The estate of a deceased patient has sued Dr. Mole for not making a melanoma diagnosis earlier. The plaintiff's attorney has offered a settlement agreement for $1 million. He is concerned about the settlement being listed in the National Data Practitioner Data Bank. His attorney assures Dr. Mole that as this late point in his career this will do little to no impact on his reputation.
Most of his photodamaged patients come in for a full-body examination every six to 12 months. Five years ago, a 55-year-old woman with a history of multiple basal cell carcinoma and three melanoma in situ presented for her six-month visit.
Dr. Mole noticed an elevated pigmented lesion on her leg that was not there six months ago. A biopsy revealed a nodular melanoma that was 2.2 mm in thickness. Within six months of the biopsy, the patient had metastatic melanoma; she died seven months later.
Dr. Mole has been emotionally torn apart over the case and does not feel he can cope with a trial. On the other hand, he is concerned about the settlement being listed in the National Data Practitioner Data Bank. His attorney assures Dr. Mole that as this late point in his career this will do little to no impact on his reputation; no one in his community will know anything about it. Is this true?
In 1986, Congress passed the Health Care Quality Improvement Act. This was, in fact, designed to improve quality by offering liability protections to peer reviewers and by creating a centralized data depository through which information about physicians can be shared.
Now known as the National Practitioner Data Bank (NPDB), this data repository contains information about physicians' malpractice payments, medical board sanctions and peer review actions such as hospitals' termination of clinical privileges.
Initially, such data was kept confidential from the public. The data was only available to entities such as managed care plans, hospitals and the various state boards of medical examiners. In 1996, Massachusetts became the first state to change this.
In 1994, a series of media stories highlighted egregious quality of care deficiencies among Massachusetts physicians. These reports also charged that regulatory authorities and hospitals had been too lenient in dealing with the targeted individuals. The public policy issue was not the regulators' lack of information, the issue the NPDB was meant to resolve. Instead, the problem was inaction by regulators.
One indirect way to deal with this problem was to allow consumers to take action for themselves by obtaining the same information available to regulators and thereby enabling patients to make their own decisions about problematic providers.
The Massachusetts Secretary of Commerce, after discussions with an Advisory Committee on Public Disclosure of Physician Information, determined what information held by the Massachusetts medical board should be released to the public. With this, in 1996, Massachusetts created individual physician-specific profiles that included information about medical school education and subsequent training, medical malpractice claims payment history, licensure board and hospital disciplinary actions, and criminal convictions. As of 2008, the Massachusetts physician profile website had received about 6.5 million visits each year.
Many state medical boards have since followed the Massachusetts example in creating online physician profiles. By 2000, two dozen states offered online physician profiles. The data that each state makes public varies substantially. As of 2007, of the 70 state medical boards that regulate physicians (some states have more than one regulatory board), 56 boards reported information about disciplinary history, while 16 included medical liability information.
States continue to add online information with a trend toward greater disclosure. In 2009, for example, North Carolina mandated the publication of malpractice information on a board website. In 2011, Illinois passed the Patient Right to Know Act. This law, long opposed by physicians, requires the publication of information about physicians' medical education, board certification, revocation or restrictions of hospital privileges, criminal convictions, and medical malpractice payments.
If Dr. Mole practices in a state where the medical malpractice payment will become public information, he will need to take that into account before deciding to settle on this case versus defending himself in a court of law.
David Goldberg, M.D., J.D., is director of Skin Laser & Surgery Specialists of New York and New Jersey; director of laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.