[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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \4\ March 5, 2000, pg. 3.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \5\ To Err is Human, Building a Safer Health System, Institute of 
Medicine, National Academy of Sciences; November, 1999.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
    \10\ New York Public Interest Research Group, June 14, 2000.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \2\ Massachusetts Medical Society News Release, August 1, 1996.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
[GRAPHIC] [TIFF OMITTED] T7118.001

[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.
[GRAPHIC] [TIFF OMITTED] T7118.003

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