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Oregon and Massachusetts Physicians at Odds with Federal Reaffirmation

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Physicians in Oregon and Massachusetts are not pleased with the federal government’s “recent reaffirmation of mandatory disclosures of all medical malpractice payments,” John Commins of HealthLeaders Media reports.

Both states have passed legislation that created mediated settlements for malpractice cases, and physicians fear that the federal reaffirmation will supplant these state laws.

Dr. Alan Woodward, former president of the Massachusetts Medical Society and current chair of its Committee on Professional Liability said: “Nobody is trying to carve out a loophole that would compromise the need to report substandard care to the National Practitioner Data Bank. We asked HHS and the National Practitioner Data Bank to provide a clarification. What they did was to restate the status quo. That is what this whole interpretation is, just to say we've done things this way, this is what the law says, and this is how we interpret it.”

At the heart of this debate is the work of patient advocacy group Public Citizen, which challenged the mediation laws last year, Commins writes, charging that the Massachusetts and Oregon legislation created “loopholes” “that allowed physicians in those states to avoid reporting malpractice settlements with the National Practitioner Data Bank.” Public Citizen feared that an influx of similar laws around the country “threatened the viability of the NPDB as a comprehensive and reliable source of data regarding malpractice payouts.”

According to Public Citizen: “We recognize that a single malpractice payment is not necessarily a good indicator of the quality of care provided by a physician or other practitioner. Yet research has shown that a pattern of malpractice payments is an excellent indicator of whether a physician has quality-of-care problems and may need retraining, proctoring, or other serious action to ensure the safety of their future patients.

“If state efforts succeed in creating a legal basis to avoid reporting malpractice payments to the NPDB, it would become more difficult, if not impossible, for NPDB users, such as hospitals and medical boards, to identify such patterns of malpractice by a practitioner when they conduct background checks through the NPDB.”

Dr. Woodward helped write the original Massachusetts statute and adamantly defends his team’s work: “The whole focus of our program is to do what is morally and ethically right when a patient has an unexpected negative outcome. It is to increase transparency and encourage full disclosure in an ongoing dialog with the patient. It is to meet the patient's medical, psycho-social, and financial needs without them having to resort to litigation.

“The other major focus is to improve patient safety, because the current system in many ways impedes patient-safety improvement. The concern is that when you tell physicians that any payment, regardless of whether it was a systems error or a human error as opposed to negligent or substandard care, that it is going to be reported to the National Practitioner Data Bank, they are less inclined to participate in this type of open dialog with patients.”

Although it’s possible, as a healthcare consumer, to see both sides of the issue here and although it’s possible neither these two states nor Public Citizen are as far apart as first glance indicates, how do you as physicians feel about the mandatory disclosures of all medical malpractice payments that is required under current federal law? How do you feel about mediated settlements that circumvent disclosure? In looking for a job, how much do you examine a state’s malpractice laws in your pre-interview research?

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