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Physician Privacy Versus Patient Informed Consent

The Debate Continues

The need for surgery can make anyone feel vulnerable. Most people find solace in the fact that they will be treated by surgeons with many years of training. Even so, the rate of medical mistakes that result in injury or death is shocking: a 1999 study by The Institute of Medicine reported that medical errors were responsible for almost 100,000 deaths and more than one million injuries every year in the United States.

Those rates have steadily increased in the past 13 years since that study was performed. In fact, The New England Journal of Medicine reports that as many as one in five patients have experienced a medical mistake that led to injury or death.

The mistakes stem from a range of issues, including physician negligence. As a result, many patient advocacy groups encourage patients to, whenever possible, run a background check on both the hospital facility and the specific care providers who will be involved before undergoing procedures.

Unfortunately, one handy tool is no longer available to aid patients in this search. The National Practitioner Data Bank (NPDB) provided a compilation of all medical malpractice payments made on behalf of physicians and information about other disciplinary actions doctors may have been subjected to.

Until recently, this database could be viewed by the public, but in September of 2011, the Department of Health and Human Services blocked public access to this portion of the data bank.

Whether or not this information should be readily available to those outside the medical field is a contentious issue. Medical organizations argue against the release of specific information because the potential for inaccuracies, misinterpretation and speculation is rampant. On the other hand, patient advocacy groups stress that transparency results in increased patient safety and is invaluable in giving patients the peace of mind they crave before a surgical procedure.

Background of the National Practitioner Data Bank

The NPDB was established in response to a “malpractice crisis” in the 1970s and 80s. More medical malpractice suits were filed during this period than in “the entire previous history of American tort law,” with claim frequency growing a minimum of 10 percent every year in that span of time.

As a result, Congress passed the Health Care Quality Improvement Act of 1986. This piece of legislation was designed to set out standards for professional review actions, allowing physicians to reign in the errant few within the field and remove the ability of incompetent physicians to move to a different state without bringing along a paper trail of previous suits and disciplinary actions.

To monitor physicians travelling over state borders, the law also established the NPDB. The law requires that information about medical liability payments be reported to the data bank. The data bank was available to “hospitals, state licensure boards, some professional societies and other health care entities under certain circumstances,” allowing the gathering of data about particular health care providers before decisions were made about hiring, firing, promotion and other career-oriented decisions.

The NPDB collects various pieces of reportable information, including:

  • Professional liability payments made on behalf of physicians
  • Adverse action reports against a physician that span more than 30 days
  • Disciplinary actions against a physician
  • Professional society review actions against a physician
  • Medicare and Medicaid exclusion reports

State licensing boards and professional peer review entities are required by federal law to report whatever data they gather to the NPDB.

The Debate Continues

Physicians argue that privacy is foundational to the database. In fact, the original version of the law included immunity granted to physicians before they began reporting. This was required first as a way to encourage physicians to speak out against others within the field that were potentially causing harm to patients by making poor decisions or otherwise acting inappropriately.

Physicians also argue that in addition to a need for privacy, a substantial portion of the malpractice suits filed are frivolous and do not reflect poor practices. Even so, many of these claims are settled as business decisions, not as an admittance of fault.

Additionally, physicians contend that faulty information and disciplinary actions unrelated to the practice of medicine are also included in the database, things like tardy licensing fee payments, duplicate entries and inaccurate data. As a result, doctors are concerned patients may base decisions for care on erroneous information.

Even with these concerns, public advocacy groups continue to encourage public access to the data bank. They argue that public health risks far outweigh medical professional’s privacy concerns and that transparency and data sharing will advance the overall health and well-being of patients within the United States.

Some states allow access to the confidential information and include a disclaimer intended to mitigate the risk of misinterpretation. The disclaimer specifically outlines that medical malpractice suits are settled for a variety of reasons and may not be an indication of fault. Patient advocacy groups push for more states to implement a similar practice, allowing patients the ability to weigh the information that directly affects their care for themselves.

Unfortunately, even when doctors are carefully chosen, mistakes happen. If you or a loved one is injured as the result of a physician’s negligence, compensation might be available to cover medical and rehabilitative expenses as well as pain and suffering. As a result, it is wise to seek the counsel of an experienced medical malpractice lawyer to ensure all your legal rights and remedies are protected.