Summary of Testimony of the People’s Medical Society on H.R. 5122

The Patient Protection Act of 2000

House Commerce Committee, Washington, DC

September 20, 2000

The People’s Medical Society is pleased to support the passage of H.R. 5122, The Patient Protection Act of 2000. We believe it is time that the information now stored in the federally funded and regulated National Practitioner Data Bank be open to the public. In our testimony, we note several important reasons why this information should be open to the citizens of the United States. Among them are the following:

All medical practitioners covered by the law that created the Data Bank are licensed by the individual states. Licenses are granted as a privilege, not as a right. In reality, the privilege is granted by the citizens of that jurisdiction. Government serves as a conduit between the citizen who grants the license and the practitioner who receives it. Why then should the citizen be excluded from knowing how well or poorly the practitioner is meeting the responsibilities associated with such a license?

Licenses are granted to protect the public, not the practitioners. Yet unless a medical consumer has information about the competence and quality of care associated with a given practitioner, an informed choice is impossible.

In theory, much of the information now in the Data Bank is available through individual states or in local jurisdictions (i.e., county courts). However, theory does not translate into reality given that most malpractice cases are settled in secret. In addition, most consumers have no idea what government entities have oversight over medical practitioners.

Opposition to H.R. 5122 comes from the same medical trade associations who opposed the legislation that created the Data Bank in the mid-1980s. They argued medical practitioners would flee their practices, only take low-risk cases, and be subject to improper public judgment of individual competence. Yet in states such as Massachusetts where similar information is now available, none of those dire forecasts has come true.

H.R. 5122 has strong safeguards to protect the public and practitioners. We strongly support those safeguards.

Opening the National Practitioner Data Bank will not only empower consumers with information that should rightfully be theirs, but it will improve the quality of medical care overall.

We strongly urge passage of H.R. 5122.

Testimony of People’s Medical Society on H.R. 5122

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.

Media contact information: media@peoplesmed.org