Posted by Bill Sandweg on 05 June 2019.
I swear it is not just me. While I have been concerned about the effects of secrecy in health care and malpractice litigation for some time, the news lately is just full of stories about patients being kept in the dark.
For example, in addition to Monday’s post about secrecy in pediatric heart surgery, I wrote recently about the problem of bad doctors, the ones who get sued over and over. A study had found that most of them just kept practicing. One of the main reasons they are allowed to continue to malpractice upon new patients is that their malpractice settlements are always confidential. The injured patient, who just wants his or her money, is forced to agree not to reveal that they were paid by the doctor or his insurance company. Everything is kept hush hush and the doctor goes on as before. Other doctors know who these people are. Hospitals know who these people are. The medical board knows who these people are. Malpractice lawyers know who these people are. The only people who don’t know are the patients. It is my strong belief that this is information patients looking for a doctor ought to have. I don’t want to go to one of these doctors but there is little way for me to know who they are if I am not part of the system.
A physician who writes on medical issues read the same study I did and reached the conclusion that the fact these bad doctors kept on practicing showed the failure of the malpractice tort system. This is a serious misunderstanding on the part of this physician. The most the malpractice tort system can do is try to compensate the poor patient who has been injured. There is no ability of the tort system to take a doctor’s license away. That is the responsibility of the state medical board. I respectfully submit that it is not the malpractice tort system that has failed when these doctors just keep on malpracticing, it is the state medical board which has failed in its duty to protect the public. The medical board is informed of the fact of the settlement or judgment against the doctor and has the right and duty to investigate the facts underlying the malpractice claim. When it lets the doctor go on practicing, it has failed to protect the public.
Another investigation of medical secrecy found that hospitals with outbreaks of dangerous infections almost always kept that information to themselves. The story was captioned, “Culture of Secrecy Shields Hospitals With Outbreaks of Drug-Resistant Infections.” If you hear about an outbreak of infections at a local hospital, you can be pretty sure the hospital did not voluntarily disclose the fact. Either a whistleblower went to the press or to the local public health authority and the hospital got outed.
Hospitals have lots of reasons why they keep this information from the public. They all sound nice and reasonable. “We have to protect the privacy of our patients.” “HIPAA requires us to keep this kind of information private.” “If patients knew we were having these problems, they might avoid coming and getting needed medical care.” “The risk that a patient will get an infection is low.” “Disclosing this information might do more harm than good.” All of this is BS. Hospitals are concerned about one thing above all others: keeping the dollars flowing. Telling prospective patients that you are having dangerous infections at your hospital is a good way to reduce that dollar flow.
You can pretty much forget about politicians forcing hospitals or medical boards or doctors to be more transparent. Money talks and hospitals and doctors are savvy political players who spend a lot of money on lobbying. They get the attention of the politicians in ways the public is rarely able to do.
My recommendation is to do the best investigation you can using the resources that are available to you. Look at Medicare information about hospital performance. Look at medical board information about your doctor. If you have the desire, look at court dockets to see if your doctor has been sued. Ask questions. Be an informed consumer so you reduce the likelihood we will meet in my office to discuss your malpractice case.