By Amanda Frost
Public Citizen Litigation Group
July 15, 2003
After Doris Shipp died of cancer in June 1999, her husband, David, informed the Department of Health and Human Services that he feared her doctors had provided inadequate care that may have led to her death. Mrs. Shipp's treatment had been paid for by Medicare, the federal insurance program that provides medical coverage for Americans age 65 and over.
HHS is required by law to investigate complaints such as those made by Mr. Shipp as part of its oversight of the Medicare system. Although HHS completed its investigation into Mrs. Shipp's care, it refused to tell her husband the results of that investigation, claiming that he had no legal right to know.
The reason for HHS' secrecy? The very doctors Mr. Shipp had complained about had demanded that the results of the investigation be kept secret from him. HHS complied with those demands under its longstanding policy of hiding medical errors from Medicare patients and their families when the doctors under investigation refuse to consent to disclosure.
HHS' secrecy policy prevents the great majority of Medicare beneficiaries from learning the results of government-funded investigations into their complaints about government-funded medical care. Unsurprisingly, doctors refuse to consent to disclosure of investigation results in 79 percent of the cases in which HHS finds a quality-of-care problem, according to a report by HHS' own inspector general. Even when HHS finds no quality problems, doctors still refuse to permit disclosure 58 percent of the time. Thus, in the great majority of cases, Medicare beneficiaries are barred by their doctors from learning the results of investigations into their complaints about those doctors.
Unfortunately, government secrecy is the rule for most of the medical malpractice data gathered with federal tax dollars. Since 1990, the federal government has collected information on state disciplinary actions, malpractice payments, and revocations and restrictions of hospital privileges in its National Practitioner Data Bank, which it makes available to state medical boards, HMOs and hospitals. Yet all the information in the Data Bank is strictly off-limits to consumers and even other doctors, because Congress succumbed to pressure by the American Medical Association and passed a law forbidding public access to this federal data. The result is that most Americans have no way of knowing whether their doctor has made malpractice payouts.
But, at least for Medicare patients, doctors can no longer keep their medical errors secret. In a lawsuit brought by the consumer advocacy organization Public Citizen on behalf of its members, including Mr. Shipp, a federal appeals court recently ordered HHS to disclose the results of all of its investigations into complaints by Medicare patients, even when the doctor involved does not consent to disclosure. As a result, HHS can no longer shield doctors by hiding the truth from Medicare patients. Mr. Shipp will finally get answers to his questions about whether his wife received adequate medical care.
The appeals court ruled that HHS' policy of keeping investigations secret violated Congress' clear instructions that HHS disclose the "final disposition" of any investigation into a Medicare beneficiary's complaint. As the court concluded, Congress mandated disclosure of the results of HHS investigations because it wanted to provide Medicare beneficiaries with meaningful responses to their complaints about substandard medical care. The court agreed with Shipp that HHS' policy of refusing to inform patients of the results of its investigations when the very doctor under suspicion objected to disclosure was not responsive to beneficiary complaints.
The benefits of disclosure may accomplish even more than the court realized. At the moment, few Medicare beneficiaries realize that HHS has established Quality Improvement Organizations (formerly called Peer Review Organizations) for the purpose of overseeing Medicare services. QIOs are groups of independent doctors charged with the responsibility of ensuring that doctors provide Medicare patients with adequate care. Anyone covered by Medicare, or their representative (such as a family member), may file a complaint with their local QIO about the medical care received through Medicare.
The QIO is required by federal law to investigate all complaints and -- as a result of the recent legal victory -- to provide the results of those investigations to the complaining party. Perhaps with greater disclosure of the results of investigation will come greater public awareness of this important safeguard on the provision of Medicare services.
The next step is to make the National Practitioner Data Bank available to the public so that patients can use this information when selecting a doctor and so that doctors can review it before making referrals. Although state medical boards have access to that Data Bank, they have proven unable or unwilling to protect patients from dangerously incompetent doctors. For example, of the 2,774 doctors in the United States who have made payouts in five or more medical malpractice cases, only 463 (one out of six) had been disciplined by their state. And even when a state does discipline a doctor, that information is difficult for the average consumer to locate, especially if their doctor has practiced in several different states.
Public Citizen publishes Questionable Doctors Online (www.questionabledoctors.org), which contains one of the few centralized sources of information about disciplinary proceedings against doctors in all 50 states, but that publication should not be made to substitute for the government's own comprehensive and centralized statistics on disciplinary proceedings and malpractice payouts. Congress should not continue to deny patients access to the very information that would allow them to identify, and avoid, the small percentage of doctors who have proven unworthy of being entrusted with their care.