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Published online by Cambridge University Press: 06 January 2021
Consider a mother of two who works full-time as a secretary in order to provide for her family. For several months in early 2000, she had excruciating lower back painthe consequences, she believed, of playing high-school and college fieldhockey. At work, she was unable to stand up from her chair without tremendous pain; at home, she was unable to sleep soundly. After visiting several physicians and undergoing a battery of diagnostic tests, the need for surgery became apparent. She consulted an orthopedic surgeon and was impressed with his qualifications. After informing her employer and seeking the advice of her family and friends, she consented to surgery. What the mother of two did not know, however, was that she had entrusted her life and livelihood to a surgeon who, in the ten years preceding her surgery, had settled twelve medical malpractice claims for an average of just under $300,000 per claim.
1 See Alice Dembner, Limits to Reining in Doctors Cited Care Goes on Despite Malpractice Cases, BOSTON GLOBE, Jan. 1, 2002, at A1.
2 See discussion infra Part II.
3 See infra note 26 and accompanying text.
4 See discussion infra Part II.B.
5 See discussion infra Part III.B.
6 See discussion infra Part IV.
7 ARIZ. REV. STAT. ANN. 32-1403.01 (2005); CAL. BUS. & PROF. CODE 2027(B)(1)(West 2005); CONN. GEN. STAT. 20-13j (2004); FLA. STAT. 456.041 (2005); GA. CODE ANN. 43-34A-3 (2005); IDAHO CODE ANN. 54-4604 (2005); MD. CODE ANN., HEALTH OCC. 14-411.1 (West 2005); MASS GEN. LAWS ANN. ch. 112, 5 (West 2005); NEV. REV. STAT. 690B.250 (2004); N.J. STAT. ANN. 45:9-22.23 (West 2005); N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005); TENN. CODE ANN. 63-51-105 (2005); VT. STAT. ANN. tit. 26, 1368 (2005); VA. CODE ANN. 54.1-2910.1 (2005).
8 ARIZ. REV. STAT. ANN. 32-1403.01 (2005); CONN. GEN. STAT. 20-13J (2004); MASS. GEN. LAWS ch. 112, 5 (2005); NEV. REV. STAT. 690B.250 (2004); N.J. STAT. ANN. 45:9-22.23 (West 2005); VT. STAT. ANN. tit. 26, 1368 (2005); VA. CODE ANN. 54.1-2910.1 (2005).
9 42 U.S.C. 11101 (2005). The HCQIA was recently amended by the Patient Safety and Quality Improvement Act of 2005, which seeks to create a network of databases to analyze patient safety activities. Pub. L. No. 109-41, 119 Stat. 424 (codified as amended in scattered sections of 42 U.S.C. 299). The Act is intended to encourage voluntary reporting of medical errors in order to identify and implement preventative measures. See American Medical Directors Association, AMDA Fact Sheet on S. 544, Http://Www.Amda.Com/Federalaffairs/Factsheets/Congress109/S544.Htm (last visited Oct. 5, 2005).
10 Ruth E. Flynn, Demand for Public Access to the National Practitioner Data Bank: Consumers Sound their Own Death Cry, 18 HAMLINE J. PUB. L. & POLY 251, 251 (1996) (citing Austin v. McNamara, 979 F.2d 728, 733 (9th Cir. 1992)).
11 Id. at 252 (citing 42 U.S.C. 11131-32 (2005)).
12 Berenson, Steven K., Is It Time for Lawyer Profiles?, 70 FORDHAM L. REV. 645, 661 (2001)Google Scholar; see Ryzen, Elisabeth, The National Practitioner Data Bank: Problems and Proposed Reforms, 13 J. LEGAL MED. 409, 411 (1992)CrossRefGoogle ScholarPubMed (asserting that the purpose of the NPDB is to facilitate the tracking of professional information on physicians throughout the United States).
13 See 42 U.S.C. 11137 (2005) (providing that state licensing boards, hospitals, and other health care entities are permitted access to the NPDB, and the general public may not be given access).
14 Flynn, supra note 10, at 278.
15 Pape, Julie Barker, Note, Physician Data Banks: The Public's Right to Know Versus the Physician's Right to Privacy, 66 FORDHAM L. REV. 975, 981 (1997).Google ScholarPubMed
16 See Mullan, Fitzhugh et al., The National Practitioner Data Bank: Report from the First Year, 268 JAMA 73, 74 (1992).CrossRefGoogle ScholarPubMed
17 45 C.F.R. 60.7(a)(2005).
18 Ryzen, supra note 12, at 416.
19 42 U.S.C. 11131(b)-(c) (2005); 45 C.F.R. 60.7(b)(2005).
20 Patricia M. Danzon, Malpractice Liability: Is the Grass on the Other Side Greener?, in TORT LAW AND THE PUBLIC INTEREST 176, 179 (Peter H. Schuck ed., 1991) (reporting that medical malpractice claim frequency had risen from approximately 13.5 claims per 100 doctors in 1982 to 17.2 in 1986).
21 See, e.g., Health Care Quality Improvement Act of 1986: Hearing on H.R. 5540 Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 99th Cong., 2d Sess. at 53 (1987); Hearing on H.R. 5110 Before the Subcomm. on Health and the Environment of the H. Comm. on Energy and Commerce, 99th Cong., 2d Sess. at 442 (1987); see also discussion infra Part III.B (numerous studies about the predictive value of past medical malpractice settlements).
22 See 42 U.S.C. 11131 (2005); see also Ryzen, supra note 12, at 433 (asserting that Congress may have thought that evidence of past malpractice settlements are better than nothing in the hands of sophisticated users when evaluating a physician's competence and likelihood of future negligence).
23 Ryzen, supra note 12, at 433.
24 42 U.S.C. 11137(b) (2005); Flynn, supra note 10, at 252.
25 Pape, supra note 15, at 982.
26 Baczynski, Kristin, Note, Do You Know Who Your Physician Is?: Placing Physician Information on the Internet, 87 IOWA L. REV. 1303, 1308-09 (2002)Google Scholar (discussing several legislative attempts to open the NPDB to the public); Pape, supra note 15, at 982-983 (same); Berenson, supra note 12, at 662 (citing Virginia Congressman Thomas Bliley's most recent attempt in 2000 to open the NPDB to the public).
27 See Berenson, supra note 12, at 662.
28 See An Act Providing for Increased Public Access to Data Concerning Physicians, 1996 Mass. Acts 307 (codified at MASS. GEN. LAWS ch. 112, 5 (2005)).
29 States Increase Access to Physician Data, HEALTH LEG. & REG. WKLY., Apr. 9, 1997, available at 1997 WL 8740264.
30 Hallam, Kristen, Physicians Caught in the Web: Thanks to Internet, Doc Disciplinary Data Now Just a Mouse Click Away, MOD. HEALTHCARE, Sept. 4, 2000, at 30.Google Scholar
31 For links to each state's physician profile webpage, see Association of State Medical Board Executive Directors: Administrators in Medicine DocFinder, at http://www.docboard.org/docfinder.htm (last visited Sept. 19, 2005). Note, however, that in addition to the information provided via DocFinder, some states utilize more than one webpage to convey physician information. Compare New Jersey Division of Consumer Affairs, at http://www.state.nj.us/cgi-bin/consumeraffairs/search/searchentry.ph (last visited Sept. 19, 2005), with New Jersey Health Care Profile, at http://12.150.185.184/dca/ (last visited Sept. 19, 2005). An array of information is available from state physician profiles. A profile, for instance, may include a physician's educational background, licenses, certificates, malpractice information, disciplinary actions, and criminal convictions. See Berenson, supra note 12, at 646. Among states, however, there are great differences in the way that that profile information is presented. See discussion infra Part IV.A. Compare Massachusetts Physician Profiles, http://profiles.massmedboard.org, and Connecticut Physician Profiles, http://www.physicians.dph.state.ct.us (each including detailed information), with Arizona Physician Profiles, http://www.azdocinfo.com, and Texas Physician Profiles, http://204.65.101.19/ProfileOnLine/Phys_SearchPage.asp (each including less detail than Massachusetts and Connecticut).
32 See discussion infra Part III.
33 It is important to recall that the justifications for including settlement information in the NPDB were based on speculation and the fact that the settlement information was intended solely for use by sophisticated health care entities. See discussion infra Part II.B.
34 See Robert E. Oshel et al., The National Practitioner Data Bank: the First Four Years, 110 PUB. HEALTH REP. 383, 386 (July/Aug. 1995) (reporting that as of the end of 1994, 82.6% of all reports in the NPDB were malpractice payment reports).
35 Disclosure of Information by the National Practitioner Data Bank, 45 C.F.R. 60.11 (2001).
36 Arizona, California, Connecticut, Florida, Georgia, Idaho, Maryland, Massachusetts, Nevada, New Jersey, New York, Rhode Island, Tennessee, Texas, Vermont, Virginia, and West Virginia. ARIZ. REV. STAT. ANN. 32-1403.01 (2005); CAL. BUS. & PROF. CODE 2027(B)(1)(West 2005); CONN. GEN. STAT. 20-13j (2004); FLA. STAT. 456.041 (2005); GA. CODE ANN. 43-34A-3 (2005); IDAHO CODE ANN. 54-4604 (2005); MD. CODE ANN., HEALTH OCC. 14-411.1 (West 2005); MASS GEN. LAWS ANN. ch. 112, 5 (West 2005); NEV. REV. STAT. 690B.250 (2004); N.J. STAT. ANN. 45:9-22.23 (West 2005); N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005); TENN. CODE ANN. 63-51-105 (2005); TEX. OCC. CODE ANN. 154.006 (Vernon 2003); VT. STAT. ANN. tit. 26, 1368 (2005); VA. CODE ANN. 54.1-2910.1 (2005). Rhode Island and West Virginia require that settlement information be made publicly available, but neither requires a webpage. R.I. GEN. LAWS 5-37-9.2 (2005); W.VA. CODE 30-3-9 (2005).
37 For example, Georgia's statute became effective July 1, 2001 and included a provision for malpractice settlement disclosure, and California's Senate Bill 1950 amended the state's physician profile statute to include medical malpractice disclosure. See GA. CODE ANN. 43-34A-3 (2005); CAL. BUS. & PROF. CODE 2027 (West 2005).
38 See generally Charles Ornstein, Medical Board Approves a Plan for Posting Malpractice Settlements on the Internet; Legislature's OK Needed, L.A. TIMES, May 13, 2002, at B-5.
39 See generally Disclosure of Information by the National Practitioner Data Bank, 45 C.F.R. 60.11 (2001). But see Publicizing Medical Malpractice Settlements Gains Ground, Trend Alarms Opponents, 71 U.S.L.W. (BNA) 2043, 2044 (July 16, 2002) [hereinafter BNA].
40 See Pape, supra note 15, at 985-87.
41 Stewart, Ann, Comment, Physician Profiles: Consumer Protection or Excessive Exposure?, 25 Fla. St. L. Rev. 957, 957 (1998).Google Scholar See generally Emanuel, Esekiel J. & Emanuel, Linda L., Preserving Community in Health Care, 22 J. HEALTH POL., POLY & L. 147, 148 (1997)CrossRefGoogle ScholarPubMed (concerning the growing public demand for physician accountability).
42 Tom McGhee, An Rx for Health Care: Openness Access Sought to Doctors Histories, Errors, DENVER POST, Oct. 6, 2002, at A-1 (quoting Virginia congressman Thomas Bliley). See also Pape, supra note 15, at 985 (quoting Oregon democrat Ron Wyden: Americans today have more performance information available to them when purchasing breakfast cereal than when choosing a heart surgeon).
43 See Pape, supra note 15, at 985-87.
44 See Stewart, supra note 41, at 959. Accord Pape, supra note 15, at 986; Douglas Sharrott, Note, Provider-Specific Quality-of-Care Data: A Proposal for Limited Mandatory Disclosure, 58 BROOK. L. REV. 85, 85-87 (1992).
45 Id.
46 Schloendorff v. Socy of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914).
47 See Stewart, supra note 41, at 961.
48 See, e.g., Miller, Frances H., Illuminating Patient Choice Releasing Physician-Specific Data to the Public, 8 LOY. CONSUMER L. REP. 125, 125 (1996).Google Scholar
49 Pape, supra note 15, at 986 (Patients who received appropriate information could choose whether to encounter the risks presented by a particular provider . Patients would not be forced to encounter risks that, given knowledge, they would choose to avoid.)(quoting Bobinski, Mary Anne, Autonomy and Privacy: Protecting Patients from Their Physicians, 55 U. PITT. L. REV. 291, 330 (1994)).Google ScholarPubMed
50 See Pape, supra note 15, at 987.
51 Id.
52 Id.
53 An inquiry as to whether the informed consent doctrine should extend beyond the risks associated with a particular treatment to include the past settlement history of the treating physician is well beyond the scope of this article. Rather, the purpose here is to introduce common policy arguments touted by advocates and opponents of malpractice settlement disclosure.
54 Clark, Cheryl, Loophole Leaves Some Medical Suits off Web Site, SAN DIEGO UNION-TRIB., Apr. 29, 2002, at A1Google Scholar; see also Todd Wallack, Malpractice Disclosure Bill OKs Some Secrets, S.F. CHRON., Aug. 3, 2002, at A-13.
55 See Clark, supra note 54, at A1 (statement of Dr. Robert Hertzka, spokesman for the California Medical Association) ([S]ettlements are often an economic decision, and medical malpractice insurance carriers will often tell physicians, We think you should settle.).
56 See id. at A1.
57 Miller, supra note 48, at 127.
58 Consumer advocates counter that any consumer confusion can be negated by providing malpractice settlement information accompanied by a disclaimer that settlement of malpractice suits does not constitute an admission of negligence. See Berenson, supra note 12, at 665. All but one state that disclose malpractice information, in fact, mandate such a disclaimer. See ARIZ. REV. STAT. ANN. 32-1403.01 (2005); CAL. BUS. & PROF. CODE 2027 (West 2005); CONN. GEN. STAT. 20-13j (2004); FLA. STAT. 456.041 (2005); GA. CODE ANN. 43-34A-3 (West 2005); IDAHO CODE ANN. 54-4603 (2005); MD. CODE ANN., HEALTH OCC. 14-411.1 (West 2005); MASS. GEN. LAWS ch. 112, 5 (2005); N.J. STAT. ANN. 45:9-22.23 (West 2005); N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005); TENN. CODE ANN. 63-51-105 (2005); VT. STAT. ANN. tit. 26, 1368 (2005); VA. CODE ANN. 54.1-2910.1 (2005). But see NEV. REV. STAT. 690B.250 (2004) (mandating disclosure but not requiring a disclaimer). Whether the disclaimers are presented in a manner that minimizes consumer confusion, however, is disputed. Berenson, supra note 12, at 666 (contending that these disclaimers are as likely to be effective as jury instructions to disregard prior testimony); see also discussion infra Part IV.A.1.
59 See discussion infra Part IV.A.2.
60 See California Medical Association, CMA Removes Oppositions to SB 1950: MBC's Settlement Disclosure Proposal Amended, at http://www.calphys.org/html/sb1950.htm (last visited Aug. 11, 2005) (indicating that California's medical malpractice settlement disclosure mechanism was the result of compromise); see also discussion infra Part IV.A.2 (discussing states that impose disclosure conditions).
61 See, e.g., FLA. STAT. 456.041 (2005); TENN. CODE ANN. 63-51-105 (2005).
62 See, e.g., MASS. GEN. LAWS ch. 112, 5 (2005); N.J. STAT. ANN. 45:9-22.23 (West 2005).
63 See, e.g., CAL. BUS. & PROF. CODE 2027(b)(1) (West 2005); GA. CODE ANN. 43-34A-3 (2005).
64 See discussion infra Part IV.A.
65 Dorsey Griffith, Malpractice Disclosure Bill Passes in California, SACRAMENTO BEE, Aug. 30, 2002, available at 2002 WLNR 9022437 (quoting Doctor Alan Shumacher, past president of the California Medical Board and of the Federation of State Medical Boards of the United States).
66 See Stewart, supra note 41, at 970.
67 See id.
68 See, e.g., Dembner, supra note 1, at A1.
69 Stewart, supra note 41, at 971 (describing a recent evaluation of the complaint process in Florida).
70 See id. (arguing that physicians may be held accountable by increasing consumer access to physician information).
71 See id. at 974 (arguing that the linchpin to increased accountability is accuracy and consumer understanding of the information).
72 E.g. Clark, supra note 54, at A1; Dembner, supra note 1, at A1; William Heisel & Mayrav Saar, Doctors Without Discipline: How Doctors can Hurt Patients and Get Away with It, ORANGE COUNTY REG., Apr. 7, 2002; McGhee, supra. note 42, at A-1.
73 See Dembner, supra note 1, at A1.
74 Id.
75 See Pape, supra note 15, at 978-979 (acknowledging that this type of information compromises certain physician privacy interests and may lead to cumulative negative effects on the quality of health care).
76 See Dembner, supra note 1, at A1 (stating that this Massachusetts surgeon paid more in malpractice settlements in the 1990s than any other physician in Massachusetts).
77 For purposes of this article, nuisance value of a claim means that the price to settle at the outset of a malpractice claim is less expensive than the cost of litigating the claim. Physicians, therefore, may be under tremendous pressure from their insurance carriers to settle, regardless of whether the physician was at fault.
78 See generally Flynn, supra note 10, at 277-78 (positing that this statement is shortsighted and consumer access to this information will ultimately harm health care).
79 See Flynn, supra note 10, at 277-278.
80 Griffith, supra note 65 (quoting a spokesman for the California Medical Association).
81 Flynn, supra note 10, at 278.
82 See Wallack, supra note 54, at A-13. In response to these concerns, consumer rights advocates again hold up the disclaimer. Such disclaimers state that certain physicians, because of their specialties, are more prone to malpractice suits than other physicians. The disclaimers also explain that some physicians choose to work with high-risk patients, and their settlement histories may be higher than average because of this fact. See discussion infra Part IV.A.1. In addition to disclaimers, many states impose conditions on disclosure, such as amount thresholds, a minimum number of settlements requirement, or a combination of the two, that seek to separate meritless claims from those with merit. Such conditions, however, may ultimately be more misleading than helpful to consumers. The question arises as to whether it is more desirable to have a consumer know about all settlements, or have a consumer mistakenly believe that a physician has had no settlements, when in fact the physician has had twenty settlements for an amount below the statutory reporting threshold. See discussion infra Part IV.A.2-3 and IV.B.
83 A. Russell Localio, et al., Relation Between Malpractice Claims and Adverse Events Due to Negligence, 325 NEW ENG. J. MED. 245, 247 (1991).CrossRefGoogle Scholar The authors recognize that their study was not designed to evaluate the merits of malpractice claims, or to definitively identify incidents of unpunished negligence. Although this lack of strict comparability should warn us against drawing conclusions about the merits of individual malpractice claims, it does not undermine our findings about the small probability . that a claim would be filed when medical negligence caused injury to the patient. This result remains robust in spite of the possibility of misclassification of individual cases . Id. at 249.
84 Id. at 248.
85 Id.
86 See id. Moreover, the Harvard study may lessen the value of findings drawn from studies examining the predictive value of malpractice settlements because each of the studies discussed generates its conclusions from an examination of malpractice claims filed against physicians. Thus, if filed malpractice claims represent only 2% of all incidents of malpractice, a proper inquiry may not occur.
87 Ryzen, supra note 12, at 429.
88 Id. at 430.
89 Id.
90 Rolph, John E. et al., Malpractice Claims Data as a Quality Improvement Tool, 266 JAMA 2093 (1991).CrossRefGoogle ScholarPubMed
91 Id. at 2096.
92 Id. These findings suggest caution in the use of the newly established National Practitioner Data Bank, which was founded on the premise that paid malpractice claims can be used prospectively to identify practitioners who are likely to have future problems. Id. at 2097.
93 Bovbjerg, Randall R. & Petronis, Kenneth R., The Relationship Between Physicians Malpractice Claims History and Later Claims: Does the Past Predict the Future?, 272 JAMA 1421, 1453 (1994).CrossRefGoogle ScholarPubMed
94 Id. at 1424-26.
95 Id. at 1424.
96 Smarr, Lawrence E., Malpractice Claims: Does the Past Predict the Future?, 272 JAMA 1453, 1453 (1994).CrossRefGoogle ScholarPubMed
97 Id. Smarr goes on to say that Bovbjerg and Petronis based their conclusions:
[W]ith respect to small claims being a predictor of future claims is based on a small number of observations (113), which represent a tiny portion of the observed population (1%). While this provides perspective regarding the incidence of claim payments, there are important causal issues we know little about concerning these claims. Did they have merit? Were they indexed predominantly against physicians in geographical areas of high litigation incidence, such as Dade and Broward counties? Did the physicians practice in high-risk areas within their specialties or have an increased vicarious exposure to liability due to clinical or supervisory duties? Did insurance companies change their settlement procedures?
Id.
98 Entman, Stephen S. et al., The Relationship Between Malpractice Claims History and Subsequent Obstetric Care, 272 JAMA 1588, 1588 (1994).CrossRefGoogle ScholarPubMed
99 Id. at 1591.
100 Hickson, Gerald B. et al., Obstetricians Prior Malpractice Experience and Patients Satisfaction with Care, 272 JAMA 1583, 1587 (1994).CrossRefGoogle ScholarPubMed
101 Id. at 1586. (Note that the survey included feedback from patients who did not initiate litigation as well as those who had. Despite the inclusion of patients who did not initiate suit, these studies have been criticized. Critics argue that patients who initiate litigation may have a distorted memory or a need to portray the defendant-physician as a bad guy.)
102 Levinson, Wendy, Physician-Patient Communication: A Key to Malpractice Prevention, 272 JAMA 1619, 1619 (1994)CrossRefGoogle ScholarPubMed (citing J.K. Avery, Lawyers Tell what Turns some Patients Litigious, 2 MED. MALPRACTICE REV. 35 (1985)).Google Scholar
103 Id. (citing H.B. Beckman et al., The Doctor-Patient Relationship and Malpractice: Lessons from Plaintiff Depositions, 154 ARCH. INTERN. MED. 1365 (1994))CrossRefGoogle Scholar.
104 See generally Abbott, Richard L, Medical Malpractice Predictors and Risk Factors for Ophthalmologists Performing LASIK and PRK Surgery, 101 TRANS. AM. OPTHALMOL. SOC. 239 (2003)Google ScholarPubMed (finding that the most important predictor of filing a malpractice claim was surgical volume; the greater the number of surgeries, the greater the risk of incurring a claim).
105 See generally T.M. Waters et al., Medical School Attended as a Predictor of Medical Malpractice Claims, 12 QUAL. SAF. HEALTH CARE 330 (2003)CrossRefGoogle Scholar (finding consistent differences in the number of malpractice claims brought against physicians graduating from different medical schools). Id. at 335.
106 Some in the medical community are incensed that settlement disclosure has no definitive value to consumers, leading them to conclude that it is outrageous if a public agency could ruin a career by disclosing unproven, speculative information that drives patients away. Todd Wallack, Opening Doctors Records Gets OK: Medical Board Votes to Support New Bill, S.F. CHRON., May 12, 2002, at A-1 (quoting California Medical Association President Doctor John Whitelaw testifying at the May 1, 2002 hearing of the California legislative review committee).
107 See BNA, supra note 39, at 2043.
108 ARIZ. REV. STAT. ANN. 32-1403.01 (2005); CAL. BUS. & PROF. CODE 2027(B)(1)(West 2005); CONN. GEN. STAT. 20-13j (2004); FLA. STAT. 456.041 (2005); GA. CODE ANN. 43-34A-3 (2005); IDAHO CODE ANN. 54-4604 (2005); MD. CODE ANN., HEALTH OCC. 14-411.1 (West 2005); MASS GEN. LAWS ANN. ch. 112, 5 (West 2005); N.J. STAT. ANN. 45:9-22.23 (West 2005); N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005); TENN. CODE ANN. 63-51-105 (2005); VT. STAT. ANN. tit. 26, 1368 (2005); VA. CODE ANN. 54.1-2910.1 (2005).
109 ARIZ. REV. STAT. 32-1403.01 (2005); FLA. STAT. 456.041 (2005); GA. CODE ANN. 43- 34A-3 (2005); IDAHO CODE ANN. 54-4603 (2005) (adding that malpractice histories tend to vary by specialty, and that some specialties are more likely than others to be the subject of litigation).
110 Id.
111 CAL. BUS. & PROF. CODE 803.1 (West 2005), CONN. GEN. STAT. 20-13j (2004), MASS. GEN. LAWS ch. 112, 5 (2005), N.J. STAT. ANN. 45:9 (West 2005), N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005), TENN. CODE ANN. 63-51-105 (2005), VT. STAT. ANN. tit. 26 1368 (2005), VA. CODE ANN. 54.1-2910.1 (2005).
112 Tennessee Physician Profiles, http://www2.state.tn.us/health/licensure/index.htm (last visited Oct. 11, 2005). Although some states statutorily mandate these disclaimers, many do not; compare California Physician Profiles, http://www.medbd.ca.gov/Lookup.htm (last visited Oct. 7, 2005); and Connecticut Physician Profiles, http://www.physicians.dph.state.ct.us (last visited Oct. 11, 2005); Massachusetts Physician Profiles, http://profiles.massmedboard.org/Profiles/MA-Physician-Profile-Find-Doctor.asp (last visited Oct. 11, 2005); New Jersey Physician Profiles, http://12.150.185.184/dca/ (last visited, Oct. 11, 2005); Virginia Physician Profiles, at http://www.vahealthprovider.com/disclaimers.asp (last visited Oct. 11, 2005). New York is the only other state that provides for numerous other disclaimers on its website and provides the following: Malpractice means a professional mistake that is a direct cause of injury or harm to the patient. A malpractice history has information about payments made within the last 10 years when a patient thought the doctor did a medical job poorly. What's in the Malpractice History: Information about payments the doctor has made after a legal action has started. It is important to know that in some medical specialties, doctors have more legal actions brought against them than in others, and make more payments as a result . Why Some Doctors Pay More: As you read the doctor's malpractice history, remember the following: Some doctors work with high-risk patients. These doctors may have malpractice histories with many payments because they specialize in cases or patients who are at very high risk for problems. A doctor may choose to pay a patient even though he or she did not make a mistake. When a doctor pays a patient it does not mean that the doctor is guilty of malpractice . Settlements are payments made by the doctor to the patient. When a settlement payment is made, the patient agrees to accept some money and stop the legal action without going to court. Patients and doctors may agree to settle for many reasons, and a settlement does not always mean that the doctor has made a mistake . We encourage you to talk with the doctor about the information in this report. New York Physician Profiles, http://www.nydoctorprofile.com/ (last visited Oct. 11, 2005).
113 See discussion supra Part III.B (discussing the predictive value of malpractice settlements and the questionable ability to provide the public with valuable information).
114 See ARIZ. REV. STAT. 32-1403.01 (2005); FLA. STAT. 456.041 (2005); GA. CODE ANN. 43-34A-3 (2005); IDAHO CODE ANN. 54-4603 (2005).
115 See, e.g., CAL. BUS. & PROF. CODE 803.1 (West 2005).
116 Cf. Sharrott, supra note 45, at 92-93 (discussing physician opposition to disclosure of provider-specific information).
117 See Miller, supra note 48, at 127.
118 See New York Physician Profiles, http://www.nydoctorprofile.com/ (last visited Aug. 11, 2005).
119 See id.
120 NEV. REV. STAT. 690B.250 (2004).
121 CAL. BUS. & PROF. CODE 803.1, 2027(B)(1) (West 2005); FLA. STAT. 456.041 (2005); GA. CODE ANN. 43-34A-3 (2005); IDAHO CODE ANN. 54-4603 (2005); MD. CODE ANN., HEALTH OCC. 14-411.1 (West 2005); N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005); TENN. CODE ANN. 63-51-105 (2005).
122 ARIZ. REV. STAT. 32-1403.01 (2005); IDAHO CODE ANN. 54-4603 (2005); N.J. STAT. ANN. 45:9-22.23 (West 2005).
123 CAL. BUS. & PROF. CODE 803.1, 2027(b)(1) (West 2005); CONN. GEN. STAT. 20-13j (2004); FLA. STAT. 456.041 (2005); GA CODE ANN. 43-34A-3 (2005); MASS GEN. LAWS ch. 112, 5 (2005); N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005); TENN. CODE ANN. 63-51-105 (2005); VT. STAT. ANN. tit. 26, 1368 (2005); VA. CODE ANN. 54.1-2910.1 (2005).
124 CAL. BUS. & PROF. CODE 803.1, 2027(b)(1) (West 2005) (disclosing only settlements made after January 1, 2003); GA. CODE ANN. 43-34A-3 (2005) (disclosing only those settlements made on or after April 11, 2001); TENN. CODE ANN. 63-51-105 (2005) (disclosing only those settlements made after 1998).
125 See Berenson, supra note 12, at 664 (stating that past malpractice claims may be poor indicators of future malpractice claims); Andis Robeznieks, Web Discipline Postings Worry California Physicians Doctors Clash with Consumer Advocates over Charges and Disciplinary Actions on the State Medical Board's Web Site, Feb. 11, 2002, http://www.amaassn.org/amednews/2002/02/11/prsc0211.htm (quoting a San Diego physician as saying that a seventeen-year-old sanction is irrelevant).
126 See generally Todd Wallack, Law Lets Patients See Malpractice Settlements: State Medical Board Will Reveal if a Doctor Has Been Repeatedly Sued, S.F. CHRON., Oct. 1, 2002, at B3 (discussing California's statute that does not require disclosure of settlements older than ten years).
127 CAL. BUS. & PROF. CODE 803.1 (West 2005).
128 Wallack, supra note 54, at A-13.
129 CAL. BUS. & PROF. CODE 803.1; 2027(b)(1) (West 2005) (disclosing all settlements for a low-risk specialty doctor if there have been three or more settlements in excess of 30,000; and all settlements for a high-risk specialty doctor if there have been four or more settlements in excess of 30,000); FLA. STAT. 456.041 (2005) (disclosing only settlements that exceed 5,000); GA. CODE ANN. 43-34A-3 (2005) (disclosing only single settlements that exceed 300,000; all settlements if there have been three settlements made by the complaining party, and there has been one or more payments in excess of 100,000; and all settlements if there have been four or more settlements made by the complaining party, regardless of the amount of payment); IDAHO CODE ANN. 54-4603 (2005) (disclosing settlements only if there have been five or more settlements of 50,000 or more per settlement in the past five years; or if there have been more than ten settlements of any dollar amount in the past five years); MD. CODE ANN., HEALTH OCC. 14-411.1 (West 2005) (disclosing settlements only if there have been three or more settlements); N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005) (disclosing settlements only if there have been more than two settlements; or all settlements if the Department of Health determines that a settlement is relevant to a patient's decision-making process); TENN. CODE ANN. 63-51-105 (2005) (disclosing settlements only if they exceed 75,000).
130 See, e.g., FLA .STAT. 456.041 (2005); TENN. CODE ANN. 63-51-105 (2005).
131 See, e.g., N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005).
132 See, e.g., CAL. BUS. & PROF. CODE 803.1.2027(b)(1) (West 2005); GA. CODE ANN. 43- 34A-3 (2005).
133 See Berenson, supra note 12, at 664. See generally Ryzen, supra note 12, at 430 (discussing unreliability of settlements as evidence of negligence).
134 See Wallack, supra note 126, at B3.
135 See Berenson, supra note 12, at 656-57; see also Ryzen, supra note 12, at 430; Wallack, supra note 126, at B-3.
136 CAL. BUS. & PROF. CODE 803.1.2027(b)(1) (West 2005).
137 Id.
138 See ARIZ. REV. STAT. 32-1403.01 (2005).
139 See GA. CODE ANN. 43-34A-3 (2005); IDAHO CODE ANN. 54-4603 (2005); NEV. REV. STAT. 690B.250 (2004).
140 See CAL. BUS. & PROF. CODE 2027(B)(1), 803.1 (West 2005); CONN. GEN. STAT. 20- 13j (2004); FLA. STAT. 456.041 (2005); MD. CODE ANN., HEALTH OCC. 14-411.1 (West 2005); MASS. GEN. LAWS ANN. ch. 112, 5 (West 2005) N.J. STAT. ANN. 45:9-22.23 (West 2005); N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005); TENN. CODE ANN. 63-51-105 (2005); VT. STAT. ANN. tit. 26, 1368 (2005); VA. CODE ANN. 54.1-2910.1 (2005).
141 Arizona Physician Profiles, http://www.azdocinfo.com/profile/getlicense.aspx (last visited Aug. 11, 2005).
142 See, GA. CODE ANN. 43-34A-3 (2005); IDAHO CODE ANN. 54-4603 (2005); NEV. REV. STAT. 690B.250 (2004).
143 BNA, supra note 39, at 2044.
144 See, Miller, supra note 48, at 130.
145 Ryzen, supra note 12, at 430 (citing Medical Malpractice: Hearings on H.R. 5110: Before the Subcomm. on Health and the Environment of the H. Comm. on Energy and Commerce, 99th Cong. (2d Sess. 1986)).
146 To arrive at the average, states will compare settlements made by physicians of the same specialty.
147 See CAL. BUS. & PROF. CODE 2027(B)(1), 803.1 (West 2005); CONN. GEN. STAT. 20- 13j (2004); FLA. STAT. 456.041 (2005); MD. CODE ANN., HEALTH OCC. 14-411.1 (West 2005); MASS. GEN. LAWS ANN. ch. 112, 5 (2005); N.J. STAT. ANN. 45:9-22.23 (West 2005); N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005); TENN. CODE ANN. 63-51-105 (2005); VT. STAT. ANN. tit. 26, 1368 (2005); VA. CODE ANN. 54.1-2910.1 (2005).
148 See CAL. BUS. & PROF. CODE 2027(B)(1), 803.1 (West 2005); CONN. GEN. LAWS 20- 13j (2004); FLA. STAT. 456.041 (2005); MD. CODE ANN., HEALTH OCC. 14-411.1 (West 2005); MASS. GEN. LAWS ch. 112, 5 (2005); N.J. STAT. ANN. 45:9-22.23 (West 2005); N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005); TENN. CODE ANN. 63-51-105 (2005); VT. STAT. ANN. tit. 26, 1368 (2005); VA. CODE ANN. 54.1-2910.1 (2005).
149 Note that Connecticut's statute dictates that physicians settlements are to be compared with other physicians who perform procedures and treat patients with a similar degree of risk, but Connecticut's webpage indicates that physicians settlements are compared with physicians working in the same specialty. See CONN. GEN. STAT. ANN. 20-13j (2004); Connecticut Physician Profiles, http://www.physicians.dph.state.ct.us (last visited Aug. 11, 2005).
150 For more discussion of risk levels in comparative disclosure, see infra Appendix.
151 See supra notes 35, 39.
152 See discussion supra Part III.A.
153 See discussion supra Part III.B.
154 See Wallack, supra note 54, at A-13; see also discussion supra text accompanying note 93.
155 See discussion supra Part IV.A.2-4.
156 See Ornstein, supra note 38, at B-5; see also supra text accompanying note 42.
157 Stewart, supra note 41, at 958.
158 See Ornstein, supra note 38, at B-5 (quoting a UCLA physician).
159 See supra notes 36-39 and accompanying text.
160 See discussion supra Part IV.A.2.a.
161 See discussion supra Part IV.A.2.b.
162 Executive Director of the Massachusetts Board of Registration in Medicine, Nancy Achin Sullivan, has voiced a common medical-community sentiment: To exclude settlements does not give an accurate picture of malpractice history. BNA, supra note 39, at 2044.
163 States should strive to convey written information as simply as possible. The National Center for Education has found that while most American adults in the study performed moderately, about twenty percent of the population performed at the lowest literacy level. IRWIN S. KIRSCH ET AL., U.S. DEP't OF EDUC., ADULT LITERACY IN AMERICA: A FIRST LOOK AT THE FINDINGS OF THE NATIONAL ADULT LITERACY SURVEY 16 (2002), http://nces.ed.gov/pubs93/93275.pdf.
164 See discussion supra Part IV.A.1.
165 See discussion supra Part IV.A.3.c. For discussion of other available mechanisms by which states disclose settlement information, see supra Part IV.A.3.a-b.
166 Generating such sub-pools should not place undue burden on a state. Assigning risk categories to procedures could be done easily through regulation and pooling of different states resources to accomplish the task quickly and inexpensively. For those settlements arising from procedures not assigned a risk category, the parties to the claim could either agree to a risk-level assignment, or in the event that they are unable to agree, move the court to rule on the proper assignment. After the initial generation of the sub-pools, maintenance of the state's settlement disclosure database should be reduced to the level presently observed in states utilizing comparative disclosure.
167 For a model, see, e.g., N.Y. PUB. HEALTH LAW 2995-a (McKinney 2005).
168 The formatting of the webpage can be tailored to further aid consumers comprehension of the information presented. For instance, although a consumer may be unlikely to read fourteen questions-and-answers, the state could arrange the most important information together and allow consumers the option to link to another page to read less crucial information.