data Bank that has sparked the Chairman's
interest, and I applaud him for that.
When it comes to health plans, there is no information to
report because health plans are not held accountable for the
decisions that they make. In terms of protecting patients from
harm, it is a black hole.
After more than 4-years this Congress has yet to pass a
Patients' Bill of Rights. It probably does not surprise you,
Mr. Chairman, that when you chose to call H.R. 5122 the Patient
Protection Act and to move it as quickly as possible through
committee, it struck some of us inside this institution and
outside this institution as a bit ironic. That doesn't negate
the importance of this hearing. We owe it to patients and
providers to look carefully at the benefits and the drawbacks
of opening up the National Practitioners Data Bank.
I wish, Mr. Chairman, other members, many on this committee
and many from both parties who have put a great deal of time
and energy into real patient protections over the years could
have worked with you to put this legislation together. I also
wish the Health Subcommittee would have been given the
opportunity to review the legislation before full committee
consideration.
This is a controversial proposal, obviously. Access to
information is an important patient right, but access to
incomplete, inaccurate, out-of-context information, even
misleading information, does no good and could in some cases do
significant harm.
This legislation was introduced without the benefit of
proper review and input from Members on both sides of the
aisle. As I mentioned previously, it was given a title that
already is in use as shorthand for the Patients' Bill of
Rights. Ideally, the Norwood-Dingell bill sponsored by a
Republican and a Democrat from this committee--ideally, the
Norwood-Dingell bill would be law, and then we could give up
the title Patients Bill of Rights. Unfortunately, it is not
law; and we still use the title Patients Bill of Rights.
I have heard from a number of physicians who point to the
title as further evidence that H.R. 5122 reflects motives other
than the sincere desire to protect patients from harm. I hope
this is not the case.
I look forward to hearing from our witnesses who can shed
light on the true intent of this bill and especially shed light
on the impact of this bill.
I thank the chairman.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Ohio, Dr.
Ganske.
Mr. Ganske. Thank you, Mr. Chairman.
I think it is important to have hearings on medical errors,
and we certainly had a lot of press coverage on the Institute
of Medicine's report. If I have some time today even in this
statement I may read part of the discussion from one of the two
medical papers that the Institute of Medicine used.
Mr. Chairman, I would point out that our three guests
today--the husband of a woman who died in surgery, a woman who
had eye problems, visual problems after surgery, and I think
the son of a gentleman who died in surgery--can actually make
the point that opening up the National Practitioner Data Bank
would not be helpful. Let me go into a little bit of detail
about this.
Mr. Fernandez lost his wife from liposuction. They went to
a plastic surgeon named Dr. Earl Matory who was recognized as a
good surgeon. They researched his credentials before they went
to see him. I did not know Dr. Matory personally, but I know
people who worked with him, and he had high respect in the
community, the medical community, for being a technically
excellent surgeon.
It is my understanding that Dr. Matory, in the course of
his career, had four settlements or at least four suits
brought, don't know for sure there were settlements because the
National Practitioner Data Bank is closed, but let's assume
that they were settled. What would that tell Mr. Fernandez if
he had had access to that? It would tell him that Dr. Matory
was right about in the middle of all the plastic surgeons in
the United States, since the average plastic surgeon in the
course of his career has a little over three settlements. I
should point out that those settlements frequently are decided
by the insurance company and may not have merit. So had the
Data Bank been open I don't know that that would have given Mr.
Fernandez that much more information.
What do we have with the case of Mr. Churchill? Well, Mr.
Churchill had gastric bypass surgery. This is a high-risk
procedure. The incidents of death from gastric bypass surgery
is 1 to 2 percent. Now let's say that Mr. Churchill had access
to the Data Bank and had been able to see that Dr. Butler had
had a number of deaths. What would that have told him? We don't
know, because we don't know how many patients Dr. Butler
operated on.
I am told by gastric bypass surgeons that many gastric
bypass surgeons will do eight to 10 gastric bypass operations a
week. That could be 400 or 500 a year. If there is a 1 or 2
percent mortality rate associated with that, in the best of
hands that could be a surgeon could have 4 or 5 deaths per year
from that operation per year, not over the course of 10 or 15
years. So that you wouldn't know for sure what that meant
because you wouldn't know what the denominator was.
That brings me to Ms. Hachey.
I just talked to a corneal surgeon yesterday. The incidence
of complication from radial keratotomies is probably about 5 to
10 percent in terms of problems, problems with glare, problems
with night vision. We even have a Member of Congress who had
radial keratotomy has lost part of his vision because of that.
There is about a--maybe as much as a 2 or 3 percent incidence
of loss of best corrected vision after the surgery, even with
contact lenses or corrected vision. That is normally discussed
in preoperative consent forms.
I don't know if that happened in your case, but what we
don't know about your doctor is what was the denominator, how
many patients did he operate on and then what was the incidence
of complications. Had the Data Bank been open, you might have
seen that he had 4 or 5 suits, but without knowing his total
operative experience, you wouldn't know what context to put
that in. He could have been the best, might have had a problem.
In other words, simply having access to that raw data
doesn't give you an accurate index.
Now, if the chairman is proposing that we set up a Data
Bank that includes every treatment for every patient--every
psychiatric patient, any complication, every surgeon, every
operation so that you have the denominator--then we are then
creating an intrusiveness in the privacy of patients that would
be far beyond anything we have ever discussed in terms of gun
registration. That is a basic fundamental problem with the
chairman's bill and part of the reason why I think the chairman
only has two cosponsors to his bill.
And I would point out that there does seem to be a bit of
irony in the fact that I had a Patient Right to Know bill with
over 300 cosponsors and I couldn't even get a hearing or a
markup in this committee on it.
With that, I yield back.
Chairman Bliley. The time of the gentleman has expired.
The Chair recognizes the gentleman from New Jersey, Mr.
Pallone.
The Chair would also ask the members to, in deference to
our witnesses today, to try to keep their opening statements as
brief as possible.
Mr. Pallone. Mr. Chairman, I want to talk about the
substance of this legislation, but let me just say before, I
know some of my colleagues have talked about coincidences and
innuendo and irony here today, but I will be very blunt. I have
absolutely no doubt that the reason this hearing is being held
today is because the Republican leadership in the House is
trying to retaliate against the AMA and other health care
professional organizations because of their support of the
Patients' Bill of Rights.
Chairman Bliley. Would the gentleman yield?
Mr. Pallone. Let me say, Mr. Chairman, I am not suggesting
that you are the one that is at fault here. I think many times
what happens, particularly as we get close to the election, is
that the House leadership basically steps in and says, look,
this is what we want to have done; and you know the committee
members on the other side of the aisle don't really have a
choice because they want to send a message. The AMA opposed the
Patients' Bill of Rights. The AMA doesn't want real effective
HMO--the AMA wants effective HMO reform so they got to pay the
price by bringing up this bill and retaliating against them and
bringing up malpractice and the data base and all these other
things here today.
Chairman Bliley. Would the gentleman yield?
Mr. Pallone. I will yield briefly. I don't want to use up
all my time.
Chairman Bliley. I will give you the time that you need.
In my 20 years service in this Congress, I have never had
my motives questioned. I would remind the gentleman that I was
the gentleman who subpoenaed the tobacco company records, put
them on the Internet, even though the tobacco companies are
among the largest employers in my district. And so I am
disappointed that he would even suggest that my motives might
be questioned.
With that, I yield back to him; and if he wants to discuss
my integrity I will be glad to continue the discussion.
Mr. Pallone. Mr. Chairman, let me explain, I am not talking
about your integrity, and I am not saying that you are badly
motivated. But I am just saying that I know that the House
leadership--and it has been said many times in the media that
the House Republican leadership is very upset with the AMA and
the doctors' organizations because they were so supportive of
the Norwood-Dingell bill, and I have no doubt that a tremendous
amount of pressure was brought to try to have this come up 1
month before the election. But let's hope for the best and hope
that this is just a little blip and it doesn't go anywhere.
Because, frankly, I think that the legislation, although there
are some reasons to deal with legislation of this sort, that
this particular bill is not the way to go.
Any effort to make more information about physicians
available to consumers has to be presented in the context that
paints an accurate picture. Information about malpractice, for
instance, is difficult to present in an appropriate manner for
a number of reasons. Insurance companies often settle cases
brought against doctors because it makes sense from a business
perspective and not because the physician in question has done
something wrong. Malpractice settlements occurring in different
States are difficult to compare as the laws vary from State to
State and can therefore have very different meanings that may
not be readily apparent to a consumer looking at numbers on the
Internet.
Some specialties, moreover, are more prone to lawsuits than
others, a fact which can skew the way information is perceived
if it is not presented in the appropriate context. So if
malpractice information which is required to be reported to the
National Practitioners Data Bank that H.R. 5122 proposes to
open to the public is not presented in an easily understood and
appropriate context, consumers could easily draw erroneous
conclusions about a doctor's competency and history. Such an
occurrence would defeat the whole purpose of making such
information available in the first place.
This is just one example of what is a very complex problem
that I am concerned H.R. 5122 simply glosses over. The terrible
instances of patient abuse that have been reported in the media
and that we will probably hear about today, without questioning
them, let Congress examine ways to increase consumer access to
information about physicians and take action to do so.
Although the awareness H.R. 5122 raises about the need to
address the questions surrounding the public's right to know is
valuable, the legislation itself ignores the complexity of
developing a system that makes this information available to
the public in a way that is truly beneficial to the public's
health. A much more balanced approach between consumers' right
to know important information about their doctors and the
manner in which that information is made available to the
public is needed, as is a much more exhaustive examination of
this complex issue by this committee before we move to markup.
Let me say in conclusion, you know we still do not have the
Patients' Bill of Rights passed, and I am beginning to wonder
every day, as one of the conferees, whether that is going to
happen, and it is because of the Republican's intransigence on
the issue. Again, I think that bringing up the Patient
Protection Act, which is very similar in name, in some ways
trying to suggest there is some tradeoff between the two, and
as much as I understand that the people on the other side are
motivated on this committee by good reasons, I have no doubt
about what the House leadership is all about here today in
trying to retaliate against the medical profession.
Thank you, Mr. Chairman.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Florida, Mr.
Stearns.
Mr. Stearns. Thank you, Mr. Chairman.
And I would say to my colleague, Mr. Pallone, he talks
about the Patients' Bill of Rights not being passed by
Republicans. We had the Coburn-Shadegg bill that we presented
to the House floor. We voted on it. Unfortunately, it did not
pass. Many of us do support the Coburn-Shadegg bill which we
felt was the appropriate way to do this. So to hear folks, Mr.
Chairman, on that side say that this whole hearing is because
the Norwood-Dingell bill is not the correct way--because we had
both alternatives presented on the House floor, and the
Norwood-Dingell passed, but the Coburn-Shadegg didn't, and so
this is just democracy in action.
So, in this case perhaps you didn't agree with the process.
Mr. Pallone. Would the gentleman yield briefly?
Mr. Stearns. Yes.
Mr. Pallone. I understand the differences between the
bills, but the bottom line is the conference is going nowhere,
and the essence of trying to get something passed is
compromise. So if you feel on your side that we need to pass
something between now and when we adjourn, exercise, maybe send
a letter or do something to pressure the conferees to meet
again and try to come up with something that we can all live
with. That is not happening.
I yield back.
Mr. Stearns. But if the gentleman had made that point, I
could understand. But the point the gentleman is trying to
make, that this is a partisan thing, and it isn't. Everybody
has a fair understanding of the issue and has lined up on
either side. Just because people don't line up on your side
doesn't mean that the leadership is motivated one way or the
other. It is just that many members believe that Coburn-Shadegg
was the proper way to address the issue, and you feel the
Norwood-Dingell is.
Saying that, Mr. Chairman, the Institute of Medicine's 1999
report, To Err is Human, was indeed jarring. I think we all
agree with that, and it is a real cause for alarm. In fact, in
direct response, the Commerce Committee and Committee on
Veteran Affairs, where I serve, have had joint hearings to look
at safety in medicine. All the witnesses in these hearings
agree that we must find ways to improve safety, and the general
consensus was that this could best be achieved by creating a
culture of safety that would require improving the system, and
so we have to be careful not just to assigning blame.
While the 1999 Institute of Medicine report did not
recommend opening the NPDB to consumers, I do believe patients
deserve some knowledge of the physician's history of practice.
However, because of the complexity of the issues involved, as
Dr. Ganske has pointed out, including privacy, the consumer's
ability to understand the information available through NPDB
and the role of the State licensure boards, to name but a few.
We must be extremely cautious, my colleagues, in whatever
actions or recommendations we take today or in the future. We
want to ensure that patients are fully informed and fully
understand the information that is being provided to them.
The only thing that Congress can do at the moment is to
find a reasonable approach to determine to what extent the
history of a physician should and must be revealed. Because the
issues involved are so sensitive and because we want patients
to have confidence in their doctor's ability, we must not allow
emotions to overshadow our judgment. To put it more succinctly,
this hearing should not lead us to a rush to judgment on the
solution.
During the joint hearing we held last February on medical
safety, one of the witnesses, Dr. Golden, representing the
American Health Quality Association, testified, ``reports
identifying specific providers and individuals should generally
not be disclosed. Part of the reason for this is that naming
names tends to fix blame even when this is inappropriate. The
IOM report on page 55 noted complex coincidences that cause
systems to fail rarely have been foreseen by the people
involved. This suggests that it is more important to understand
system failures than attempt to fix blame on one or more
individuals involved in this system failure.''
After all, health care delivery involves a myriad of
circumstances, including but not limited to the health care
providers. All of my colleagues want to have the ability to
find out whether or not doctors are reputable for our
constituents and, frankly, whether they have a good track
record. We all understand that, but let's make certain that in
our effort to improve the quality of health care that we do so
in a thoughtful and careful manner.
Thank you, Mr. Chairman.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Michigan, Mr.
Stupak.
Mr. Stupak. Thank you, Mr. Chairman; and I will be
relatively brief.
The national data base was created or established to
provide an information clearinghouse to collect and release
certain information related to health care competency and
conduct of physicians, dentists and, in some cases, health care
practitioners. Information contained in the data base is
intended to direct discreet inquiry into and scrutiny of
specific areas of a practitioner's license, professional
society memberships, malpractice payment history and record of
clinical privileges. It was intended that the information
contained in the national data base would be considered
together with other relevant information and data in evaluating
a practitioner's credentials. It was never intended to replace
traditional forms of credential reviews. It was intended to
augment information already there.
If the Chair truly believes that patients have a right to
know, then I hope they would join us in passing a real
Patients' Bill of Rights where medical decisions are made by
the health care provider and the patient and there is not
limitations on access to health care. That is what we need, not
medical decisions being made by people who are not licensed to
practice medicine such as insurance executive accountants. I
hope you would join us in supporting the Norwood-Dingell
Patients' Bill of Rights.
Patients do have a right to know about their health care
professionals. Licensing and regulations of those professionals
are left up to the States, not to the Federal Government. We
license only for prescription drugs under the Food and Drug
Administration.
The data base was not created to be used as an instrument
to judge the competency of health care professionals. It was
not to be used for public information. Let us develop a system
that protects the consumer.
Should we be looking at a different data base? Mr.
Chairman, I am sure you are aware there is a different data
base that has been developed. It is called the Health Care
Integrity Protection Data Bank. It is called HIPDB. HIPDB
reports only adverse final actions brought by State and
government agencies against practitioners. All the reporting
categories provide information only after a government agency
has taken an action against a provider.
I would be interested to know whether the information in
HIPDB should be made available to the public. I think that is a
document and a data base we should be looking at, not throwing
open the general data base which was designed and used for
other purposes, not to judge the competency of health care
professionals.
With that, I would yield back the balance of my time.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Illinois, Mr.
Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. I would be brief.
I think Mr. Dingell was correct in making sure that we
identify the distinction between information and data. They can
be two different things. The question lies in trying to find a
balance between allowing patients access to the information
they need to make informed decisions about their health care
providers and in protecting the doctor's privacy so they will
continue to take the high-risk patients and specialize in high-
risk areas. This is what we have hearings for, to get answers
to these questions.
I thank the panelists, and I thank the chairman for holding
this hearing. I yield back.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentlelady from Colorado, Ms.
DeGette.
Ms. DeGette. Thank you, Mr. Chairman. I, too, will be
brief.
I think that we do need to have some way for patients to
know what is going on with prospective doctors. However, I am
concerned with this legislation that if you just simply look at
raw data from the National Practitioner Data Bank patients may
get an inaccurate--potentially a dangerously inaccurate view.
In addition, we need to find ways to improve data collection,
since many hospitals across the country have never reported
actions against physicians to the present Data Bank. So if we
rely simply on the information we have now we may in fact be
punishing perfectly fine physicians, while physicians with real
problems have never had their actions reported to the Data
Bank.
A couple of additional problems with this legislation is
that patients can only get information through the Internet,
and all patients researching physicians may not have access to
that method.
Second, we need to have--and Congressman Dingell talked
about this, and I agree. There needs to be improved due
process, and there needs to be a review mechanism to make sure
that this information is accurate.
Finally, there needs to be some way to communicate with
patients about physicians serving high-risk patients that may
have more incidences reported. I must say, I think my
constituents would want to know this information, but it is
only by interaction with a professional that patients can get
the full picture. That is why I agree with my colleagues, we
need the Patients' Bill of Rights passed. We need to have all
of this done.
With that, I will yield back the balance of my time.
Chairman Bliley. The time of the gentlelady has expired.
The Chair now recognizes the gentleman from Georgia, Dr.
Norwood.
Mr. Norwood. Thank you, Mr. Chairman, for allowing me this
time. I want to start by saying to the gentleman from New
Jersey, Mr. Pallone, I don't agree with him at all that the
Republican leadership is pushing this bill in order to get back
at the American Medical Association because they are trying to
protect their patients; and I almost can guarantee you that the
Speaker of the House of Representatives, Denny Hastert, is not
doing that. That is an incorrect statement.
In the 6 months since this committee first held a hearing
on this subject, nothing has happened to change my mind on
making the National Practitioners Data Bank public. It is still
a very bad idea. Those of us in the professions, whether it be
medicine or dentistry, are the people most interested in
ferreting out physicians and dentists that are incompetent or
unethical. That is a very bad thing for the profession itself,
and we are most interested in that.
It is a shame to me that the committee staff of this
committee would not even come talk to the three of us who have
seen patients over the last 25 years and ask our opinion on how
we might better get information to the public, because we are
all interested in that. We just happen to think this is not a
good way to do it.
In my view, the practice of medicine and dentistry is
local, and I have made that view known many, many times in many
forums over the past several years. When I was a practicing
dentist, I was licensed by the State of Georgia, practiced in
my local community and was subject to the malpractice laws and
the dental licensing board in my State. In trying to address
quality of care issues, it has always been my preference that
we consider State and local approaches rather than the Federal
cookie-cutter approach. Yet here we are today considering the
idea that making the National Practitioner Data Bank public
will help improve health care quality.
The problems with this approach ladies and gentlemen are
twofold. First, it attaches a level of sophistication to the
NPDB that is just simply not appropriate. Second, it ignores
State-based approaches that make much more sense, and many are
already in place today. Might we not have tried to help that
along as a Federal Government?
The problems with releasing the NPDB are pretty well
documented. The NPDB is simply gathering information. It shows
no context of the information. It doesn't speak to the
complexity of the different procedures. The information does
not in any way explain the conditions behind judgments that are
made in many cases.
As my colleagues Dr. Coburn and Dr. Ganske will attest,
simply saying whether a judgment was rendered hides the
incredible, complex decisions that doctors have to make each
and every day. It was not the intent of Congress that NPDB be
made public. The committee reports written by this very
committee in 1986 make that very clear, that the information in
the NPDB should only be available to those who understand its
meaning and are charged with making decisions about
professional conduct.
I strongly believe the State medical licensing board should
have the primary role on governing the practice of medicine and
dentistry. In many States, the State legislatures and the State
medical boards are working together to proactively create a
stronger role for the licensing boards. Might we not have
helped that from up here? They are using the Internet, in many
cases, to put important physician information on the web for
consumers to be able to review at any time.
We should also look to the Federation of State Medical
Boards as the appropriate venue for sharing information. Though
underfunded, might we not have helped that from up here? They
are the appropriate private sector mechanism to share
information among and between States regarding physician and
dentist profiling.
If there is a doctor out there who is incompetent or
unethical, we do need a system that identifies him and make
sure the public is adequately protected. We need to use
organizations like the Federation of State Medical Boards to
move information across State borders.
Mr. Chairman, simply opening up the NPDB is a bad idea that
will not do one thing to improve quality of care. I hope that
we will look to the States to build on existing processes to
address the quality of care patients receive; and I frankly
strongly encourage you, Mr. Chairman, to bring this bill up for
a markup. I want the world to know how few members of the
Commerce Committee will vote for it.
I yield back the balance of my time.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes gentleman from Texas, Mr. Green.
Mr. Green. Thank you, Mr. Chairman. It is great to follow
my colleague, Mr. Norwood, who brought up a bill on the floor
last week that only got 12 votes to abolish the Boy Scouts'
charter. So maybe we can do that in our committee like we do on
the floor.
Mr. Chairman, I want to thank you for calling the hearing
today. Back in March, the Oversight and Investigations
Subcommittee held several hearings concerning the National
Practitioners Data Bank by the Health Resources and Services
Administration. These hearings, while thorough, left a number
of questions unanswered.
Mr. Norwood. Mr. Green, would you yield just 30 seconds?
Mr. Green. I yield my time.
Mr. Norwood. You need to say that again. I didn't bring up
any bill----
Mr. Green. I didn't say you did. I said we as a Congress
brought up a bill last week on the floor.
Mr. Norwood. Now there two Georgians who brought it up, but
it was Seth McKinney and John Lewis, not me.
Mr. Green. Let me correct it. Even though I didn't vote for
the bill, we are a part of this process; and if somebody brings
up a bill on the floor that is trying to embarrass a Member or
embarrass us we are all guilty of the problem, whether
Republican or Democrat and whether we voted the bill or not.
Like I said, it only got 12 votes. I think that was pretty well
stated. But I thought bringing this bill up in full committee
was interesting, and so we could see how many votes we have
against it like we did last week.
Today, we have this legislation for us that would open the
NPDB to the consumer before--so they could ensure that they
have the best information about the competency and medical
history of their doctor. Sounds good, but as we have heard in
our hearings, that is a flawed data base.
I read a September 10 article in the Washington Post about
a New York doctor who confessed to a killing spree that spanned
his career as a physician. I find Dr. Swango's actions to be
horrific, and I sympathize with all the victims and their
families that are here today, but I submit that if H.R. 5122
had been the law Dr. Swango's killing spree may not have even
been reported.
I don't disagree that consumers should know who it is that
is treating them in a clinic or emergency room. I do, however,
question whether this bill is the right approach to solving the
problem. I first think we need to correct the Data Bank
information and make sure it is complete before we release it
and that under current law it is not.
The NPDB was created because Congress was concerned about
the increasing occurrence of medical malpractice litigation,
and we sought to improve the quality of medical care by
gathering information about doctors who had a greater number of
malpractice suits. This would allow the consumer to be aware of
the past history of their doctor and enable them to make an
intelligent choice about whether or not they wanted to see him
or her. I don't question what Congress enacted back in 1986,
but in this legislation there is no end to the consumer's need
to identify and choose the doctor who needs to provide the
services they require.
I would say that while information about past practices of
their physician is important, that information is useless if
you have little or no control over selecting your own
physician. Information about which doctors are good and which
are not doesn't help patients if they don't have access to
better doctors. Further, what good is access to the best
physician if you can't pay for the prescription drugs that they
prescribe? If we had the Patients' Bill of Rights that I
cosponsored that could be moved from the conference committee,
that would go a long way toward providing consumers with access
to better doctors.
I follow my colleague from Florida and understand that
there was a number of people who voted on the floor for the
Coburn-Shadegg bill. The problem is, that provision lost; and
when the conference committee was formed, not one Member of the
Republican majority who voted for the Norwood-Dingell bill was
a member of the conference committee, including our colleague
here, Mr. Norwood. So that is why a Patients' Bill of Rights is
so important. It has been vegetating in a conference committee
for 10 months, and I don't know if, in the next 2 or 3 weeks,
it will all of a sudden wake up from its Rip Van Winkle sleep,
but we need to pass that legislation.
Also, if the House would seriously consider providing
prescription drug coverage for lower income and elderly
Americans, patients and doctors would have access to the life-
saving medications that many have been forced to do without in
our country.
I also feel it is a concern because I have watched over the
last few months and the problems we know with the Medicare
corrections bill, the 1997 Balanced Budget Act, I would hope
that our committee would be considering that instead of seeing
Ways and Means dealing with it.
This legislative session is almost over, and these critical
issues have yet to be seriously addressed by our House
leadership. And while I believe the consumers have the right to
know the truth about who is providing their care, they should
also be able to pick their own doctor and hopefully fill their
own prescriptions. There are a lot of issues that our 106th
Congress haven't addressed, and this is one of the small ones.
I yield back, Mr. Chairman.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Tennessee, Mr.
Bryant.
Mr. Bryant. Thank you, Mr. Chairman.
Let me say very quickly, about the motivation for this
bill, I know sometimes we do crazy things in Washington, but I
find it very difficult to believe that we would bring forth a
bill like this that is controversial, that has people on both
sides, good folks on both sides that are for and against it,
the AMA in this case against it, and it would surprise me that
even though we make bad choices up here sometimes politically
that we would climb a tree and try to poke the AMA in the eye
at this point right before an election to make all the doctors
in America mad at us. So I just refuse to accept those kinds of
motivations behind the reason this bill is brought forward now.
We like doctors on our side, and we certainly hope that during
the election time they participate fully and make their own
free choices.
The issue of prescription drugs--we are the Congress, the
House of Representatives. It has passed a prescription drug
benefit, and in terms of managed care, we passed that managed
care bill out of the House. Obviously, there are different
viewpoints around the Hill between the Senate and the House and
conference committees and what the President might do, but we
are making strides, we are taking efforts, and we are the
Congress that has done these things, and so I think Congress
can be commended for that.
But back to the real matter at hand today, we are here to
talk about this bill and not try to politicize it too much and
politic too much, although that never seems to be far away from
anything we do up here. As an attorney that came out of
practice, one that defended doctors and occasionally a dentist
that was sued, I know that malpractice lawsuits can be very
complicated. Settlements are made sometimes, and cases are
tried, and it is a very complex situation, and this bill
concerns me from that standpoint.
But I do want to thank the chairman for this bill and for
calling this hearing and bringing in 16 witnesses that have
varying viewpoints and have different bits of information and
experience they can bring to this Congress so that we can
discuss this.
This bill may or may not be the solution to this situation,
but it is certainly a start in bringing forth this hearing and
having, again, people on both sides, from different
perspectives of this issue testify, which eventually they are
going to get around to today if we will all quit talking, I
think is a great idea.
I might say, if this were to fail, one great alternative to
this issue of dentists and doctors, competency and making sure
we have good ones out there is to put Greg Ganske in charge of
Iowa and Charlie Norwood in charge of Georgia and Tom Coburn in
charge of Oklahoma, and I guarantee you the doctors and
dentists there wouldn't want them on their backs and on their
case and wouldn't have any problem in those three States. But
not having I guess people like that in every State--although I
do suspect we do have them in the other 47 States.
That was actually supposed to be humorous, but it didn't go
over well. Is there some tenseness in the room?
With that said, Mr. Chairman, out of respect to our
witnesses, I am going to cut my statement short. I don't have
any better jokes than that, so I better stop while I am ahead.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Wisconsin, Mr.
Barrett.
Mr. Barrett. Thank you, Mr. Chairman.
Very briefly, I am pleased that we are here today, although
I, like others, wonder exactly what we are hoping to accomplish
at this late stage. It was my hope that we could be voting on a
real Patients' Bill of Rights on the floor of the House of
Representatives and get that done, because I think that is what
the American people want.
Obviously, we have to remember that our prime concern is
the patients, and there has been a lot of discussion as to what
the motives are, but I think that we best serve the public if
we keep our focus on the patients. So I hope as we listen to
our witnesses today that we keep that in mind. And, with that,
I would yield back the balance of my time.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Oklahoma, Dr.
Coburn.
Mr. Coburn. Thank you, Mr. Chairman.
You know, just a couple of observations as somebody that is
leaving here. You can certainly tell this is an election year,
and I think it is a discredit to this body that we have had so
much hammering on how do we demagogue an issue to gain
political advantage. There is not any Member of the House that
doesn't care about patients and their rights. There is not any
Member of the House concerned that people can't afford
prescription drugs. And to imply anyone, including leadership
out of either side, is degrading to the House and serves no
purpose except to increase the cynicism in this country.
Now, as far as the matter at hand, this is a State issue.
If we are going to move all the control for all the professions
to Washington, God help us. This has no business in Washington.
And, no, the States aren't perfect, but this is a right that
should be reserved to the States. We should not grab this. We
should not make it a change in this. I am not even sure that
the National Practitioners Data Bank is a good idea.
The second point I would make is, of all the doctors I
know, most of the doctors with the most lawsuits is who I want
working on me. They are the ones who took the chances on people
to save their lives; they are the ones who took the high-risk
patients; they are the ones who took the ones that didn't pay
and still got sued. That is who I want working on me. So we are
going to have--if something like this happens, we are going to
have exactly the opposite effect.
The third point I would make is, patients ought to be
choosing their doctors based on referrals of other patients and
no other basis. The personal interaction of a physician in
caring for someone is both the best and the worst
recommendation a doctor can have. If it is no good, you are not
going to get other patients; and if it is good, you are going
to get a ton. And we have a Soviet-run health care system in
this country that someone will make worse by improving the
lawsuit ability and the suitability--and then we have a system
that we could make better if we could in fact give people back
their choice of going to the doctor that they want.
So we have created this problem, and we ought to recognize
it for what it is. We ought to reverse in our steps. We ought
to allow patients to choose whatever physician they want,
regardless of who is paying the bill; and once we do that we
won't have a problem with quality.
One final note. The Institute of Medicine study, I would
refer you to the analysis of that study. It is significantly
erred in terms of errors, and with a study that has been
published with that many errors in it about doctor errors and
hospital errors, it needs to be thrown out and done again.
With that, I yield back.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentlelady from California,
Mrs. Capps.
Mrs. Capps. Thank you, Mr. Chairman.
I didn't prepare an opening statement. I am here to learn
and appreciate the discussion on all sides, but I will use this
opportunity to urge my colleagues in this committee and on the
floor to get busy and pass out of conference the Patients' Bill
of Rights as we passed it in a bipartisan fashion in the House
of Representatives.
Each weekend when I go home to my constituents who urge me
to take an active role and support reform of managed care, they
say, is our bill signed into law yet? So that is an issue that
I would like us to address immediately.
I yield back the balance of my time.
Chairman Bliley. The time of the gentlelady has expired.
The Chair now recognizes the gentlelady from Wyoming, Mrs.
Cubin.
Mrs. Cubin. Thank you, Mr. Chairman.
In order for us to make good decisions about our health
care we need to know the facts and we need to assess the
reliability of the information that is available to us. When I
choose a doctor for myself or for my family, I want to learn
all that I can about the doctor's medical background, his
qualifications and his reputation. I am married to a physician
and have a son that will be a doctor in the future as well.
This is my way of ensuring that I get the best care possible
for myself and for my family.
The legislation that we are considering today, H.R. 5122,
tries to build on this notion by making information in the
National Practitioner Data Bank available to the public. While
I do believe the intent of this bill is admirable, I have some
serious concerns.
First, merely opening up the Data Bank to the public will
not necessarily provide them with beneficial information in
making health care choices. With all due respect and agreement,
I might add to the chairman's opinion that we should not
underestimate the American public in what they can and cannot
understand. I still believe that it would be very easy for the
general public to misinterpret the information in the Data
Bank.
For one thing, the information in the Data Bank is in
legalese, and that is something that isn't easy to understand.
Sometimes doctors are forced to settle malpractice lawsuits not
because they did anything wrong but because it is financially
cheaper to do that for the insurance companies.
I happen to know of a case where a doctor was sued, and the
insurance company said we will cancel your insurance if you
don't settle, even though the insurance company knew very well
that the doctor had done nothing wrong.
I saw a program on television about a patient who goes from
doctor to doctor and then files lawsuits and settles for
$5,000, has never settled for over $10,000 but has sued
multiple times. So these doctors would have that information in
the Data Bank.
The details behind any malpractice suit or any allegation
or any criminal act or wrongdoing on the part of a physician
would not be included in the Data Bank. So as a patient I would
look at the physician profile that is in the Data Bank and see
nothing but red flags and negativity, and that in some cases
might not necessarily be the case with the physician. In fact,
in the course of my treatment, I could be negatively influenced
because of doubt that I would have about my practitioner.
In every medical procedure, in every one, there are
possible complications, including death. Doctors who see more
patients because they use nurse practitioners or physician's
assistants will have a higher number of incidences on their
record, a higher number of complications, but that doesn't
necessarily mean they would have a higher rate of
complications.
Second, as has been discussed also, many States have
already established a physician profiling system. These systems
are available to the public. If a particular State determines
that such open accessibility is necessary, then why not let the
State continue to make that decision? This bill tells us that
the Federal Government is in a better position to make that
decision, that open accessibility to the Data Bank for all will
help us make better decisions about care, regardless of whether
or not we have the whole story about the information that is
contained in the Data Bank.
I think that we need some more time to carefully evaluate
the consequences of opening up this Data Bank, and I look
forward to the discussion today and stand by ready to work with
all of the members on the committee.
I yield back the balance of my time.
Chairman Bliley. The time of the gentlelady has expired.
The Chair now recognizes the gentlelady from California,
Ms. Eshoo.
Ms. Eshoo. Thank you and good morning to you, Mr. Chairman.
Just a few quick comments.
Much has been said about the chairman bringing this to the
committee. We are all legislators, and we are all politicians.
Most frankly, he is the chairman of one of the most powerful
committees in the Congress. It is his prerogative to bring
things forward and to use the power that has been given to him.
We as legislators will discuss and debate and weigh in, and he
has won some and he has lost some. So if this bill does not
have merits to it and every member is speaking out about where
they find the shortcomings and where they think the sun needs
to shine in, that is really our process. And I really don't
think much more needs to be said about it, even though a lot
has, but that is the way I view it.
No. 2, I think that, yes, the bill does have shortcomings.
We are contrasting what the States have in place and does the
Federal Government have a role here.
Third, I have said many, many times that at the end of the
day we all want the best physician standing on one side of us.
And the best lawyer standing on the other side of us, and this
committee today is going to get to stand next to physicians
because a lot of members feel, myself included, that we need to
be guarded about information that is put out that ends up being
misinformation on the part of the healers.
Fourth, I think that we can benefit from the hearings and
the documentation of the hearings that were held by one of our
subcommittees, Oversight and Investigations, on March 1 and
March 16 of this year.
Fifth, there isn't any member that isn't going to stand
next to the sun shining in for consumers, consumer information,
and I think that you are hearing some regret on the part of
members here because there are several health care initiatives
that really should be adopted for the people of our country.
There should be a full Patients' Bill of Rights. There
should be prescription drug coverage in Medicare for our
seniors. We should have developed a meaningful medical privacy
bill to protect medical records in our country. But we still
have some time left in this Congress. And, Mr. Chairman, if in
fact what comes out of this hearing, added to the hearings of
March 1 and March 16, move on into the 107th Congress, when you
unfortunately will no longer be part of this body, and we can
reshape it so that it is great for the consumer, great and
important coverage for physicians in the country, I will be
there to work on it.
Thank you for recognizing me.
Chairman Bliley. The time of the gentlelady has expired.
The Chair now recognizes the gentleman from Oklahoma, Mr.
Largent.
Mr. Largent. Mr. Chairman, in deference to time, I will
yield back my time.
Chairman Bliley. The Chair thanks the gentleman.
The Chair now recognizes the gentleman from Minnesota, Mr.
Luther.
Mr. Luther. Well, thank you, Mr. Chairman. I will be brief
as well.
I guess my first thought is that I don't completely
understand why we would be dealing with this issue with just a
couple of weeks before the conclusion of the session.
Previous to being here, I served in the Minnesota
legislature, and we tended to focus during the session on the
issues in committee. We tended to focus on the issues we were
doing to deal with that session on the floor. It seems to me
the issues we are dealing with this year are the Patients' Bill
of Rights, prescription drug coverage; and I don't think
anything we do here should take our focus away from those
essential items that we are planning to get done this year.
But with respect to this legislation, I think it is highly
appropriate that we look at this issue, and I assume that your
purpose in bringing this forward this year is to set the stage
for further hearings next year and some work during the next
session.
There are just two comments, and I look forward to hearing
the testimony and reading the record.
The two thoughts that immediately come to my mind are,
first of all, I think consumers feel completely inadequate when
it comes to picking professionals, whether it is a lawyer,
doctor, or any professional. They feel very inadequate in doing
that. They crave information. They would love to have very
reliable information when it comes to choosing professionals.
So I think it is good that we are looking at this issue of how
can we help the consumers of America make one of the most
important decision of their lives. So that is very, very good.
Second, I think the regulatory efforts of the States in
this country from everything I know are notoriously bad in
terms of helping the consumers of this country, and so I think
it is a very worthy effort to look at how we can assist and
find what States are aggressive and how we can get other States
up to those levels and how we can assist this effort in the
country to help consumers making these decisions and getting
the appropriate discipline in place when there are incompetent
professionals out there.
Those are the kinds of issues we ought to be looking at and
working on in this committee, and I assume that today's effort
is the beginning of that kind of a dialog, and I think that
that is very good. And I hope as we go into the next session,
assuming we get prescription drug coverage done this year and
assuming we can get a Patients' Bill of Rights, I think it will
be very good to go into the next session and start talking
about issues like this in terms of how can we assist and be
helpful to consumers in this country in making these kinds of
decisions and then getting incompetent professionals out of the
business. Those are very worthy goals; and I commend you, Mr.
Chairman, on those goals. Thank you.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Florida, Mr.
Bilirakis.
Mr. Bilirakis. Thanks very much, Mr. Chairman. I will be
very brief.
I first want to welcome Ms. Gloria Crawford Henderson, who
is the Director of the Division of Medical Quality Assurance
for the Florida Department of Health, for being here and to
welcome and thank all the witnesses. Mr. Chairman, as I am sure
you know there is a phrase we use up here all the time, the
concern of unintended consequences, and it is very critical
that we listen and read the testimony of these witnesses to
help us on this issue.
Yes, it is significant that you have brought this up, but
it is a fact we do care about the patients. It is very, very
important. We have to keep all that in mind, but the unintended
consequences have to be there in our minds, also.
I see Mr. Green has not returned, but Mr. Norwood corrected
him; and with all due respect, I am going to correct him. There
is a member of this committee from this side of the aisle who
voted for the Patients' Bill of Rights who is a conferee, and
that should be made part of the record.
I yield back, Mr. Chairman.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Illinois, Mr.
Rush.
Mr. Rush. Thank you, Mr. Chairman. Mr. Chairman, I look
forward to this hearing. I think this is a very important
hearing, and I look forward to it.
Allowing the public access to the National Practitioners
Data Bank will save lives and will ensure that the public has
vital information about the incompetent performance of doctors.
Nowhere is this information more vital than in a time of
medical need. When a patient is faced with making important
health decisions such as choosing a doctor, that patient should
be allowed to have access to all the necessary information
needed to make an informed decision. Such information is a
matter of life and death. However, that information should not
be based on flawed information. It should be based on reliable
information.
Again, Mr. Chairman, I look forward to today's testimony
regarding the pros and the cons of this legislation.
Mr. Chairman, I also want to add my voice that I believe
that it is proper and appropriate that this committee do move
forward or that this Congress move forward on the vital issues
of prescription drugs and the Patients' Bill of Rights. I think
that it is a travesty that we are engaged in developing and
working on new legislation when this legislation that has been
around for a while still sits and no action is being taken on
it.
Mr. Chairman, I also want to add that I really have a
concern that we don't move forward in this committee on this
particular issue based on fear mongering. I just believe that
we need to take a sober, broad-based, sound approach to
discussing both pros and cons of this particular legislation;
and, hopefully, this committee and this hearing will lead us
down a path where we will be able to make some decisions and
offer some corrective actions that will certainly benefit
America's citizens and those who seek medical care.
Thank you, and I yield back the balance of my time.
Chairman Bliley. The time of the gentleman has expired.
The Chair recognizes the gentleman from Ohio, Mr. Gillmor.
Mr. Gillmor. I pass, Mr. Chairman.
Chairman Bliley. The gentleman passes.
The Chair now recognizes the gentleman from Ohio, Mr.
Sawyer.
Mr. Sawyer. Thank you, Mr. Chairman. I will try to be
brief.
By way of summary,just let me say that I join my colleagues
in offering deep condolences to our first panel. I have looked
at the testimony, and the personal stories are compelling
reasons why consumers must actively and aggressively research
the physicians who treat them.
In Ohio, the Ohio State Medical Board has been aggressive
in bolstering safeguards to protect patients from substandard
care, often cited as one of the toughest in the Nation, and
publishes information about physicians, including professional
disciplinary actions by the board, but in doing so, they have
high standards for consistent and full reporting.
The deepest concern I have about the action that we are
taking today is that in a blizzard of information we are
building in inconsistencies that may mislead rather than
inform, and it is one of the elements of this legislation that
I think needs to be addressed with care over time as we bring
real consumer protections to the people of the United States.
With that, Mr. Chairman, I yield back the balance of my
time and thank you for the opportunity to make this statement.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Massachusetts,
Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman, very much; and I want
to thank you for having this very important hearing today on
this very, very important subject.
While we all admire the medical profession, your bill helps
to shine a spotlight on the need to stop rogue doctors who are
traveling from State to State, running from their ruinous
records and harming unsuspecting patients along the way, all as
part of a scheme to stay one step ahead of their bad medical
records. While these bad actors may be few in number, our first
panel of witnesses will attest that having even a few bad
actors can result in tragic consequences.
Let me be clear. I believe that in the overwhelming
majority of cases American physicians are the best and the
brightest, setting the world standard for quality of care. But
if we want this system to remain strong, we must be willing to
confront those who would undermine that system.
In addition, Mr. Chairman, we must recognize the personal
and intimate nature of the patient-doctor relationship. That
relationship is often initiated by the patient who has done his
or her best to learn as much about the physician as possible
through word of mouth and contacts with State medical boards.
Should consumers be given as much information as possible so
that they are making the best possible decisions? The answer of
course is yes. We are talking about their families, probably
the most important decisions they will ever make in their life.
Would the Patient Protection Act, as currently drafted,
achieve that objective? I think it comes close to doing so. I
think the critical question here is how it could be improved,
what else we could add that ensures that we will, in fact, be
able to achieve all of our goals; and I think with the able
assistance of the panel we will be able to achieve that goal.
I am pleased that one of those witnesses is from my home
State of Massachusetts. Nancy Achin Sullivan, Executive
Director of the Massachusetts Board of Registration in
Medicine, is here for the second time, actually, to describe
the Massachusetts physician profile system, the means by which
it was created and the success of its implementation. I want to
thank you, Mr. Chairman, for inviting her here today and for
using the Massachusetts system as the model for your
legislation.
In Massachusetts, consumers have access to important
information regarding their physicians, everything from
background, degrees and professional awards to malpractice
claims and disciplinary history. Interestingly, the system also
contains information on which insurance plans the doctors
accept and where their office is located. The Massachusetts
system is available to consumers by way of the Internet and a
1-800 number where operators read the physician's profile to
consumers over the phone and then send a hard paper copy to
them in the mail.
H.R. 5122 is an important addition to the law. It does not
include a 1-800 provision which I would like to see added; and,
Mr. Chairman, I believe that if we could add that kind of a
provision, an 800 number, that that would improve the bill
mightily.
In addition, Mr. Chairman, I believe that there are other
areas where this legislation could be strengthened. For
instance, a public data base should include specific violations
of each State's malpractice law and Criminal Code. Moreover, we
must carefully examine the many privacy implications in the
legislation. For example, if publicizing the precise dollar
amount would allow a victim's privacy to be invaded, perhaps
indicating that an award fell into a range of dollar amounts
might be a better approach. And whether or not we make the data
base public, we must urge States to develop their own systems
to enhance the effectiveness of the using of the data as a tool
for families.
Finally, Mr. Chairman, we must be mindful that this
Congress has under active consideration a whole range of
legislation; and, hopefully, this can be part of a package of
legislation that enhances the power of families to protect
themselves.
Mr. Ganske. Would the gentleman yield?
Mr. Markey. I will be glad to yield.
Mr. Ganske. I just noticed on C-SPAN the gentleman was
listed as a Republican from Massachusetts. Is the gentleman
making an announcement today?
Mr. Markey. Y'all probably don't understand, but when I
arrived on this committee, before I was influenced by the
chairman of this committee, I was a liberal Democrat from the
State of Massachusetts, but now I am seeing the light of the
way and starting to wear bow ties, actually, in my personal
life, and the powerful influence of the chairman without
question has changed my life, and perhaps that is what is being
reflected out in public observation.
Although I will say this, I think that the chairman does
have a very funny accent that he uses when he talks. I hate
those regional dialects.
Thank you, Mr. Chairman. I yield back the balance of my
time.
Chairman Bliley. As usual, it is a hard act to follow; and
I am glad I see none of my colleagues want to follow it. The
Chair notes that there is a vote on the floor. The Chair notes
it is also close to the noon hour. With that, the Chair is
going to recess the hearing until one o'clock, at which time we
will begin hearing from our panels.
[Brief recess.]
Chairman Bliley. The committee will come to order.
When the committee broke for the previous vote, the Chair
announced that the opening statements are over; and they are.
Any member that didn't make one, and wants to put it in the
record, they can.
[Additional statement submitted for the record follows:]
Prepared Statement of Hon. Karen McCarthy, a Representative in Congress
from the State of Missouri
Thank you, Chairman Bliley for holding this hearing on H.R. 5122,
the Patient Protection Act of 2000. I look forward to the witnesses'
testimony on the current state of consumer information regarding
medical practitioners and how this legislation will affect both the
consumer as well as health professionals.
The National Practitioners Data Bank was created under the Health
Care Quality improvement Act of 1986 because the Congress believed that
the increasing occurrence of medical malpractice litigation demanded
greater information gathering efforts than any state could undertake.
The creation of this Data Bank was expected to augment the traditional
forms of credentials review. Currently, information available on the
Data Bank is relatively comprehensive, but it not available to the
general public. This is problematic for consumers who desire easy
access to the professional history of their chosen physician.
In my state of Missouri, consumers do not have access to a medical
practitioner's professional history of malpractice suits unless the
practitioner has given consent to the licensing board. If a
practitioner has not given consent, the consumer must hunt through the
courthouses to find records of previous lawsuits, at least those
conducted in Missouri.
The intent of this bill is laudable. I firmly believe in empowering
consumers as they make their decision on a health care provider. I'm
concerned that this Committee is moving too quickly on a complex issue.
This bill raises concerns about the quality of information to be added
to the Data Bank, the interpretation of the data by consumers, and the
fairness to medical practitioners of this method of disclosure. This
bill requires a significant amount of additional deliberation by the
Health and Environment Subcommittee so that major medical groups can
share their views to further consumer education an health care
decisions.
For these reasons, I withhold my support of H.R. 5122. Thank you
Mr. Chairman, and I yield back the balance of my time.
Chairman Bliley. Now I would like to invite our first
panel, if they would come forward and take seats. While they do
so, I would ask them when they speak to pull the microphones as
close to you as you possibly can because the sound system in
this room, though we are supposed to be the high-tech
committee, is rather primitive, to say the least.
We will first hear from Mr. Fernandez, and what we like to
ask all of our witnesses is we will accept your statement in
its entirety. We would like you to summarize in as near 5
minutes as you can. And with that, Mr. Fernandez, the
microphone is yours.
STATEMENT OF RUBEN FERNANDEZ
Mr. Fernandez. Thank you. Mr. Chairman and members of the
committee, I thank you for the opportunity that you have
afforded me today. My name is Ruben Fernandez, and I am the
surviving half of a medical nightmare that took the life of my
wife Judy in less than 1 day.
I firmly believe if I had been provided access to the
National Practitioner Data Bank it would have saved the life of
my beloved wife.
I have read the testimony presented on March 1, I have also
heard it today, and to put it simply, the negative reactions to
opening the National Practitioner Data Bank to the general
public is based on fear, myths, professional intimidation and
the intentional protection of power by a few in the medical
community. Just as in the past, only the elite were able to
read and write and the priests were the only ones able to
interpret the Bible, today the hospitals and the medical
establishment are doing the same by saying that only they can
interpret the data.
This country was founded, has prospered and is looked up to
by the rest of the world for our stand on freedom, our
capability to change the wrongs that have been committed and
for our eagerness to share prosperity and good fortune. I
suggest that we work together to put another valuable tool in
the hands of the consumer by allowing the National Practitioner
Data Bank to be accessible by all.
I would like to tell you the story of a girl born and
raised in southern California who married, had three children,
divorced and remarried to a Cuban immigrant. Together we
struggled and fused our dreams, the American dream. We
purchased a home, took care of the children and started our own
business. Fifteen or so years later the house was paid for, the
children were out of the home, the business was doing well, and
my wife was now a 40-something woman who had already undergone
successful breast augmentation and now was concerned with the
extra pounds that she could not easily shed and a couple of new
wrinkles on her face. For almost 1 year she researched the
available information about the best doctors and finally
settled for a plastic surgeon with 20 years of experience,
board certified who had actually taught surgery at a medical
center. She also checked with the California Medical Board and
was told that no problems had been found or reported. Later I
found out that this doctor had been successfully sued in
another State.
Judy, as many other women, was deceived by aggressive
advertisement and salesmanship. By the time she signed the
final papers, the ``tummy tuck and face peel'' that she had
wanted turned into ``resculpting of the body through
liposuction, a mini face lift, a brow lift and a face peel'',
all at the bargain price of $20,000 paid in advance.
When I personally questioned the Harvard-trained, Yale-
graduate plastic surgeon about the length and number of
procedures, he told me, Ruben, don't worry; I have done longer
surgeries on 60-year-olds. Still uncertain, I raised my
concerns with the anesthesiologist; and his response was, it is
long but in the ballpark, and it is safer to do it all at once.
My wife went into surgery at a certified outpatient clinic
at about 7:30 a.m. March 17, 1997. Two hours later the records
show her blood pressure had deteriorated. The solution was to
double the IV fluids. By noon there was little if any urine
output, and although the nurse warned the doctor of possible
kidney shutdown they overrode her concern and continued to
operate. After all, the equipment had been rented and would
have to be paid for whether it was used or not.
By the end of the procedures, my wife had received 19
liters of IV fluids in her vascular system and 14 liters of
tumescent solution under the skin and remained on the operating
table in an irreversible dying condition. By the time the
procedure was complete and the doctor faced me, he had the
audacity to tell me, Ruben, the operation was a success. Within
3 hours, my wife was pronounced dead at a nearby hospital where
this surgeon had privileges.
What followed was a battle against the doctors and lawyers
which took almost 2 years, including two trials, one of which
lasted over 27 days, where they were finally found to be
negligent. To this day, I cannot conceive that the expert
witnesses the doctors used were, quote, their peers and
included five medical school professors from such institutions
as USC, Loma Linda Medical School and Stanford University, all
of who testified and tried to convince the judge that what the
doctors did was within the standard of care.
By the time the operation was finished, my wife had no
blood in her system, had swollen to disfiguring proportions and
weighed 33 pounds more than when she went into the operating
room. This was all within the standard of care.
Last year we finally had a report by the Institute of
Medicine concluding that over 44,000 people die each year due
to medical mistakes.
As a society, we were outraged at the Vietnam War where we
sacrificed over 50,000 young Americans. I ask of you, how many
American lives are we willing to sacrifice for the protection
of an elite group? I am in favor and I plead that you allow the
National Practitioner Data Bank to be opened to the general
public. The consumers have a right to this information, and
they need to make an informed decision. After all, most
Americans can read and write, they can interpret the Bible or a
religious manuscript and also have access to a computer and can
learn to interpret complex data.
I ask you to consider the consequences of not making this
information available to our citizens.
Thank you for this opportunity, and I am available to
answer questions.
[The prepared statement of Ruben Fernandez follows:]
Prepared Statement of Ruben Fernandez
Mr. Chairman and members of the committee, thank you for the
opportunity that you have afforded me today. My name is Ruben Fernandez
and I am the surviving half of a medical nightmare that took the life
of my beloved wife Judy, in less than one day.
I firmly believe if I had been provided access to the National
Practitioner Data Bank, it would have saved the life of my beloved
Judy.
I have read the testimony presented on March 1, and to put it
simply, the negative reactions to the opening of the National
Practitioner Data Bank to the general public are based on fear, myths,
professional intimidation and the intentional protection of power by a
few in the medical community. Just as in the past only the elite were
able to read and write, and the Priests were the only ones able to
interpret the bible. Today the hospitals and the medical establishment
are doing the same by saying that only they can interpret the data.
This country was founded, has prospered and is looked up to by the
rest of the world for our stand on freedom, our capability to change
the wrongs that have been committed, and for our eagerness to share our
prosperity and good fortune. I suggest that we work together to put
another valuable tool in the hands of the consumer by allowing the
National Practitioner Data Bank to be accessible by all.
I would like to tell you the story of a girl born and raised in
Southern California who married, had three children, divorced and
remarried to a Cuban immigrant. Together we struggled and fused our
dreams, ``The American Dream''. We purchased a home, took care of the
children, and started our own business. Fifteen or so years later the
house was paid for, the children were out of the home, the business was
doing well, and my wife was now a forty something woman who already had
undergone a successful breast augmentation and now was concerned with
the extra pounds she could not easily shed, and a couple of new
wrinkles on her face. For almost one year she researched the available
information about the best doctors and finally settled for a plastic
surgeon with twenty years of experience; board certified, and actually
taught surgery at a medical center. She also checked with the
California Medical Board and was told that ``no problems had been
reported''. Later I found that he had been sued in another state.
Judy as many other women was deceived by aggressive advertising and
salesmanship. By the time she signed the final papers, the ``tummy tuck
& face peel'' that she had wanted turned into ``re-sculpting of the
body through liposuction, a mini face lift, a brow lift and a face
peel''. All at the bargain discounted price of $20,000.00, paid in
advance.
When I personally questioned this ``Harvard trained-Yale graduate''
plastic surgeon about the length and number of procedures he told me
``Ruben, don't worry, I have done longer surgeries on sixty year
olds.'' Still uncertain, I raised my concerns with the
anesthesiologist, and his response was ``it is long but in the ball-
park and it is safer to do it all at once.''
My wife went into surgery at a certified outpatient clinic about
7:30 am March 17, 1997. Two hours later the records show her blood
pressure started to deteriorate. The solution was to double the I.V.
fluids. By noon there was little if any urine output and although the
nurse warned the doctors of possible kidney shut down, they overrode
her concerns and continued to operate. After all, the equipment had
been rented and would have to be paid for whether it was used or not.
By the end of the procedures my wife had received 19 liters of I.V.
fluids into her vascular system and 14 liters of tumescent solution
under the skin and remained on the operating table in an irreversible
dying condition. By the time the procedure was completed and the doctor
faced me, he had the audacity to tell me ``Ruben, the operation was a
success!'' Within three hours my wife was pronounced dead at a nearby
hospital where this surgeon had ``privileges''.
What followed was a battle against the doctors and lawyers, which
took almost two years. Including two trials, one of which lasted over
27 days where they finally were found to be negligent. To this day I
cannot conceive is that the expert witnesses that the doctors used were
``their peers'' and included five Medical School Professors from such
institutions as USC, Loma Linda Medical School and Stanford University.
All of who testified and tried to convince the judge that what the
doctors did was ``within the standard of care''.
By the time the operation was finished, my wife had no blood in her
system, had swollen to disfiguring proportions and weighed 33 pounds
more than when she entered the operating room. This was all ``within
the standard of care''.
Last year we finally had a report by the institute of medicine
concluding that more than 44,000 people die each year due to medical
mistakes.
As a society, we were outraged at the Vietnam War where we
sacrificed 50,000 young Americans. I ask of you, how many American
lives are we willing to lose for the protection of an elite group? I am
in favor and I plead that you allow the National Practitioner Data Bank
to be opened to the general public. The consumers have a right to this
information so that they can make an informed decision. After all, most
Americans can read and write, can interpret the bible or a religious
manuscript and also have access to a computer and can learn to
interpret ``complex data''.
I ask you to consider the consequences of not making this
information available to our citizens.
Thank you for this opportunity and I am available to answer any
questions you might have about my experience.
Chairman Bliley. Thank you, Mr. Fernandez.
Mr. Churchill.
STATEMENT OF T.J. CHURCHILL
Mr. Churchill. Mr. Chairman and all committee members, good
morning. My name is Tillis James Churchill II. I am a real
estate salesperson with Century 21 John Merrill Incorporated in
Gainesville, Florida. I am very happy to be here and thankful
for being given the chance to make what I hope will be a
tremendously positive contribution to the public.
Five years ago my dad, Tillis James Churchill, died after
undergoing numerous surgeries performed by Dr. Michael Butler
that began as a stomach stapling procedure in which there was a
problem with the stapler being misfired. I watched my dad
suffer as I have never seen anyone suffer. The nurses wrote
that my dad ate a red popsicle, and the popsicle juice leaked
out of the incision. My dad suffered hallucinations, adult
respiratory distress syndrome and multiorgan failure. My dad's
eyes were so swollen in the last hours of his life that he
could not even blink. For weeks he suffered with an undetected
subhepatic abscess. The problem was that Princeton Hospital did
not have diagnostic equipment to accommodate someone of my
dad's physical size, and my dad's condition was so deteriorated
that he could not be moved to another hospital.
My dad died in Princeton Hospital on his 49th birthday. I
miss my dad every day. Our family has gone through much pain as
a result of his death. If the National Data Bank's information
had been available to my dad, I believe that my dad would still
be here. I am here to tell you that it is not fair that vital
information in the National Data Bank is being withheld from
the public.
My dad always spoke very highly of Dr. Butler. My dad said,
Dr. Butler told me he never lost patient. My dad trusted Dr.
Butler. He had no reason not to. Only after my dad's death did
we find that Dr. Butler had lost at least nine patients and had
made 10 malpractice payments. Fortunately, since my dad's
death, Florida has made the doctor's claims history public
record. However, the disclosure of doctors' past history is
still flawed. Consumers also need access to one central source
of information at the national level, such as the Data Bank,
especially when doctors move from State to State or practice in
multiple States.
Supposedly, hospitals are required to check information
from the National Practitioner Data Bank every 2 years. While
allowing Dr. Butler to practice at the hospital at the time of
my dad's death, it has been recently discovered that Princeton
Hospital did not check every 2 years. I also do not understand
why Princeton Hospital allowed Dr. Butler to perform bariatric
surgery in its facility knowing that it lacked an MRI chamber,
which could accommodate those persons with large physical
stature.
How could this have happened? Where does this leave the
public? I feel as though we were thrown to the wolves.
Princeton Hospital is no longer in business today. What once
was a hospital is now a boarded-up building.
My dad was a schoolteacher and a high school football coach
in Gainesville, Florida, for 19 years. He was a very well-
respected man in our community. Hundreds of kids have benefited
academically and personally with the life lessons he taught in
his classes. I can testify to this because I had my dad as a
7th grade language arts teacher. I grew up being known around
town as Mr. Churchill's son. People still tell me today how my
dad was the one teacher of which they still have fond memories.
My dad, being the educated man he was, asked Dr. Butler
about his background; and Dr. Butler told my dad that he never
lost a patient. This is where my dad was deceived. If
information in the National Practitioner Data Bank had been
available to my dad, I think that my dad and others would still
be alive today.
I have viewed a mock-up of what a public access data base
might look like. The data base I reviewed was easy to
understand and covered the right topics to enable a patient to
make an educated and informed consent about the qualification
of his physician. A patient always trusts his doctor. Please
allow us to trust the right doctor. Thank you all.
Chairman Bliley. Thank you, Mr. Churchill.
Ms. Hachey.
STATEMENT OF CHRISTINE HACHEY
Ms. Hachey. Mr. Chairman and members of the committee,
thank you for inviting me to appear before you today. My name
is Christine Hachey, and I presently work as a travel
consultant. My objective is to convince you why the National
Practitioner Data Bank should be made public. Let me explain
why this is so important to me.
I have always worn glasses to correct nearsightedness and
astigmatism. Due to frequent changes in my prescription, I
decided to check with another ophthalmologist. At this point it
was suggested that I consult with a doctor who also performed
RK and AK surgery. After being examined by a technician, I was
escorted to the doctor. He then did an extremely cursory exam,
took no medical history whatsoever and proceeded to rave about
his abilities to correct my vision to a point where I would no
longer need corrective lenses for anything except reading. My
husband and I made an appointment to participate in one of his
seminars to become more informed about the procedure. Again, we
were assured that he had done thousands of these procedures
with great success.
Upon checking with the Board of Medical Examiners, we were
informed that there were no complaints or judgments pending on
this doctor. It wasn't until years later that an investigative
journalist covering the Data Bank told me that my doctor had
multiple settlements. Without this information, we had
proceeded to make the appointments and have the surgery. In a
span of just 3 months I underwent four surgeries performed by
this particular doctor, with my vision becoming increasingly
worse each time. At this point, I sought the opinions of four
corneal specialists. They all ended up with the same
conclusion: My eyes have been irreparably damaged by the
surgeries done by the original doctor.
My life has changed drastically. I avoid driving. I
restrict my driving to daytime, and never do I drive at night
because I don't want to be the cause of an accident. My sight
has caused me to be very dependent on others, give up being
employed outside of the home, which takes away all benefits
enjoyed by regular professionals, and put a strain on all of my
everyday tasks. Even the simplest of things such as reading,
sewing and painting is done with wearing contacts, glasses and
a magnifying glass; and many times extra light is required. I
show you that this is the kind of print I would need to have
everything in if I wanted to read it without the magnifying
glass, and with this, it would take my contacts and my glasses.
Because of this, we have added on to our house so that I
would be able to continue to work to some degree but have
suffered a tremendous reduction in pay. This has been damaging
both emotionally and physically.
This is a situation that could have been prevented. This
doctor alone has caused hundreds of people to have a drastic
reduction in vision, and this is just one doctor. The public
needs to have the ability to research their doctors so they can
make informed decisions. This is a preventable epidemic.
The National Practitioner Data Bank would not only help the
public sector but it would benefit others such as elected
officials, the American Medical Association and insurance
companies, just to mention a few.
Elected officials would gain great respect from their
constituents by allowing this bill to give each one of us the
ability to make informed decisions in situations that can
change our lives forever. This would improve our quality of
life, offer better health care and help to control medical
costs.
The American Medical Association is a highly distinguished
group of individuals that service mankind, but there are those
who taint this well-deserved reputation. The National
Practitioner Data Bank is a major step toward redeeming this
lack of credibility and showing commitment to the people. The
AMA has suggested that the State boards should analyze how to
report the competency of health professionals. This just simply
is not enough. Now is the time to help them by making the
public more informed. Think of the goodwill and how the public
sector would rally behind the AMA if they chose this course.
Not to be forgotten is the insurance sector. They are
constantly paying out claims, legal fees and much more. We
could all benefit from lower insurance premiums because of
fewer damages being paid out on all fronts.
I urge you to look at the mock-up of the NPDB which is on
the House Commerce Committee web site. You will be able to
realize the user-friendly format that compares doctors in
context by specialty and location. The information is there for
the public to make their own decision.
You must vote for Chairman Bliley's bill opening the
National Practitioner Data Bank so that we can all benefit.
Thank you.
Chairman Bliley. Thank you, Ms. Hachey.
The Chair recognizes himself for 5 minutes.
Mr. Fernandez, despite Dr. Ganske's statement to the
contrary, in a Hartford Courant analysis of the Data Bank, Dr.
Matory reportedly has 22 entries, including malpractice
payments totaling $1.47 million. I ask you, don't you think
this is information that consumers would want to see?
Mr. Fernandez. Definitely. And I would like to emphasize
that when my wife checked with the California Medical Board,
the information that Dr. Matory had malpractice in another
State was not made part of the California Medical Board
records. Therefore, we had no idea that he had damaged other
people.
Chairman Bliley. Would you describe your efforts to notify
the medical establishment of this physician's history following
your wife's death?
Mr. Fernandez. Well, I was very glad that the truth had
finally come out after a long, extensive trial; and I made up
two packets that were delivered to two different members of
each medical board of every State of the Union. Strictly, the
information in there was the findings of the California Medical
Board and the decisions to revocate the licenses of the
physicians. I sent that out with a certified, signed receipt
required by every head of the consumers board of every State.
Because I was very keenly, by that time, aware that we do not
have a national way of gathering this information; and I did
not want that to happen to anyone else; and I wanted each
medical board to be accountable for knowing the tragedy that
had happened so that another member of their community would
not undergo the same problems.
Chairman Bliley. Thank you.
Ms. Hachey, do you know if your physician is currently
practicing?
Ms. Hachey. Yes, he is practicing. The medical board in
Arizona does not show any decisions against him. Matter of
fact, he has numerous radio ads. He has TV ads. He has
newspaper ads. He is very much in the swing of conducting more
surgeries.
Chairman Bliley. Thank you.
Mr. Churchill, you testified that Dr. Butler lied to your
father and told him that he had never lost a patient; and it
was not until later that you found that Dr. Butler had lost at
least nine patients. Had your father known of Dr. Butler's
prior history, would he have sought treatment from this doctor?
Mr. Churchill. Of course not, of course not. There is no
way that anyone in their right mind, after having this
information presented to them--first of all, I take that back.
Anyone in their right mind would have gotten a second opinion.
Chairman Bliley. Thank you. Do you know if your father's
physician is still practicing?
Mr. Churchill. I do not know at this time.
Chairman Bliley. Okay. Thank you.
Ms. Hachey, in your testimony you mentioned the user-
friendly format that our legislation provides for consumers. I
know that you have reviewed the mock-up of a report that we
have on the Committee on Commerce web site for the public's
review. I suggest that other members of the public review the
mock-up on our web site as well, which is located at
www.house.gov/commerce. Additionally, we have it here in the
hearing room today. Can you expound on your opinion of it?
Ms. Hachey. I can't read that at all, but I did look at the
one on the web site.
Chairman Bliley. It is the same one.
Ms. Hachey. I found it to be most comforting, because it
not only shows you the doctor and his specialty but it compares
him with other doctors of the same specialty in the same State.
So we are comparing apples with apples. It goes through and
gives you the idea of how many judgments have been against
other doctors, and they listed--I think that went up to like
five and the percentage of doctors that have had decisions
against them. I think that is extremely important because then
you get a chance to put him in perspective with--him or her in
perspective with other doctors of the same variety.
And then there is no way that this web site is supposed to
be saying to me, the public, this is what you ought to do. All
they are doing is just giving you the information. You can read
it. You can do whatever you want with it. You can dismiss it.
You can go to the doctor, you can talk to him and say, well, I
saw that you had a suit against you. Would you like to explain
to me why? And if he has a suit against him there is no reason
why he shouldn't explain it to you.
We all make mistakes, but if you have got a doctor with 25
or more suits against him, I would think that that is trying to
tell you something. Because you are going to get into high
percentages, and I don't think any of us would want to go to a
doctor that had--25 percent of his patients have suffered
unnecessary handicaps at his hands.
Chairman Bliley. Thank you very much.
I see my time has expired. The Chair now recognizes the
gentleman from Ohio, Mr. Sawyer.
Mr. Sawyer. I am going to forego questions at this point. I
just wanted to take a moment to thank our witnesses for coming
forward and telling what must be terribly painful stories in
the interest of providing the kind of information from which we
can ultimately craft a sound law.
Thank you, Mr. Chairman. I yield back.
Chairman Bliley. The Chair now recognizes the gentleman
from Florida, Mr. Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman.
Just very briefly, Mr. Fernandez and Mr. Churchill and Ms.
Hachey, I missed the first part of your testimony, too. I
apologize. A meeting was called by the chairman in another part
of the building, but he left to come here, and the rest of us
were stuck in the meeting.
You checked the data on that particular doctor because of
the problem--what was it, the injury to your wife?
Mr. Fernandez. Well, no. My wife prior--it was an elective
surgery, so she had time, and she had about a year between the
time she started till she chose the doctor. She checked with
the California board, and that is keenly the issue here. The
world has become a much smaller place. You guys keep saying,
make it a State issue. It needs to be a national issue, because
these doctors are allowed to jump from State to State. And I
don't know how Mr. Ganske found out about Dr. Matory's previous
lawsuits. He must have another access that we did not. Because
when my wife checked with the California Medical Board his
records were clear until I hired a private detective is when
I----
Mr. Bilirakis. But why did--and, again, you may have
covered this and forgive me, but why did you all choose to
check with the board on the doctor? Ordinarily, we are referred
to a doctor by our family physician or whatever the case may
be. We----
Mr. Fernandez. In my wife's case, you know it is elective
cosmetic surgery. This guy had plenty of credentials. I mean he
has----
Mr. Bilirakis. But your wife checked anyhow, even though he
had all the credentials.
Mr. Fernandez. Of course, because she was an informed type
of person and detailed type of person, if you look at anything
she did she was detailed oriented. The critical information was
not available. And that is all that we are asking as consumers,
is give us the chance to interpret the data and to make our own
decisions.
We are not trying to cause harm to the doctors. There are
doctors in my family, and we are definitely not trying to cause
any harm or any undue distress to the profession. We honor it.
We just want to make an informed decision and to be able to
make our own choices.
Mr. Bilirakis. Very well said.
So, basically, what you are saying, though, is if this were
available you feel the public would, in general, on their own,
routinely, before they go for some sort of surgery that they
would routinely check on the doctor.
Mr. Fernandez. I guarantee you that, yes, especially if the
information gets out there. And you know we are becoming a
society that depends on quick information, and the Internet is
a great access. Thank you.
Mr. Bilirakis. Thank you.
Thank you, Mr. Chairman. I yield back.
Chairman Bliley. The gentleman from New York, Mr. Engel.
Mr. Engel. Thank you, Mr. Chairman.
Mr. Fernandez, you remarked in your testimony that you
believe that if you had access to the National Practitioner
Data Bank that it would have saved the life of your wife. I
would like to ask you, what specifically do you believe you
would have seen in that that would have altered the decision to
use the doctor involved in your wife's surgery? Was it a
previous malpractice claim or something else?
Mr. Fernandez. Specifically, later on we found out that he
had three payments for malpractice and one lawsuit that was
dismissed. That would have given me a heads-up. And as Mr.
Ganske here said, he quotes him as being an above average
technician and an average doctor by the number of lawsuits. We
were in a position where we could have chosen someone else
maybe above average. And, actually, the information is all that
we are asking for. That is all we need.
Mr. Engel. Thank you.
Mr. Churchill, you mentioned that Florida now has a
profiling program that is available to the public. If every
State had that type of program like Florida and it was linked
together so that a doctor could not easily move from State to
State, do you think that this would represent a solid approach
to the problem, or do you believe that only at the Federal
level could this issue be addressed? In other words, could
there be an alternate solution to this problem if every State
had a similar program that Florida has and it was linked
together so a doctor couldn't move from State to State?
Mr. Churchill. I think I understand your question, but the
answer to your question to me seems exactly what the chairman
is trying to do here by opening up the National Practitioner
Data Bank to the public. The information is already there. So,
to me, it is already there. I mean, that is exactly what he is
trying to do.
Mr. Engel. Okay. Now the hospital in question in the cause
of your father's tragic death, you say they didn't query the
National Practitioner Data Bank every 2 years as they were
required. I am wondering if you or anybody else on the panel
would have any suggestions how we could better ensure the
hospitals are questioning the NPDB as required.
Mr. Churchill. Sure. Give us the right to check for
ourselves, and that way we have the information for our own
personal use.
Mr. Engel. Would the other two panelists agree with that,
or is there anything you would like to add?
Ms. Hachey. Yes, I would agree. Because there is really no
way that we can be assured that the hospitals would be checking
it every 2 years, and then we go through another rigmarole with
that. If it is out there for us to check and for us to make our
own informed decisions, that bypasses a lot of extra checking
and extra footprinting on behalf of the medical organization.
Mr. Fernandez. I believe that all we are asking is for the
opportunity to use this information on a very, very personal
basis from a consumer's standpoint. And I would like to say
that later on I did find out that Dr. Matory had actually been
pulled from a trauma center where he was practicing because of
medical conditions. He apparently had blood pressure problems
and diabetes, and that was not known until--and I don't even
know if that still known by the system. That is the information
that we need because this person got allowed to go into
business, set up his practice, hide the true information.
Perhaps the day that he practiced on my wife he was having
medical problems and he was his own boss and he just proceeded
to go ahead and kill her.
Mr. Engel. Ms. Hachey, do you believe that the States in
themselves cannot properly oversee the practice by disciplining
bad doctors? And in your particular instance do you know if
your State took any particular action against your doctor and,
if so, what it was?
Ms. Hachey. I don't. I only have experience with the State
of Arizona.
Mr. Engel. I am sorry, with----
Ms. Hachey. With the State of Arizona Medical Board. The
State of Arizona I think does an exceptionally poor job of
handling the affairs. I went to a medical board meeting. I
spoke at the medical board meeting. There were 66 complaints
against this particular doctor at this one meeting, along with
my malpractice suit which I had won in court. And within a 15-
minute period of time the medical board waved their magic wand
and dismissed all those cases against him and said that they
thought he had suffered enough, and that was it.
Now that is one meeting, and I heard of many cases that had
taken place prior to this where they had waved their magic
wand. So I don't think that the State medical boards are doing
us, the consumer, justice in the way they are carrying out
their part of the problem.
Mr. Engel. Okay, thank you. Thank you, Mr. Chairman.
Chairman Bliley. Thank you. Time of the gentleman has
expired. Dr. Ganske.
Mr. Ganske. Thank you, Mr. Chairman.
First of all, I want to tell all of you how deeply
sympathetic I am to your problems.
Ms. Hachey, losing part of your sight is a terrible thing
and especially, it seems, with your type of business where you
probably have to deal with fine print on travel forms and
things like that.
Mr. Churchill, losing your dad must have been a terrible,
terrible loss for you. My dad is ill, has heart problems; and I
understand what that would mean.
Mr. Fernandez, to lose your wife, you know your lifelong
companion, mother of your children, unexpectedly like that is a
terrible thing.
What we are here today to discuss, the Data Bank and
opening up the Data Bank, and there are, I think, important
questions that will affect whether patients get the type of
needed care that they do. For instance, the average
obstetrician, OB/GYN, has about 3.2 entries into the Data Bank.
About one out of 10 obstetricians today stops practicing
obstetrics because of the fear of liability. And I am concerned
that if they have a couple of bad babies through no fault of
their own or they get a lawsuit that then puts them up above an
average, are we then going to see a loss of people being
willing to do certain procedures?
Ms. Hachey, did your doctor tell you before the operation
that there was a possibility that you could--your sight could
be affected, that you could lose part of your sight?
Ms. Hachey. He told me that the worst I could ever have is
what I had right then and there, that it would not get worse
and that he would under no circumstances damage my eyes.
Mr. Ganske. So your consent form specifically did not say
that you could lose--that your sight could be worse.
Ms. Hachey. No, the consent form said that it could be, but
the consent form was never gone over with me with the doctor,
only with the technician. When I asked the doctor about the
consent form, he said, don't worry about it. I have done
thousands of these cases. I am not going to hurt you.
Mr. Ganske. Okay, but your consent form did say that you
could lose some vision, and you did sign it.
Ms. Hachey. Yes, I did.
Mr. Ganske. Okay. Mr. Churchill, I have operated on
patients with morbid obesity. How much did your dad weigh?
Mr. Churchill. Approximately 385 pounds.
Mr. Ganske. It is a pretty difficult operation sometimes,
all the time, and there is a higher incidence of infection and
death. As I mentioned previously, there is about a 1 or 2
percent chance of death with that operation in the best of
hands.
I did my medical training at the University of Iowa where
Dr. Ed Mason was one of the world's acknowledged experts on
this, and I have worked with him. Did his consent form say that
there was a possibility he could die from that procedure? Do
you know?
Mr. Churchill. I have no idea.
Mr. Ganske. My point earlier, though, was this that even
among the best surgeons, especially those that are doing a lot,
over a period of time there could be a number of deaths. Simply
being able to look at the numbers of complications may not give
you an accurate index if you don't exactly know whether this
doctor has just operated on a few or whether he has operated on
a great many.
Mr. Churchill. Sure.
Mr. Ganske. Mr. Fernandez, the Hartford Current article
that Chairman Bliley quoted says, but Federal law prohibited
Fernandez from discovering what the Current has since learned
about Matory's Data Bank file. It showed he settled a
malpractice case for $32,500 3 years earlier in Massachusetts
where he had been sued four times.
That is the source of my information. Although the
settlement was relatively small, Mr. Fernandez said it would
have been enough to have sent his wife to a different doctor.
And it does say later in the article that Mr. Matory now, after
this episode, has 22 some suits. So it is possible, I would
think, that the nature of this case added a considerable number
of suits.
I want to say this, though. I have read through the
testimony from the California Board of Medical Examiners and
from the Attorney General and I agree with their findings and
agree with the situation that this physician no longer has a
license to practice.
My concern, though, is that at the time that you--before
this happened, according to the Current, there were only four
entries, only one small settlement, and that that would not
have been unusual for a plastic surgeon who has taken care of a
lot of complicated cases like he did. So I just want to say I
think that you did show a lot of care in choosing a physician,
a lot of diligence. I don't think you should ever second-guess
yourself on that. Even if the Data Bank had been available, I
am not sure that it would have told you that much. But I do
want to finish up by saying that, you know, there was a mistake
made; and it looks like that physician has been liable for it.
Mr. Fernandez. I thank you for your statement. I can accept
a mistake, and I can accept the death of my wife. What I cannot
even imagine is the scenario that perhaps this doctor today is
out here in Virginia and maybe practicing under some other
doctor's license, and we do have a lot of major issues that
need to be addressed.
Mr. Ganske. Thirty seconds.
Chairman Bliley. Gentleman's time--he has already gone a
minute and a half over.
Gentleman from Tennessee, Mr. Bryant.
Mr. Bryant. Mr. Chairman, I would yield to my colleague
from Iowa to follow up on that.
Mr. Ganske. Thank you.
I agree with this panel in that there should be better
communication between the State boards on medical registration,
and it may be very well that the Federal Government could do
something to facilitate the technology and the ability to get
the data to the various State boards of registration.
Thank you. I yield back.
Mr. Bryant. With that said, I am like others that are at
the end of the questioning. I think a lot of questions have
already been asked to you. I, too, want to thank you. I was
late to the meeting.
I have read your testimony. Ms. Hachey, I have read the end
of yours; and certainly I will renew my compliments to our
chairman for holding this hearing and bringing out certainly
your testimony which is very enlightening to this progress of
this bill. I look forward to the other panels and their
testimony, and as we get the big picture we want to assure you
that we do what we think is best in this situation. Again, we
appreciate your forthrightness in coming here; and we also
express our sorrow for the tragedies that you have had.
Thank you.
Mr. Fernandez. Thank you, and I would like to say
something. If we could put a man 20, 30 years ago on the Moon--
I can certainly say that with such highly qualified people we
could make the law and change things just so that we do have a
better, clearer picture of what is going on. Let's not put
politics into it. Let's look at a problem and solve it. That is
all I am asking as a consumer.
Thank you so much.
Chairman Bliley. The gentleman from Illinois, Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. I also appreciate the
testimony, and I have no questions, so I yield back.
Chairman Bliley. I thank the panel. You have been very
helpful. We will now excuse you and move on to the second
panel.
I thank the members of the panel. I apologize again for
your delay in getting on. I hope we haven't unduly disrupted
your travel plans as you attempt to return to your community.
First, we will hear from Mr. Charles Inlander, President of
the People's Medical Society from Allentown, Pennsylvania.
Once again, I would ask the panel to, when you testify, to
pull the microphone as close to you as you possibly can because
the acoustics and the system--it is terrible.
STATEMENTS OF CHARLES B. INLANDER, PRESIDENT, PEOPLE'S MEDICAL
SOCIETY, ACCOMPANIED BY MICHAEL A. DONIO, DIRECTOR OF PROJECTS;
JAMES B. STEWART, AUTHOR; TRAVIS B. PLUNKETT, LEGISLATIVE
DIRECTOR, CONSUMER FEDERATION OF AMERICA; RICHARD F. CORLIN,
PRESIDENT ELECT, AMERICAN MEDICAL ASSOCIATION; RODNEY F.
HOCHMAN, CHIEF MEDICAL OFFICER, SENTARA HEALTHCARE, ON BEHALF
OF AMERICAN HOSPITAL ASSOCIATION; EDWARD A. LONIEWSKI, ON
BEHALF OF AMERICAN OSTEOPATHIC ASSOCIATION; AND RACHEL
WEINTRAUB, STAFF ATTORNEY, U.S. PUBLIC INTEREST RESEARCH GROUP
Mr. Inlander. Thank you very much, Mr. Chairman.
I am Charles Inlander from the People's Medical Society,
and it is a pleasure to be back here 14 and 15 years later from
the last time we were here to talk about this very issue of
opening the Data Bank to the public.
Mr. Chairman, we strongly support the legislation that you
have introduced, the Patient Protection Act of 2000. I must say
we are astounded by what we heard said this morning in the
opening statements by most of the members with respect to the
issue of forgetting about the consumer and worrying about the
trade associations that are here to represent the various
interests that are before this panel today.
This is an issue about consumers. It is not a new issue.
Every consumer organization in the United States has felt for
the last 14 years that illegally and probably with great
surreptitiousness the Congress of the United States has failed
to give us the right to access information that we, the
taxpayers, are not only paying for but, in essence--we are, in
essence, granting the licenses to these practitioners to
practice.
The fact is that it is important to remember that all
medical practitioners covered by the law that created the
National Practitioner Data Bank are licensed by individual
States. But it is too often forgotten that a license to
practice medicine is a privilege, not a right; and that
privilege is granted by the citizens of this country through
the government that we have duly elected. In other words, we,
the public, grant physicians and medical professionals their
licenses. Our Federal and State governments serve as the
conduits for the granting of those licenses.
Should we not then have the right to know when a licensed
practitioner has performed an act by commission or omission
that might violate the terms of that license or the right to
know when a licensed practitioner has been found guilty or
settled a malpractice suit, the right to know when a licensed
practitioner has had privileges revoked or suspended by a
hospital that has also been granted a license by the State? To
those of us in the public the answer is clearly, yes, we have
the right to know and should have the right to know.
It is also too often forgotten that medical licenses exist
to protect the public, not the practitioners. Licensing came
about at the urging of legitimate medical entities and public
demand to ensure the public that the practitioners they use
might utilize and have met the best educational, character and
experience requirements; and those requirements were
established for patient safety reasons, not professional
sovereignty reasons.
Patient safety, however, with regard to medical
practitioners is not assured simply because a license is
granted. Since States require a physician to pass a licensing
examination only once, the ongoing career activities of
practitioners are generally not monitored on a routine basis by
State medical licensing boards or any other government entity.
Unless a complaint is filed by a consumer, another medical
professional or a medical facility, a physician is essentially
unwatched and unmonitored throughout his or her career. Yet
even when an action is taken against a practitioner by a State
board or a hospital or a court, it is rarely reported publicly,
if at all.
Most medical malpractice suits are settled with secrecy
clauses attached, effectively shielding the practitioner from
public view. Most actions taken by State licensing boards are
published in obscure publications generally not easily
accessible to the public.
As an example, a physician could be in an alcohol rehab
program at the urging of a State licensing board and still be
allowed to practice medicine and not have to disclose that to
the patients they serve. Yet Dwight Gooden couldn't throw a
baseball at a man wearing a helmet because he has violated his
own service--with the violation of a drug problem.
Yet few, if any, hospitals ever publicly announce the
practitioners have been suspended or revoked. In other words,
the public, the people who are most served by knowing the good
and the bad about their practitioners are essentially kept in
the dark by the quality of the medical professionals who serve
us. Let me illustrate the point.
As recently as last year, we could find only one State that
provided a toll-free telephone number for its State medical
licensing board; and no State published the phone number of the
board in any location other than the State capital. How are we
supposed to find out what a doctor did? The State of New York
gives you an 800 number to file a complaint, but you have to
pay to get information about complaints filed if you want to
find out anything beyond that.
Several years ago, I appeared on a national television
program with a group of women who had won sizable medical
malpractice judgments against a physician. In fact, the doctor
had been found guilty of or settled a total of 32 malpractice
suits. In addition, the doctor had just been released from
prison after serving a 2-year sentence for a failure to pay
child support. He was licensed in five different States, yet
none had taken any action against him. Only after our
appearance on the show did the boards take action, yet each of
the 32 women who had been maimed by this doctor said that if
they had known his record not one of them would have agreed to
use him for treatment.
We are sure his record was in the Data Bank. We don't know
for sure because we can't see the Data Bank. And, by the way,
there is not a member of this committee who can sit and say
with impunity that they know what is in the Data Bank because
you don't have the right to see what is in that Data Bank; and
to have statements made this morning that that information
isn't good is absolutely absurd because no one on this
committee legally has been able the see what is in the Data
Bank, just like us.
Ironically, the National Practitioner Data Bank was born
because States were routinely and unknowingly granting licenses
to practitioners who had either lost a license to practice in
another State or were on the brink of losing their license. Too
many physicians would routinely run from State to State where
they had not lost a settlement or before a major malpractice
action was taken.
The point is, Mr. Chairman, and I think in concluding, that
we as consumers should have the right to access the National
Practitioner Data Bank; and all the objections that were raised
by many of the parties that are at this table right now 14 and
15 years ago have borne out to be not true. When we look at
Massachusetts' experiences, when we hear about many other
States, doctors did not flee the State. Bad doctors are
possibly identified, but the consumer can make that choice. And
I think the bottom line is, sir, we are not medical idiots. We
are able to make rational and reasonable decisions when we look
at information. Thank you.
[The prepared statement of Charles B. Inlander follows:]
Prepared Statement of Charles B. Inlander, President, People's Medical
Society
Mr. Chairman and Members of the Committee: On behalf of the
People's Medical Society, we are pleased to appear before you today, to
speak in support of H.R. 5122, The Patient Protection Act of 2000.
Prior to and since the passage of the legislation that created the
National Practitioner Data Bank, the People's Medical Society has been
a consistent voice in behalf of the nation's health care consumers,
calling for the public opening of the important and valuable data now
stored in it. We believe it is in the public interest that not only the
Data Bank be unlocked, but also that consumers should have a legal
right to any information the government collects about licensed medical
professionals. Such information is essential for an individual to make
an informed decision about the practitioners he or she chooses to use.
Such information may mean the difference between life and death.
It is important to remember that all of the medical practitioners
covered by the law that created the National Practitioner Data Bank are
licensed by the individual states. But it is too often forgotten that a
license to practice medicine is a privilege, not a right. And that
privilege is granted by the citizens of this country through the
government that we have duly elected. In other words, we the public
grant physicians and other medical professionals their licenses. Our
federal and state governments serve as the conduits for the granting of
those licenses. Should we not, then, have the right to know when a
licensed practitioner has performed an act by commission or omission
that might violate the terms of that license? The right to know when a
licensed practitioner has been found guilty or settled a medical
malpractice suit? The right to know when a licensed practitioner has
had privileges revoked or suspended by a hospital that has also been
granted a license to serve by the state? To those of us in the public,
the answer is clearly yes.
It is also too often forgotten that medical licenses exist to
protect the public, not the practitioners. Licensing came about, at the
urging of legitimate medical entities and public demand, to assure the
public that the practitioners they might utilize have met educational,
character and experience requirements. And those requirements were
established for patient safety reasons, not professional sovereignty
reasons.
Patient safety, however, with regard to medical practitioners is
not assured simply because a license is granted. Since states require a
physician to pass a licensing examination only once, the ongoing career
activities of practitioners are generally not monitored on a routine
basis by state medical licensing boards or any other government entity.
Unless a complaint is filed by a consumer, another medical professional
or a medical facility, a physician is essentially unwatched and
unmonitored throughout his or her career.
Yet even when an action is taken against a practitioner by a state
board or hospital or by a court, it is rarely reported publicly, if at
all. Most medical malpractice suits are settled with secrecy clauses
attached, effectively shielding the practitioner from public review.
Most actions taken by state licensing boards are published in obscure
publications generally not easily accessible to the public. And few if
any hospitals will ever publicly announce that a practitioner's
privileges have been suspended or revoked. In other words, the public,
the people who are most served by knowing the good and bad about their
practitioners, are essentially kept in the dark about the quality of
the medical professionals who serve us.
To illustrate our point, let me relate the following: As recently
as last year, we could find only one state that provided a toll-free
telephone number for its state medical licensing board. And no state
published the phone number of the board in any location other than the
state capitol.
Several years ago I appeared on a national television program with
a group of women who had won sizeable medical malpractice judgments
against a physician. In fact, the doctor had been found guilty of or
settled a total of 32 malpractice suits. In addition, the doctor had
just been released from prison after serving a two-year sentence for
failure to pay child support. He was licensed in 5 different states,
yet none had taken action against him. Only after our appearance on the
show did the boards take action. Yet each of the 32 women who had been
maimed by this doctor said that if they had known his record, not one
of them would have agreed to use him for treatment. We are sure his
record was in the Data Bank.
Ironically, the National Practitioner Data Bank was born because
states were routinely and unknowingly granting licenses to
practitioners who had either lost a license to practice in another
state or were on the brink of losing their license. Too many physicians
would routinely run from a state where they had lost or settled a major
malpractice action and set up practice in another state. Congress,
responding to the rising voice of public outrage over these practices,
responded by creating the National Practitioner Data Bank. But in doing
so, and with all due respect to this Committee, Congress made a major
mistake. Instead of truly protecting the interests of the public by
making the Data Bank open to the public, Congress weakened the
legislation by locking up the gathered information and hiding the key
from the American public. In so doing, our legislators were clearly
responding to the professional and self-serving interests of the
medical trade associations.
As we mentioned earlier, we strongly support H.R. 5122. The
information it will make public is the type of vital information every
health care consumer needs to make an informed decision. It is
obviously not everything we need to know, but nonetheless it is
important data.
Ever since the original draft of the original bill that created the
Data Bank, strong and adamant voices in the medical community have
opposed making public the information contained in the Data Bank. These
voices, primarily articulated through the trade associations
representing hospitals and practitioners, have argued that
practitioners may be unjustifiably slandered by innuendo or
misunderstood data. They have said many physicians would leave their
practices, only take easy cases or deny care to patients they feel
might be a risk to sue or pursue action.
It is important to answer those assertions. First, the most
important point to remember about the information contained in the Data
Bank is that it does not include charges made against a practitioner.
Rather, the Data Bank contains only actions taken against a doctor by a
recognized entity: a state licensing board, a court, a hospital or the
federal agency. How can such an action be misinterpreted?
Further, there is no evidence that publicly disclosing actions
taken against doctors will in any way negatively affect the care
delivered to patients. Opponents of full disclosure claim that
surgeons, who perform high-risk procedures, will simply stop seeing
patients. This is untrue. The experience in Massachusetts, which
initiated a physician background and disclosure program about four
years ago, proves otherwise. There has been no mass exodus of
physicians from the Commonwealth. Furthermore, the Massachusetts
Medical Society was involved in the writing of the bill that brought
about the physician profile program. To date, this has been one of the
most successful disclosure programs implemented in any of the 50
states. We believe that when the National Practitioner Data Bank is
opened, we will see the same results on the national level.
We do not envision, nor do we believe, that passage of H.R. 5122
will unleash a witch hunt against good and honest physicians. H.R. 5122
is not a vendetta against the medical profession. Nor do any
responsible consumer organizations who support the legislation wish to
wage any vendetta. Rather, we seek to put in full view the previously
hidden information concerning actions against physicians and permit an
informed consumer to make a decision on whether to establish a
professional relationship with a physician.
We support the strong safeguards for both physicians and consumers
found in H.R. 5122 including confidentiality of patient identity and no
listing of a physician's home address, Social Security number or DEA
number. We also support the right of physicians to add any relevant
statements to their profiles that clarify any of the entries or provide
more information to the consumer.
Information relating to medical malpractice settlements should be
presented in such a manner that consumers will be able to determine how
often physicians in specific specialties are subjects of litigation.
Comparisons of a physician's record to all physicians in his or her
specialty provide the type of information required by consumers. This
also enables consumers to discuss their concerns directly with the
physician in question.
Opening the National Practitioner Data Bank to the public will not
only empower the health care consumer, but it will improve the medical
profession as well. Good practitioners will shine. Other practitioners
will do better, working harder to improve so that they can effectively
compete for patients and professional privileges.
Therefore, we strongly support the passage of H.R. 5122 and urge
the members of this Committee and all the other members of the House of
Representatives to honor and respect the intelligence of their own
constituency by giving them the tools and information they need to make
an informed and valid health care decision.
Chairman Bliley. Thank you.
The next witness is Mr. James Stewart, author of Blind Eye:
How the Medical Establishment Let a Doctor Get away With
Murder. Mr. Stewart.
STATEMENT OF JAMES B. STEWART
Mr. Stewart. Thank you, Mr. Chairman, members of the
committee.
In over 20 years as a reporter and editor I have never
encountered a story more extraordinary than that of Michael
Swango, a physician who used his medical training and skills in
pursuit of a career as a serial killer. Earlier this month,
Swango pleaded guilty to five felonies and admitted murdering
four of his patients through lethal injection and attempting to
kill four more. I believe as we sit here today he has pleaded
guilty to murder in Ohio as well.
He is suspected of murdering scores of patients in a
medical career that spanned over 15 years and took him from
Illinois to Ohio, to Virginia, to South Dakota, to New York and
then to Zimbabwe in southern Africa. Swango was en route to yet
another job at a hospital in Saudi Arabia when he was arrested
at O'Hare Airport in 1997.
It is not my purpose today to dwell on Swango's hair-
raising saga, which is told in my book, Blind Eye, published
last year by Simon & Schuster. Rather, I would like to
underscore those aspects of his story which touch directly on
the effectiveness of the National Practitioner Data Bank and
which point to the urgent need for reform. Lives can be saved
by this Congress. Future Swangos need never again terrorize
unsuspecting patients.
The simple fact is that the NPDB did not prevent Swango
from being hired and from killing patients, including instances
where doctors who hired him knew he had been convicted of
poisoning people in Illinois. They never checked with
authorities in Illinois nor did they contact the Data Bank. I
can't imagine a more glaring failure of systems meant to
protect the public from incompetent, impaired and criminal
physicians, not to mention serial killers like Swango. How
could a felon, a convicted prisoner be entrusted with patient
care?
As Blind Eye makes clear, there is no simple answer, but
many authorities were grossly negligent. Once Swango was hired
and came under suspicion, fear of litigation, scandal and
potential liability often seemed more important to other
doctors and hospital officials than patient safety. A
fraternity of doctors often rallied around Swango, forming a
``white wall of silence'' that makes the police's ``blue wall''
seem porous by comparison.
The culture of the medical profession will not change
because of one case, though I believe efforts are being made by
many well-intentioned doctors. Nor will it change through
legislative fiat. But legislative remedies to protect the
public seem relatively simple.
Congress through the Health Care Quality Improvement Act of
1986 established the National Practitioner Data Bank to prevent
the likes of a Swango from moving from hospital to hospital. It
was introduced by then Congressman Ron Wyden, passed both
Houses unanimously and was signed into law by President Reagan.
It is an excellent example of bipartisan cooperation in the
public interest.
In theory and in legislative intent, it should have
prevented someone like Swango from practicing medicine. Yet
Swango was hired in South Dakota in 1992 and New York in 1993,
several years after the Data Bank went into service.
At no point in the application review and admission process
did it seem to occur to anyone to check whether the NPDB had
anything on Swango. It is doubtful the Data Bank would have had
anything on Swango, even had they called, since criminal
convictions aren't required to be reported. As South Dakota
concluded in 1992 after an internal investigation into Swango's
hiring, ``apparently there is no medical clearinghouse for
information concerning criminal charges such as these.''
As a result, in Blind Eye I proposed that criminal
convictions be reported to the Data Bank and that information
in the Data Bank be made available to the general public. To me
these seemed relatively modest amendments to existing
legislation. It didn't occur to me that they would trigger any
opposition, even though I was mindful that the AMA had opposed
creation of the data base in the first place. Perhaps I was
naive.
Let me be clear that I bear no animosity toward organized
medicine or individual doctors; and, on the contrary, I have
tremendous admiration for many doctors and other members of
health care professions. Since Blind Eye was published, I have
heard from many doctors who care deeply about patient welfare,
security and trust, and enthusiastically support calls for
reform.
But since my book appeared, the AMA has argued that the
Swango story is irrelevant to the efficacy of the NPDB because
he is a psychopath, quote, not a physician who made a negligent
mistake, unquote, and that his poison conviction and license
revocations occurred before the Data Bank went into operation.
This is disingenuous. The disconcerting fact is that Swango is
a psychopath and a physician. If a serial killer can slip
through the cracks, who else has?
He was admitted to practice in American hospitals on two
occasions while the Data Bank was in operation, yet no one
thought to check with the NPDB. Moreover, even if this poison
conviction had occurred more recently, it apparently wouldn't
have appeared in the Data Bank. Nor is it clear that his guilty
pleas to multiple murders this month would show up in the Data
Bank under the law as it now exists.
Finally, what is important now is not whether Swango was or
was not in the Data Bank; it is whether future Swangos will be.
More generally, the AMA has argued that the public might
misinterpret information contained in the NPDB. Yet in the
Swango case I cannot imagine that any patient would have any
difficulty understanding that a physician had been convicting
of poisoning people. On the contrary, it is other doctors and
hospital officials who seem to have had difficulty grasping the
significance of this fact.
To cite one example, an official who hired Swango as an
emergency room physician in Ohio testified as a character
witness for Swango at his sentencing hearing. This
extraordinary dialog taken from the court transcript ensued:
The prosecutor: What I am getting at is that you as an
employer of doctors wouldn't be bothered by the fact that the
doctor had been charged with six counts of poisoning?
We were concerned about it, sure, the official answered.
And even though he has been convicted you would rehire him?
Yes, the official said. Based on what he did for the
company, the patients that he treated, if it were up to me, I
would.
It is my belief the proposed legislation under
consideration by this committee, the Patient Protection Act,
would go a long way to addressing the serious problems
illustrated by the Swango case. I hope it will attract wide
bipartisan support. Criminal convictions need to be included.
If doctors and hospitals don't query the Data Bank or fail to
act on the information, then the public must have access to the
information to protect itself.
Swango is obviously an extreme aberration.
Chairman Bliley. Mr. Stewart, would you summarize, please?
Mr. Stewart. Yes, I am about to conclude.
It would be comforting but foolish to assume that no other
physicians will ever seek deliberately to harm or kill their
patients.
As Members of Congress you have the opportunity to make
sure that future Swangos as well as less egregious but still
life-threatening offenders never find their way into the
nation's hospitals.
Thank you.
[The prepared statement of James B. Stewart follows:]
Prepared Statement of James B. Stewart
In over 20 years as a reporter and editor I have never encountered
a story more extraordinary than that of Michael Swango, a physician who
used his medical training and skills in pursuit of a career as a serial
killer. Earlier this month Swango pleaded guilty to five felonies, and
admitted murdering four of his patients through lethal injection and
attempting to kill four more He is suspected of murdering scores of
patients in a medical career that spanned over 15 years and took him
from Illinois, to Ohio, to Virginia, to South Dakota, to New York and
then to Zimbabwe in southern Africa. Swango was en route to yet another
job at a hospital in Saudi Arabia when he was arrested at O'Hare
Airport in 1997.
It is not my purpose today to dwell on Swango's hair-raising saga,
which is told in detail in my book, ``Blind Eye,'' published last year
by Simon & Schuster. With Swango's recent guilty plea and sentencing to
three consecutive life prison terms without possibility of parole, his
medical career has mercifully been brought to an end. Rather, I would
like to underscore those aspects of his story which touch directly on
the effectiveness of the National Practitioner Data Bank and which
point to the urgent need for reform. Lives can be saved by this
Congress. Future Swangos need never again terrorize unsuspecting
patients.
Three years ago, when I was first alerted to Swango's career by
Dennis Cashman, a judge in Quincy, Illinois, I reacted with disbelief.
It seemed inconceivable that Swango had been able to pursue a career as
a hospital physician even after being convicted in 1985 of the non-
fatal poisoning by arsenic of several paramedics. Judge Cashman had
presided at Swango's trial and sentenced him to the maximum five-year
term. He assumed he had ended Swango's career as a doctor. Yet after
Swango was released from prison, Cashman received periodic calls from
medical programs on the brink of hiring Swango. Sometimes the calls
came after Swango had already been hired. Although Cashman contacted
the American Medical Association, his efforts had obviously failed to
stop Swango.
When I delved into the Swango case in the course of over two years
of research, the facts turned out to be even more shocking. Even before
his poisoning conviction, Swango had been investigated for murder while
a resident at the Ohio State University hospitals in Columbus. Swango
was accused by eye-witnesses of injecting a patient with a paralyzing
drug, and the death rate soared among his patients during his tenure.
Swango has now admitted murdering one of those patients, a young
gymnast injured in a car accident, and attempting to kill the woman
whom he injected with the paralyzing drug. Yet at the time, doctors
chose to believe Swango's inconsistent explanations over the testimony
of nurses and patients, and returned Swango to patient care after a
cursory investigation that officially exonerated him. Doctors (two of
whom had participated in the investigation) subsequently wrote glowing
recommendations that he be licensed to practice medicine in Ohio, and
he was licensed. Nonetheless, the university terminated his residency
after his one-year internship.
Seven years later, after his conviction and prison term in
Illinois, Swango applied to the residency program at the University of
South Dakota. Medical school doctors admitted him and entrusted him
with patient care even after Swango told them he had been convicted of
poisoning co-workers. They believed him when he told them the
conviction was a miscarriage of justice. Doctors never checked Swango's
allegations with officials in Illinois, where the case was a matter of
public record. They did contact Ohio State, which said nothing about
the earlier murder investigation or why it had terminated his
residency.
When Swango's past was uncovered and he was dismissed by the
University of South Dakota, he applied to a residency program at the
State University of New York at Stony Brook. There he was accepted by a
committee of three psychiatrists who believed his false claim that his
felony conviction stemmed from a ``bar room brawl.'' Again, no one
checked his story, even though he was an admitted felon. Swango has now
pleaded guilty to three murders during his tenure at a hospital on Long
Island.
From there, Swango moved to the Atlanta area and then to Africa,
where he was again hired as a physician and the death toll mounted.
I can't imagine a more glaring failure of systems meant to protect
the public from incompetent, impaired, and criminal physicians--not to
mention serial killers like Swango. How could a felon, a convicted
poisoner, be entrusted with patient care?
As ``Blind Eye'' makes clear, there is no simple answer. Admitting
authorities were grossly negligent. Once Swango was hired and came
under suspicion, fear of litigation, scandal and potential liability
often seemed more important to other doctors and hospital officials
than patient safety. A fraternity of doctors often rallied around
Swango, forming a ``white wall of silence'' that makes the police
``blue wall'' seem porous by comparison.
The culture of the medical profession will not change because of
one case, though I believe efforts are being made by many well-
intentioned doctors. Nor will it change through legislative fiat. But
legislative remedies to protect the public seem relatively simple.
Congress, through the Health Care Quality Improvement Act of 1986,
established the National Practitioner Data Bank (NPDB) to prevent the
likes of a Swango from moving from hospital to hospital. It was
introduced by then-Congressman Ron Wyden, passed both houses
unanimously and was signed into law by President Reagan despite
opposition from the American Medical Association and American Hospital
Association. It is an excellent example of bipartisan cooperation in
the public interest. As Wyden wrote at the time in The Washington Post,
``the need for legislation is clear. There is no effective national
system for keeping tabs on doctors who are truly incompetent.''
The NPDB went into operation in 1990. Under the law, hospitals are
required to report certain disciplinary actions to the data bank and to
check with it before granting hospital privileges. In theory, and in
legislative intent, it should have prevented someone like Swango from
practicing medicine. Yet Swango was hired in South Dakota in 1992, and
in New York in 1993, several years after the data bank went into
service.
At no point in the application review and admission process did it
seem to occur to anyone to check whether the NPDB had anything on
Swango. As the act has been interpreted, interns and residents fall
into a gray area: hospitals can query the data bank before hiring
residents, but they aren't required to. Only licensed physicians must
be queried.
It's doubtful the data bank would have had anything on Swango even
had they called. When I asked an official at the data bank, I was told
that its contents were strictly confidential, available only to doctors
and hospital officials, so I can't be sure. Swango's license
suspensions by Illinois and Ohio occurred before the data bank went
into service. More fundamentally, criminal convictions aren't required
to be reported. As South Dakota concluded in 1992 after an internal
investigation into Swango's hiring, ``Apparently, there is no medical
clearing house for information concerning criminal charges such as
these.''
Swango thus appears to have slipped through several glaring
loopholes: he was a medical resident and M.D., not a ``licensed''
doctor; his crimes would not have been included in the data bank in any
event; and even if he was in the data bank, his prospective patients
would never have had access to that information.
As a result, in ``Blind Eye'' I proposed that the data bank's
coverage be extended to all physicians, whether ``licensed'' or not;
that criminal convictions be reported; and that information in the data
bank be made available to the general public. To me these seemed
relatively modest amendments to existing legislation. It didn't occur
to me that they would trigger any opposition, even though I was mindful
that the AMA had opposed the creation of the data bank in the first
place. Perhaps I was naive.
Let me be clear that I bear no animosity towards organized medicine
or individual doctors, and on the contrary, I have tremendous
admiration for many doctors and other members of the health care
professions. Since ``Blind Eye'' was published I have heard from many
doctors who care deeply about patient welfare, security and trust, and
have enthusiastically supported calls for reform. The AMA itself
deserves some credit in the Swango story. An AMA official did check
with Illinois authorities when Swango audaciously applied for
membership in 1992, and another official tipped the dean of the
University of South Dakota Medical School to Swango's presence there.
Regrettably, the AMA took no systematic steps to prevent Swango from
being hired elsewhere.
Since my book appeared, the AMA has argued that the Swango story is
irrelevant to the efficacy of the NPDB because he is a psychopath,
``not a physician who made a negligent mistake;'' and that his poison
conviction and license revocations occurred before the data bank went
into operation. This is disingenuous. The disconcerting fact is that
Swango is a psychopath AND a physician. If a serial killer can slip
through the cracks, who else has? He was admitted to practice in
American hospitals on two occasions while the data bank was in
operation, yet no one thought to check with the NPDB. Moreover, even if
his poisoning conviction had occurred more recently, it apparently
wouldn't have appeared in the data bank. Nor is it clear that his
guilty pleas to multiple murders this month would show up in the data
bank under the law as it now exists. Finally, what is important now is
not whether Swango was or was not in the data bank. It is whether
future Swangos will be.
More generally, the AMA has argued that the public might
misinterpret information contained in the NPDB. Yet in the Swango case,
I cannot imagine that any patient would have any difficulty
understanding that a physician had been convicted of poisoning people.
On the contrary, it is other doctors and hospital officials who seem to
have had difficulty grasping the significance of this fact. To cite one
example, an official who hired Swango as an emergency room physician in
Ohio testified as a character witness for Swango at his sentencing
hearing. This extraordinary dialogue, taken from the court transcript,
ensued:
The prosecutor: ``What I'm getting at is that you as an
employer of doctors wouldn't be bothered by the fact that the
doctor had been charged with six counts of poisoning?''
``We were concerned about it, sure,'' the official answered.
``And even though he has been convicted, you would rehire
him?''
``Yes,'' the official said. ``Based on what he did for [the]
company, the patients that he treated, if it were up to me, I
would.''
It is my belief that proposed legislation under consideration by
this committee, the Patient Protection Act, would go a long way to
addressing the serious problems illustrated by the Swango case. I hope
it will attract wide bipartisan support. I recognize that the
requirements of the existing legislation and these proposed reforms
impose some burdens on doctors and hospitals. But doctors are accorded
unique positions of respect, trust and responsibility. Patients' lives
hang in the balance.
Swango is obviously an extreme aberration. It would be comforting
but foolish to assume that no other physicians will ever seek
deliberately to harm or kill their patients. Unfortunately, data show
that serial killings in general, and in hospitals in particular, have
increased exponentially in this country since 1970.
As members of Congress, you have the opportunity to make sure that
future Swangos, as well as less egregious but still life-threatening
offenders, never find their way into the nation's hospitals.
Chairman Bliley. Thank you.
Now, we will hear from Mr. Travis Plunkett, Legislative
Director, Consumer Federation of America. Mr. Plunkett.
STATEMENT OF TRAVIS B. PLUNKETT
Mr. Plunkett. Good afternoon, Mr. Chairman; and thank you
very much for holding this hearing on this extremely important
bill. My name is Travis Plunkett, and I am Legislative Director
of the Consumer Federation of America. I appreciate the
opportunity to offer my comments today on this legislation on
behalf of the Consumer Federation and two other national
organizations, Consumers Union, the publisher of Consumer
Reports, and the Center for Medical Consumers.
There is a very simple reason why the entire consumer
community is united in strong support of opening up the
National Practitioner Data Bank to the public. This taxpayer-
supported data base provides crucial information that consumers
can use in conjunction with other sources of information, where
available, to choose the right physician and protect themselves
from dangerous providers.
Selecting a physician or a physician network is a daunting
task for consumers in today's managed care environment.
Choosing a provider is made even more difficult because most
consumers must make this decision with very little information,
as you have heard, about a provider's competency. Concern about
medical errors has never been greater. Hospital and insurers
have relied on the Data Bank to make important decisions about
physicians for a decade--in fact, are required to, as you have
heard, by Federal law in some cases to rely on the Data Bank.
So why shouldn't consumers?
As you have already heard a great deal about why this bill
is good for consumers, I would like to respond to some concerns
that have been raised by organizations opposed to this
legislation. Some have suggested, for instance, that consumers
cannot understand the limitations of information available in
the National Practitioner Data Bank, particularly regarding
medical malpractice payments. Ignoring the fact that this bill
requires that consumers be presented with fair and clear
contextual information about malpractice payments, these
opponents express the concern that consumers will misuse the
information and jump to inaccurate and unfair conclusions, for
instance, about providers who have not committed malpractice
but who have settled a claim just to avoid an expensive court
battle.
Fairness to a provider is very important, but sadly we in
the consumer community have repeatedly heard this rather
patronizing line of thought before. I will charitably call it
the ``ignorant consumer'' argument. I first heard it in New
York in 1986 regarding a proposal to provide maternity patients
with data about how often certain procedures such as Cesarean
sections were performed at hospitals, and then again a few
years later when New York disclosed risk-adjusted cardiac
surgery data on a hospital-by-hospital basis. The sky didn't
fall in New York. Consumers and other purchasers did not misuse
the information. They are better informed and better able to
make purchasing and health care decisions. That is exactly what
this bill will allow.
Most people are perfectly capable of understanding the
limitations of information that is provided to them. Consumers
make similar distinctions every day regarding their health care
choices. Moreover, the question of how consumers will use or
misuse information of this sort is no longer an academic one.
Thanks to the Commonwealth of Massachusetts and a few other
States, we have real experience with what happens to this
information when it is provided to the public.
As you have heard and will hear, the Massachusetts medical
board reports that none of the fears that were initially
expressed about misuse of this information have been realized.
The profiles are wildly popular in Massachusetts with
consumers, and in focus groups consumers made it very clear
that they would not find the profiles credible and valid
without malpractice information.
Let me note with respect, Chairman Bliley, that you and
your staff have bent over backwards to ensure that consumers
will understand the limitations of this information. The bill
mandates a total of nine different disclaimers or pieces of
contextual information about the data that consumers will see;
and, frankly, I have to say nine is pushing it a bit, from my
perspective. At a certain point, if your goal is for people to
use the information, you have just got to give it to them, tell
them what they need to know about it and get out of the way.
Otherwise, they won't use it.
Now, the next point of opposition, having worked at the
State level for many years, I was absolutely stunned to see the
AMA telling Congress that they support this type of disclosure
but that it is better to leave this disclosure to the States.
This is almost funny to me. At the State level, it is often the
very same doctors who oppose or resist public access.
Unfortunately, I fear that the Massachusetts Medical Society is
the enlightened exception here.
Let me give you a very concrete and current example. At the
very same time, right now, that the AMA is telling you the
States should provide this type of public disclosure, a
physician profile bill that passed by overwhelming bipartisan
margins and received the support of major business and consumer
groups sits on the desk of the Governor of New York, and the
New York State Medical Society is urging him to veto it, and
this is 4 years after the Massachusetts law took effect.
Of course, consumer access to the Data Bank is no
substitute for effective State disclosure, oversight and
physician discipline. It is a supplement to these efforts, and
we think that point has been made very clearly before.
Finally, we all agree that the data in the Data Bank is
imperfect. It is, however, at this point the best available
information we have. Hospitals and insurers rely on it. It can
and should be improved, but this should not be used as an
excuse to delay access to consumers.
Thank you very much.
[The prepared statement of Travis B. Plunkett follows:]
Prepared Statement of Travis B. Plunkett, Legislative Director,
Consumer Federation of America on Behalf of the Center For Medical
Consumers, Consumer Federation of America and Consumers Union
Good morning. My name is Travis Plunkett and I am the legislative
director of the Consumer Federation of America.\1\ I appreciate the
opportunity to offer my comments today in strong support of H.R. 5122,
which would allow the American public access to information in the
National Practitioner Data Bank about physicians' licensure,
disciplinary and medical malpractice history. I also offer this
testimony on behalf of two other national organizations, Consumers
Union \2\ and the Center for Medical Consumers.\3\
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\1\ The Consumer Federation of America is a non-profit association
of more than 250 organizations which, since 1968, has sought to advance
the consumer interest through advocacy and education.
\2\ Consumers Union is a nonprofit membership organization
chartered in 1936 under the laws of the State of New York to provide
consumers with information, education and counsel about good, services,
health, and personal finance; and to initiate and cooperate with
individual and group efforts to maintain and enhance the quality of
life for consumers. Consumers Union's income is solely derived from the
sale of Consumer Reports, its other publications and from noncommercial
contributions, grants and fees. In addition to reports on Consumers
Union's own product testing, Consumer Reports with approximately 4.5
million paid circulation, regularly, carries articles on health,
product safety, marketplace economics and legislative, judicial and
regulatory actions which affect consumer welfare. Consumers Union's
publications carry no advertising and receive no commercial support.
\3\ The Center for Medical Consumers is a nonprofit healthcare
consumer advocacy organization located in New York City. The Center
receives no commercial support.
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I would like to commend Chairman Bliley for introducing this
important legislation, and Congressmen Dingell, Upton and Stupak for
the significant work that they have done in thoroughly evaluating the
potential consequences of such a move. The comprehensive and balanced
hearings that have been held by the Commerce Committee's Subcommittee
on Oversight and Investigations on this issue have set the stage for
timely passage of H.R. 5122.
There is a very simple reason why the consumer community is united
in support of opening up the National Practitioner Data Bank to the
public. This taxpayer-financed database provides crucial information
that consumers can use, in conjunction with other sources of
information, to choose the right physician and protect themselves from
dangerous providers.
Selecting a physician or physician network is a daunting task for
consumers in today's managed care environment. The provision of health
care has never been more market-driven. Consumers have never had to
make as many decisions about all aspects of their health care. Concern
about medical errors has never been greater. Choosing a provider is
made even more difficult because most consumers must make this decision
with very little information about a provider's competency. Hospitals
and insurers have relied on the Data Bank to make important decisions
about physicians for a decade, so why shouldn't consumers? For example,
hospitals are required by federal law to query the Data Bank when
making credentialing decisions about physicians.
Americans can find a great deal of comparative information on the
Internet about cars, appliances and many other products and services.
If they are willing to surf through a lot of ``facts'' that are of
questionable validity, they can learn much about various diseases and
treatments. In most cases, however, they can't learn much about their
health care providers without a great deal of difficulty. Contrast this
to the eroding medical and financial privacy that many consumers are
experiencing. Barbara Walters, a New Jersey woman who successfully sued
a New York physician for misdiagnosing breast cancer, told the New York
Daily News, ``I bet somebody could run me through a computer and find
out whether I paid my bills, but we can't find out about doctors who
have screwed up people's lives.'' \4\
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\4\ March 5, 2000, pg. 3.
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The recent report regarding medical errors by the Institute on
Medicine (IOM) demonstrates that far too many Americans face the
serious possibility of an injury, or even death, due to medical
mistakes in the hospital.\5\ Using the IOM's low estimate of 44,000
deaths per year, medical errors are the eighth leading cause of death
in this country, ahead of breast cancer and AIDS. The IOM's high range
estimate of 98,000 deaths a year would make medical errors the fifth
leading cause of death, more than all accidental deaths. Not all
medical errors are directly attributable to physician negligence, but
the IOM report clearly demonstrates the need to take many steps to
reduce medical errors, including providing consumers with more
information about physicians' education, training and practice
experience.
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\5\ To Err is Human, Building a Safer Health System, Institute of
Medicine, National Academy of Sciences; November, 1999.
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Some have suggested that consumers can't understand the limitations
of the information available in the National Practitioner Data Bank,
particularly regarding medical malpractice payments. They contend that
consumers will not be able to put the information in perspective,
ignoring the fact that H.R. 5122 requires that consumers be presented
with fair and clear ``contextual'' information about malpractice
payments. These opponents of H.R. 5122 are concerned that consumers
will ``misuse'' the information and jump to inaccurate and unfair
conclusions about providers, for instance, who have not committed
malpractice but have settled a claim just to avoid an expensive court
battle.
Fairness to providers is very important, but sadly, we in the
consumer community have repeatedly heard this rather patronizing line
of thought before. I will charitably call it the ``ignorant consumer''
argument. I first heard it in New York in 1986 regarding a proposal,
later enacted into law, to provide maternity patients with data about
the frequency that certain procedures, such as caesarian sections, were
performed at hospitals. I heard it again a few years later when New
York became one of the first states in the country to provide risk-
adjusted cardiac surgery data on a hospital-by-hospital basis, and then
later, when the state decided to expand this disclosure to many
different surgical procedures. The sky didn't fall in New York.
Consumers and other purchasers did not misuse the information. They are
better informed and better able to make purchasing or provider
decisions and the laws are generally perceived to have been successful.
Nor will the sky fall with this legislation. Most people are
perfectly capable of understanding the limitations of information that
is provided to them. Consumers make similar distinctions every day
regarding their healthcare choices. Moreover, the question of how
consumers will use or misuse this information is no longer an academic
one. We have real experience with what happens when this information is
provided to the public in Massachusetts and in a growing number of
other states. I urge this committee set aside the rhetoric on this
question and look at the facts. As you have heard in prior testimony,
representatives of the Massachusetts medical board report that none of
the fears that were initially expressed about the misuse of this
information have been realized. Moreover, the Massachusetts'
physician's profiles are wildly popular with consumers.
Consumer access to the Data Bank is not a substitute for effective
oversight and discipline of health care physicians at the state level,
it is a supplement to these efforts. Empowering consumers with
physician-specific information, combined with effective oversight by
the states, will help reduce the number of incompetent providers,
decrease medical errors and improve the quality of care. It is
important, however, not to overlook the fact that most states have not
enacted ``physician profile'' legislation. Moreover, of the states that
do provide easily accessible physician-specific information, the type
of information that is offered varies. In a transient age of
``cybermedicine'' and ``telemedicine,'' where physicians and treatments
frequently cross state borders, it is important that consumers have
access to ``baseline'' information about physicians, which states can
then supplement if they wish.
The States Experience with Disclosure of Physician-Specific Data
A number of states have begun to provide comprehensive, user-
friendly profiles of physicians, including California, Connecticut,
Florida, Idaho, Massachusetts, New York, Oregon, Virginia, Texas, and
Washington. Obviously, these profiles vary from state to state, but
they often include the following information about physicians licensed
in that state: education and training; specialty; board certification;
malpractice settlements and/or judgments; criminal convictions,
licensure revocation and state medical board and hospital disciplinary
actions.
The Commonwealth of Massachusetts was the first state to create a
physician profile system. Their program has become a model for other
states and for this legislation. The program, which is accessible
through a toll-free number and on the Internet, is widely used. Since
the program began in November of 1996, consumers have requested nearly
4.9 million profiles.\6\
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\6\ Written testimony of Nancy Achin Sullivan, Executive Director,
Board of Registration in Medicine, Commonwealth of Massachusetts, House
Commerce Subcommittee on Oversight and Investigations, March 1, 2000.
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The Executive Director of the Massachusetts Board of Registration
in Medicine, which administers the profile system, reports that many of
the same concerns that are now being heard from the American Medical
Association about opening up the National Practitioner Databank, were
also expressed about physician profiles legislation in Massachusetts.
None of these concerns have been realized. Moreover, the Massachusetts
Medical Society, which publishes of the New England Journal of
Medicine, actively supported the creation of physician profiles.\7\
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\7\ ``This is a victory for all patients in the state of
Massachusetts. We filed this bill eighteen months ago because we are
committed to meeting the needs of our patients . . . We see this bill
as a `win-win' situation for patients and physicians.'' Massachusetts
Medical Society News Release, August 1, 1996.
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In Massachusetts, physicians with reported medical malpractice
payments have not been targeted with frivolous litigation. In fact, the
rate of malpractice payments has actually declined twice as much as the
national average since the profiles were initiated.\8\
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\8\ Written testimony of Nancy Achin Sullivan, Executive Director,
Board of Registration in Medicine, Commonwealth of Massachusetts, House
Commerce Subcommittee on Oversight and Investigations, March 1, 2000.
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There has been not been a ``chilling effect'' on required peer
reporting, in order to avoid listing physicians in the profiles. On the
other hand, the public has been able to understand and use the
information, particularly regarding malpractice payments. The inclusion
of ``contextual'' information about malpractice payments was key to
this understanding. Moreover, consumers have insisted that malpractice
information be included in the profiles. Otherwise, they do not find
the profiles credible.\9\
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\9\ ``. . . the one very consistent finding with every consumer
focus group was that the exclusion of the [malpractice] information
invalidated the entire process for the consumer. That they felt very
strongly information needed to be there in order to have a sense that
the product was truthful and full.'' Oral testimony of Nancy Achin
Sullivan, Executive Director, Board of Registration in Medicine,
Commonwealth of Massachusetts, House Commerce Subcommittee on Oversight
and Investigations, March 1, 2000.
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H.R. 5122
H.R. 5122 is a strong piece of legislation precisely because it is
modeled after the successful Massachusetts experience. It requires that
the information available in the National Practitioner Data Bank be
made available via the Internet to the public. This would include:
malpractice settlement and jury awards; criminal convictions, if
collected by state medical boards or reported by physicians; hospital
and state medical board disciplinary decisions and physician
``exclusions'' by the Medicare or Medicaid program.
Regarding the disclosure of malpractice data, consumers would
receive virtually the same ``contextual'' information as that provided
in Massachusetts, as well as the amount of the payment and whether that
amount is average, below average or above average for the medical
specialty and the state. They would be informed that malpractice
settlements (as opposed to jury decisions) are not necessarily a
reflection of poor quality of care or an admission of guilt and that
payment histories tend to vary by specialty and by state. This later
disclosure is designed to insure that the malpractice histories of
physicians who practice in ``high-risk'' specialties (such as
neurology) or who live more litigious states are not unfairly compared
to physicians in dissimilar circumstances.
In fact, the drafters of this legislation have bent over backwards
to insure that consumers will understand the limitations of the
information. The bill mandates a total of nine different
``disclaimers'' or pieces of contextual information about the data that
consumers will see.
The malpractice information will be especially important in helping
consumers avoid the very small number of ``bad apple'' physicians who
have paid far more malpractice payments than average, but who have been
allowed to continue practicing. One study of data in the National
Practitioner Data Bank by consumer organizations found that only five
percent of New York physicians had paid more than one medical
malpractice claim over the past nine years.\10\ On the other hand, when
the New York Daily News did a long series of investigative pieces on
medical malpractice this year, they found that the ``top'' eight
physicians in New York listed in the Data Bank had been required to
make a total of 92 medical malpractice payments.
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\10\ New York Public Interest Research Group, June 14, 2000.
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Our organizations recommend expanding the database in three
specific ways, in order to make it more useful to the American
public:Q02
Collect information regarding nurse practitioners and
physician assistants, who, in managed care settings, often
deliver care to patients. At a minimum, the bill should specify
who is covered under the definition of a physician.
Require health care institutions other than just hospitals,
such as ambulatory surgery centers and neighborhood health
centers, to query the Data Bank when admitting a physician.
This is especially important at a time when more surgeries
procedures are being performed in such outpatient settings.
Provide consumers or an individual who is acting on their
behalf to submit a statement regarding malpractice settlements
and decisions to which they were a party, as physicians would
be allowed to do.
I will note for the record that the scope, depth and use of the
National Practitioner Data Bank is imperfect. A number of important
questions have been raised by Chairman Bliley and other members in
hearings, including:
Why are hospitals apparently underreporting disciplinary
actions against physicians? Sixty-six percent of all hospitals
have never reported a disciplinary action.
Are some physicians using the ``corporate shield'' to avoid
being listed in the database, by convincing insurance entities
or medical institutions to be cited as the defendant in a
malpractice claim?
Is data is transmitted to the Data Bank on a timely basis?
These are all legitimate questions. We urge the Committee to look
into how to improve the Data Bank. However, as of now, the National
Practitioner Data Bank provides the best available nationally
accessible database with physician-specific information. Hospitals and
insurers throughout the country rely on it. It can and should be
improved, but this should not be used as an excuse to delay access to
consumers. In fact, given the kind of attention that the public,
businesses, and other health care professionals would pay to the Data
Bank if this bill were enacted, it is much more likely that the Data
Bank will be improved as an ``open'' database rather than a ``closed''
one.
Thank you very much for the opportunity to offer a consumer
perspective on this issue. I look forward to working with Chairman
Bliley, Mr. Dingell and the members of this committee to make this
proposal a reality for American consumers.
Chairman Bliley. Thank you.
Now we will now hear from Dr. Richard Corlin, President
Elect, American Medical Association. Dr. Corlin.
STATEMENT OF RICHARD F. CORLIN
Mr. Corlin. Thank you, Mr. Bliley. Good afternoon, sir.
My name is Richard Corlin. I am a gastroenterologist in
private practice in Santa Monica, California; and I am
President Elect of the American Medical Association. On behalf
of our 300,000 physician and medical student members, I
appreciate the opportunity to testify today before you.
Safeguarding the millions of patients in our health care
system is one of the AMA's highest priorities. We need to
ensure patients have access to accurate and relevant
information to help them choose among health insurance plans,
physicians and other health care providers. We believe that the
best approach to meet patients needs is to enhance the State-
based systems already in place.
States license and regulate physicians, not the Federal
Government, and have the authority and responsibility to
discipline doctors and other health care professionals and
provide pertinent information to the public. State agencies,
along with the Federation of State Medical Boards, or FSMB, are
at the forefront of providing consumers with relevant
information on health care providers and are taking appropriate
steps to rid the health care system of incompetent providers.
States and the FSMB, which operates a central repository
for formal actions taken against physicians by State licensing
boards, have made tremendous advances in the last few years in
developing physician profiling systems. For example, the FSMB
has nearly completed its All Licensed Physicians Project, or
ALPP, which will be a publicly accessible, Internet-based
system that will collect all actions by State medical boards
and compile them in the FSMB's Board Action Data Bank. Upon
completion, the ALPP will be the most comprehensive compilation
of information on licensed physicians that is available
anywhere.
In all 50 States and the District of Columbia, information
is now available to the public through their medical licensing
boards. The FSMB web site includes a directory of every State
medical board, with a direct Internet link to most of these
boards, and that number is increasing. Also, 29 States have
initiated their own Internet-based physician profiling system,
including the State of Arizona.
In addition to the systems already in place in these
States, the FSMB has developed a model profiling system that
includes the most comprehensive and up-to-date information
available on physician profiling. This model will assist States
as they consider legislation on this subject in their upcoming
legislative sessions starting after the first of the year.
The well-balanced and complete information that States and
the FSMB are working on to give patients stands in stark
contrast to the National Practitioner Data Bank, which is not a
taxpayer-supported institution but is a user-fee-supported
institution. The NPDB was designed for a specific and limited
purpose, to be used as a flagging mechanism for State medical
boards and hospitals to access. It does not contain information
about overall qualification of physicians and other health care
providers and was never intended to.
On March 16, the Division of Quality Assurance stated in
testimony before the Subcommittee on Oversight and
Investigations that nothing in the Data Bank's information is
intended to produce an independent determination about the
competency of an individual physician. It rather is intended to
supplement a comprehensive and careful professional peer
review. Three-quarters of the reports in the NPDB pertain to
medical malpractice payments. Malpractice payments seldom
correlate with findings of negligent care. A New England
Journal of Medicine study indicates that only one in five of
indemnity payments for malpractice filings that were brought
are related to negligent medical care. Some of our Nation's
best physicians are involved in settlements, yet the NPDB data
does not reflect their high level of competence.
As an aside I might say, if anyone in this room were
unfortunate to require the urgent services of a neurosurgeon
and we were referred to a neurosurgery group that had had six
malpractice cases filed against them in the past year, and that
is data that is available by the State medical board in that
State, we would be concerned about the competency of that group
until we realized that they are the full-time faculty of
neurosurgery of Harvard University. We need to put this data
into some real context.
Also, in many cases----
Mr. Bilirakis [presiding]. Please summarize, Doctor.
Mr. Corlin. Yes, sir.
In many cases, insurance companies settle malpractice cases
purely for economic reasons, of it being cheaper to settle the
claim than to fight the claim. We think that Congress should
support the efforts already under way in the States and by the
FSMB to provide the most relevant information to patients and
to ask for reporting as to where those system developments
stand and not to take action that would potentially undermine
these efforts.
Thank you.
[The prepared statement of Richard F Corlin follows:]
Prepared Statement of Richard F. Corlin, President-Elect, American
Medical Association
Good morning, Mr. Chairman and members of the Committee, my name is
Richard F. Corlin, MD. I am a gastroenterologist in private practice in
Santa Monica, California, and currently serve as President-Elect of the
American Medical Association (AMA). On behalf of our 300,000 physician
and medical student members, I appreciate having the opportunity to
testify on the National Practitioner Data Bank (NPDB).
The AMA commends the Committee for addressing issues surrounding
the safeguarding of the millions of patients in our expansive American
healthcare system. As you know, this system continues to undergo
dramatic change, and with this change there is a pressing need to
ensure that patients have the best information available to help them
choose among the many competing physicians and other health care
professionals seeking the privilege to treat.
The AMA is strongly committed to the objective of improving patient
safety and protecting patients from preventable harm caused by
incompetent or unethical practitioners. In fact, beyond the initiatives
that we outlined for this committee in our February 9, 2000, statement
for the Record on the 1999 Institute of Medicine (IOM) Report on health
care errors, the AMA regularly reviews its membership master file and
reports to the NPDB those physicians we expel for reasons relating to
peer reviewed breaches of quality of care and patient safety.
As we search together for ways to best safeguard patients, we must
continue to question whether disseminating to the public raw,
unsynthesized data from existing federal repositories would improve the
quality of health care for patients. Or, instead, do we need to
advocate for other private sector or state-based mechanisms that would
provide the public with relevant, reliable, verified, accurate, and
contextual information? In our opinion, perfecting mechanisms already
in place hold the best chance of meeting patients needs. This is the
view of opinion leaders in health care and finds its firm basis in the
Congressional intent and history surrounding the NPDB.
On February 9, 2000, the House Commerce Subcommittee on Health and
Environment, the Subcommittee on Oversight & Investigations, and the
Committee on Veterans' Affairs Subcommittee on Health held a joint
hearing on the IOM Report on health care errors. During this hearing a
Majority member of the Subcommittee on Oversight and Investigations
posed the question to the entire third panel of witnesses of whether
the NPDB should be expanded beyond its intended purpose. The entire
panel responded in the negative. The panel was comprised of such health
care experts as Dennis O'Leary, MD, Joint Commission on Accreditation
of Healthcare Organizations; William Golden, MD, American Health
Quality Association; Michael Langberg, MD, Cedars-Sinai Health System;
Daniel Perry, Alliance for Aging Research; and Mary Foley, RN, American
Nurses Association.
These views echo what Congress intended when it designed the NPDB.
Congress did not design the NPDB to disseminate information at large.
In fact, the House Committee on Energy and Commerce (now the Commerce
Committee) emphasized this view in its Committee Report on the Health
Care Quality Improvement Act of 1986 (HCQIA) (Rept. 99-903), which
created the NPDB. For example, in discussing malpractice settlement
data the Committee Report stated that the Committee was ``confident
that those authorized under the bill to gain access to this information
will have the awareness and sensitivity to use it responsibly'' (p.14).
Further, the Committee stated that ``it is essential to collect and
disseminate these data to those in the health care community who make
judgments about the competence and professional conduct of health care
practitioners'' (p. 13).
These statements are as true today as they were then. In fact, in a
February 24, 2000, letter to the Chairman of this Committee, the
Department of Health and Human Services (HHS) stated that ``. . .
serious privacy concerns are raised by the specter of public disclosure
of NPDB information. The information collected in the data bank was
never intended to serve as a complete history but rather as an
important supplement to comprehensive and careful professional peer
review of a practitioner's credentials. As a result, the statute puts
in place confidentiality protections that create a strong expectation
of privacy among the hundreds of hospital entities and insurance
companies required to make regular and detailed submissions to the data
bank. The principle of confidentiality has governed the operation of
the NPDB since its inception, and is an integral part of its operations
and procedures.'' HHS also emphasized in the letter that ``Congress's
express intent that such information be kept confidential is clearly
specified in the statute . . .''
The NPDB was established as a flagging mechanism to improve the
quality of health care by encouraging state licensing boards,
hospitals, and professional societies to identify and discipline
physicians who lacked the requisite competency and high ethical
standards required for patient care. At the time there was concern that
states did not have the resources to advance quality of care
initiatives. The NPDB was also intended to prevent physicians who lost
their license in one state from moving to another state without
disclosing disciplinary actions taken against them.
The AMA supports the goal of preventing physicians from moving
state to state or hospital to hospital without disclosure of adverse
peer reviewed actions taken against them. We respectfully disagree,
however, that the NPDB is the appropriate mechanism by which
information on physicians and other health care providers should be
disseminated beyond its intended purpose. Opening the NPDB would not
solve the problem of weeding out bad physicians and other health care
providers from the health care system.
Since the establishment of the NPDB, Congress has consistently
recognized that only medical credentialing and licensing entities have
the resources and expertise needed to evaluate NPDB reports and analyze
how the reports reflect the competency of health care professionals. In
addition, public disclosure of the NPDB data was discussed at length in
the 1986 and subsequent debates on the NPDB, including the 1995 debate
during the Senate Labor & Human Resources Committee's mark-up of the
Health Care Liability Reform and Quality Assurance Act of 1995 (S.
454). After extensive deliberation in each debate, greater
dissemination of the NPDB's data was rejected.
There are other influential commissions and institutes that have
studied ways to improve the quality and safety of health care and have
come to the same conclusion. In 1998, the President's Advisory
Commission on Consumer Protection and Quality in the Health Care
Industry considered, then rejected a recommendation to open the NPDB.
This matter was thoroughly discussed by the Commission, with the
Commission's 1998 report stating that the ``current systems to reduce
or prevent errors in the provision of health care services tend to
focus too much on individual practitioners and not enough on system
problems'' (p. 155). Additionally, the Commission recommended that
steps be taken to improve error reporting and focus on determining the
causes of error. Similarly, the 1999 IOM Report on health care errors
discussed but did not recommend opening the NPDB.
The AMA agrees with the above cited opinion leaders, Congressional
drafters of the NPDB legislation, HHS, the President's Quality
Commission, and the IOM Report that the NPDB was designed for a limited
purpose and is not the mechanism upon which to provide patients with
the information about the overall qualifications of physicians. The
licensing of physicians and other health care providers has always been
within the purview of the states, and the AMA strongly agrees that this
should remain the case. We see no value in expanding programs that
would infringe on the purview of state-based licensing and state
medical boards.
Historically, states tracked physician information related to
education, training, licensure status, disciplinary actions by state
medical boards and hospitals, and criminal offenses. Recently, state
physician profile programs have begun expanding to include no-contest
pleas, pending complaints, medical malpractice data, malpractice
comparison, instances of ``derogatory information,'' and ``findings of
unprofessional conduct.''
In fact, a federal government response is not necessary because the
states and the Federation of State Medical Boards (FSMB) are far ahead
of Washington in addressing these concerns and have made tremendous
advances in the last few years in developing profiling systems. Also,
most state medical licensing boards have recognized profiles as a
significant resource for consumers and have elected to address the
profiling issue voluntarily. To date, more than half of state licensing
boards have initiated physician profiling systems whereby information
on physician licensure, medical education and training, specialty board
certifications, disciplinary actions, criminal convictions, and
liability settlements may be accessed by the public through the
Internet.
State medical boards are an important gateway to this provider
profiling information. At the state level, medical boards are able to
access accurate data and can take affirmative action through the
control of medical licenses and have authority to enforce disciplinary
actions on medical practitioners. They are uniquely positioned--both
historically and practically--as the primary source of information
about the physicians they regulate.
The FSMB is already working hard to help states develop profiling
systems. Earlier this year the FSMB released a report on the findings
and recommendations of its Special Committee on Physician Profiling.
This Committee was established in April 1999 to review the current
physician profiling information available to the public and determine
what information is most helpful. The Special Committee's report
includes the most comprehensive and up-to-date information on physician
profiling available. The FSMB anticipates this report will be used as a
catalyst for legislation at the start of the state legislative session.
We strongly recommend that Congress consult with the FSMB on their
findings and recommendations and fully consider its activity prior to
acting on any legislation that may thwart FSMB's or any state's effort
to further develop a physician profiling system.
The FSMB is near completion of its All Licensed Physician's Project
(ALPP), which will be a publicly accessible, Internet-based system that
will collect all actions by state medical boards and compile them in
the FSMB's Board Action Data Bank. The ALPP also includes a concerted
effort to obtain biological, educational, and licensure information on
every physician licensed to practice medicine. The ALPP will be the
most comprehensive compilation of information on licensed physicians
available. FSMB expects to have this service available early next year.
Further, the FSMB's Web site (Http://www.fsmb.org) currently includes a
directory of every state medical board, and a direct Web link to most
of these boards.
The well balanced and complete information that states and the FSMB
are working to give to patients stands in stark contrast to the NPDB,
which is administered by the Health Resources and Services
Administration. According to the 1999 NPDB Annual Report, cumulative
data show that at the end of 1999, 75.8 % of all NPDB reports pertain
to so-called ``Medical Malpractice'' payments.
Malpractice claims seldom correlate with findings of negligent care
in the medical record. Thus, reports made to the NPDB on paid
malpractice claims provide, at best, an incomplete and haphazard
indicator of a practitioner's competence or quality. The HCQIA
acknowledges that malpractice payments do not indicate that malpractice
has occurred. Section 427(d) states:
Interpretation of Information.--In interpreting information
reported under this part, a payment in settlement of a medical
malpractice action or claim shall not be construed as creating
a presumption that medical malpractice has occurred.
The Department of Defense and the Department of Veterans Affairs
recognize the serious problems with correlating lawsuits with
physicians' competence or negligence. Under the DOD and VA health
systems, physicians are not reported to the NPDB when a claim is
settled on their behalf unless a panel of peers found negligence or
incompetence. Representatives of the DOD and VA told the AMA that the
correlation of settled claims and actual negligence is about 30%. Also,
a study published in the New England Journal of Medicine indicated that
only 23.8% of claims closed with an indemnity payment resulted from
negligent medical care. (see, 335 New Eng. J. Med. 1963 (1996)).
The NPDB system for collecting medical liability settlements and
verdicts is fatally flawed and an exceedingly inaccurate measure of the
competence of a physician. Even some of our nation's finest physicians
who specialize in high-risk cases or state-of-the-art procedures are
involved in settlements.
In addition, the NPDB makes no adjustment for high-risk patients or
state-of-the-art medical procedures. Each day many people would die or
become severely incapacitated if it were not for the high-risk medical
procedures by dedicated and very capable physicians. High-risk
obstetrics, open-heart surgery, and neurological surgery to relieve the
effects of Parkinson's Disease are just a few examples of commonly used
high-risk procedures. Only the most highly qualified and competent
physicians are willing to perform such high-risk procedures that offer
the only hope for relief of debilitating symptoms or life-threatening
conditions. The NPDB information is flawed and misleading because it
does not adjust for the risks involved in these procedures.
Unrestricted public access could lead patients away from utilizing some
of our nation's most talented physicians.
Also, advances in medicine are made only by utilizing new
procedures and drugs. Someday these state-of-the-art procedures will be
as common as yesterday's new innovations. But, for the same reasons as
above, these pioneering physicians could be unfairly evaluated by a
systematic release of gross settlement results.
Further obscuring the relevance of malpractice claims data in the
NPDB is the fact that many cases are settled without the consent of the
physician. Many insurers disallow ``consent to settle'' clauses in
their contracts with physicians. Also, under some state laws ``consent
to settle'' clauses are prohibited. Without this clause, the insurer
can disregard the physician's right to defend himself or herself on the
merits. Such decisions are purely economic and do not take into
consideration the quality of medical care. Nevertheless, the settlement
and physician are reported to the NPDB.
The AMA believes that the provisions in H.R. 5122 (introduced by
Chairman Bliley on September 7, 2000) would not resolve the systemic
problems with the NPDB as outlined above. The bill's attempt to convert
the NPDB from a flagging system for state licensing boards and
hospitals into a consumer information tool falls substantially short of
the profiling systems developed (or being developed) by states and the
FSMB. The NPDB data was never intended to provide a complete history of
a physician, but rather be a supplement to a professional peer review
of a physician's credentials.
In addition, unlike the time before the NPDB was created, states
are now allocating substantial financial resources to the development
and maintenance of their physician profiling programs. Just as many of
these programs are getting under way, we believe that tampering with
the NPDB would significantly undermine these efforts by the states.
States license and regulate physicians and are in a better position to
discipline doctors and provide pertinent information to the public.
Also, we believe that the FSMB's new ALPP will surpass the NPDB
regarding disciplinary information on physicians who move from one
state to another.
Conclusion
Improving patient safety and protecting patients from preventable
harm caused by incompetent or unethical health care practitioners are
issues strongly supported by the AMA. We are encouraged that many
states and the FSMB are developing systems to provide relevant
information on their licensed health care providers. We respectfully
disagree, however, that the NPDB is a mechanism by which information on
physicians and other health care providers should be disseminated
beyond its intended purpose. Other state-based systems are currently
being developed and deserve deferential consideration. Congress should
fully consult with the FSMB regarding its report on state-based
profiling systems. Finally, this committee should not move forward on
H.R. 5122 or any other legislation that would substantially undermine
the efforts at the state level and by the FSMB to develop physician
profiling systems that provide accurate and relevant information to
patients.
We appreciate the opportunity to discuss this matter before the
committee and would be pleased to answer any questions.
Mr. Bilirakis. Thank you very much, Doctor.
Dr. Hochman, on behalf of the American Hospital
Association. Please proceed, sir.
STATEMENT OF RODNEY F. HOCHMAN
Mr. Hochman. Mr. Chairman, I am Dr. Rodney Hochman, Chief
Medical Officer and Senior Vice President of Sentara Healthcare
in Norfolk, Virginia, and a board-certified internist and
rheumatologist. I am here today on behalf of the American
Hospital Association's nearly 5,000 hospital, health system,
network and other health care provider members. We are pleased
to have the opportunity to testify on H.R. 5122, the Patient
Protection Act of 2000, and the issue of public access to the
National Practitioner Data Bank.
Sentara Healthcare is a not-for-profit system which serves
more than 2 million residents in southeastern Virginia and
northeastern North Carolina. We operate 70 care-giving sites,
including six hospitals with a total of 1,800 beds. More than
2000 physicians are members of our hospitals and medical
staffs. As Sentara's Chief Medical Officer, one of my role is
to ensure our staff provides high-quality services and that our
credentialing and peer review processes are effective. Nothing
is more important than the safety of our patients.
At Sentara, like most hospitals and health systems across
the United States, we conduct an exhaustive background check on
our medical staff before a physician is allowed to treat one
patient in our facilities. This is done by a 40-member team
which includes physicians, nonphysicians and community
representatives. We inquire about a physician's educational,
personal and professional background, malpractice history and
any career gaps. We go directly to the medical school, the
State licensing boards and other hospitals where the physician
has practiced to verify his or her background.
We also query the National Practitioner Data Bank, an
essential step in our process. At Sentara, we use the
information to supplement our other credentialing activities
and as a possible indication whether there is a problem.
Opening up the Data Bank to the general public, however,
would breach the promise of confidentiality under which it was
established, undermine the peer review process and impede the
goal of promoting quality care. The confidentiality of the peer
review process allows practitioners to candidly discuss the
qualifications of their peers. Hospitals depend on the peer
review process to ensure that their practitioners are capable.
We must not do anything that would be detrimental to this
essential and confidential process, which is an important tool
for the assurance of quality care.
Congress created the Data Bank as a resource for health
care professionals. Its primary purpose is to alert health care
facilities, licensing boards and professional societies to the
possibility of incompetent or dangerous performance by a health
care practitioner. The enacting statute in fact argues against
allowing consumers access to the Data Bank.
Consumers do have a legitimate interest in knowing that the
people providing health care are competent. In fact, the AHA
agrees that some information would be helpful to consumers, for
example, public disclosure regarding licensure actions and
criminal convictions.
At the same time, malpractice information must be put in
the proper context before it is released to the public. H.R.
5122 does attempt to place malpractice reports in some context,
but its current design does not differentiate between payments
made and situations involving substandard care and payments
made for a variety of other reasons such as to eliminate the
defense of a frivolous or nonmeritorious claim or to minimize
the cost of litigation.
There may be numerous reasons for settling the dispute, not
one of which is related to the quality of care. It would not
enable a consumer to make the fundamental decision to determine
if a practitioner is not competent to provide needed care.
Mr. Chairman, the AHA and its members take seriously our
legal reporting obligations to the Data Bank. Restriction and
loss of privileges are serious actions, but these are meted out
only as a last resource, only after alternative intervention
attempts have failed.
Questions have been raised about the rate of reporting by
hospitals. These questions are based largely on a comparison of
projections made when the Data Bank was created and actual
reporting since its inception. The absence of a report does not
reflect the absence of effective oversight of health care
practitioners. Hospitals are accountable for care within their
facility and bear legal responsibility.
We are committed to delivering high-quality care to the
communities we serve, the communities in which we live. We are
committed to working with Congress to ensure that consumers can
obtain the right type of health care information placed in the
appropriate context so we may achieve our ultimate goal,
providing quality health care to our communities.
Thank you.
[The prepared statement of Rodney F. Hochman follows:]
Prepared Statement of Rodney Hochman, Chief Medical Officer and Senior
Vice President, Sentara Healthcare on Behalf of the American Hospital
Association
Mr. Chairman, I am Rodney Hochman, MD, chief medical officer and
senior vice president of Sentara Healthcare in Norfolk, Virginia. I am
here today on behalf of the American Hospital Association's (AHA)
nearly 5,000 hospital, health system, network and other health care
provider members. We are pleased to have the opportunity to testify on
H.R. 5122, the Patient Protection Act of 2000 and the issue of public
access to the National Practitioner Data Bank (NPDB).
Sentara Healthcare is a not-for-profit health system, which serves
more than 2 million residents in southeastern Virginia and northeastern
North Carolina. We operate more than 70 caregiving sites, including six
hospitals with a total of more than 1,800 beds. Sentara Healthcare
employs more than 180 physicians representing 20 medical specialties
and subspecialties. Our hospitals provided care for more than 250,000
outpatient and emergency department visits and close to 65,000 hospital
admissions in 1999. More than 2,000 physicians are members of our
hospitals' medical staffs.
I am a board-certified internist and rheumatologist. As Sentara's
chief medical officer, I am responsible for the clinical effectiveness
programs, physician integration efforts, and medical management issues
for its six-hospital system and 300,000 member HMO. One of my roles is
to work with our hospitals' medical staffs to ensure their
credentialing and peer review processes are effective. Twelve employed
physicians, functioning as medical directors under my direction,
facilitate and monitor these processes across Sentara. I also
participate as an ex-officio member of our board's Medical Affairs
Committee, which is responsible for the quality of care provided in our
hospitals.
The AHA supports the goals of the Health Care Quality Improvement
Act (HQIA), under which the National Practitioner Data Bank was
created. The act recognizes the importance of encouraging and
supporting effective professional peer review to help protect consumers
from incompetent or dangerous performance by practitioners. The AHA and
its members engage in a range of activities that help hospitals and
health systems deliver the highest quality care. One of the most
important of these is the peer review and quality assurance activities
that occur every day in hospitals across the country.
We appreciate and understand efforts to provide consumers with
information to make informed health care decisions. We are concerned,
however, that current proposals would have a chilling effect on the
peer review and quality improvement (QI) processes that are essential
to providing the quality care consumers deserve and expect.
CREDENTIALING AND PEER REVIEW ACTIVITIES
At Sentara, like most hospitals and health systems across the
United States, we conduct exhaustive background checks on our medical
staff before a physician is allowed to treat patients at our
facilities.
Initially, physicians applying for hospital privileges are subject
to an intense screening process. The credentialing application inquires
about a physician's educational, personal and professional background,
malpractice history and any career gaps. We then conduct primary source
verification. For example, we verify with the physician's medical
school that he did indeed graduate; we check with the Board of Medical
Specialties that he is a board-certified physician, and we confirm with
the state licensing board that he is in fact licensed by the state to
practice medicine. We inquire about past performance on quality issues
at each hospital at which the physician has had privileges, and we also
query the National Practitioner Data Bank.
The National Practitioner Data Bank contains information on medical
malpractice payments, adverse licensure actions, adverse actions taken
by physician professional societies, and suspension of hospital
privileges for more than 30 days. Hospitals by law are mandated to
query the data bank. At Sentara, we use the information to supplement
our other credentialing activities, and as a possible indication that
there is a problem.
Sentara uses a three-tier screening process. First, our
Credentialing Committee, which consists of 12 physicians from many
different specialties, reviews a physician's complete credentialing
application. Next, the Credentialing Committee's recommendation is
forwarded to the Medical Executive Committee, which consists of 15
physicians including the officers of the medical staffs and the chiefs
of each clinical department. Final approval or denial is made by our
board's Medical Affairs Committee.
Physicians are subject to re-credentialing every two years. At that
time, physicians formally attest to whether anything has changed since
the initial credentialing process. The department's quality improvement
chairman assesses this information along with the physician's quality
assurance profile for the previous two years and makes a recommendation
to the department chairman. We also query the National Practitioner
Data Bank and state licensing board for reports of any adverse actions.
The department chair makes a recommendation to the Credentials
Committee. The Credentialing Committee reviews all information and
makes a recommendation to the Medical Executive Committee, and the
Medical Affairs Committee makes a final decision.
Besides this aspect of the formal peer review process, we have
ongoing QI activities designed to flag possible quality of care
problems. For example, at Sentara the following situations
automatically initiate a QI review: a death; a return to the OR within
48 hours; a return to ICU; and re-admissions for certain diseases. In
addition, patient complaints and incident reports, which can be
initiated by any staff member, are reviewed. As part of the QI review
process, a QI nurse investigates the incident/complaint and files a
report with the department's QI Committee, and the physician has an
opportunity to present his case. The department QI Committee reviews
these cases and forwards appropriate ones to the hospital QI Committee.
If the hospital QI Committee identifies a quality concern, the case is
sent to the Medical Executive Committee for review and possible
corrective action. Records for such cases are kept in the physician's
QI file and reviewed at the time of re-credentialing.
Hospitals actively monitor the quality of patient care and
services. Every health care organization must ensure that its
workforce, including all clinical staff affiliated with the
organization, is competent, adequately credentialed and trained. As you
can see, querying the National Practitioner Data Bank is an essential
step in the credentialing and QI process. However, it is only one part
of the equation.
OPENING THE DATA BANK
Consumers have a legitimate interest in knowing that the people who
provide their care are competent. But completely opening up the data
bank to public scrutiny would do much more harm than good for two
reasons. First, public disclosure of the data bank's contents would
undermine the peer review process in hospitals across America--thus
impeding the data bank's goal of promoting quality care. Congress
recognized the importance of confidentiality and embraced it when
creating the National Practitioner Data Bank.
Candor and confidentiality are essential for frank and open
evaluations regarding a physician's competency. H.R. 5122 would make
adverse credentialing decisions available to the public, thus
significantly altering Congressional intent. The normal tensions
created by peer review would be significantly heightened if this were
done. Disclosure to the public could cause caregivers to be less
forthcoming about their own mistakes and less likely to report errors
made by their peers, when the effect would likely result in unfairly
stigmatizing the individual and have an adverse effect on quality
improvement activities.
The threat of public access to adverse credentialing decisions in
the data bank may force mistakes underground, and hospitals and
practitioners would lose the opportunity to analyze what went wrong and
make the necessary changes to ensure that the mistakes do not happen
again. Such a lack of review potentially jeopardizes the ability of
caregivers to achieve the ultimate goal--providing high quality health
care.
Second, the data bank was not designed to be a consumers' tool, but
rather a resource for health care professionals. One fear is that
consumers would misinterpret the malpractice settlement reports. In
fact, in the statute that created the data bank, Congress specifically
rejected making its reports public, and cautioned that a settlement
does not necessarily indicate that malpractice occurred.
For a consumer trying to evaluate a potential caregiver, knowing
that a settlement occurred, the level of the award, and its relation to
other awards within the medical specialty field is misleading. The data
bank does not differentiate between payments made in situations
involving substandard care and payments made for other reasons, such as
eliminating defense of a frivolous or nonmeritorious claim, or to
minimize the cost of litigation. There may be a whole host of reasons
for settling the dispute, not one of which is related to quality of
care. Such information made public could be misleading, cause serious
consequences for a practitioner and unnecessarily undermine the public
confidence in the physician and hospital.
While H.R. 5122 does attempt to place malpractice reports in some
context, it would not enable a consumer to make the fundamental
decision--to know if a practitioner is not competent to provide needed
care.
REPORTING PHYSICIANS TO THE DATA BANK
The AHA and its members take seriously their legal reporting
obligations to the NPDB. Restriction and loss of a physician's hospital
privileges is a serious action. Hospitals usually suspend a doctor's
clinical privileges only as a last resort, after they've tried
alternative interventions, such as the use of supervision, requiring
medical education, and short-term limitations on privileges.
Questions have been raised about the rate of reporting by
hospitals. These are based largely on a comparison of estimates made
when the data bank was created and actual reporting since its
inception. The fact that a hospital has not reported a specific number
of adverse credentialing action to the data bank based on estimates
does not mean they are not effectively overseeing health care
practitioners. QI programs like the one described at Sentara can help
prevent a situation that would lead to a report to the data bank. The
up-front credentialing by hospitals, as described at Sentara, also
plays an important role in selecting competent practitioners. The
potential consequences for hospitals that are involved in adverse
actions are significant, including legal challenge by the affected
physician. The sanction for failing to report is also significant and
results in loss of immunity under HQIA.
CONCLUSION
Hospitals are accountable for the care within their facility and
bear legal responsibility. We are committed to the delivery of high
quality care to the communities we serve. Peer review is essential for
the assurance of quality care, and confidentiality of peer review
activities is essential for the success of the process.
The data bank's primary purpose is to serve as a ``flagging''
system for health care facilities, licensing boards, and professional
societies. The purpose is to alert these agencies to the possibility of
incompetent/dangerous performance by a health care practitioner. The
data bank was not designed by Congress as a public tool.
Opening the National Practitioner Data Bank to the public would
breach the promise of confidentiality under which the data bank was
created and reports are submitted, and not achieve the goal of
providing consumers with valid or practical information. The public
deserves to have information that is meaningful and could help them
make better decisions about their health care.
Improving and maintaining quality health care is better served by
reforms that foster an environment promoting candor. Candor is
absolutely critical if we are to be truly successful in identifying and
learning what makes the health care system safer. We need to create a
non-punitive culture that will encourage people to participate in peer
review--the frontline protection for health care quality.
Mr. Bilirakis. Thank you very much, Doctor.
Dr. Loniewski. Am I close?
Dr. Loniewski. Very close, very good.
STATEMENT OF EDWARD A. LONIEWSKI
Mr. Loniewski. Mr. Bilirakis, members of the committee, my
name is Edward A. Loniewski, DO. I am a retired certified
orthopedic surgeon from Plymouth, Michigan, and past president
of the American Osteopathic Association, the AOA. I am a member
of the National Practitioner Data Bank Executive Committee.
On behalf of the 44,000 osteopathic physicians represented
by the AOA nationwide I appreciate the opportunity to testify
on the Patient Protection Act of 2000 and specifically the
issue of public disclosure of information contained in the
National Practitioner Data Bank, the NPDB.
A full discussion of the AOA's position is found in my
prepared remarks. I will just highlight a few today.
The AOA opposes the NPDB and any attempt to make
information in that Data Bank public in its current form,
because that information regarding malpractice settlements and
adverse actions can be misleading. Therefore, we must also
oppose H.R. 5122, the Patient Protection Act of 2000. While
your bill attempts to put medical malpractice information in
context and provides disclaimer information, H.R. 5122 falls
short of adequately and properly explaining such information.
Mr. Chairman, we share your desire to ensure that
incompetent physicians, dentists and other health care
providers are not allowed to continue harming patients.
However, this legislation is not the appropriate means of doing
so.
Although the AOA opposes the current NPDB, the Association
supports a Federal Data Bank that is open to the public if and
only if the information accurately reflects the negligence of
the practitioner. Such information should be submitted by a
State licensure board which has professionally conducted a peer
review of the physician in question. Information provided by
State licensure boards could then be made public and would
affect the competency of the provider as evaluated by their
peers.
While the AOA does not oppose a Federal Data Bank open to
the public, H.R. 5122 does not provide contextual information
that has undergone true peer review. Negligent practitioners
can be identified when a professional organization, licensing
board or true peer review organization comprised of physicians
of same license and specialty rules that a practitioner has
been negligent in his or her performance of patient care.
The public has a right to know, but I emphasize that before
any information is made public it must pass the test of true
peer review. Unfortunately, the Patient Protection Act of 2000
does not utilize the key element of physician evaluation, and
therefore we feel that the information is not suitable for
public interpretation of a physician's competency.
State medical and licensure boards need to do a much better
job of sharing information between different States. This
common sense and simple solution would go a long way toward
weeding out truly negligent and incompetent physicians.
In closing, Americans have a right to the best medical care
possible, and physicians have a right to be treated fairly when
under review by the public, government agencies, review boards,
hospitals and their peers.
Mr. Chairman, the public would be better served by more
than just misleading physician malpractice information. For
instance, information regarding a physician's education,
training, insurance plan participation, hospital appointments
and practicing privileges would be useful and appropriate for
public access. The sole purpose of your legislation is clearly
the public dissemination of medical malpractice information and
seems suspiciously anti-physician rather than pro-patient.
I encourage you to reconsider carefully your position
regarding this issue and re-examine the propriety, usefulness
and accuracy of the NPDB information you seek to make available
to the public.
Also, though, the AOA has serious concerns regarding both
the timing of H.R. 5122 and the title of the bill. A heated
debate has been stirring on Capitol Hill for the entire 106th
Congress regarding the Patients' Bill of Rights, with numerous
versions being called a, quote, Patient Protection Act. The two
issues should not be confused nor should the Patients' Bill of
Rights be forgotten or lost in the shuffle of a last-minute
legislative free-for-all in the waning days of the 106th
Congress.
The protections encompassed in the House-passed, bipartisan
consensus, Managed Care Improvement Act of 1999, H.R. 2723, are
the real protections our patients need and deserve.
Thank you for the opportunity to testify today. The AOA
stands ready to participate in a bipartisan effort to develop a
public Data Bank that will truly provide consumer protection.
Thank you, Mr. Chairman.
[The prepared statement of Edward A. Loniewski follows:]
Prepared Statement of Edward A. Loniewski on Behalf of the American
Osteopathic Association
INTRODUCTION
Chairman Bliley, Congressman Dingell, and Members of the Committee,
my name is Edward A. Loniewski, D.O. I am a retired orthopedic surgeon
from Michigan and past president of the American Osteopathic
Association (AOA). I am a member of the National Practitioner Data Bank
Executive Committee. On behalf of the 44,000 osteopathic physicians
represented by the AOA nationwide, I appreciate the opportunity to
testify on the ``Patient Protection Act of 2000'' and specifically, the
issue of public disclosure of information contained in the National
Practitioner Data Bank (NPDB).
The AOA is the national professional organization for osteopathic
physicians in the United States. In addition, the AOA is the recognized
accrediting authority for colleges of osteopathic medicine, osteopathic
postdoctoral training programs and osteopathic continuing medical
education.
Osteopathic medicine is one of two distinct branches of medical
practice in the United States. While allopathic physicians (M.D.)
comprise the majority of the nation's physician workforce, osteopathic
physicians (D.O.) comprise more than five percent of the physicians
practicing in the United States. Significantly, D.O.s represent more
than 15 percent of the physicians practicing in communities of less
than 10,000 and 18 percent of physicians serving communities of 2,500
or less.
AOA'S POSITION
The AOA opposes the NPDB and any attempt to make information in
that data bank public in its current form. We take this position
because the information regarding malpractice settlements and adverse
actions contained in the Data Bank can be misleading. Therefore, we
must also oppose the Chairman's H.R. 5122, the ``Patient Protection Act
of 2000.'' While the bill attempts to put medical malpractice
information in context and provides disclaimer information, H.R. 5122
falls short of adequately and properly explaining such information.
Although the AOA opposes the current NPDB, the Association does
support a federal data bank that is open to the public if the
information accurately reflects the negligence of the practitioner.
Such information should be submitted by state licensure boards which
have professionally conducted a peer review of the physician in
question. Information provided by state licensure boards could then be
made public and would reflect the competency of a provider as evaluated
by their peers. As I will emphasize later in my testimony, these
practitioners can be best identified through true peer review. Mr.
Chairman, we share your desire to ensure that incompetent physicians,
dentists and other health care providers are not allowed to continue
harming patients, however this legislation is not the appropriate means
of doing so. I highlight the following reasons for not making public
the information held in the NPDB.
1. THE NPDB WAS NOT DESIGNED FOR PUBLIC CONSUMPTION. THE INFORMATION IN
THE NPDB SHOULD NOT BE USED BY THE PUBLIC TO DETERMINE THE COMPETENCY
OF THEIR PHYSICIAN, DENTIST OR HEALTH CARE PROVIDER.
The NPDB was established through Title IV of the Health Care
Quality Improvement Act of 1986, as amended. The intent of the law was
to improve the quality of health care. Hospitals, state licensing
boards and other health care entities including professional societies
were encouraged to identify and discipline those who engage in
unprofessional behavior. Such groups would then restrict the ability of
incompetent physicians, dentists and other health care practitioners to
move from state to state without disclosure or discovery of previous
damaging or incompetent performance.
The NPDB is designed to act as a clearinghouse of information. Its
records include data relating to medical malpractice settlements and
judgements as well as adverse actions taken against the licenses,
clinical privileges and professional society memberships of physicians,
dentists, and other licensed practitioners. The Data Bank also contains
information regarding practitioners who have been declared ineligible
to participate in Medicare and/or certain other state health care plans
under the Social Security Act.
2. MALPRACTICE PAYMENT INFORMATION IS NOT PROVIDED IN THE PROPER
CONTEXT TO EVALUATE THE SKILLS OF A PHYSICIAN.
The NPDB places much emphasis on medical malpractice. When a
medical malpractice payment is made on behalf of a practitioner,
payment information must be reported to the Data Bank. However,
settlement of a medical malpractice claim may occur for a variety of
reasons that do not reflect negatively on the competence or conduct of
the practitioner. In many cases, a physician's malpractice insurer will
settle the case--not because the practitioner is guilty of
malpractice--but to avoid the even greater expenses of taking the suit
to court. Sometimes this is even done without the consent of, or notice
to, the physician.
Although your bill allows for the comparison of physicians to their
peers within their state, it still fails to evaluate the differences in
patient population and level of risk associated with the physician's
practice. The legislation also fails to recognize the differences in
the litigation environment between rural and urban areas. To illustrate
this point I would like to share the experience of one of our members.
The AOA and the Kansas Association of Osteopathic Medicine recently
filed a brief of Amici Curiae in the Kansas Court of Appeals on behalf
of an osteopathic physician licensed to practice in the State of Kansas
(Miller v. Sloan, Listrom, et al, District Case # 95-CV-328). This
lawsuit concerned the settlement of a medical malpractice claim by an
insurer without the physician's knowledge or consent. In accordance
with federal laws and regulations, the settlement then was reported to
the National Practitioner Data Bank, where the report now stands as a
permanent part of the physician's record.
Because a malpractice settlement was made without the physician's
knowledge or consent, he had no opportunity to contest the settlement,
deny his liability or explain to the NPDB his belief that he did
nothing wrong when treating the patient. In fact, the doctor only
learned of the settlement through the National Practitioner Data Bank,
where the report has become a permanent scar on the doctor's record.
The harm created by the misleading entry concerning a malpractice
settlement is very real. Now, whenever this doctor applies for a
position or clinical privileges on a hospital's medical staff--at any
hospital in the United States--that hospital is legally required to
request information concerning the physician from the Data Bank and,
thus, will learn of the settlement and consider it in connection with
his application. As such, the physician's ability to secure positions
at other hospitals in Kansas and elsewhere in the United States is
severely damaged.
In many cases, a malpractice settlement or judgement simply is not
a good barometer for quality of care. A study published in The New
England Journal of Medicine (December 26, 1996--Vol. 335, No. 26)
showed that among the malpractice claims, ``the severity of the
patient's disability, not the occurrence of an adverse event or an
adverse event due to negligence, was predictive of payment to the
plaintiff.''
The Rand Health Law Issue Paper of July 1999 (A Flood of
Litigation? Predicting the Consequences of Changing Legal Remedies
Available to ERISA Beneficiaries; Carole Roan Gresenz, Deborah R.
Hensler, David M. Studdert, Bonnie Dombey-Moore, Nicholas M. Pace, A
Rand Health Law Issue Paper, July 1999) stated that several studies
have reviewed medical malpractice claims files to determine the
relative frequency of appropriate and inappropriate suits and found
that between half and two-thirds of claims are brought with no apparent
indication of negligence'' (Harvard, 1990; Cheney et al., 1989; Farber
and White, 1991; McNulty, 1989).
3. PUBLIC DISCLOSURE OF THE INFORMATION HELD IN THE NPDB ELIMINATES THE
ROLE OF STATE LICENSURE BOARDS AND OVERRIDES THE EFFORTS OF MANY STATE
PROGRAMS ALREADY IN OPERATION.
The AOA supports the scope and authority of state licensure boards
and believes that these entities are best suited to determine the
competency of physicians, dentists and other health care providers. The
use of state licensure boards allows for true ``peer review'' to be
used in an effective manner and insures that all the qualifications of
the provider in question are adequately evaluated. The NPDB is a
resource for state licensing boards, hospitals and other health care
entities in conducting investigations into the qualifications of
practitioners they seek to license or hire or to whom they wish to
grant membership or clinical privileges.
The Data Bank information should be considered with other relevant
information by these entities in evaluating a practitioner's
credentials. While the intent of the NPDB is to track negligent
practitioners, the information currently housed in the data bank is
often not appropriate for that purpose and, under no circumstances,
suited for public interpretation. The use of misleading and often
negative information by hospitals and insurers damages physicians'
careers. Your legislation also would eliminate the need for state
programs such as the one in Massachusetts, which were designed to
provide the public information on physicians within their state. The
AOA believes that state licensure boards are better suited to provide
the public with the information regarding the physicians in their
state.
4. THE NPDB DOES NOT PROVIDE THE PRACTITIONER AN ADEQUATE RIGHT TO
RECOURSE.
Currently, practitioners may not submit changes to reports. The
practitioner must contact the reporting entity to request corrections.
A practitioner may add a statement to the report and/or dispute either
the factual accuracy or whether the report was submitted in accordance
with NPDB reporting requirements. The practitioner may also request
that the Secretary of Health and Human Services review the issues, if
the practitioner and reporting entity cannot resolve the issues in
dispute.
Mr. Chairman, your bill attempts to eliminate this issue, but it
fails to provide adequate recourse for physicians. H.R. 5122 fails
specifically to provide the amount of explanatory material a physician
will be able to submit on a specific case. Also, a statement submitted
by a physician is not a sufficient means of explaining the details of
complex medical procedures. The public does not have the scientific and
medical background to understand such details. We also feel that many
individuals will fail to consider the explanatory information when
evaluating their physician and will simply rely upon medical
malpractice claims.
Hospitals and other eligible health care entities must report
professional review actions that may restrict or revoke a
practitioner's clinical privileges due to issues related to conduct or
competence. Professional societies are also required to report specific
information when any professional review action due to professional
competence or conduct adversely affects the membership of the
practitioner. These entities should be given legal liability
protections when reporting negligent or incompetent providers.
Currently, these entities are subject to litigation when they report or
discipline providers, making them hesitant to file such reports or take
disciplinary actions.
One small-town New Mexico physician was reported to the Data Bank
after her obstetrical privileges were revoked. She reported that she
could not relocate because of the Data Bank entry. Notably, that
physician sued those responsible for making the Data Bank report on a
number of theories, including defamation. She obtained a favorable jury
verdict. On appeal, the court found that sufficient evidence was
presented for a jury to have concluded the physician suffered
impairment of reputation and standing in the community, when she
applied for privileges at a new hospital and had to explain why her
privileges had been revoked by the reporting hospital. Significantly,
though the physician was ultimately granted privileges at the new
hospital, the Court did not feel that the physician's damage claim was
undermined since: ``an opportunity for rebuttal seldom suffices to undo
harm [sic] of defamatory falsehood.''
5. FAILURE TO ADDRESS THE PROBLEMS ASSOCIATED WITH THE USE OF A
``CORPORATE SHIELD.''
Another problem that has arisen is what is termed the ``corporate
shield.'' This refers to those instances where an individual health
care practitioner's name is removed from a case, usually during the
settlement process, and replaced with some corporate entity. When this
occurs, even though a settlement was made, no report is filed to the
NPDB. Removing a person's name for the sole purpose of hiding that
individual is illegal under the original statute under which the NPDB
was created (the Health Quality Improvement Act of 1986).To address
this issue, the Health Resources and Services Administration (HRSA)
published a proposed rule on December 24, 1998. HRSA defines the goal
of the proposed change to be ``to prevent the evasion of Data Bank
medical malpractice reporting requirements.'' The proposed rule
describes instances ``in which a plaintiff in a malpractice action has
agreed to dismiss a defendant health care practitioner from a
proceeding, leaving or substituting a hospital or other corporate
entity as defendant, at least in part for the purpose of allowing the
practitioner to avoid having to report on a malpractice payment made on
his or her behalf submitted to the Data Bank.'' In this circumstance,
this ``corporate shield'' allows for no report to be filed with NPDB.
The AOA agrees with HRSA that this ``evasion of the reporting
requirement'' is wrong. However, the remedy that HRSA proposes is
equally wrong. It contains numerous factual, legal, and practical
shortcomings. Among the problems are:
A. Failure to make any effort to create a factual record to document
the existence and scope, if any, of the so-called ``corporate
shield'' problem.
According to HRSA, the Department of Health and Human Services
(DHHS) is aware of efforts to evade the reporting requirements,
especially with respect to self-insured entities. However, no effort
was made to document this assertion. As a member of the NPDB Executive
Committee, I participate regularly in the Committee meetings. Audit
results, studies, or other evidence of the existence or extent of the
``corporate shield'' problem was not reported during any of the
meetings I attended.
B. Lack of statutory authority to expand the reporting requirements
beyond those set forth in the Health Care Quality Improvement
Act.
HRSA's plan would expand the reporting requirement beyond the name
of ``any physician or licensed health care practitioner, for whose
benefit the payment was made,'' which is provided for by Congress in
the Health Care Quality Improvement Act. In place of this narrow
mandate, the proposed rule would make it the ``responsibility of the
payer, during the course of its review of the merits of the claim, to
identify any practitioner whose professional conduct was at issue in
that malpractice action or claim that resulted in a payment, and report
that practitioner to the Data Bank.'' [emphasis added] This rule far
exceeds the statutory authority delegated by Congress.
C. Imposition of substantial administrative burdens and costs on health
care providers and their insurers which will ultimately be
passed on to health care consumers.
The requirement that the payer identify any practitioners whose
conduct was at issue would impose investigative and claim costs far
beyond those currently incurred by insurers in processing medical
malpractice claims. The proposal would require the payer to identify
each health care entity with which the practitioner is affiliated. This
would include any managed care organization, group practice, clinic,
medical society or other group that provides health care services and
engages in a peer review process. In addition, the payer also would
have to identify all practitioners who might be involved in the claim.
If this requirement were imposed, a significant administrative
burden would be added to those already in existence for the payer. Cost
of health care and medical liability insurance would undoubtedly
increase, and ultimately be passed onto the consumer.
D. Lack of fairness and due process involved in reporting
practitioners.
Serious fairness and due process concerns are raised by the
requirement that payers report any practitioner whose conduct was at
issue, regardless of whether or not that practitioner was actually
named in the claim. Attention must be given to the adverse impact a
report to the Data Bank may have on a health care provider's career and
reputation.
The American Osteopathic Association, along with a large number of
other organizations, brought this issue to the attention of the DHHS
General Counsel, Harriet S. Rabb, and HRSA Administrator, Claude E.
Fox, M.D., M.P.H. at a September 29, 1999 meeting, Dr. Fox said that
HRSA would withdraw the December 24, 1998 NPDB proposal. However, to
date no withdrawal notice has been published in the Federal Register,
so the proposal has yet to be formally withdrawn.
6. THE PATIENT PROTECTION ACT OF 2000 LACKS TRUE PEER REVIEW AND IS
INADEQUATE FOR PUBLIC EDUCATION AND INFORMATION.
While the AOA does not oppose a federal data bank open to the
public, H.R. 5122 does not provide contextual information that has
undergone true peer review. Negligent practitioners can be identified
through true peer review, to-wit: when a professional organization,
licensing board or true peer review organization (comprised of
physicians of same license and specialty) rules that a practitioner has
been negligent in his/her performance of patient care, the public has a
right to know. But I emphasize that before any information is made
public; it must pass the test of true peer review. Unfortunately, the
Patient Protection Act of 2000 does not utilize this key element of
physician evaluation and therefore we feel that the information is not
suitable for public interpretation of a physician's competency. State
medical and licensure boards need to do a better job of sharing
information between different states. These common sense and simple
solutions would go a long way toward weeding out truly negligent and
incompetent physicians.
The NPDB has serious flaws, which make it inadequate for the
purpose it is meant to fulfill. I encourage each of you to consider
carefully the issues presented today. I also would like to highlight
testimony submitted on March 16, 2000 by Thomas Croft, the Director of
the Division of Quality Assurance, Bureau of Health Professions, Health
Resources and Service Administration, when he testified before the
House Commerce Subcommittee on Oversight and Investigations. As you
know, Mr. Croft is the Director of the Division that oversees the
operation of the NPDB.
Mr. Croft made two very strong points. First, ``Nothing in the Data
Bank's information, on the other hand, is intended to produce and
independent determination about the competency of an individual
practitioner. It rather is intended to supplement a comprehensive and
careful peer review.'' He later quoted Secretary Shalala that ``. . .
there are privacy concerns regarding broad public disclosure of
potentially incomplete negative information.'' I bring these statements
to your attention to illustrate that even the individual who is
responsible and most knowledgeable about the National Practitioner Data
Bank is opposed not only to the public disclosure of the NPDB's
information, but also to the NPDB being utilized as the only source of
information when evaluating a physicians competency.
CONCLUSION
In closing, Americans have a right to the best medical care
possible and physicians have a right to be treated fairly when under
review by the public, government agencies, review boards, hospitals and
their peers.
Mr. Chairman, the public would be better served by more than just
misleading physician malpractice information. For instance, information
regarding a physician's education, training, insurance plan
participation, and hospitals of practicing rights would be useful and
appropriate for public access. The sole purpose of your legislation is
clearly the public dissemination of medical malpractice information and
seems suspiciously anti-physician rather than pro-patient. I encourage
you to reconsider carefully your position regarding this issue and to
re-examine the propriety, usefulness, and accuracy of the NPDB
information you seek to make available to the public.
Also, the AOA has serious concerns regarding both the timing of
H.R. 5122 and the title of the bill. A heated debate is occurring on
Capitol Hill regarding the Patients' Bill of Rights, with numerous
versions being called a ``Patient Protection Act.'' The two issues
should not be confused, nor should the Patients' Bill of Rights be
forgotten or lost in the shuffle of a last minute legislative free-for-
all in the waning days of the 106th Congress. I respectfully request
you use your leadership position as a managed care conferee to pass a
meaningful, comprehensive and true Patients' Bill of Rights before
Congress adjourns. Those are the real protections our patients need and
deserve.
Thank you for the opportunity to testify today. The AOA stands
ready to participate in a bipartisan effort to develop a public data
bank that will truly provide consumer protection.
Mr. Bilirakis. Thank you very much, Doctor.
Ms. Weintraub, please proceed.
STATEMENT OF RACHEL WEINTRAUB
Ms. Weintraub. Thank you.
Mr. Bilirakis and members of the Commerce Committee, good
afternoon; and thank you for giving me the opportunity to
address you today. My name is Rachel Weintraub. I am a staff
attorney for the U.S. Public Interest Research Group. The U.S.
PIRG and the State Public Interest Research Groups applaud
Chairman Bliley's introduction of H.R. 5122, the Patient
Protection Act of 2000. This legislation assures that consumers
will have access to critical information about their doctors
such as disciplinary and medical malpractice payment
information.
This information already exists and is accessible to
managed care plans and insurance companies at taxpayer expense.
The PIRGs have supported strong physician profiling laws in a
number of States. However, even strong State laws are limited
in their ability to provide consumers with information from the
49 other States.
Consumers looking for a physician currently have far less
relevant information about their physician's capability and
experience than they would if looking to purchase a car, a VCR
or almost any other consumer product. Consumers regularly
comparative shop. Over 4 million consumers subscribe to
Consumer Reports to help them make informed decisions about the
products they wish to purchase. However, health care consumers
are forced to rely on word of mouth, personal anecdotes or,
most typically, random chance to make crucial decisions about
their health care providers.
In response to the lack of information available to the
public about their doctors and consistent support of consumers
right to know, the State PIRGs have supported strong State laws
that provide patients with the critical information they need
to evaluate their physicians capability. In 1996, the
Massachusetts Public Interest Research Group successfully
advocated to pass the Physician Disclosure bill. This law upon
which H.R. 5122 is partially based requires the State board of
registration and medicine to compile individual profiles on
each licensed physician in the State and make this information
available to the public through an 800 number as well as the
Internet.
The Massachusetts law was embraced by consumers, as well
that State's medical society, the publishers of the prestigious
New England Journal of Medicine. A Massachusetts Medical
Society news release stated, we see this bill as a win-win
situation for patients as well as physicians.
In New York, the New York Public Interest Research Group
has worked to pass the physician profiling law that
overwhelmingly passed both Houses and is now sitting on the
Governor's desk. In New York the passage of the physician
profiling law is critical because the information is already
collected by the State using taxpayer dollars but consumers are
excluded from using this information. Moreover a significant
bipartisan majority supported passage of the legislation in the
State assembly and the Senate, and a large and diverse
coalition of New York State organizations have supported this
legislation.
According to a Zogby poll released May 10 of this year,
over 90 percent of New Yorkers want easy access to physicians'
medical malpractice histories. The coalition of almost 40
civic, consumer, patients rights, small business and senior
groups urge the passage of Lisa's Law, which would allow easy
access to physicians' medical malpractice experience.
Lisa's Law is named after the late Lisa Smart who died
during an unsuccessful surgery in a New York hospital. The
Smart family has argued that had Lisa known of her physician's
malpractice problems she would not have agreed to the surgery
and would be alive today. Unfortunately, in New York, the State
Medical Association was not one of the almost 40 organizations
supporting this important legislation and has actively worked
to weaken and to defeat Lisa's Law.
In addition to the difficulty in passing strong patient
right-to-know laws, State laws include varying types and
formats of information; and some States have no publicly
available data bases at all, leaving millions of Americans with
no information about their doctors. Most significant is the
incredible administrative burden for States to obtain
disciplinary information from the 49 other States in different
formats with different criteria.
Opening up the National Practitioner Data Bank, which
already compiles this information, will ease the administrative
difficulties of the States and provide consumers with complete
information. A Federal law will also provide a floor model for
State data bases, while allowing States to expand upon the
information provided in the National Practitioner Data Bank.
While opening the National Practitioner Data Bank to
consumers will be a critically important tool, we suggest an
improvement that will make the National Practitioner Data Bank
even more useful to consumers.
In H.R. 5122, the method prescribed for obtaining the
information contained in the National Practitioner Data Bank is
limited exclusively to the Internet. The Internet should be
just one means of communicating this information. Many people
don't own computers. The digital divide obligates the
development of noncomputer means for people to learn about
their physicians.
We suggest that H.R. 5122 also require the establishment of
a public 800 number hotline. The 800 number facility should
also provide fax and mail service for consumers who are seeking
information. The National Practitioner Data Bank currently has
an 800 number. This 800 number should be made available to the
public, just as it is now available to those who currently have
access to the National Practitioner Data Bank.
The introduction of H.R. 5122 by Chairman Bliley signals an
important change in our approach to health care. We applaud
Chairman Bliley for recognizing that consumers need ready
access to objective, comprehensive and understandable
information to make more intelligent choices among providers
and to ask pertinent questions of the providers they do choose.
I look forward to working with Chairman Bliley and the
members of the committee to ensure the enactment of this
important legislation. Thank you.
[The prepared statement of Rachel Weintraub follows:]
Prepared Statement of Rachel Weintraub, Staff Attorney, U.S. Public
Interest Research Group
I. INTRODUCTION
Chairman Bliley, Congressman Dingell and members of the Commerce
Committee. Good morning and thank you for giving me the opportunity to
address you today. My name is Rachel Weintraub. I am a staff attorney
for the United States Public Interest Research Group. U.S. PIRG is the
national lobbying office for state-based Public Interest Research
Groups across the country. The state PIRGs are independent, non-profit,
non-partisan public interest advocacy organizations.
II. SUMMARY OF U.S. PIRG'S POSITION
U.S. PIRG and the State Public Interest Research Groups applaud
Chairman Bliley's introduction of H.R. 5122, the Patient Protection Act
of 2000. This legislation assures that consumers will have access to
critical information about their doctors such as disciplinary and
medical malpractice payment information. This information already
exists and is accessible to managed care plans and insurance companies
at taxpayer expense. The PIRGs have supported strong physician
profiling laws in a number of states. However, even strong state laws
are limited in their ability to provide consumers with information from
the forty-nine other states.
III. H.R. 5122, THE PATIENT PROTECTION ACT OF 2000 IS NECESSARY
In December 1999, the National Academy of Science's Institute of
Medicine released an alarming study that revealed that as many as
98,000 people die each year in hospitals because of medical errors.\1\
Yet, Sidney Wolfe, Director of Public Citizen's Health Research Group,
in his book, ``20,215 Questionable Doctors'' states that only a
fraction of substandard doctors are penalized by state medical boards.
By combining state board actions with other critical information, the
National Practitioner Data Bank offers the most complete and
comprehensive information available.
---------------------------------------------------------------------------
\1\ Institute of Medicine, To Err is Human: Building a Safer Health
System, page 1, December 1999.
---------------------------------------------------------------------------
Consumers looking for a physician currently have far less relevant
information about their physicians' capability and experience than they
would if looking to purchase a car, a VCR or almost any other consumer
product. Consumers regularly comparative shop. Over 4 million consumers
subscribe to Consumer Reports to help them make informed decisions
about the products they wish to purchase. However, health care
consumers are forced to rely on word of mouth, personal anecdotes or,
most typically, random chance to make crucial decisions about their
health care providers. A cancer patient deciding who should perform his
surgery or a pregnant woman uncertain whether to have her baby
delivered at a local hospital have no resource to provide them with the
critical information they need to make an educated decision.
A. State Public Interest Research Group Advocacy for State Laws
In response to the high rate of medical errors, the lack of
information available to the public about their doctors, and support of
consumers' ``right to know,'' the State PIRGs have supported strong
state laws that provide patients with the critical information they
need to evaluate their physicians' capability.
In 1996, the Massachusetts Public Interest Research Group
successfully advocated to pass ``The Physician Disclosure Bill.'' The
Physician Disclosure Bill, upon which H.R. 5122 is partially based,
requires the state Board of Registration in Medicine to compile
individual profiles on each licensed physician in the state, and make
this information available to the public through an ``800'' number and
the internet. The information in the profiles includes a description of
any criminal convictions for felonies or serious misdemeanors, any
disciplinary actions taken by the Massachusetts Board of Registration
in Medicine or by Boards in any other state in the last ten years, any
revocation or involuntary restrictions of hospital privileges in the
last ten years, medical malpractice judgments or settlements in which a
payment was awarded, and the educational background of the physician.
The Massachusetts law was embraced by consumers, as well as that
state's medical society, the publishers of the prestigious New England
Journal of Medicine. A Massachusetts Medical Society news release
stated: ``we see this bill as a `win-win' situation for patients and
physicians.'' \2\
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\2\ Massachusetts Medical Society News Release, August 1, 1996.
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In hearings before the Commerce Committee's Subcommittee on
Oversight and Investigations on March 1, 2000, the Executive Director
of the Board of Registration in Medicine, Commonwealth of
Massachusetts, Ms. Nancy Achin Sullivan, stated that the Massachusetts
law has been a ``tremendous success.'' \3\ She noted that since the law
was enacted in November of 1996, nearly 4.9 million profiles have been
accessed by consumers, but physicians have not left the state nor been
victims of frivolous lawsuits. ``In fact,'' Ms. Sullivan stated, ``the
Massachusetts rate for malpractice payments has actually decreased . .
. by 12.36%.'' \4\ Thus, the law in Massachusetts has helped to inform
millions of consumers without harming physicians.
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\3\ Public Access to the National Practitioner Data Bank: What
Consumers Should Know About Their Doctors, Hearings Before the Subcomm.
On Oversight and Investigations of the House Commerce Comm., 106th
Cong. (March 1, 1999) (statement of Nancy Achin Sullivan, Executive
Director of the Board of Registration in Medicine, Commonwealth of
Massachusetts).
\4\ Id.
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In New York, the New York Public Interest Research Group has worked
to pass the physician profiling law that overwhelmingly passed both
houses and is now sitting on the Governor's desk. This law would
include a statement of a physician's criminal convictions occurring in
the state in the past ten years, a statement of disciplinary actions, a
statement of practice limitations, a statement relating to the
malpractice history of the physician, and statements describing the
physician's educational and professional background. In New York,
NYPIRG believed that passage of a physician profiling law was critical
because the information is already collected by the state using
taxpayer dollars. Moreover, a significant bi-partisan majority
supported passage of the legislation in the state Assembly and the
Senate, and a large and diverse coalition of New York state
organizations have supported this legislation. Unfortunately, in New
York, the state medical association was not one of the over forty
organizations supporting this important legislation.
B. Inherent Limitations of State Laws
Currently, different states have laws requiring the inclusion of
different types of information, and some states have no publicly
available data bases at all, leaving millions of Americans with no
information about their doctors. States define ``data bases''
differently. For example not all states include malpractice information
or criminal convictions. Most significant is the incredible
administrative burden for states to obtain disciplinary information
from the forty-nine other states in different formats with different
criteria. The Massachusetts law requires inclusion of disciplinary
actions from other state boards. However, out of state information has
proven difficult to obtain. Opening up the National Practitioner Data
Bank, which already compiles this information, will ease the
administrative difficulties of the states and provide consumers with
complete information. A Federal law will also provide a ``floor'' model
for state data bases while allowing states to expand upon the
information provided in the National Practitioner Data Bank.
C. Important Provisions of H.R. 5122
The physician information available to the public must be both (1)
meaningful for consumers, and (2) fair to physicians. There is no
conflict between these goals, and H.R. 5122 accomplishes them both. To
be ``meaningful,'' information must be relevant to a consumers' choice
of physician, and be presented in a format that can be easily
understood by the lay person. To be ``fair'' to physicians, profile
information must be complete. Without full reporting and collection of
data, some doctors will appear better than others simply because
negative information has not been reported. Making this information
available to the public will encourage the physician community to throw
its weight behind efforts to achieve full reporting.
Critical information that passage of H.R. 5122 will make available
to consumers includes full reports on medical malpractice payments,
reports of sanctions taken by boards of medical examiners, criminal
acts of physicians, felony convictions and misdemeanor convictions of
physicians in the Secretary's discretion that may reflect on quality
health matters, and the reports of certain professional review actions
taken by health care entities. This information provided in a clear and
comprehensive manner will give consumers the tools they need to
intelligently evaluate their physicians capabilities.
All information will be presented in the proper context. Thus, for
example, malpractice claims information for an individual physician
will include a comparison with data for a typical practitioner in that
specialty. H.R. 5122 makes this information available as a side-by-side
comparison of a physician's malpractice and disciplinary history with
that of a typical practitioner in that specialty. This underlying
information presented properly will enable consumers to make their own
comparisons and draw their own conclusions. The number of suits filed,
settled and adjudicated needs to be provided to consumers in the
context of comparative norms for each specialty. Thus, one or two
claims over a number of years of practice may or may not be a cause for
concern; if, as physicians often claim, everyone gets sued, this will
quickly become apparent to consumers and will not be unduly prejudicial
(unless the number of claims against a particular doctor is unusually
high).
IV. SUGGESTED IMPROVEMENTS OF H.R. 5122
While opening the National Practitioner Data Bank to consumers will
be a critically important tool, we suggest some improvements that will
make the National Practitioner Data Bank even more useful to consumers.
In section 101(c) of H.R. 5122, the method proscribed for obtaining the
information contained in the National Practitioner Data Bank is limited
exclusively to the internet. The internet should be just one means of
communicating this information. Many people don't own computers. This
digital divide obligates the development of non-computer means for
people to learn about their physicians. We suggest that H.R. 5122 also
require the establishment of a public ``800'' number hotline. The
``800'' number facility should also provide same day fax and mail
services for consumers who are seeking information. The National
Practitioner Data Bank currently has an ``800'' number. This ``800''
number should be made available to the public just as it is now
available to those who currently have access to the National
Practitioner Data Bank.
We also urge you to consider expanding the reporting requirements
to include nurse practitioners and physician assistants who in managed
care settings often deliver care to patients. At a minimum, the bill
should specify who is covered under the definition of a physician. In
addition, we urge you to provide an opportunity for consumers or an
individual acting on their behalf to submit a statement regarding the
information reported in order to provide balance since providers are
afforded this same opportunity.
V. CONCLUSION
H.R. 5122, The Patient Protection Act of 2000, will provide
patients with much of the critical information they need to make
informed decisions when choosing a doctor. Opening the National
Practitioner Data Bank will make disciplinary and medical malpractice
payment information about physicians available to the public in a
comprehensive, clear and objective manner. Health care consumers are at
long last on the brink of gaining ready access to information about
physician competence and qualifications.
The introduction of H.R. 5122 by Chairman Bliley signals an
important change in our approach to health care. We applaud Chairman
Bliley for recognizing that consumers need ready access to objective,
comprehensive and understandable information to make more intelligent
choices among providers and to ask pertinent questions of the providers
they do choose. I look forward to working with Chairman Bliley, Mr.
Dingell and the members of the Commerce Committee to ensure the
enactment of this important legislation.
Chairman Bliley. Thank you very much.
The Chair recognizes himself for 5 minutes.
In your testimony, Dr. Corlin, you praised the Federation
of State Medical Boards' All Licensed Physicians Project. What
you did not mention was that a fee would be charged for access
to their Data Bank, and the FSMB project is woefully incomplete
as it does not include hospital disciplinary information or
medical malpractice information. Do you believe that the
American consumer should have to pay for the limited
information in the FSMB Data Bank?
Mr. Corlin. Mr. Bliley, you raise two issues there; and let
me deal with them separately. One is the issue of a fee; and
separate, second, is the issue of the adequacy of the
information.
If there is going to be a system developed modelled from
the financial standpoint--and I am only talking now about
financial aspect of it the way the National Practitioner Data
Bank is, which is user supported--there is going to have to be
a fee involved, just as there is a fee to every organization
that now queries the Data Bank to get its information. If there
is a proposal to open the National Practitioner Data Bank or
any other Data Bank, federated, State medical bank or others,
if it is not supported with user fees there has to be a very
substantial government subsidy to support that. And that is a
question that you collectively will have to deal with far more
than we collectively have to deal with down here.
Second, with regard to the data that should be available,
we believe very strongly that all disciplinary actions should
be included in the report. We are very comfortable with
malpractice reporting modelled after the way they are in the
Massachusetts system, which is very different from the system
which is being proposed here.
Chairman Bliley. In your testimony you stated that
congressional drafters of the legislation in 1986 felt the Data
Bank was not the mechanism upon which to provide patients with
the information about the overall qualification of physicians.
I am sure you are aware of Senator Ron Wyden's important role
in the initial legislation. I think we can describe him as the
primary force pushing the legislation in 1986.
Are you aware that he testified at our first hearing on
this matter and said: ``First, there is no logical argument for
keeping information about proven, flagrant cases of
professional misconduct from the public. For the Federal
Government to refuse to disclose important information in the
Data Bank about physician misconduct just doesn't pass the
smell test.''
For the record, is it not the case that the primary drafter
of the National Practitioner Data Bank legislation is in favor
of opening the Data Bank?
Mr. Corlin. Mr. Wyden, even prior to the time when he was a
senator, has always been in favor of that; and I can remember
times back in the 1980's when I was an officer of the State
Medical Association, we met with him and he expressed that
then. That has always been his opinion, yes.
The issue is not withholding information about misconduct
by physicians. The issue is, what is the form of that
information? What does it mean?
Let me give you an example. If you were to, as Mr. Inlander
pointed out, be legally able to query the Data Bank about a
Richard F. Corlin of Santa Monica, California, you would come
up with a $55,000 settlement in a malpractice case. That was a
case during a colonoscopy that I was doing when the instrument
fell apart inside the patient and could not be retrieved, and
the instrument--the patient had to be operated on to get that
piece of the instrument out. That was not medical malpractice
on my part. That was poor quality control on the part of a
company in Japan that made the instrument, yet in the Data Bank
it is listed as a $55,000 judgment against me. I don't think
that that patient seeing that would get the right impression by
reading those few lines.
Chairman Bliley. I have very little time left, but I would
like to ask this last question: Is it not the official position
of the AMA to abolish the National Practitioner Data Bank, even
as it currently operates with limited access to professionals?
Mr. Corlin. Give me a moment, sir. Let me see if I can get
our exact policy on that.
It is our position that completion of the Federation of
State Medical Boards' Data Bank and the amplification of it
will serve the public better; and we would prefer to see that
instead of the Data Bank as it exists now.
Chairman Bliley. So the answer to my question is yes.
Mr. Corlin. Yes, but not just, yes, not abolishing it and
leaving no data available--abolishing it and leaving what we
believe to be better data available.
Chairman Bliley. We have a difference of opinion about
that.
My time is expired. The Chair now recognizes the gentleman
from Ohio, Mr. Strickland.
Mr. Strickland. Thank you, Mr. Chairman.
Dr. Loniewski, looking at this bill, it seems to suggest
that in its present form significant information to be released
about practitioners could allow consumers to draw wrongful
conclusions--and I think your example that you just pointed out
substantiates what I am trying to get at here--and unfairly
reject the use of highly qualified, competent doctors. Am I
correct in predicting that as a possible outcome?
Mr. Loniewski. Are you addressing me? You are looking----
Mr. Strickland. Yes, I am sorry.
Mr. Loniewski. Yes.
Mr. Strickland. Dr. Hochman, would you agree with that
assessment?
Mr. Hochman. I would.
Mr. Strickland. Dr. Corlin?
Mr. Corlin. Yes, sir.
Mr. Strickland. Dr. Loniewski, am I correct in my view that
another significant concern regarding this bill is that, while
it attempts to compare certain malpractice data across
statistical categories, it still does not place all malpractice
issues into proper context? For example, it doesn't adequately
explain malpractice cases, such as when a doctor has more than
one specialty, when a doctor chooses to work uniquely high-risk
procedures or even when a doctor chooses to work with high-risk
patients. Is that a reasonable view of this legislation?
Mr. Loniewski. Yes, it is. But you have got to realize that
you have got to be able to compare apples against apples, and
when you are talking about specialties also there are certain
specialties in your profession that are certainly much higher
risk that have to be compared.
Likewise, in the areas that they are from, the laws differ
from State to State in the way they deal with malpractice; and
that has a great bearing on how you can compare this. That is
why you have to take it into consideration. So looking at it
peer reviews at a State level would give us much better
information to the public.
Mr. Strickland. Thank you, sir.
Dr. Hochman, do you agree with that?
Mr. Hochman. I would agree. The complexity that we face
sometimes when we as physicians as a group look over the
medical malpractice data, it is very difficult; and a lot of
times we have questions even amongst ourselves as we look
through that data.
Mr. Strickland. And Dr. Corlin.
Mr. Corlin. Yes, I would.
Another factor leading into the correctness of your
statement, Mr. Strickland, is that the circumstances in which
malpractice suits are brought and the limits on payments of
them or lack of limits differ from State to State. So that if
you compare one doctor to another doctor, you may get different
information that doesn't relate to the severity of the issue
but the environment.
Now if somebody is in Santa Monica, they are not likely to
be practicing in another State. But if you get somebody in
Kansas, Missouri, or other States, that can be across State
lines; and those can be factors.
Mr. Strickland. If I could ask you, if you could, to answer
a series of questions, just a yes or no, if that is a
sufficient way to express your opinion.
Dr. Loniewski, there seems to be little in this bill that
would directly help the States' efforts in their attempt to
develop their own physician profiling systems or any effort to
link those systems into a unified data base. Is that a fair
assessment, in your opinion?
Mr. Loniewski. Yes, it is.
Mr. Strickland. Dr. Hochman?
Mr. Hochman. Yes.
Mr. Strickland. Dr. Corlin?
Mr. Corlin. Yes, sir.
Mr. Strickland. Dr. Corlin, would you believe it to be fair
to say that, given the appropriate resources, the States could
devise a State-based, linked system that might surpass the
quality of a Federal system in tracking questionable doctors?
Mr. Corlin. Yes.
Mr. Strickland. Dr. Hochman, do you agree?
Mr. Hochman. Yes.
Mr. Strickland. Dr. Loniewski, as I read the bill, the bill
would allow a physician reported in the Data Bank to submit
only a 4,000 character statement to describe the details of a
complex medical procedure or a malpractice case. In light of
this, do you think it is fair to describe this bill as not
providing the practitioner with an adequate method of recourse
to the NPDB?
Mr. Loniewski. I couldn't say that any better.
Mr. Strickland. Dr. Hochman?
Mr. Hochman. Correct, I agree.
Mr. Strickland. Dr. Corlin?
Mr. Corlin. Yes.
Mr. Strickland. Dr. Corlin, is it also fair to say that
this bill will remove the user fee financing that the NPDB has
mostly relied upon since its inception and that this new
Federal program envisioned by this legislation will require
direct financing by the U.S. taxpayer? Do you think that is a
correct assessment?
Mr. Corlin. That is our belief, yes.
Mr. Strickland. Dr. Hochman?
Mr. Hochman. I agree.
Mr. Strickland. Dr. Loniewski?
Mr. Loniewski. I agree, yes.
Mr. Strickland. Dr. Corlin, would I also be correct in
assuming that nobody at this point knows what this system costs
because it is yet to be scored by the Congressional Budget
Office or the OMB?
Mr. Corlin. That is correct. And if I can add one sentence
more. It is yet to be scored, and also we have significant
experience going beyond what their score is costing.
Mr. Strickland. My time is up. I would just like to say
that we had two hearings on this issue before the Oversight and
Investigations Subcommittee, of which I am a member. I think
all of us are concerned about the issues raised, but we need to
work together in a way that we haven't thus far to come up with
reasonable solutions to this very serious problem. Thank you
very much.
Chairman Bliley. The gentleman from Florida, Mr. Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman.
I think it was Dr. Hochman who made the comment--it might
have been Dr. Loniewski--that you were supportive of a National
Data Bank and--as is the group you represent, the American
Osteopathic Association, provided that the bank reflects the
accuracy of the information. You talked about possible peer
review analysis by the various State organizations. Very
briefly, maybe you can go into that in more detail, just very
briefly?
Mr. Loniewski. Yes. What I was saying was we would be in
favor of a Data Bank that had true peer review. By true peer
review we mean where the professional organization can review
with the same type of licensee, same type of specialty so they
can have a feeling for what the problem is and judge that
physician as being competent or incompetent.
Mr. Bilirakis. Okay, Dr. Hochman, would your group be
supportive of that?
Mr. Hochman. My comment would be the whole area of what
information is best for the consumer is something that needs
much more work. If it was as simple as opening up the National
Practitioner Data Bank and making these egregious cases go
away, that would be easy; and I think the issue of what
information is available is something that needs more study.
Mr. Bilirakis. But the tests, so to speak, that Dr.
Loniewski refers to makes sense to you.
Mr. Hochman. Some of it, but we would have to review some
of those issues.
Mr. Bilirakis. Dr. Corlin, you knew I wasn't going to pass
you up.
Mr. Corlin. Yes, I would agree with that. I think we need
peer review answerable to public standards. But you can't leave
the peer review out of it, and it is our impression that this
bill would leave the peer review out of it.
Mr. Bilirakis. All right, and if that peer review, in
whatever form it were to take place, were in a true,
legitimate, fair form, would that be a good, disinterested,
unbiased peer review--you know, assuming that much of the peer
review group would consist of physicians?
Mr. Corlin. It would have to be; and it would have to be a
group that, by its composition and by its conduct, had the
confidence of the disinterested public.
Mr. Bilirakis. You feel that is doable?
Mr. Corlin. It is doable. It can be done wrong, but it is
doable to do it right.
Mr. Bilirakis. And if that were to take place, a National
Data Bank would not necessarily then be a bad thing.
Mr. Corlin. If the data in it were right and peer reviewed,
no, it would not be a bad thing.
Mr. Bilirakis. Sir, let me ask you, with all due respect,
you have appeared before my committee a number of times. Mr.
Stewart's written testimony states that a convicted judge
contacted the AMA to prevent him, Dr. Swango, from practicing
medicine. Was the AMA unwilling to stop that convicted felon
from practicing medicine? And if they were, why?
Mr. Corlin. The answer is, no, we were not unwilling to
stop him. I wish we had the legal authority to do that.
There was a time, a long time ago, where you had to be a
AMA member to have hospital staff privileges. That was decades
ago, and that has long since gone. The only thing the AMA can
do is exclude somebody from membership.
Dr. Swango was never a member of the AMA. He had applied
for membership, but very, very shortly after he applied he
withdrew his application. And I don't as I sit here know if it
was because he decided to do it or there were questions raised.
I don't know specifically, but I do know that was the
circumstances of the entire Swango situation.
Mr. Bilirakis. I guess you are right, when I think about
it. You haven't the authority to maybe stop it, but could you
have had the authority to contact the particular State.
Mr. Corlin. I don't, as I sit here now, Mr. Bilirakis, know
exactly--you know, to ask the question, what did we know and
when did we know it because I was just briefed on that aspect
of things this morning. I can promise you that I will inquire
of our legal counsel and get written communication to you and
Mr. Bliley that, to the extent there is information available,
what was the AMA's both involvement and knowledge of the
situation.
Mr. Bilirakis. If you would do that, I think it would be
helpful, sir. What I am saying is to me it is sort of criminal
that a person can have that kind of a background and go to
another State and practice medicine. I don't really know what
the heck can be done about it, but it seems a lot should be
done.
Mr. Corlin. I absolutely agree with you. I will make a call
as soon as we finish and get that information going; and as
soon as it can be available it will be faxed to both of you,
sir.
Mr. Bilirakis. Thank you.
Chairman Bliley. The time of the gentleman has expired.
The Chair now recognizes the gentleman from Iowa, Dr.
Ganske.
Mr. Ganske. Well, Mr. Chairman, I think as we have listened
to our panelists today and the back and forth on the committee,
I honestly think that there is some consensus that we could use
to work to get better information out to consumers.
Personally, I think there should be a nationally available
Data Bank of some type for consumers, paid for by the Federal
Government, if necessary. I think it should include the public
records of the various State medical societies, licensing
boards. I think it should include criminal convictions, Mr.
Stewart, particularly as they relate to the practice of
medicine. I think that, you know, you could get into a
discussion of misdemeanors of, you know, traffic tickets and
things like that, how that would affect one group more than
another group in terms of public disclosure.
I think that there would be many areas of agreement on what
should be public in Iowa. All of the State Board of Medical
Licensure decisions basically appear on the front page of the
Des Moines Register, and I certainly don't have a problem with
having access to those decisions by the State Board of
Licensure in Illinois or Nebraska or anywhere else across the
country being gathered together and being available.
The real problem that we have is on the question of
settlements, not on judgments--because I think judgments should
be in that Data Bank, okay--but on settlements, and that is the
problem. Because this is how it works.
The majority of malpractice carriers are publicly held
stock companies. Their investors are looking for profits. The
physician buys malpractice insurance for a price. This income
to the company is invested. The company's expenses are paid;
and at the end of each fiscal year dividends are paid, based to
some degree on profitability.
The defense of the physician, even in the most righteous of
circumstance, is still an expense. Usually, the preparation for
the defense takes numerous hours, not only of an experienced
lawyer's time but that of numerous paralegals. Expert witnesses
must be identified and their testimony taken. Reams of paper
are generated at no small cost. Charts are copied and recopied
and distributed across the Nation by overnight mail, and the
costs mount.
It has been roughly estimated that even an administration
of a malpractice suit that does not involve a death will take
an average of 4 to 5 days of trial time, with an estimated cost
of trial by jury of $100,000. When the stakes are high, it is
not surprising that most defense teams will agree to a
reasonable settlement, even when the defense case is strong,
when it is clear that the doctor has not committed an
infraction, but we can settle this case for $5,000 or $10,000,
and we are out the door, and the insurance company says, take
it or leave it, but if you don't take it you are on your own.
That is a problem, and it seems to the members of the
medical profession fundamentally unfair that that then goes
reported.
Furthermore, most of those settlements are closed. They are
legally closed, so you may not even have a chance to explain
your case, your side and whether you were treated fairly or
not. Those are business decisions made by insurance companies,
and I think it is something we have to take into account as we
look at trying to devise information for the consumer out there
so that it can be accurate.
Finally, especially, Mr. Plunkett, as a member of the
Consumer Federation, I want to point out that managed care
companies, the HIAA, the AAHP, NAM and some other groups, have
come out strongly in favor of this legislation, Mr. Bliley's
legislation. Let me point out to you that they have a conflict
of interest, a significant one. Ten days from now, the State of
Maryland is going to have to go into law a State law that
basically prohibits what are called ``cram down contracts''
where an insurer says you take all of our products or you don't
take any. That was prohibited by the Maryland legislature. So
what are those HMO goes going to do, they will simply deselect
those providers who don't sign all of the contracts.
What is the next response by the State legislatures? To
pass a law that says you cannot deselect without cause.
Okay. Mr. Chairman, with your indulgence, 1 more minute to
finish my point.
Chairman Bliley. Without objection.
Mr. Ganske. Thank you.
What then happens when a State legislature passes the next
law to try to prevent insurers from unfairly deselecting
providers, bypassing you can't do it without cause? HMOs rub
their hands. They say, great, we will do it with cause. We will
go into those offices, we will run our finger along the
venetian blinds, we will find a couple of dirty coffee cups, we
will find some patient that will say something bad about this
physician, and then we will deselect him with cause. Guess
what? That appears in the National Practitioner Data Bank, and
under current rules you have to get permission from the
organization that put that in there to take it out.
I think that is one of the unintended consequences that we
need to look at. Because I know that your organization has been
a strong one in favor of consumer rights and patient
protection, and it is something for us to think about in this.
Thank you, Mr. Chairman.
Chairman Bliley. The Chair now recognizes the gentleman
from Tennessee, Mr. Bryant.
Mr. Bryant. Thank you, Mr. Chairman.
I thought defending malpractice patients was complicated.
Certainly we have heard compelling testimony from the first
panel and from those on this panel that represent very
differing interests on this issue. And it appears--I think our
subcommittee chairman, Mike Bilirakis, has indicated there
might be some common ground here that is emerging. I don't
know.
I do know that, in reading this, studying upon some
materials for preparation for this hearing, it appears the
original intent of this law was not for it to become public. I
know there are statements out there that were argued, but it
probably did come into play with the idea that it would be used
by professionals in peer group situations. And I understand
that one purpose was to encourage reporting, accurate reporting
of all the information to this Data Bank, which is a very
important part of the whole process.
But as we go through times, times are changing; and we
just--not to compare the same thing, but we just sat through
hearings a week or so ago on tire situations, on automobiles
and what is happening there and disclosure and callbacks and
recalls and things like that. But the public--the consumer does
demand more. But yet there is a compelling side, I believe, on
the medical side to have accurate reporting and to have this
peer review and to put things into proper context so that they
could be understood. But I am wondering if at some point there
couldn't be some common ground found.
In reading Dr. Corlin's testimony, something that strikes
me already about this data base is on page eight he talks about
the DOD, Department of Defense, and the Department of Veterans
Affairs already recognize the serious problems with correlating
lawsuits with physicians' competence or negligence. And under
their systems, DOD and VA, the physicians aren't reported to
the data base when a claim is settled unless a panel of peers
actually go back and review and find negligence or
incompetence. That is part of the government already setting up
this type of standard. They go on to say that roughly they find
in their cases only about 30 percent of their settled cases,
according to the peer group, comes from actual negligence. The
other reasons are--70 percent you would settle a case I
suppose. So there is validity on all sides.
Ms. Weintraub, you haven't been asked any questions, and
you are an attorney and on the other side from the doctors. I
wonder what your comment would be on the comment of the DOD and
the Veterans in terms of their correlation and the use a peer
group before they submit names to this data base.
Ms. Weintraub. Well, I think this information does not
necessarily--the importance of this information is to allow
consumers to have the ability to decide for themselves in a
comprehensive way how--their doctor's medical histories. There
is no clear link and no one has said on this panel that, you
know, malpractice claims are always entirely connected to other
types of incompetence. Basically, it is just consumers will be
able to tell from extensive information and decide for
themselves whether they wish to use this provider.
Mr. Bryant. Let me ask Mr. Inlander on the other end. You
are a very forceful advocate for your position. You have been
here for years, and nothing has really changed, I understand.
Would you agree if we had a data base system, whether it was a
State-based or Federal system, if we had the best type, the
best quality of information, that the consumers would benefit
from that?
Mr. Inlander. Sure, they do. But the point is, this is the
exact same testimony that the late Dr. Todd gave in 1986 before
this very committee, saying that the AMA is on the brink of
giving us that kind of a system. The State federation says the
same thing.
Every State medical society has come, when a physician
profiling law has been put before it, and said, we are a year
or two away from giving--including in Pennsylvania where they
got a law killed because the legislator said we will wait for
that year or two until you come back. They have never come
back.
So you see at some point we have to draw the line in the
sand and say, given the data that we have--and I have got to
say the information there is in the Data Bank is not
slanderous, it is not innuendo, this is actions taken by the
State, by a hospital, by a license board, by a court or by the
DEA. This is not just stuff that people filed.
Mr. Bryant. Let me stop you there.
Mr. Inlander. I just want to say to you, there are basis of
information----
Mr. Bryant. I want to ask you another question, but I want
one of the three--Dr. Corlin or Dr. Hochman or Dr. Loniewski--
to respond to that issue. But before you do that, quickly I
want to ask Mr. Inlander, do you not think that by making this
public that it would have the reverse cause of causing people
not to want to report what they are already reporting now under
the idea that it is somewhat confidential?
Mr. Inlander. I don't really think so. Because I don't
think there is any evidence that has occurred, for example, in
Massachusetts where the law has been effect 4 years. I think
you are going to hear that there is no evidence that anything
wasn't reported.
I think also we have to look at it in terms of other kinds
of disclosure laws that have come about, including those that
are upon you to disclose financial information in terms of your
lives as congressmen. That same question used to come up at
that point in time and when that law was being considered. So I
think that there is no evidence to suggest that this is going
to happen, and I think until there is we can deal with it, but
there is no evidence that anyone supports that position.
Mr. Bryant. Mr. Chairman, could I have 1 minute with
unanimous consent?
Chairman Bliley. Without objection.
Mr. Bryant. Very quickly, Dr. Corlin, Dr. Hochman, one of
the doctors, could you respond to the statement by Mr. Inlander
about the Medical Association promising this and not following
through?
Mr. Corlin. Well, we did not promise that we would produce
a system, that is, in every system, ever since the first year
somebody suggested maybe we should operate the Data Bank and we
didn't we think we could support it. I know that we support the
ongoing activity of the Federation of State Medical Boards. My
suggestion to you, sir, if you are going to hold another
hearing, is ask them to come and let them speak on their own
behalf. I think they can be more informative than me relating
what they are doing.
Mr. Bryant. Thank you.
Chairman Bliley. Yes, the gentleman from Ohio.
Mr. Strickland. I have a question for Mr. Inlander. You say
in your testimony that the most important point to remember
about the information contained in the Data Bank is that it
does not include charges made against a practitioner.
Mr. Inlander. Right.
Mr. Strickland. Rather, the Data Bank contains only actions
taken against a doctor by a recognized entity--a State
licensing board, a court, hospital or a Federal agency.
But let me ask you this question. If an insurance company
settles a suit on behalf of a doctor and that doctor is not
allowed to contest the claim, isn't that really akin to a
charge, as opposed to an actual guilty verdict? In other words,
in your view are malpractice claims the same as guilty
verdicts? Would----
Mr. Inlander. You mean settlements, malpractices, not
claims settlements?
Mr. Strickland. Yes.
Mr. Inlander. I am not suggesting it is guilt. I have never
said that these guilty--any of these things constitute guilt.
But they are actions. They are actions--they are actions that
were filed with the court as a settlement, not in the name of
the malpractice insurance company of Ohio but in the name of
the doctor. So I can't deal with and worry about, frankly, as a
consumer whether the law allows these kinds of things to go on,
where an insurance company can settle basically by shoving it
down the doctor's throats. That is not our issue here.
The issue is that the information that the doctor did
settle the case--and that is all it means, and I think it is
important to understand that as a consumer that doesn't mean I
won't go--and I don't think the persons who spoke on the first
panel meant that--necessarily meant I wouldn't go to that
doctor but would you explain what this was. If Dr. Corlin was--
told me what happened in the case that was his case, I wouldn't
have said to myself, I won't use him. I would have only said,
don't use that Japanese instrument on me.
I think that is the issue here and think the only way we
are going to even know ask the question is if we have that
information.
Mr. Plunkett. Mr. Chairman, I have a little information
about--this is something that hasn't come up.
Chairman Bliley. Thank you.
Mr. Plunkett. I think we have created a false impression
here that somehow malpractice settlements are occurring willy
nilly in large numbers. Let's be truthful here. When a consumer
group in New York was able to get their hands on and do a study
of the anonymous physician data base for physicians in New
York, what they found was, looking at the National Practitioner
Data Bank, only 5 percent of all physicians in the entire State
of New York had more than one malpractice settlement. So we are
talking at this point about a very small number of physicians.
And what settlements can tell you, it can talk to you about
the outlaw physicians, the physicians who, very few in number,
are causing a lot of grief for a lot of families.
The New York Daily News also was able to look at some
information on the National Practitioner Data Bank. They cross-
referenced it to court records and they found that the eight
top physicians in the entire State of New York had 92
settlements or judgments. What was occurring was that you saw a
number of settlements--bing, bing, bing--with some of these
physicians, then a judgment and a number of settlements, then a
judgment. So, in the extreme, these settlements do tell you
something. They are very small--the number of physicians who
are affected are very small in number, and the public has a
right to know about these people.
Mr. Strickland. But what is it they tell you is the
question.
Chairman Bliley. The time of the gentleman has expired.
Mr. Ganske. Mr. Chairman, I ask unanimous consent for 1
minute to follow up some data on Mr. Plunkett's assertion.
Chairman Bliley. The gentleman is recognized for 1 minute.
Mr. Ganske. Thank you, Mr. Chairman. Because I have data
here on neurosurgeons from 1994 and 1993 and 1992, and 1991.
Each year there was close to about--each year there was
approximately 1,200 respondents and each year there were around
200 claims. So the problem is the cumulative effect. Over a 15-
or 20-year practice period, a neurosurgeon very well could add
up to a fair number of settlements.
That is one of those high-risk specialties, the guys that
take on the ruptured aneurysm and end up with patients that may
not do so well. So I think that is part of the problem. It
isn't just in any given year. It is the cumulative effect over
a lifetime of practice that needs to be take into consideration
on the settlement issue.
Thank you.
Chairman Bliley. I thank the gentleman.
I thank the panel. I think you have been very helpful to
the committee. The committee may have some additional questions
that we would submit to you in writing, and I hope you would
respond to them. Thank you.
Mr. Ganske. Mr. Chairman, if I might add something to my
testimony. That is that when I was talking about some type of
national data information, I didn't necessarily mean that this
would be something done by the Federal Government. But I think
it would be very useful to build on something, for instance,
like the Federation of State Medical Boards. It would be useful
to have them testify some time.
Chairman Bliley. Thank you.
We will now hear from the third panel, first witness in the
third panel; and I apologize again to all of you for having to
wait so long.
The first witness is Ms. Nancy Achin Sullivan, Executive
Director, Board of Registration and Medicine, Commonwealth of
Massachusetts. Ms. Sullivan.
STATEMENTS OF NANCY ACHIN SULLIVAN, EXECUTIVE DIRECTOR, BOARD
OF REGISTRATION IN MEDICINE, COMMONWEALTH OF MASSACHUSETTS;
CLAUDE EARL FOX, ADMINISTRATOR, HEALTH RESOURCES AND SERVICES
ADMINISTRATION, DEPARTMENT OF HEALTH AND HUMAN SERVICES,
ACCOMPANIED BY THOMAS CROFT, DIRECTOR, DIVISION OF QUALITY
ASSURANCE, BUREAU OF HEALTH PROFESSIONS; GLORIA CRAWFORD
HENDERSON, DIRECTOR, DIVISION OF MEDICAL QUALITY ASSURANCE,
FLORIDA DEPARTMENT OF HEALTH; PATRICK J. CLEARY, VICE PRESIDENT
FOR HUMAN RESOURCE POLICY, NATIONAL ASSOCIATION OF
MANUFACTURERS; DONALD J. SENESE, DIRECTOR OF RESEARCH, 60 PLUS;
AND KERRY HICKS, CHIEF EXECUTIVE OFFICER, HEALTHGRADES.COM
Ms. Sullivan. Thank you, Mr. Chairman.
As you said, I am Nancy Achin Sullivan from the
Massachusetts Board of Medicine; and I am here to try to
outline the experience of Massachusetts in the development of
the first-in-the-Nation physician profiles program.
Almost exactly 4 years ago, we in Massachusetts were really
in the same place that I think this committee, perhaps this
Congress finds itself today. We were about to embark and
release to the public an unprecedented amount of information
about our physicians, including comprehensive business
demographics on each doctor, as well as information on hospital
and board discipline, criminal convictions and paid
malpractice.
In the beginning, we, too, were beset with huge estimates
of the probable cost in both time and money which would be
required to produce a worthwhile product. In fact, it took us
only 8 months and a fraction of the original cost estimates to
implement the first profiles program. The implementation of
this program is neither technically complicated nor
prohibitively expensive. In Massachusetts, the entire
implementation was completed by three staff members, only one
of whom worked exclusively on profiles. The implementation
costs were approximately $300,000 on a doctor population of
approximately 25,000.
Certainly the per physician cost associated with similar
programs should be even lower since so much of the work
pioneered by Massachusetts can be replicated by subsequent
programs.
At the end of the effort, our data files were the most
accurate in the board's 106-year history; and we had in place a
system which would produce 30,000 updated physician profiles
every single day, with multiple points of access for consumers
seeking information.
Just as this committee has listened with great care and
attention to the witnesses with interest in this bill, we
listened to the very valid concerns of our physicians, our
health care organizations and our general citizens about the
publication of the information.
We designed our program to benefit individual consumers. We
captured information with the greatest interest to our
consumers--insurance plan coverage, hospital affiliation, and
area of medical specialty.
We crafted appropriate controls to prevent the data from
being used to target physicians with frivolous lawsuits, and we
included an appeals process by which the individual physician
could correct or amend information. We worked very hard to
strike the proper balance between being helpful to the citizens
and fair to the doctors.
Physician profiling has been unqualified success in
Massachusetts. It is an accepted and even essential part of the
health care environment in our State. None of the predictions
of doom and gloom came true, and the citizens have benefited
greatly.
I can tell you from personal experience there is no more
compelling force in government for excellence than a
requirement to publish the results for public consumption. Our
public service performance has improved tremendously as a
result of our responsibility to publish physician profiles. Our
data quality is better, our staff is sharper, and our closeness
in partnership with the public and its concerns have never been
more intimate or important to us.
Having been down this road with the most experience, we are
enthusiastic supporters of the public information goals of H.R.
5122. We believe it incorporates all of the most important
lessons learned about profiling physicians--full disclosure of
relevant information, contextual presentations to assist
consumers in making truly informed choices--it is not raw
data--excellent accessibility using advanced user-friendly
information technology.
We believe it could improve the work of State agencies by
giving us unfettered access to the hundreds of thousands of
physician records otherwise unavailable. A disclosure program
such as that outlined in H.R. 5122 would supplement, not
supplant, our initiatives. We would continue to maintain
aspects of the Massachusetts's physician profiles that are
important to our program and to our citizens, such as honors
and awards and published research of our physicians; and we
would tie those enhancements into the data supplied through the
national data system.
In Massachusetts, for example, we would use a national
program to provide us more complete information about the
10,771 Massachusetts physicians who hold licenses in other
States as well. Currently, we are banned from disclosing any
information about the nonMassachusetts practice of these
physicians, who represent 37 percent of our physician
population, because our source for the information would be the
Data Bank.
Physician profiling is an initiative whose time has come.
Far from being a radical or unproved step into unknown
territory, it is a reasonable and timely initiative, carefully
crafted, built on 4 years of solid experience in Massachusetts
and incorporates everything we know about the publication of
relevant, usefully formatted health care information for the
benefit of the public. It empowers consumers and places a
burden of excellence on government agencies. It makes
government better, it makes us more accessible and more
accountable, and it demonstrates our fundamental belief in the
ability of our fellow citizens to make good choices and good
judgments about their own health care.
By even discussing changes to the NPDB, this committee is
raising the level of public debate. Chairman Bliley, as a
patient rights activist, I salute you for that courage.
Through both compromise and courage this Congress can bring
fundamental improvement to the quality of health care in this
country. And I speak not only as a health care regulator but as
a person with cancer who has fought very hard to be well enough
to come here today. You can all decide to keep people like me
safer or stronger and healthier or you can decide to fall into
partisan politics and other issues and not do that.
I thank you for the opportunity to come and ask you to do
the former.
[The prepared statement of Nancy Achin Sullivan follows:]
Prepared Statement of Nancy Achin Sullivan, Executive Director,
Massachusetts Board of Registration in Medicine
My name is Nancy Achin Sullivan. I am Executive Director of the
Massachusetts Board of Registration in Medicine. I am here to offer
assistance to the House Committee on Commerce in its consideration of
H.R. 5122, the Patient Protection Act, by outlining the experience of
Massachusetts in the development of its Physician Profiles program.
Almost exactly four years ago, we in Massachusetts were facing
circumstances similar to those in which the members of this Committee
find themselves today. We were, for the first time ever in this
country, about to release to the public an unprecedented amount of
information about our physicians. This information included a
comprehensive set of business demographics on each doctor, as well as
other information, including hospital and board discipline, criminal
convictions, and paid malpractice claims.
In the beginning we, too, were beset with huge estimates of the
probable cost in time and money that would be required to produce a
worthwhile product. In fact it took us only eight months and a fraction
of the original cost estimates to implement the first profiles program.
The implementation of this program is neither technically complicated
nor prohibitively expensive. In Massachusetts, the entire
implementation was completed by three staff members, only one of whom
worked exclusively on Profiles. The implementation costs were
approximately $300,000. Certainly the per physician cost associated
with similar programs should be even lower since so much of the work
pioneered by Massachusetts can be replicated by subsequent programs.
At the end of the effort, our data files were the most accurate in
the board's 106-year history, and we had in place a system which would
produce 30,000 updated physician profiles every single day, with
multiple points of access for consumers seeking the information.
Just as this Committee has listened with great care and attention
to the witnesses with an interest in H.R. 5122, we at the Massachusetts
Medical Board had listened with equal care and attention to the valid
concerns of our physicians, our health care organizations, and our
citizens about the publication of this information.
We designed our program to benefit individual consumers and
captured the information of greatest interest to our consumers--
insurance plan coverage, hospital affiliation, and area of medical
specialty.
We crafted appropriate controls to prevent the data from being used
to target physicians with frivolous lawsuits, and we included an
appeals process by which the individual physician could correct or
amend information. We had worked hard to strike the proper balance
between what would be helpful to our citizens and what would be fair to
our doctors.
Physician profiling has been an unqualified success in
Massachusetts. Today it is an accepted, even an essential, part of the
health care environment in Massachusetts. None of the apocalyptic
predictions came true, and the benefits to our citizens, and to the
quality of our public service mission, have been great.
I can tell you from personal experience, there is no more
compelling force for excellence in government than a requirement to
publish results for public consumption. Our public service performance
has improved by an order of magnitude as a result of our responsibility
to publish physician profiles. Our data quality is better, our staff is
sharper, and our closeness to the public and its concerns has never
been more intimate.
Having been down this road, we are enthusiastic supporters of the
public information goals of H.R. 5122. We believe it incorporates all
of the most important lessons learned about profiling physicians: full
disclosure of relevant information, contextual presentations to assist
consumers in making truly informed choices, and excellent accessibility
using advanced user-friendly information technology.
We believe that it could improve the work of state agencies by
giving us unfettered access to hundreds of thousands of physician
records otherwise unobtainable. A disclosure program such as that
outlined in H.R. 5122 would supplement, not supplant, local
initiatives. We would continue to maintain the aspects of Massachusetts
Physician Profiles that are important to our program, such as honors
and awards and published research, and tie those enhancements into the
data supplied through the national data system.
In Massachusetts, we would use a national program to provide more
complete information about the 10,771 Massachusetts physicians who hold
licenses in other states, as well. Currently, we are banned from
disclosing any information about the non-Massachusetts practice of
these physicians, who represent 37% of our total physician population.
Physician profiling is an initiative whose time has come. Far from
being a radical or unproved step into unknown territory, it is a
reasonable and timely initiative, carefully crafted, built on four
years of solid experience, which incorporates everything we know about
the publication of relevant, usefully-formatted health care information
for the benefit of the public. It empowers consumers and places a
burden of excellence upon the government agencies responsible for its
implementation. It makes government better, more accessible, and more
accountable, and it demonstrates our fundamental belief in the ability
of our fellow citizens to make good choices and good judgements about
their own health care.
By even discussing changes to the NPDB, this Committee is raising
the level of public debate. As a patient rights activist, I salute
Chairman Bliley and all the Committee members for your leadership.
Through both compromise and courage, this Congress can bring
fundamental improvement to the quality of health care in this country.
I speak not only as a health care regulator, but as a person with
cancer who has fought very hard to be well enough to come here today.
You can decide to keep people like me safer and stronger and healthier.
Thank you for the opportunity to ask you to do just that.
Chairman Bliley. Thank you.
Mr. Croft. Mr. Thomas Croft, Director of Division of
Quality Assurance, Bureau of Health Professions, at the
Department of Health and Human Services. Mr. Croft.
STATEMENT OF THOMAS CROFT
Mr. Croft. Thank you, Mr. Chairman. I appreciate the
opportunity to be here to represent the administration on this
important bill.
We recognize that the central issue here before the
committee indeed involves public disclosure of information in
the National Practitioner Data Bank. I am going to skip over
some of my testimony because it contains reflections that have
already been made by others here today. I only want to mention
that, first of all, that the Secretary has written you on this
subject; and I believe that what she said to you and what we
mentioned in earlier testimony still is the position of the
administration on this important subject.
I was struck by the fact that nearly every single specific
case that was been mentioned today has to do with practitioners
who seem to have multiple problems. What I don't think has been
emphasized is that the vast majority of practitioners who have
a record in the National Practitioner Data Bank only have one
report and that almost always is a malpractice report, and I
only mention that to underscore some of the concerns that have
already been mentioned.
Having said that, we certainly are interested in working
with you on any legislative provision that would improve the
Data Bank. We welcome provisions that would improve its current
operation and enhance its current mission, such as closing
reporting loopholes, improving compliance and data collection
and applying Data Bank requirements uniformly to the entire
U.S. health care system, including Federal agencies.
We remain extremely concerned that well over half of U.S.
hospitals have never reported a single adverse clinical
privileges action to the Data Bank. Underreporting is aided by
the lack of civil penalty for failure to report.
Mr. Chairman, to modify the National Practitioner Data Bank
to allow for public disclosure would be a major undertaking and
would, therefore, take time. The likely timeframe to bring such
a system into operation we believe would be 2 to 3 years,
depending on the methods chosen for public disclosure. The
regulatory process, including the opportunity for public
comment, along with carefully planned program and implemented
modifications to the NPDB's Internet-based system, would be
time-consuming as well as costly.
I would note, however, that this legislative proposal would
eliminate the Data Bank's authority to collect fees for
providing information. We would not recommend such a change. As
you know, the Data Bank, unlike the vast majority of Federal
programs, is not funded by taxpayer dollars. In an environment
where the Federal Government is being encouraged to model
itself more like the private sector, the NPDB is ahead of the
curve. Funded entirely by user fees, the NPDB functions more
like private sector businesses, which has led us to employ the
kind of business practices which continuously improve service
to our customers. Moreover, the fact that nearly 70 percent of
the Data Bank's revenue comes from voluntary requests for
information suggests that health plans and other health care
recipients believe they are receiving fair value for their
payments.
The NPDB must currently cover its cost through fee
collection and has done so successfully for 10 years through
fee collection. The NPDB provides information within hours to
queries, using the latest technologies which maximize speed,
convenience and security while minimizing financial burden to
its customers and not imposing any burden on U.S. tax papers.
In conclusion, Mr. Chairman, we remain committed to working
with you to find ways to make the services of the Data Bank
more responsive to the public's needs. This concludes my
remarks.
[The prepared statement of Thomas Croft follows:]
Prepared Statement of Thomas Croft, Director, Division of Quality
Assurance, Bureau of Health Professions, Health Resources and Services
Administration
Mr. Chairman, I am Thomas Croft, Director of the Division of
Quality Assurance in the Bureau of Health Professions, Health Resources
and Services Administration. The Division oversees the operation of the
National Practitioner Data Bank. I appreciate the opportunity to
address the Committee today about the Data Bank and the important
issues raised in this bill.
As you know, the National Practitioner Data Bank was created in
response to the requirements of the Health Care Quality Improvement Act
of 1986 and plays a vital role in the important process of practitioner
credentialing. It provides verification of sensitive adverse
information about practitioners in an efficient and reliable manner,
while, at the same time, maintaining the security and confidentiality
required by law. The Data Bank also captures information on malpractice
payments and settlements.
The central issue before the Committee today concerns public
disclosure of Data Bank information. In an earlier response to Chairman
Bliley on this subject, the Secretary wrote: ``The issue of disclosing
to the public information contained in the NPDB is complex. On one
hand, I agree with your assertion that consumers need more information
in order to make educated decisions regarding the medical professionals
whose treatment they may wish to seek. On the other hand . . . there
are privacy concerns regarding broad public disclosure of potentially
incomplete negative information.'' While considering expanded public
access to the Data Bank, significant privacy and data verification have
been identified which need to be carefully considered.
We also should be mindful that, when malpractice claims are
settled, findings about the standard of care, or about liability, are
rarely made. Any proposal to make information public would need to
provide either for a mechanism by which such determinations could be
made; or some indication that the practitioner may not have done
anything wrong.
Congressional intent seemed quiet clear in the Health Care Quality
Improvement Act that established the Data Bank: that the Data Bank's
information is not specifically intended to produce an independent
determination about the competency of an individual practitioner.
Rather, that information is intended to supplement a comprehensive and
careful professional peer review. As such, the Data Bank information is
incomplete for the purpose of disclosure to the public to use as the
source of information on which to base a decision on whether to use a
specific provider.
The vast majority of practitioners who have reports listed in the
Data Bank have only one report; and in those instances it is almost
always a malpractice payment report. As previous testimony before the
Committee has emphasized, it is impossible and unfair to conclude from
a single malpractice payment report alone, or even in some cases from
numerous malpractice payment reports, anything substantive about the
competence of a practitioner. To do so would be a disservice to all
parties involved. At the same time, it is easy to understand the
public's frustration with the lack of entirely accurate and unbiased
information, particularly when some licensing authorities are slow to
act in the face of practitioners' histories of poor or shoddy medical
practices.
We certainly are interested in working with you on any legislative
provision that improves the Data Bank. We welcome provisions that would
improve its current operation and enhances its current mission, such as
closing reporting loopholes, improving compliance and data collection,
and applying Data Bank requirements uniformly to the entire U.S. health
care system, including federal agencies. We remain extremely concerned
that well over half of U.S. hospitals have never reported a single
adverse clinical privileges action to the Data Bank. Under-reporting is
aided by the lack of civil penalty for failure to report.
Mr. Chairman, to modify the current NPDB to address concerns and
allow for public disclosure would be a major undertaking--and would
therefore take time. A likely time frame to bring such a system into
operation would be two to three years, depending on the methods chosen
for public disclosure. The regulatory process, including the
opportunity for public comment, along with carefully planned,
programmed and implemented modifications to the NPDB's Internet-based
system, would be time-consuming as well as costly.
I'd note, however, that this legislative proposal would eliminate
the Data Bank's authority to collect fees for providing information. We
would not recommend such a change.
As you know, the Data Bank, unlike the vast majority of federal
programs, is not funded by taxpayer dollars. In an environment where
the federal government is being encouraged to model itself more like
the private sector, the NPDB is ahead of the curve. Funded entirely by
user fees, the NPDB functions more like private sector businesses,
which has led us to employ the kind of business practices which
continuously improve service to our customers. Moreover, the fact that
nearly seventy percent of the Data Bank's revenue comes from voluntary
requests for information suggests that health plans and other health
care entities believe they are receiving fair value for their payments.
The NPDB currently must cover its costs through fee collection and
has done so successfully for ten years. Through fee collection, the
NPDB provides information within hours to queriers using the latest
technologies, which maximize speed, convenience, and security, while
minimizing financial burden to its customers, and not imposing any
undue burden on the U.S. taxpayers.
In conclusion, Mr. Chairman, we remain committed to working with
you to find ways to make the services of the National Practitioner Data
Bank more responsive to the public's needs. Mr. Chairman, this
concludes my remarks. I am happy to address your questions.
Chairman Bliley. Thank you, Mr. Croft.
Ms. Gloria Crawford Henderson, Director of the Division of
Medical Quality Assurance of the Florida Department of Health
will be next. Ms. Henderson, the floor is yours.
STATEMENT OF GLORIA CRAWFORD HENDERSON
Ms. Henderson. Thank you, Mr. Chairman. I have been asked
to speak with you regarding Florida's experience with
implementing a practitioner profiling system.
In Florida, practitioner profiles are currently available
via the Internet on allopathic, osteopathic, chiropractic and
podiatic physicians. These profiles include certain
biographical, educational and professional information as well
as criminal, disciplinary and medical malpractice histories, if
they exist.
In my written testimony I outline for you the specific data
elements included in the practitioner profiles, but some of
those examples are medical education, address of primary
practice site, hospitals at which practice privileges have been
granted, specialty board certification, medical school faculty
appointments, criminal offenses, final disciplinary action
taken within the past 10 years and, through a link to the
Florida Department of Insurance, medical malpractice settlement
information.
Physicians are also allowed to include such information in
their profiles as publications in peer-reviewed medical
journals, professional or community service activities or
awards, evidence of their ability to communicate with patients
who have limited English skills, and whether they participate
in the Medicaid program.
Physicians are required to update their profiles within 45
days of a change. Failure to do so could result in disciplinary
action.
Because Florida's practitioner profiles do not give the
consumer a comprehensive record of the physician's practice
history, our Web site contains a very important disclosure
notice. In this disclosure notice, we share with the consumer
the limitations of our system. For example, ours is a self-
reported system and some of the data elements have not been
primary source verified. Also, disciplinary actions and
liability claims that occurred more than 10 years ago are not
included in the profiles, and disciplinary actions taken by a
hospital or an ambulatory surgery center are also not included
in the profiles.
Legislative deliberations concerning the advantages and
disadvantages of this consumer protection issue focused on a
number of key concerns, many of which we have discussed in
detail today, so I won't go into those in the interest of time.
But at the heart of the debate in Florida when the issue was
before us was, do patients have a fundamental right to more
information about their physicians that is, one, readily
available and, two, easy to understand.
As you can imagine, key stakeholders weighed in on all
sides of this issue. In the end, the 1997 Florida legislature
decided that consumers would be in a better position to make
wise choices when selecting physicians if they had some
objective data upon which to base their decisions. Profiles
have been available on Florida-licensed physicians since July
1999. An analysis of the available data indicates that our Web
site is being accessed on average more than 15,000 times per
month.
As a closing remark, I would add we realize that improving
the overall quality of health care is a very complex and
multidimensional issue, and focusing on individual practitioner
performance will not fix our systemic problems. However, in
Florida, we look at medical excellence as a work in progress
and we consider practitioner profiles being available to
consumers an extremely important first step.
At the same time that we are giving the consumer more
information we are also taking a detailed look at all the
various components of the health care delivery system through a
legislatively created Commission on Excellence in Health Care.
This is a 42-member think tank that is charged with looking
from a system-wide perspective at ways to improve upon our
existing patient protection initiatives. The Commission is
required to give a legislative report by February 1, 2001.
Because knowledge is power, we believe that giving
consumers more information will empower them to become valuable
partners with us in our quest toward medical excellence. After
all, nobody has more of a vested interest in seeing that the
system improves than the health care consumer.
Thank you.
[The prepared statement of Gloria Crawford Henderson
follows:]
Prepared Statement of Gloria Crawford Henderson, Florida Department of
Health, Practitioner Regulation Program.
Thank you, Chairman Bliley and committee members, for giving me an
opportune to speak to you about Florida's experience with practitioner
profiling. My name is Gloria Crawford Henderson, and I manage the
Florida Department of Health's practitioner regulation program.
In Florida, practitioner profiles are currently available to the
public on the World Wide Web site on allopathic, osteopathic, podiatic,
and chiropractic physicians. Effective July 1, 2001 profiles will also
be available on advanced registered nurse practitioners. Since these
profiles are not currently available, my comments will, for the most
part, be limited to licensed physicians.
Florida's initial legislative effort to give consumers easy access
to certain already public information on physicians was a bipartisan,
consumer-driven partnership between two senior legislators who were
committed to the principle that knowledge is power and an informed
consumer is an empowered consumer. After numerous committee hearings
where an extensive amount of testimony was considered, a legislative
mandate directing the Florida Department of Health to develop and
publish practitioner profiles on physicians passed by an overwhelming
margin.
Since July 1, 1999 the following information has been available to
consumers, via the Internet, on allopathic, osteopathic, podiatric, and
chiropractic physicians:
The name of each medical school that the physician has
attended, including the dates of attendance and the date of
graduation, and a description of all graduate medical education
completed, excluding any coursework taken to satisfy medial
licensure continuing education requirements.
The name of each hospital at which the physician has
privileges.
The address at which the physician will primarily conduct his/
her practice.
Any certification that the physician has received from a
specialty board that is recognized by the applicable regulatory
board.
The year the physician began practicing medicine.
Any appointment to the faculty of a medical school which the
physician currently holds and an indication as to whether the
physician has had the responsibility for graduate medical education
within the most recent ten years.
A description of any criminal offense of which the physician
has been found guilty, regardless of whether adjudication of guilt
was withheld, or to which the physician has pled guilty or nolo
contendere. A criminal offense committed in another jurisdiction,
which would have been a felony or misdemeanor if committed in this
state must be reported. If the physician indicates that a criminal
offense is under appeal and submits a copy of the notice for appeal
of that criminal offense, the Department of Health is required to
state (on the profile) that the criminal offense is under appeal if
the criminal offense is reported in the physician's profile. If the
physician indicates to the department that a criminal offense is
under appeal, the physician must, upon disposition of the appeal,
submit to the department a copy of the final written order of
disposition.
A description of any final disciplinary action taken within
the previous ten years against the physician by the agency
regulating the profession that the physician is or has been
licensed to practice, whether in Florida or in any other
jurisdiction, by a specialty board that is recognized by the
American Board of Medical Specialties, the American Osteopathic
Association, or a similar national organization, or by a licensed
hospital, health maintenance organization, prepaid health clinic,
ambulatory surgical center, or nursing home. Disciplinary action
includes resignation from or nonrenewal of medical staff membership
or the restriction of privileges at a licensed hospital, health
maintenance organization, prepaid health clinic, ambulatory
surgical center, or nursing home taken in lieu of or in settlement
of a pending disciplinary case related to competence or character.
If the physician indicates that the disciplinary action is under
appeal and submits a copy of the document initiating an appeal of
the disciplinary action, the department must state that the
disciplinary action is under appeal if the disciplinary action is
reported in the physician's profile.
Effective July 1, 2001 this information, as applicable, will also
be available on advanced registered nurse practitioners.
Key information not available to the public in practitioner
profiles includes:
Disciplinary action and liability claims that occurred more
than 10 years ago.
Disciplinary actions taken by a hospital or ambulatory surgery
center.
Federal criminal history information.
Practitioner profiles summarize data submitted by allopathic,
osteopathic, podiatric, and chiropractic physicians; some of which has
not been verified. Additionally, as indicated above, practitioner
profiles do not give the consumer a comprehensive record of the
physician's practice history. As a result, the practitioner profile Web
site contains a disclaimer notice that serves as a contextual device
for consumers.
Consumers can obtain civil medical malpractice payment information
from the county in which the physician practices. Consumers can also
link to the Florida Department of Insurance's Web site for other
medical malpractice payment information.
Deliberations concerning the merits and demerits of this extremely
important consumer empowerment and protection issue were extensive, and
focused on the following key elements:
Balancing professional reputations of physicians with the
public's right to know
What information, that is not already readily available, does
the consumer need to make informed choices?
What are the true indicators of a physician's competence?
Because physicians who handle the toughest cases are likely to
have more malpractice suits, will making this information readily
available to the public unfairly adversely affect them?
Will making this information readily available to the public
reduce the number of physicians who engage in cutting edge clinical
practice or go into high risk fields of medicine?
Does the focus on profiles place too much emphasis on
individual practitioners rather than the myriad of systemic
challenges we face?
How can we ensure the information is relevant, accurate and in
the proper context?
Is this initiative necessary in view of the fact that there
are discussions at the national level to open up nationwide data
bases to the public?
How do we protect the due process rights of physicians?
Will patient access be adversely affected because physicians
decide not to practice in Florida?
Do medical malpractice claims and settlements accurately
depict physician competence?
At the heart of the discussion was the issue of whether patients
have a fundamental right to more information about their physicians
that is readily available and easy to decipher. As you can imagine,
this was a highly contentious issue, with key stakeholders weighing in
on both sides. In the end, the 1997 Legislature decided that, with
certain caveats, it was in the best interest of the public for Florida
to offer its consumers easy access to certain educational,
professional, disciplinary, and malpractice information on physicians.
Despite rampant fears, an analysis of available data indicates the
following:
Since its inception on July 1, 1999 Florida's practitioner
profile Web site has been accessed approximately 200,000 times,
averaging more than 15,000 hits per month.
The total number of licensed physicians continues to increase,
so it does not appear that practitioner profiling legislation has
adversely affected patient access.
Although physicians were initially very concerned about the
possible adverse ramifications of publication of profiles, actual
experience has significantly reduced their apprehensions.
Consumers are demanding more, not less, information about
health care practitioners.
In response to the public outcry for more information about health
care practitioners, the 2000 Florida Legislature considered the merits
of profiling all regulated health care practitioners. Although the
proposal was defeated, it was deliberated and did receive bipartisan
support. This suggests that there may be future discussions in Florida
related to making practitioners' records readily available to the
public.
In conclusion, improving the overall quality of health care is a
complex challenge that requires a detailed evaluation of all the
various components of the delivery systems. There is no single answer
to this complicated goal, however, empowering consumers to assist with
this mammoth undertaking by giving them the tools they need to make
wise choices appears to be a step in the right direction. While we do
not see this as the only quality improvement option, it has certainly
been a very important first step.
Chairman Bliley. Thank you.
Next we will hear from Mr. Patrick Cleary, Vice President
for Human Resource Policy, National Association of
Manufacturers.
STATEMENT OF PATRICK J. CLEARY
Mr. Cleary. Thank you, Mr. Chairman. Thank you, too, for
holding this hearing today and for focusing on this issue and
sponsoring this legislation. It is critically important to your
society, and we appreciate your leadership not just for the
past 20 years, but especially on this issue. So we thank you.
First and foremost, I will summarize my remarks. We have
supplied them to you separately.
The NAM is 14,000 manufacturers in the country and every
State in this country and every congressional district. Of
those 14,000, 10,000 employ 500 or fewer employees, so a fair
amount of our members are fairly small employers, a fact not
often known. Together, they employ 18 million people in
America.
And we make things. We make golf balls and whiskey and
steel and cars and all sorts of good things.
Chairman Bliley. You didn't bring a sample, did you?
Mr. Cleary. We didn't bring any samples. We will submit
those separately to the committee.
We make everything in this country, and all our members--
virtually all our members supply health care to their
employees, provide health care to their employees and their
dependents. Together, the employer-based system--not just the
manufacturers, but all employers cover 120 million people in
this country. In other words, the doctors do the treatment, but
we pay the bills.
Over 60 percent of the insured marketplace is insured
through the employer-based system, and by the way, I should
mention, that is a voluntary system. Employers do it because
they want to, not because they are required to.
We support, obviously, the Patient Protection Act, H.R.
5122. It is consistent with our long-standing efforts,
employers-at-large and the NAM specifically, to improve health
care quality by providing health care purchasers and consumers
with better information.
We salute the doctors, the doctors in this room and those
who testified. We have the best doctors in the world right here
in America, but every now and then a few of them jump the
track. There are a few bad apples out there. They are not
perfect and there are errors.
According to the 1999 Institute of Medicine study which we
have heard a lot about today, more people die from medical
errors than from AIDS or motor vehicle accidents or breast
cancer; and all of those three have received a pretty fair
amount of popular media coverage. But by the ION study, their
estimate is between 44,000 and 98,000 deaths per year from
medical errors. To put that in context, that is somewhere
between the population of Rockville, Maryland, and Portsmouth,
Virginia, to give you some idea. That is a lot of people.
The issue is rising in public consciousness. I was getting
ready for these hearings the other night, and I am watching TV.
There was a 30-second spot for a new TV show coming on called
``Gideon's Crossing,'' a medical show coming on ABC this fall;
and there was a little blurb there where they talked about
doctors' errors and how many people it kills every year. So
clearly it is working its way into the public lexicon and it
will fundamentally impact the public's trust in the profession;
and so clearly the profession needs to be concerned about this
and moving to take some steps.
Clearly, as we see it, there are a couple of trends. There
is technology which is making this so much easier to keep track
of and to make available to the public. And we are a transient
society. In the old days, in a small town like where I grew up
in, if there was an error or if there was a bad doctor in town,
everybody knew about it. But I moved from that town, and just
about everybody moved from that town. Our biggest export was
people. And so you don't have that any more.
So if you have a State-by-State system, that is great but
people move from State to State to State. Dr. Ganske, who is
now here in Washington, how does he begin to pick a good
physician? You don't have that same infrastructure that we used
to have in 1920's America.
In technology, obviously there have been those same sorts
of changes. We ought not be like Luddites, where we break the
machines and blame the machines that are threatening us. We
need to embrace that change.
I went on the Internet last night to surf a little bit, and
you look at the National Highway Traffic Safety Administration
Web site. There is information on all the recalls there. The
Occupational Safety and Health Administration has information
on every one of our employers who has been cited or inspected
since 1972, very detailed information. Certainly the Consumer
Products Safety Commission.
You can find sex offenders, health code violations; and no
less an expert than Alan Greenspan was quoted yesterday as
saying that public disclosure will play a larger role in
helping government regulators ensure the safety of the nation's
banking system.
So we come down on the side of disclosure across the board.
I would conclude by saying, we think a practitioner's data
base should be open to the public. I think I paraphrase Senator
Wyden when I say there really is no logical argument for not
opening this information up to the public. Certainly we are
happy to work with the committees, the AMA and anyone else to
clearly provide a contextual reference if that is needed, but
certainly that information should be out there.
That concludes my remarks. I will be happy to take
questions at the appropriate time.
[The prepared statement of Patrick J. Cleary follows:]
Prepared Statement of Patrick J. Cleary, Vice President for Human
Resources, National Association of Manufacturers
Mr. Chairman, on behalf of the more than 14,000 members of the
National Association of Manufacturers, I would like to commend you for
introducing the Patient Protection Act of 2000. The NAM strongly
supports your bill to provide consumers access to detailed information
on their physicians. We commend you for working to lift the public veil
on the National Practitioner Data Bank.
The National Association of Manufacturers--18 million people who
make things in America--is the nation's largest and oldest multi-
industry trade association. The NAM represents 14,000 member companies
(including more than 10,000 small and mid-sized manufacturers) and 350
member associations serving manufacturers and employees in every
industrial sector and all 50 states. Headquartered in Washington, D.C.,
the NAM has 10 additional offices across the country.
Improving Health Care Quality
NAM members are strongly committed to providing health care
benefits to their workers and their workers' dependents. Indeed, 98
percent of NAM members provide health benefits to their workers and
dependents.Our members have always worked to ensure that workers and
manufacturers receive the best quality care for their health care
dollar. Employers have helped drive the quality revolution through such
entities as the National Center for Quality Assurance, URAC / The
American Accreditation HealthCare Commission and the Foundation for
Accountability (FACCT). More and better information will continue to
help the health care purchaser--whether business or individual--make
better choices among diverse health coverage options.
Health care purchasers and consumers are at a greater disadvantage
when it comes to selecting individual physicians. While health
insurance networks--much maligned in the current managed care debate--
can provide some reassurance of reasonable physician competence to the
health care consumer, we are left by and large with word-of-mouth
advice from family, friends or peers if we are lucky . . . or from a
thick provider book or the yellow pages if we are not.
The chairman's bill seeks to give consumers a powerful tool with
which to evaluate individual physicians by providing access to the
National Practitioner Data Bank, a taxpayer-funded entity. The
committee has prepared an excellent mockup of what this database might
look like on the web. Consumers will be able to scroll down through
information on medical malpractice payments, criminal convictions,
hospital discipline, board discipline and Medicare/Medicaid exclusions.
I know I would want to know what is in a doctor's database before he or
she treated a family member or me. Wouldn't we all?
Protecting Against the Few Dangerous or Incompetent Physicians
American physicians are among the finest in the world. The evidence
of the high quality of our health care system can be seen in the
numbers of our northern neighbors who come south for treatment or our
southern neighbors who come north. We are justly proud of the
professional medical men and women in whom we place our lives and
trust.
This legislation seeks to address the exceptions to that high
professionalism, the aberrations that shake the public trust in the
medical profession. Examples abound of physicians who have managed to
skip ahead of disciplinary proceedings and others who have been left
behind by changes in the practice of medicine or the erosion over time
of their skills. The example cited in a previous hearing of the New
York physician who carved his initials in a woman's abdomen defies
comprehension.
The estimate in the Institute of Medicine's report 11Building a
Safer Health Care System: To Err Is Human'' dramatizes our problem:
44,000--98,000 people die each year as consequence of medical errors.
While not all of these are a result of physician errors, we should be
united in our desire to protect the public and eliminate these errors
to the greatest extent possible. Senator Wyden's comment in the March
hearing is right on point:
``. . . there is no logical argument for keeping information
about proven flagrant cases of public misconduct from the
public. For the federal government not to disclose this
important information in the Data Bank about physician
misconduct simply doesn't pass the smell test.'' [Statement of
Sen. Ron Wyden, House Commerce Subcommittee on Oversight and
Investigations, March 1, 2000.]
Present measures to deter medical errors--medical malpractice
lawsuits and disciplinary proceedings by state boards of licensure--
have proven ineffective, as the IOM study demonstrates. Despite
widespread exposure to medical malpractice litigation, medical errors
continue to occur and, given human nature, will probably always occur.
The NAM and other members of the business community have long
understood and sympathized with the medical community's fears on
medical malpractice litigation. We find it fairly ironic that they have
so misunderstood employers' unwillingness to submit to a very similar
liability exposure under the Dingell-Norwood bill.
The Subcommittee on Oversight and Investigations' March hearing
made clear that the ability of state boards of licensure to police
physicians' competence varies widely. We encourage more states to take
affirmative steps to fully fund their state board of licensure. In
addition, the National Practitioner Data Bank was established to assist
these state boards with better information on physicians' background
and, particularly, information on physicians who move from state to
state. We agree with the chairman that it can now do more.
The chairman's bill is not meant to supplant state boards of
licensure or, for that matter, medical malpractice litigation. Health
care consumers--which include all of us from time to time--deserve the
chance to choose a physician with eyes open and with the benefit of the
best information available. The chairman's bill is an appropriate and
necessary step in this direction.
Is the Data Bank Ready?
The NAM would like to open up the Data Bank as soon as possible to
protect consumers. We recognize, however, that many arguments as to its
readiness were raised in the March subcommittee hearing and will no
doubt be raised again today. Senator Wyden's testimony and expertise on
this subject are persuasive as well.
A short pause before the Data Bank is opened to the public may make
sense if it is used to get the Data Bank and the consumer interface to
the Data Bank right. We fear that a longer delay might be used as an
excuse to delay implementation indefinitely. Nevertheless, it is
important that we not harm the vast majority of good physicians in the
attempt to protect consumers from the few bad physicians. A delay in
implementing the Patient Protection Act for six months to no more than
a year may be in order.
Conclusion
The NAM strongly supports the Patient Protection Act of 2000 and
urges this Committee and the Congress to act swiftly to pass it before
the 106th Congress adjourns sine die. I thank the Committee and will
welcome your questions.
Chairman Bliley. Thank you very much.
Mr. Cleary. Next time we will bring samples.
Chairman Bliley. Okay.
The next is Dr. Donald J. Senese--I hope I pronounced that
correctly--the Director of Research of 60 Plus.
STATEMENT OF DONALD J. SENESE
Mr. Senese. Thank you, Mr. Chairman. In the interest of
time, let me just read a summary of my testimony.
The 60 Plus Association is a national senior citizens
advocacy association of 500,000 members, roughly 1,000 per
congressional district, and supported by voluntary donations of
supporters. I bring greetings to you and the committee members
from President Jim Martin and also Honorary Chairman Roger
Zion, formerly a member of the House of Representatives.
60 Plus Association endorses the Patient Protection Act of
2000, legislation that would open the National Practitioners
Data Bank to the public via the Internet. Congress created the
Data Bank in 1986 and should open it to the taxpayer whose
taxes fund it. This legislation would allow monitoring the
occurrence of malpractice litigation and address the problem of
physicians who lose their licenses or face discipline in one
State and then move to another to practice medicine.
We believe that consumers should be entitled to this
information as a matter of sound public policy, making medicine
safer and empowering patients and consumers. In addition, this
legislation also provides safeguards for doctors, protecting
their privacy and their reputation.
The 60 Plus Association believes this legislation is
especially needed for senior citizens to provide consumer
information on doctors for present Medicare beneficiaries and
for the baby boomers who will soon be Medicare recipients.
Thank you very much.
[The prepared statement of Donald J. Senese follows:]
Prepared Statement of Donald J. Senese, Director of Research, 60 Plus
Association
Mr. Chairman and Members of the Commerce Committee, I am Dr. Donald
J. Senese, Director of Research for the 60 Plus Association. I am
pleased to be here today representing the 60 Plus Association
testifying on The Patient Protection Act of 2000, which would open to
the public the National Practitioners Data Bank allowing consumers to
obtain the information they need to make informed decisions about their
physicians.
I bring you greetings from our Honorary Chairman, the Honorable
Roger Zion, a Member of the House of Representatives 1967-1975, and
from our president Jim Martin.
The 60 Plus Association is a national, nonpartisan senior citizens'
advocacy group with a membership of 500,000, about 1,000 per
Congressional District.
In accord with The Truth in Testimony Requirement, the 60 Plus
Association asserts that we have not received any federal grant or
subgrant by a federal agency or a contract by a federal agency in the
current year or preceding two years. We exist by the voluntary
donations of our thousands of supporters throughout the country,
without seeking or accepting any federal aid or assistance.
We wish to commend the Chairman and members of this Committee for
holding a hearing of such an important matter as we face today. This
bill will be a major help to our senior citizens throughout the
country.
The National Practitioners Data Bank contains valuable information
regarding such crucial material as disciplinary and medical malpractice
payment information about physicians. This Data Bank was established
with federal tax dollars. Unfortunately, despite the fact that
taxpayers have paid for it, currently it is not now available to the
public.
The Patient Protection Act of 2000 provides a crucial benefit--
access to information about those individuals who are treating them for
medical reasons.
Consumers may be given a list of doctors and must choose without
any background or information. This is one of the most critical
decisions individuals will make as they will be entrusting this
individual with their health and well being. The cost of a poor choice
may mean poor treatment, inadequate attention to real medical needs,
and unfortunately, consequences that may result in a more serious
illness or even death. Our seniors, as well as others in our
population, cannot take the risk from having no or inadequate
information.
The vast majority of doctors, I am sure, are very qualified and
dedicated to their profession.
However, we have closely followed your hearings. And we realize
from the witnesses you have had--and the anecdotal stories we see in
the press from time to time--that there are problems with doctors and
it is crucial for potential patients to know these problems.
Congress created the National Practitioner Data Bank in 1986 to
accomplish a number of objectives including providing better medical
care and to monitor the occurrence of medical malpractice litigation.
The Data Bank allows us to address the problem of physicians who lose
their licenses or face discipline in one state by then moving to
another state to practice medicine. Making this knowledge available to
the public is sound public policy and will improve patient safety. We
have the opportunity to make medicine safer and at the same time
empower patients and consumers.
We also believe that this legislation provides proper safeguards
for doctors, protecting both their privacy and their reputations.
We realize that there are certain drawbacks in the National
Practitioner Data Bank, regarding the timely reporting of information
and consumers understanding the type of information reported especially
on different medical specialties. Despite these restraints, we have
full confidence that we can depend on our citizens to make informed
decisions based on the information available. And we are taking
advantage of the advance in technology by making this information
readily available over the Internet.
Though it may be an extreme case, the recent story of Dr. Michael
J. Swango should send chills down our spines. He had murdered at least
four of his patients before getting caught. His diary revealed that he
killed for the mere pleasure of it. In essence, he was a delusional
serial killer. He pleaded guilty to murdering three of his patients by
lethal injections. And where was Dr. Swango when arrested? He was in a
Chicago airport on his way to Saudi Arabia where he had accepted a job
in a hospital.
As the retirement of Baby Boomers will swell the ranks of those
receiving Medicare, we need to provide our present Medicare recipients
and future ones with the tools to learn about the doctors who will be
treating them. Adoption of The Patient Protection Act of 2000 will be
an important step in that direction.
Chairman Bliley. Thank you, Doctor.
We will now hear from our final witness of the day, Mr.
Kerry Hicks, Chief Executive Officer of HealthGrades.com, from
Lakewood, Colorado.
You didn't get that hand crushed by some doctors out there,
did you?
STATEMENT OF KERRY R. HICKS
Mr. Hicks. No, it was me. A biking accident and the wall
won.
In the interest of time and hopefully imbibing in some of
the products that Mr. Cleary's constituents produce, I will be
brief.
I am Kerry Hicks. I am Chairman and CEO of
HealthGrades.com, a publically traded company based in
Lakewood, Colorado. I appreciate the opportunity to testify on
the National Practitioners Data Bank.
By way of introduction, HealthGrades.com's mission is to
provide comprehensive, objective health care ratings
information to consumers to help them make better-informed
health care decisions. We provide to consumers, for free,
ratings information on virtually every hospital, physician,
health plan, nursing home, home health agency, fertility clinic
and hospice program in the Nation. Therefore HealthGrades is
100 percent behind any effort, including this effort, to
provide health consumers any straightforward, actionable
information that will help them make better-informed choices
and improve patient safety.
There is considerable demand for information about the
quality of care delivered by the Nation's health care
professionals and institutions. Research commissioned by
HealthGrades shows that 96 percent of consumers want more
information about their health care providers. Approximately
600,000 users have used our Web site to find objective, third-
party information about health care providers in the past 3
months, illustrating the significant demand for this type of
information.
Consumers need this information to ensure their own safety
and that of their loved ones. You have heard today from the
first panel of victims who would be in either better health or
have family members alive today had they had access to the
information in the NPDB. Consumers can find limited physician
profile data, such as a doctor's name, address, specialty,
medical school, years in practice and State sanctions at a
number of locations on the Internet, including numerous State
medical board Web sites at HealthGrades.com, but--and this is
an important but--malpractice history is simply not available
to the public today. State-sanctioned data alone doesn't offer
consumers a fair representation of a physician's practice
record.
The New York Daily News ran a series of reports in March of
this year that found that only 36 percent of physicians in New
York who had made at least 10 malpractice payments had faced
any disciplinary action by their State medical boards. To say
this in the converse, in other words, 64 percent of physicians
with 10 or more malpractice payments had not been sanctioned.
It would be disingenuous for anyone in this room to say
that they would not want to know that a physician they or a
loved one was considering seeing had made 10 or more
malpractice payments. Opening up the NPDB would provide this
valuable information regarding malpractice payments to the
public.
The American Medical Association believes that releasing
the raw data from the NPDB would not be helpful to consumers,
it might be harmful should they misconstrue or fail to
understand the reasons for a physician's malpractice record. We
find this, candidly, somewhat incredible. If context is truly
the problem, the answer then is not to deny consumers
information; it is simply to provide them more information. To
dispel the AMA fears, physician malpractice history should be
compared to the histories of other physicians practicing the
same specialty in the same State. Such comparisons would help
consumers fully understand the context of the information.
The State of Massachusetts Board of Registration in
Medicine has successfully implemented a system with its
qualifying information that presents physicians' malpractice
history in an easy-to-understand format. Chairman Bliley's
legislation, which is based on the Massachusetts model, also
achieves this goal.
In addition to putting in payment history in the context of
specialty, HealthGrades believes, in fairness, it would be
beneficial to indicate how long a physician has been in
practice. Three malpractice payments in 15 years might be
different than three malpractice payments made in 2 years.
Two states, Massachusetts and Florida, have made great
strides in making malpractice history available. All other
States that provide physician profile information do not, that
is, do not provide malpractice histories. It is important to
release this information at the national levels since poor
quality physicians have historically been very adept at moving
from State to State.
HealthGrades is a private sector company whose business is
based on providing consumers with objective third-party ratings
and profiles on health care providers. The release of data in
the NPDB would allow us to present this key information which
could affect the lives of the more than 2.4 million consumers
who come to our site each year. It is not the single source by
which patients need to make a decision, it is part of a larger
profile that we believe is helpful.
As consumer advocates, therefore, we strongly support
passage of the Patient Protection Act of 2000. Again, we
applaud Mr. Bliley's efforts and thank you for the privilege of
addressing this committee.
[The prepared statement of Kerry R. Hicks follows:]
Prepared Statement of Kerry R. Hicks, Chairman and CEO,
HealthGrades.com, Inc.
Mr. Chairman and Members of the Committee, my name is Kerry Hicks
and I am Chairman and CEO of HealthGrades.com, a publicly-traded
healthcare information company based in Lakewood, Colorado. I
appreciate this opportunity to testify on the National Practitioner
Data Bank (NPDB).
HealthGrades' mission is to provide comprehensive, objective
healthcare ratings and profiles to consumers to help them make better-
informed healthcare choices. We provide to consumers report cards on
hospitals, physicians, health plans, nursing homes, home health
agencies, fertility clinics and hospice programs (see Attachment 1 for
home page). HealthGrades is 100 percent behind efforts to provide the
health care consumer with straightforward, actionable information that
will help them to make better healthcare choices and improve patient
safety.
There is considerable consumer demand for information about the
quality of care delivered by the nation's healthcare professionals and
institutions. Research commissioned by HealthGrades shows that 96
percent of consumers want more information about their health care
provider. Approximately 600,000 users have used our Web site to find
objective, third-party information about a healthcare provider in the
past three months, illustrating the significant demand for this
information. Consumers need this information to ensure their own safety
and that of their loved ones. You have already heard testimony from
victims who would be in better health or have family alive today had
they had access to the information in the NPDB.
Consumers can find limited physician profile data such as doctor's
name, address, specialty, medical school, years in practice, and state
sanctions at a number of locations on the Internet, including numerous
state medical board Web sites and HealthGrades.com (see Attachment 2
for physician profile example). But, malpractice history is simply not
available to the public.
State sanction data alone does not offer consumers a fair
representation of a physician's practice record. The New York Daily
News ran a series of reports in March 2000 that found that only 36
percent of the physicians in New York who had made at least 10
malpractice payments had faced disciplinary action by their state
medical board. In other words, 64 percent of the physicians with 10 or
more malpractice payments had not been sanctioned! It would be
disingenuous for anyone in this room to say that they would not want to
know that a physician they, or a loved one, was considering seeing had
made 10 or more malpractice payments. Opening up the NPDB would provide
this valuable information regarding malpractice payments to the public.
The American Medical Association believes that releasing the raw
data from the NPDB would not be that helpful to consumers, and might
even be harmful, should they misconstrue or fail to understand the
reasons for a physician's malpractice record. If context is truly the
problem, then the answer is not to deny consumers information, but to
give them more. To dispel the AMA's fears, physicians' malpractice
histories should be compared to the histories of other physicians
practicing in the same specialty and in the same state. Such
comparisons would help consumers fully understand the context of the
information.
The State of Massachusetts Board of Registration in Medicine has
successfully implemented a system with this qualifying information that
presents physician malpractice history in an easy-to-understand format.
Chairman Bliley's legislation, which is based on the Massachusetts
model, also achieves this goal. In addition to putting payment history
in context of specialty and state, HealthGrades believes that, in
fairness, it would be beneficial to indicate how long a physician has
been in practice. Three malpractice payments in 15 years might be
different than three malpractice payments in two years.
Two states, Massachusetts and Florida, have made great strides in
making malpractice history available. All other states that provide
physician profile information do not provide malpractice histories. It
is important to release this information at the national level since
poor-quality physicians have historically been very adept at moving
from state to state to escape detection.
HealthGrades is a private company whose business is based on
providing consumers with objective, third-party ratings and profiles of
healthcare providers. The release of the data in the NPDB would allow
us to present this key information, which could affect the lives of the
more than 2.4 million consumers who come to our site each year. As
consumer advocates, we strongly support passage of the Patient
Protection Act of 2000. Thank you for the privilege of addressing this
committee.
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[GRAPHIC] [TIFF OMITTED] T7118.002
Chairman Bliley. Thank you very much.
The Chair recognizes himself.
Mr. Croft, you testified that the modification of the
current NPDB would be a major undertaking that would take 2 to
3 years. The State of Massachusetts, which has one of the
largest physician populations in the country, created their
system from scratch in 6 months with essentially no budget and
no model.
Are you really claiming that the Federal Government with
its vast resources will take 3 years to model the system on
Massachusetts using data that for the most part it already
collects?
Mr. Croft. Well I think that is one of the important
points, Mr. Chairman, that in fact we do not have some of the
data that your legislation would call for; and I am not sure,
unless we were starting from scratch, that we could ever
collect some of that data to the point where it would be
considered reliable. After all, we have got 10 years' worth of
information, and much of it comes from malpractice insurers,
some of whom are no longer in business. And not to mention the
regulatory process that the Federal Government uses which, as
we all know, is not the speediest in the world.
But just as a general observation, if we were talking about
starting a new system from scratch, forgetting about the
regulatory side of things, it probably would be easier,
actually, than modifying an existing system that was set up for
one purpose, to use it for an entirely different purpose. That
is my best professional estimate about the time, and based on
my experience, that is probably of what it will take.
Chairman Bliley. You testified that congressional intent in
1986 was quite clear that the Data Bank's information is not
intended to produce an independent determination about the
competency of an individual practitioner. As such, the Data
Bank information is incomplete for the purpose of disclosure.
Are you aware that Vice President Gore played a large part
in the original legislation?
Mr. Croft. No, I wasn't.
Chairman Bliley. Please look at the poster over there to my
right. The Vice President said, ``My natural inclination is to
make it available to the public. It is my understanding we set
out to make it available to everybody, and at some point it was
cut back.''
Mr. Croft, do you think the Vice President is wrong in his
recollection--in his current view that he is inclined to open
the Data Bank to the public?
Mr. Croft. I have no reason to question that, sir. I would
simply say that it is my understanding that this act would
probably have never been passed without those confidentiality
provisions. And Mr. Gore's intentions notwithstanding----
Chairman Bliley. Another question on the clarity of
congressional intent in 1986: That did not stop the
administration from proposing access to the Data Bank 7 years
later in 1993, did it?
Mr. Croft. Apparently not.
Chairman Bliley. Thank you.
One question for you, Ms. Henderson: Is Tillis Churchill's
physician, Dr. Butler, still practicing in Florida?
Ms. Henderson. I can't speak to that. I don't know. But I
made a note, and I certainly will find out tomorrow.
Chairman Bliley. Good. If you could let the committee know
we would deeply appreciate it.
The Chair yields back the balance of his time and
recognizes the gentleman from Ohio, Mr. Strickland.
Mr. Strickland. Thank you, Mr. Chairman.
I would like to ask this question, and any or all of you
could respond if you like. In the AMA's testimony, it is
mentioned that according to 1999 NPDB data, cumulative data in
that annual report showed that at the end of 1999, 75.8 percent
of all NPDB reports pertained to medical malpractice
settlements.
The AMA also states in their testimony that at least two
studies suggest the correlation between settled claims and
actual negligence is around 30 percent.
What do these findings suggest regarding the release of any
data on malpractice claims, in your judgment?
Ms. Sullivan. I can give you some information from
Massachusetts that might--I hope will be helpful for you.
I think that the significant issue is not the huge
percentage of doctors who have a single malpractice payment. I
did a 10-year analysis of a data base on what we have on
Massachusetts physicians, in expectation of questions on
malpractice, in an annual average population of about 30,000--
so our current licensees--we have only 105 who have had more
than two paid claims. And that was actually out of a total
population, over 10 years, of over 40,000 doctors. But these
are physicians who represent 5 percent of the population of
physicians who have a paid claim. So 95 percent obviously have
two or fewer, two or one, and represent only one-third of 1
percent of all of our doctors who account for 16 percent of the
dollars paid.
And to get to your question, how do we measure whether or
not--if that affects quality, these physicians tend to be very
problematic in other areas. These 105 with three or more paid
claims had 334 consumer complaints, 99 hospital discipline
reports, 25 board disciplinary actions, 16 complaints from
health care professionals or reports from government or law
enforcement. And we found that--and perhaps the Massachusetts
population is a statistical anomaly--that regardless of the
area of specialty, any time that a physician had a record of
greater than three malpractice payments, regardless of
settlement or judgment, that that physician was a statistical
outlier of great magnitude for that speciality.
Mr. Strickland. Let me ask a related question here.
Do you or Mr. Hicks or any others believe that certain
States are allowing bad doctors to practice when they should
not be practicing? I know--I am from the State of Ohio; I
believe our State has a reputation for doing a superb job of
monitoring physicians and taking this matter very, very
seriously.
But do you think that States are allowing these bad
practices to happen, and if so, what's breaking down? Do States
knowingly do this, or are there other reasons?
Mr. Hicks, I would especially like to ask you what the root
causes are if this in fact is happening, if States are doing
this or not taking this problem seriously.
Mr. Hicks. Sure. I appreciate the question, and my answer
will be somewhat speculative; but certainly our experience is,
if you look at the State medical boards, there is substantial
variability amongst the States, which is not altogether
unanticipated from the standpoint that there are States that
are much more rigorous, if you look at their experience and the
percentage of sanctions per physician or per thousand
procedures and the like.
But, you know, if there is an introduction with respect to
trying to make all 50 States walk in lockstep under the same
terms and conditions, I mean, I frankly believe that that is
improbable.
Mr. Strickland. Would any of the others like to comment on
that, on your perception of what the States are doing?
Ms. Henderson. I would like to comment that I think in
Florida our medical board takes their public protection
responsibility very seriously; and I see giving certain
information to consumers as more of a partnership that really
enhances that public protection mission.
Consumers have a vested interest in helping us make sure we
get it right. And so it is more, to me, of a comprehensive
package; there is no single one way that is the correct way.
And so we look at it as a multidimensional approach to public
protection, and consumers having information is certainly a
step in the right direction.
Chairman Bliley. The time of the gentleman has expired.
The Chair recognizes the gentleman from Iowa, Dr. Ganske.
Mr. Ganske. Thank you, Mr. Chairman. It has been a good
hearing, and I appreciate your having this hearing and the
members of this panel waiting a long time.
It has been an amazing day when Hillary's' health plan is
brought up on the chart here, and Chairman Bliley is touting an
aspect of it; I thought that would be a cold day somewhere.
But in answer to your question, Mr. Cleary, maybe I can
provide some useful information. You wanted to know how I would
find a good doctor.
Mr. Cleary. Yeah. My point was, you know, in the old days
we used to be able to rely on that because we weren't as
transient. We were born and died in the same town, and I
mentioned the small town I grew up in. Everybody knew who the
occasional bad doctor was. But now we are so transient, it is
hard; and when you find yourself in a new city and place, how
do you find out? People often move from city to city to city.
Mr. Ganske. That is true. And part of the problem is that
employers switch HMOs so frequently that once you establish a
relationship with someone on a panel, then the next year you
find you are in a totally different HMO. And that type of
transient decisionmaking by employers is a real problem.
Mr. Cleary. If I may, what's wrong with that is quality.
The biggest problem our employers make is keeping workers--
hiring and keeping workers, and we do that by providing the
best benefits. And so we listen to them, and if there is a plan
that is not working, very often we hear from our employers,
they switch the plans. That is what's driving that.
Mr. Ganske. I think it is also fair to say that many
employers look primarily at the bottom line and the cost of the
contract.
Mr. Cleary. The bottom line involves the people----
Mr. Ganske. Let me give you some advice, Mr. Cleary, on how
to find a good doctor, especially if you are looking for
surgery.
Mr. Cleary. I am not yet, that I am aware of, but go ahead.
Mr. Ganske. Some day if you do.
I was always very honored when I was in practice as a
surgeon, when I asked my patients how they happened to come to
me, if they said, Well, I have a friend who is a nurse in one
of the operating rooms, and she told me that I ought to come
and see you. I thought that was a real high compliment, and so
if you have any friends who are nurses in operating rooms, you
can ask them.
I am going to close, Mr. Chairman, by quoting--I think
maybe to bring this to a close, by quoting from an article, one
of the two articles that the Institute of Medicine used in its
report on medical errors; and this is the nature of adverse
effect events in hospitalized patients from the New England
Journal of Medicine by Lucy Ann Liepen and others, volume 324.
And the first part of the discussion I think is really
pertinent today.
And this is what it says, because it is important, I think,
to distinguish between medical errors and negligence:
``Many of the adverse effect events we identified were
neither preventable nor predictable, given the current state of
medical knowledge. For example, idiosyncratic drug reactions in
patients who had not taken the drugs previously--how could you
ever know--postoperative myocardial infarctions in young
patients without previous evidence of heart disease; and
adhesive intestinal obstructions, other unpreventable adverse
events occurred with predictable frequency. But the patients
accepted the risk of treatment because of the potential
benefits. Examples of these include radiation injury and bone
marrow suppression from chemotherapy. Preventing these
unpreventable adverse effects events will require advances in
biomedical knowledge.''
I might add, for instance, that somebody who is grossly
overweight and requires bariatric surgery, that person is at
significant risk for a whole series of health events that could
shorten his life. But at the same time you have to weigh that
against the fact that an operation could be fatal, too.
This goes on to say, ``Our physician reviewers identified
management errors in more than half of the adverse events we
studied. Technical errors were by far the most common class of
error but relatively few of these were judged to result from
negligence.''
It goes on to say, ``Sometimes the evidence of negligence
appears clear-cut, as when a physician fails to evaluate a
patient with rectal bleeding. Other cases are less obvious. For
example, depending on the circumstances, each of following
could be considered either negligent or not: a mistaken
diagnosis of acute appendicitis; misinterpretation of a chest
film as pneumonia, instead of showing congestive heart failure;
puncture of the pleura during insertion of a central venous
catheter; perforation of a bowel during an operation to remove
adhesive intestional obstruction.
``In the case of the mistaken diagnosis of acute
appendicitis''--Mr. Chairman, may I have about 30 seconds?
Chairman Bliley. Without objection.
Mr. Ganske. ``the patient may have had a classic history,
typical findings on physical exam, laboratory tests supportive
of the diagnosis. If the physician then failed to make the
diagnosis, it would be both an error in diagnosis and a case of
negligence. If, however, the diagnosis was made, but no
appendicitis was found, there would have been an error in the
diagnosis, but not one involving negligence because a surgeon
would have followed generally accepted practices, standards of
practice.''
These are the types of considerations that I think need to
be placed into context, particularly when we are dealing with
settlements. And I thank the chairman very much.
Chairman Bliley. The Chair recognizes the gentleman from
Massachusetts, but it would also, before recognizing him, point
out to the gentleman from Iowa that the Chair had his appendix
removed with a misdiagnosis and almost died when he was 13
years old--and some probably wished I had.
Anyway the Chair recognizes the gentleman from
Massachusetts, Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman, very much.
Ms. Sullivan from Massachusetts, my mother is a Sullivan,
and she always told me the Sullivans are a very intelligent
people.
Ms. Sullivan. Your mother is a very wise woman.
Mr. Markey. Especially those from Massachusetts.
Ms. Sullivan. She is doubly wise.
Mr. Markey. You are here to help illuminate the committee
on how wise the Sullivans of Massachusetts are in implementing
this kind of a Data Bank in our home State. We have a 800
number in Massachusetts, and we also have a Web site that
people can go to. Which of those two do people more frequently
use, the Web site or the 800 number?
Ms. Sullivan. When we first started, we started with only
the 800 number; and when I testified here March 1, I actually
included in my testimony a breakdown of the exact numbers. But
the usage of the Web is significantly higher.
Mr. Markey. Significantly higher?
Ms. Sullivan. Significantly higher. I don't know the exact
numbers. We are projecting for this year in the vicinity of 3
to 3.25 million hits on our Web site, into our profile system,
and I would say that we will probably take 40,000 phone calls
on it.
Mr. Markey. So would you recommend that any legislation
that we pass on a national basis include an 800 number and a
Web site requirement?
Ms. Sullivan. Yes, I would, and because it is a work in
progress, among the things that we hope to add on our Web site
is a Spanish language mirror in that we do have staff who have
additional language capability to work in the call center.
We do not want to exclude anyone who might need our
services, and any time you have multiples of 10,000 of U.S.
Citizens that need your help, I think it indicates that it is
an important thing.
Mr. Markey. I think it is a good idea.
Ms. Sullivan. May I add one thing to that, Mr. Markey?
Our staff, during our lunch break I called the office, and
they were watching C-SPAN and they asked me to say thank you to
you for your kind words during your opening statement; they
felt you showed great support for their public service and they
were grateful for that.
Mr. Markey. Well, I am sure anyone who would be hired by a
Sullivan would automatically be an excellent person, and I will
only continue to reflect that attitude which my mother built
deeply into me.
Ms. Sullivan. I hate to tell you it is my ex-husband's
name, but continue.
Mr. Markey. I actually knew that but wasn't going to
mention that on C-SPAN, but I suppose everyone back in the
office knows as well.
Ms. Sullivan. You've made my mother very happy. Thank you.
Mr. Markey. The marriage or the divorce----
Ms. Sullivan. Continue.
Mr. Markey. [continuing] or the name?
Now you have this requirement, I think, in Massachusetts
that the specific dollar amount of the malpractice claim is
actually not part of the information. And that, I understand it
is a way that makes it, as a result, more difficult to identify
who the specific claimant may be.
Ms. Sullivan. To some degree.
Actually, I will say probably no, because the majority of
doctors who have a payment and any malpractice history in
Massachusetts have a single payment. And the court reports of
the docket numbers, including the plaintiff name, are of course
public record, so anyone doing a diligent search could actually
look it up.
But I think that the privacy concerns that you raised in
your opening statement are very valid, and I think it is
something that we should all have on the table at all times
when we look at whether or not, as people become more and more
sophisticated in layering of data bases and overlays, to become
more and more specific as to whether or not it would be a
violation of privacy for people.
You have a good suggestion.
Mr. Markey. So the biggest concern I hear from members is
that this information could be misinterpreted, that is, that
they could gain access to it and not really understand what the
nature of the claim was; that is, someone from Texas looking at
Massachusetts wouldn't understand Massachusetts laws, wouldn't
understand what the standards were in order for a complaint to
be brought against a physician.
Or Massachusetts looking at Texas, that there might be a
ceiling of a million dollars for a case, whereas in
Massachusetts there would be no limit in terms of someone being
able to sue a doctor.
How do we sort that out if we are going to construct a
national system? What is a way we can make sure the information
is not misinterpreted, in a way it would not harm the doctor on
the one hand, or on the other hand give the patient or the
potential user of the service a misimpression as to whether or
not the doctor was really qualified or not.
Ms. Sullivan. If I had the ability to add the other States'
information to ours for a doctor of multilicense, I would
create a table that had significant information about any caps,
whether or not there was a tribunal system; and there would be
significant patient information on the other States that simply
populate from the table as an explanation to each field to make
it more clear.
I think it is a very easy technical answer, but an
important policy issue.
Mr. Markey. If I may ask one final question, Mr. Chairman--
--
Chairman Bliley. Sure.
Mr. Markey. What, in your opinion, is the quality of the
information which is being put on the Massachusetts system,
that is, the quality of the information from physicians, from
hospitals, from all the sources? Is there a way you can rank in
the hierarchy which information in your opinion is most solid
and which is least solid?
Ms. Sullivan. The most solid is malpractice. We have three
sources with cross-verification for that. Our own board records
of discipline are easy to maintain. We don't have great
compliance or ability right now to keep insurance plans and
other things updated, although we have recently come to some
negotiations with a few of the major plan members that they
will download their files to us directly, so that we have very
current information.
The most important quality information, and I say this as
the person who 4 years ago implemented--I was the technical
project manager on this implementation, our board records had
an 80 percent error rate on them--8-0, 80. Our error rate is
under 2 percent in the same files now. That is because it has
to be right.
The degree to which it is important, you have to hear that,
it forces you to care about the quality of your data. Thank
you.
Mr. Markey. As expected, Mr. Chairman, superior testimony
being delivered to this committee; and I hope that all members
will take it under advisement because I think that will help us
to frame the national legislation.
Chairman Bliley. I thank the gentleman, and I want to thank
the panel and all of our witnesses today for their superb
testimony. We are deeply grateful.
This concludes the hearing.
[Whereupon, at 4 p.m., the committee was adjourned.]
[Additional material submitted for the record follows:]
Families Advocating Injury Reduction
September 26, 2000
To the Members of the Subcommittee on Commerce
RE: H.R. 5122, The Patient Protection Act of 2000
I'm writing on behalf of the 2,800 members of Families Advocating
Injury Reduction (FAIR). FAIR is an Illinois statewide organization
made up of victims and their families who have suffered a loss of a
loved one or a devastating injury because of medical negligence, unsafe
workplaces, and dangerous products.
We support of the opening of the National Practitioner's Data Bank.
We believe that the patient has the right to know the professional
background of a physician that they are choosing for themselves and
their families. Increasing reliance on the marketplace for the delivery
of health care has dramatically altered the patient-doctor
relationship. The family doctor has been replaced by a far reaching
networks of physicians whom consumers often know nothing about.
If patients are to become effective consumers in the health care
marketplace, they must have access to information about the care they
are purchasing. Recognizing this need, we believe opening the National
Practitioner's Data Bank would give the consumers the information
needed to make educated and safer choices.
Ruth Wyman
FAIR Coordinator
______
414 South Ninth Avenue
La Grange, IL 60525
September 25, 2000
To the Members of the Subcommittee on Commerce
RE: H.R. 5122, The Patient Protection Act of 2000
I would like to submit this testimony to the members of the
Subcommittee on Commerce for their consideration on the subject of
opening up the National Practitioner's Data Bank. I am a victim of
medical malpractice, injured by a doctor who was incompetent and
unethical. Because of our state's inability to monitor and discipline
problem doctors, this doctor has a clean and active license, according
to the Illinois Department of Professional Regulation (DPR).
In reality, this doctor had two peers reviews on my behalf. He's
been sanctioned by his medical society for unethical conducted,
exploiting his patient for financial gain, for what he did to me. I
decided not to file a lawsuit but he has several malpractice lawsuits
filed against him. One lawsuit was filed at $4.5 million for the
wrongful death of a young woman. It was settled for a sizable amount
and sealed.
I went to my state Senator, Senator Raica, to talk to him about
this doctor and about the Department of Professional Regulation (DPR)
not doing its job. Senator Raica already knew about this doctor. His
legislative aid told me what this same doctor did to her family member.
Our complaints were very similar. Although she never reported it, it
revealed a pattern of problems with his conduct. This doctor was also
investigated by another state agency that looks internally at hospitals
for problems after several similar complaints came in against him. Our
local paper reported that a nurse at his building was assaulted, hit on
the head with a blunt object, by a disgruntled patient who made a
threat against this doctor's life for what he did to him.
If a patient is able to know the complete professional background
of this physician, I am confident that this doctor would not be their
choice. Although some of the incidences that I mentioned would not be
reported to the Data Bank, the sanction, lawsuits and peer reviews
would reveal his true character. A patient has the right to know about
the doctor that they are entrusting themselves to.
Because of my bad experience, I became very active and tried to
improve our health care system in Illinois. I would like to present
Illinois as an example of why we need H.R. 5122
I became a member of Families Advocating Injury Reduction (FAIR)
and worked on getting a Patient's Right To Know Act passed in Illinois.
This bill is fashioned after the Massachusetts profiling bill. Since
1997, when it was first introduced, the Illinois State Medical Society
fought hard to block our access to our physician's professional
background. Just this past spring, it was introduced again and failed
in committee.
The Illinois State Medical Society came out against it, claiming
that the public is too ignorant to understand and process the
information. Like children, the public needs to trust them,
unconditionally. They don't seem to understand that children can be
taught. The Department of Professional Regulation (DPR) has been under
attack for scathing audits by the Illinois Auditor General as an agency
not capable for doing its job. Illinois is ranked as one of the ten
worst states in the nation for protecting patients against bad doctors,
according to Public Citizen.
The Department of Professional Regulation (DPR) testified at the
committee hearing this spring that physician profiling would cost the
state $1.8 million to set up. This is obviously ludicrous. But because
of the political power of the Illinois State Medical Society, it was
voted down.
In testimony for the Patient Protection Bill of 2000, the AMA
states that they are for profiling but only if it's done at the state
level. Looking at the recent vote in Illinois, I would say that this is
not a true statement. It's a statement to delay our right to know about
our physician's background. I only want to know about my doctor as much
as I can find out about my roofer or my TV repair man.
My life will never be the same because of what this doctor did to
me. With information and better choices, our health care will improve.
I believe that the incidents of medical errors and medical negligence
will drop with the opening up of the National Practitioner's Data Bank
because of the patient's ability to make more informed and safer
choices.
Arlene Salamendra
______
337 Alfred Drive
Sycamore, IL 60178
September 26, 2000
To the Members Of the Subcommittee on Commerce
RE: H.R. 5122, The Patient Protection Act of 2000
In the last fifteen years, we have found out that our son was
exploited by a doctor at three months of age. This man stepped out of
the standard of care many times. The injury to our son's airway and
bronchus led to a cardiac arrest which led to a brain injury. Had it
not been for disclosure at a back surgery as a teenager, we would still
not have known about our son's injuries. The cover-up led to many
strange deceptions, one of which was unnecessary allergy shots. There
were even isotope lung scans done on our young child, behind our backs.
we believe that this was to assess the damage that had been done. It is
almost as if the medical professionals had charge of our child.
We attempted to get our son's case into the courts. First there was
obstruction by a friend of the doctor who did this to our son. Then
after we found representation despite this man's efforts to keep us out
of the system for five years. The same man showed up in our case and
coerced our attorneys into giving up a case that withstood numerous
motions and even an appellate court decision.
In Illinois, the Illinois State Medical Society gives millions of
dollars in campaign finance funds to politicians. We also have the
presence of a powerful politician who has appointed his sister as a
deputy director of our state agency that controls licensing and he
supposedly controls elections, all this for about twenty years now!
We must look to a federal level for changes, as the same kind of
situations probably exists in other states to varying degrees Though we
believe that Illinois has all this down to a science. It is no wonder
that we are 43rd in the nation for disciplining bad doctors. We need to
raise this ``Veil of Secrecy'' so that people may have a choice to
avoid the really bad doctors. We need to have standardized disclosure
laws that have some teeth in them. All these things on a federal level
would keep doctors from covering up, and then moving into other state
to practice medicine!
Our lives have been destroyed by a bad doctor and the cover-up that
followed us all the way into the court system. Our son Aaron had his
right to ``due process'' stolen from him by October 1, 1997.
Herbert and Geraldine Schryver
______
316 N. Macoupin
Gillespie, IL 62033
September 25, 2000
To Whom It May Concern:
December 1995, injured by a doctor
Jan. 4, 1996, Newspaper announces that doctor is leaving the
community for southern Illinois (Marion)
Feb. 1996, file complaint with state Department of
Professional Regulation (DPR)
Jan. 1996, doctor gave up status as an Illinois State Medical
Society doctor
Mar. 1996, doctor no longer listed as a provider under Health
Link Insurance
Within first 6 months at Marion, seriously injures 4 women
Sept. 1996, DPR decides the doctor has committed no violation
in my case
I appeal decision and am denied access to complaint and appeal
record
Aug. 18, 1998, I resubmit complaint in writing to DPR
Receive letter from DPR director stating that decision stands
Dec. 1998, DPR finally disciplines doctor for injuries in
Marion, though patient contact is still allowed
Please include the following testimony in support of opening up the
National Practitioner's Data Bank to the Public, a bill that Rep. Tom
Bliley held hearings on September 19, 2000.
I am a victim of medical negligence. In the Fall of 1995, I was
looking for a doctor to see. Because I had very good insurance, I did
not need any referrals. I looked through the local yellow pages and
found a doctor who advertised ``20 years of practice.'' I assumed that
this doctor was good. What reason would I have to not think so?
What I experienced under this doctor's care is nothing short of
gross negligence and I think it is criminal too. Unfortunately, the
doctor preferred to cover up his mistakes and move on, rather than
treating me for the problems that he left me with. For two years, I
couldn't even leave my house, I was so sick.
Within a month after this doctor treated me, I saw an announcement
in our local small town paper that he was leaving town and heading to
southern Illinois. I got scared thinking about all the young women he
would be treating in this college community who didn't have their
families with them.
When I went to a new doctor in St. Louis, MO, the doctor looked at
my medical records and at me, and told me that I should report this
doctor to the proper authorities. I filed a complaint over the phone
with the Department of Professional Regulation (DPR). While my case was
closed without any action, a diplomat of the Medical Society in my
community told me that he and other doctors had stopped referring their
patients to him. As I met more women in my community, I heard horror
stories of what these women had encountered from him. These stories
made me even more worried about his patients in southern Illinois.
Working with FAIR: Families Advocating Injury Reduction, a victims
rights organization here in Illinois, we looked up the public records
of this doctor in some of the court houses. We found that this doctor
had paid out more than $700,000.00 in medical malpractice settlements
in McHenry County in northern Illinois. Then he came to my area and
injured me and several other women. I tracked this doctor down to
Marion Illinois and found out that he was suspended from hospital
privileges after injuring four women in a six month time period.
But what did his record say? If you would have called the Illinois
Department of Professional Regulation (DPR), they would have told you
that his record was in ``clean and good standing.'' They would not have
said anything about his malpractice payments that we--just by chance--
found out about in McHenry County. They would not have told you about
his suspension from hospital privileges at Marion Memorial Hospital.
And you would have thought that you were getting a true picture of this
doctor's professional history.
But you weren't.
As an Illinois tax-payer, I have seen our own state's DPR go
through two scathing audits and do little but turn a blind eye and a
deaf ear to the problem of consumer access to medical providers'
professional record. They still deny people access to information, and
lobby against access when the issue comes up for a vote in the state
legislature.
So I'm asking you, for me, for my daughter, and for all the other
people in this country who want to find out the truth about our medical
providers before it's too late, please open up the National
Practitioner's Data Bank to the public. It's our tax dollars, and most
of all, it's our lives on the line.
Sincerely,
Jeanne Bouillon
P.S. Please see enclosed map for more information.
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