DEAD BY MISTAKE
Shouldn't you have the right to know if your doctor has been the subject of successful malpractice lawsuits?
By RICHARD MEEHAN
The Cool Justice Report
Aug. 18, 2009
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
A recent Hearst Newspapers investigative report condemned the medical profession, and hospitals in particular. The report claims that the medical community and government on all levels have failed to take effective steps to curb the alarmingly growing trend of medical negligence deaths. The claim is that secrecy built into the reporting system shields the medical community from public view. Connecticut is one of five states served by Hearst publications where only 20 percent of 1,434 hospital surveyed are participating in two recent national patient safety campaigns.
The report, entitled Dead by Mistake, is troubling. At a time when medical technology has exponentially increased the ability of doctors to fight disease and save lives, Hearst reporters posit that patient mortality from mistakes is increasing at an alarming rate. Doctor accountability is often protected by a system of peer review shielded from the public by statute and court rules.
Our legislature has created a peer review privilege prohibiting any effort to obtain information concerning a medical error investigation by a hospital or doctor. That privilege has been codified in our Code of Evidence. Not only can an injured patient not discover the information reported in peer review, it is also not allowed into evidence in a malpractice trial. Hospitals have peer review committees that have the laudable purpose of encouraging frank discussion among physicians concerning errors in patient care. Such discussions are privileged on the theory that to allow discovery of these discussions would discourage doctors from truthfully reporting such problems.
The Hearst study suggests that the privilege is more of a shield to protect against liability than an effort to cure injurious practices. Sure, arguments can be made that peer review has also led to improvements in patient care. However, at a time when transparency in all other aspects of professional life and government is increasing, the real question is why the medical profession remains shielded from criticism.
Congress created the National Practitioner Data Base (NPDB) to meet the "increasing occurrence of medical malpractice litigation and the need to improve the quality of medical care. . . " (NPDB website) NPDB defines itself as. ". . . an flagging system intended to facilitate a comprehensive review of health care practitioners' professional credentials. The information . . . is intended to direct discrete inquiry into, and scrutiny of, specific areas of a practitioner's licensure, . . . medical malpractice payment history, and record of clinical privileges." An admirable goal, but try to see if your doctor has been reported; you can't! NPDB data is not available to the general public. Why not? Shouldn't you have the right to know if your doctor has been the subject of successful malpractice lawsuits?
Connecticut's Department of Public Health is charged with the responsibility to investigate physician error. When there has been adjudication or a consent agreement disciplining a doctor its findings are generally available, with some limitations, under FOIA. Insurance carriers are generally required to report malpractice verdicts and settlements to DPH. Rare is the occasion where DPH follows up a successful lawsuit with a disciplinary investigation.
Typically when a doctor's insurance carrier resolves a claim they require that the patient execute a confidentiality agreement that provides as well that the patient will not voluntarily cooperate with DPH. The patient must chose between a needed settlement and public disclosure. The question is never a close one. Injured patients who deserve compensation aren't ombudsmen policing the medical profession.
If malpractice litigation is truly the bugaboo that doctors claim then open up peer review. Let the public decide, armed with all of the truth, not just what the insurance carriers chose to propagandize.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. His column also appears in the Sunday Norwich, CT Bulletin. Website, www.meehanlaw.com