Several types of information failed to pass Committee scrutiny, ironically for many of the same reasons articulated above. Malprac- tice claims201 and criminal charges prior to final resolution are ex-
cluded because the
informational value [they] might carry is far outweighed by con- siderations of fairness to the accused doctor. Indeed, a patient up- set about an unavoidably bad medical result might be irrationally driven to file a malpractice claim, or to press a criminal charge, with no factual justification or realistic hope of success.202
The Committee also recognized that claims without final resolution are unreliable indicators of physician quality and character.203
Physician confidentiality interests outweighed consumer interests on the issue of substance dependency, as long as the addicted physi- cian participates in a Board of Medicine approved treatment pro- gram.204 The Committee juxtaposed a physician’s dependency with
any other patient’s right to have confidential medical records, and concluded that physicians’ rights as patients eclipse consumer pro- tection.205
Finally, provider-specific outcome data failed to make the final cut for profile disclosure in Massachusetts,206 though New York207 and
Pennsylvania208 found certain outcome data valuable for purposes of
consumer evaluation. The Committee’s reluctance to undertake de- velopment of an outcome database reflected its concern over when the “current outcomes measures convey sufficiently reliable informa- tion about the quality of physician performance to warrant recom- mending their collection by the Board or their release to the public on physician profiles.”209 This laudable concern was, perhaps, not prop-
erly considered when the Massachusetts Advisory Committee—as
201. See supra Part V.B.. 202. Miller, supra note 7, at 134. 203. See id.
204. See id.
205. See id.
206. See id. at 135.
207. See N.Y. PUB. HEALTH LAW § 2804-b (c)(i) (McKinney 1997); see also Miller, supra
note 7, at 134.
208. See 18 PA. CONS. STAT. § 3214 (a)–(i) (1997); see also Miller, supra note 7, at 134. 209. Miller, supra note 7, at 135.
well as the legislatures and agencies of several of the states210—con-
templated consumer-oriented physician profiles.
V. WHAT DOES LEGISLATION LIKE THIS COST?
Several states have Internet access to physician data.211 Others
operate toll-free phone lines,212 provide copy and facsimile service for
requesting consumers,213 and generate entire publications214 of all in-
trastate data. Providing such information involves the staffing of phone lines, integration of information systems, and extensive cleri- cal and publishing expenses. Compilation and integration of the in- formation, and especially verification, add to the expense of profiles. These are superfluous expenditures to make data that is, for the most part, already public and available somewhere to a patient truly interested in discovering it.
In preparation for the most recent Florida measure to increase consumer access to physician data, the Florida Senate prepared a Staff Analysis and Economic Impact Statement for Senate Bill 948, Physician Profiles.215 Operation and staff expenses for the toll-free
hotline will result in costs of $250,185 per year.216 The legislation
would require AHCA to modify investigatory and referral mecha- nisms with anticipated costs totaling $5,619,700 for 1997-98 and $6,872,669 for 1998-99 based on 18,000 provider complaints per year.217 The Department of Health is anticipated to incur total costs
to implement the legislation of $1,680,396 for the 1997-99 period.218
210. SeeState Increases Access, supra note 2.
211. Massachusetts and Arizona currently provide Internet access. See Massachusetts Board of Registration in Medicine (visited Apr. 2, 1998) <http://www.docboard.org/ma/ma_ home.htm>; Arizona State Board of Medical Examiners (visited Apr. 2, 1998) <http://www. docboard.org/az/df/azsearch.htm>. Florida temporarily had a site, and the Brown-Waite legislation calls for a permanent one by 1999.
212. SeeState Increases Access, supra note 2. 213. See id.
214. For example, Florida’s Report on Physician Discipline and Malpractice is a 194- page publication available for $10 via mail.
215. See Fla. S. Comm. on Health Care, SB 948 (1997) Staff Analysis (Mar. 18, 1997) (on file with comm.).
216. See id. at 13. These expenses are calculated for fiscal years 1997-98 and 1998-99. 217. See id. at 14. Expenses for fiscal year 1997-98 are broken down as follows: non- recurring costs of $465,198, salaries and benefits of $2,500,422 for 89 full-time employees, and expenses of $2,654,080. The 1998-99 expenses are anticipated as follows: salaries and benefits of $3,333,896, and expenses of $3,538,773.
218. See id. The “fiscal impact” for 1997-99 consists of $754,826 in costs for data verifi- cation, $489,173 in costs for data entry, $436,397 in expenses (including project analysts) to make the profiles accessible via the Internet. Data verification will require 17 OPS staff positions and five and one-half full-time staff positions. Data entry will require 32 OPS staff positions and two full-time positions.
VI. CONCLUSION
It is said that knowledge is power. Certainly, there are tremen- dous benefits in knowing more about those who provide health care. Consent can be enhanced and providers can be held more account- able, and hopefully the quality of health can be increased. Disclosing data does not, however, automatically impart on those who read it the ability to properly apply the information to positive ends. Infor- mation about malpractice and the discipline of physicians needs to be carefully presented to benefit the consumer without inadvertently damaging the physician. Ranking and scaling the severity of injuries or misconduct fail in this regard. A simple indication that there in- deed has been a malpractice claim or disciplinary action, and pro- viding references so that the interested consumer can find thorough information on a given physician, are the best means of informing consumers without causing unnecessary harm.
Health care is a dynamic and rapidly evolving sector of society that receives a tremendous amount of attention. There is a need to enhance the information available; however, the recent disclosure legislation is a leap by lawmakers without an adequate foundation. Better agency regulation and more thorough and consistent profes- sional standards need to be implemented to ensure positive growth in medicine. This is, after all, the information age. The information pro- vided should be the most accurate and comprehensive available, not mere tidbits of data that may lead to greater apprehension and ten- sion among the plethora of health care players.