Transparency is one of the words we hear a lot these days. Transparency is good, right? As my very first law partner in Oklahoma used to say about 30 years ago, “A deal ought to be able to stand the light of day.”
But, when it comes to the health care industry, transparency is a dirty word. There is no transparency when it comes to the things that can hurt us the most. Some of the things that are most critical when it comes to us making sound decisions about our health are kept secret from us, the patient. For example:
- The rate of complications your surgeon has had at the hospital where your surgery will be performed and how that compares to the other surgeons at the hospital, other surgeons at other hospitals in the area, and how their rate of complications compare to national averages.
- Whether your doctor suffers from a drug, alcohol or mental problem.
- • Whether your doctor has been denied hospital privileges, or privileges have been revoked or suspended, or whether your doctor resigned in lieu of discipline.
- Whether your doctor has been reported to the National Practitioner Data Bank, either for losing or being denied privileges at another hospital (or hospitals), paying out malpractice claims, or being disciplined by medical boards.
You see, these are not just the customs and practices of hospitals, this is the law. You can’t really blame the hospital for taking advantage of laws which were designed to protect them. But, we can take issue with laws which hurt patients. In my view, the most dangerous laws for patients are these four laws.
The Hospital Peer Review Privilege, 3 TEX. OCC. CODE §§ 160.001-160.015 (2015). This allows hospitals to perform a root cause analysis of a medical mistake and keep the results confidential, even if doctors or nurses were disciplined as a result of the mistake.
The Hospital Credentialing Privilege, 28 TEX. ADMIN. CODE Part 1 Chapter 21 Sub-chapter X §§ 21.3201 (2005). This allows hospitals to keep secret what they know about the doctors they place on their staff , keep on their staff or kick off their staff . So, a dangerous doctor can be passed from hospital to hospital, yet the patient would never be able to discover what the hospital really knew about the doctor from their own experience and from what they were told by other hospitals.
The Hospital Quality Assurance Privilege, 4 TEX. HEALTH AND SAFETY CODE ANN. §§ 255.001-255.005 (2015). This allows hospitals to track all kinds of data about their doctors and their own rates of complications and problems and keep it secret from you.
The rules and regulations of the National Practitioner Data Bank, 45 CFR Part 60 (2015). Data is required to be reported regarding doctors who have been disciplined, have paid out claims, have been denied privileges, or have had their privileges suspended, revoked or they bargained for a resignation in lieu of discipline. However, this information is only available to hospitals, medical boards and insurance companies. You, the patient cannot know. You as a lawyer, cannot discover this information on behalf of a patient.
I actually do understand the need for some protection for hospitals. Aft er all, it is in the patient’s best interest for the hospital to be able to conduct a root cause analysis of a particular poor patient outcome or death, and be able to openly and honestly appraise whether the hospital, the physician and/or the nursing staff were negligent. We have to hope and trust that the hospitals do this in order to correct the situation which caused harm to a patient and make necessary changes to prevent it from ever occurring again, but all we have to go on is trust and faith typically in a hospital “for profit” setting where the best interest of the patient may not always be the foremost concern.
However, there is no reason that patients should be kept in the dark concerning a physician’s track record. Patients are left to rely on what they can find on the Internet. Oft en, this is nothing more than paid advertising disguised as legitimate ratings information. I have certainly seen plenty of cases where physicians looked great on the Internet, but had serious problems which made them unfit to even be practicing medicine.
My lawyer colleagues who are reading this certainly have diverse views on these legal protections, which have been in existence for many years. I don’t foresee any of this changing in my lifetime, but the reason I raise this issue is to get you thinking as a patient. Yes, we are all lawyers, but we are also all patients. The bottom line is that transparency is good in a lot of situations. Transparency in health care is critical and potentially lifesaving.