Even in this age where consumers are able to research everything online, when it comes to doctors and hospitals, a lot of information is off-limits.
Even though federal and Texas laws require hospitals to have quality improvement and assurance programs, including peer review of care that is provided, those same laws designate this information as privileged and not available for public disclosure.
In April 2017, the Centers for Medicare and Medicaid Services proposed that private hospital accreditation organizations—which handle oversight for nearly 9 out of 10 hospitals—be required to publicly disclose problems that they identified during inspections of hospitals and other facilities, in addition to the steps that were being taken to fix them.
After a backlash from hospitals, though, Medicare and Medicaid quickly reversed course, allowing this important patient safety information to remain under lock and key. The largest of the accrediting agencies, the Joint Commission, went so far as to issue a letter, arguing that if patients could read about the results of accreditation reviews and hospital problems, it would result in “increased patient harm and lower quality.”
As a Houston, Texas medical malpractice lawyer, I find that prediction as absurd as the laws that keep quality of care information privileged and confidential. Consumer Reports agrees, stating that “Such survey [and inspection] results provide insight into hospital quality that is not now transparent. . . . Consumers have a right to know this critical information that is used to determine if facilities are in compliance with health and safety requirements for Medicare patients, and thus, all patients.”
This setback of transparency is not unique to hospital and facility accreditation.
Federal National Practitioner Data Bank
Under federal law, the U.S. Department of Health & Human Services operates the National Practitioner Data Bank. Hospitals and other healthcare entities who take a professional review action against a physician or dentist, like suspension or reduction of privileges for more than 30 days based on incompetence, must report the action to the Data Bank.
Similarly, physicians must self-report any medical malpractice payments, state licensure actions, clinical privilege actions, professional society membership actions and similar events, to the Data Bank.
The idea is that the National Practitioner Data Bank will be available to hospitals during credentialing of physicians. Credentialing is the process that hospitals use to determine whether to allow a physician or dentist to practice at the facility. Hospitals are required to make an initial check of the Data Bank before granting a physician privileges to practice of the hospital, and must make additional annual checks.
As a patient, would you like access to this information when selecting a physician? It is hard to imagine that anyone would say no. Unfortunately, though, there are very few instances in which the National Practitioner Data Bank will disclose any information. One is when there is a medical malpractice lawsuit, in which there is proof obtained during the litigation process that the hospital failed to submit a mandatory query to the Data Bank regarding a defendant physician.
When applying the federal requirement for disclosure by the Data Bank to the extreme Texas protections granted to hospitals, you will realize that there are no circumstances whatsoever under which a Texas medical malpractice plaintiff would be able to obtain information from the Data Bank. In other words, even when the Data Bank has information on a physician showing that a hospital had actual awareness that the physician was incompetent and a danger to patient safety, is still privileged and kept secret from a Texas medical malpractice plaintiff.
Texas laws protecting hospitals and doctors, at the expense of patient safety
Chapter 161 of the Texas Health & Safety Code grants generous privileges to hospitals and doctors that keep credentialing committee, hospital committee, and peer review committee information privileged from public disclosure or even discovery during medical malpractice litigation.
Thus, a Texas medical malpractice plaintiff is never entitled by law to discover whether a hospital properly queried the National Practitioner Data Bank concerning physician who is a defendant in the lawsuit. Therefore, the Data Bank will never be required to disclose any information that it has concerning such a defendant physician.
Similarly, a hospital’s own review of the quality of care of the physician on its medical staff is also privileged from disclosure or discovery, provided that this peer review function is done by a committee, as it always is.
Medical malpractice lawsuits provide public information
Last year, I handled some litigation involving Christopher Duntsch, M.D., a Dallas-area neurosurgeon, who is now serving a life sentence for aggravated assault and injury to the elderly, as a result of the surgical care that he provided. This litigation against Dr. Duntsch was rather unique, because a number of plaintiffs came forward at the same time with similar complaints about his care. This allowed the attorneys representing different patients to construct a timeline of what different hospitals knew, should have known, and when, during the time period that the surgeon was allowed to practice in those facilities.
Still yet, Texas law protects hospitals with a heightened standard of proof required for a plaintiff to file a lawsuit based on credentialing decisions for a physician. The Texas Supreme Court has ruled that the standard is not negligence, but malice, which is equivalent to gross negligence. From a practical perspective, this is essentially impossible to achieve, based on the committee privileges afforded to hospitals.
Even though the deck is stacked against patient consumers in terms of finding out quality of care information about hospitals and physicians, there still are some things that you can do. One is to do basic Internet research. Dissatisfied patients sometimes post public comments about problems with the care that they received.
Beyond that, lawsuit records are public information. In Houston, for example, the Harris County District Clerk maintains an excellent, user-friendly online portal that you can use to search to see if a physician or hospital has been a defendant in a criminal or civil matter. If so, with the click of a mouse, you can read about the allegations contained in the lawsuit pleadings.
In addition, the Texas Medical Board has a searchable online database that contains information about each physician’s educational background and licensure, including very limited information about malpractice claims and board actions. It is also worth reviewing.
We are here to help
As an experienced Houston, Texas medical malpractice lawyer, I have a unique vantage point to see trends in the quality of care provided as a whole, as well as with specific hospitals and doctors. If you or someone you care for has been seriously injured as a result of a medical mistake or negligence, call Painter Law Firm, at 281-580-8800, for a free consultation about your potential case.
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Robert Painter is an attorney at Painter Law Firm PLLC, in Houston, Texas, where he represents plaintiffs in medical malpractice lawsuits. Prior to becoming a lawyer, Robert Painter served as an officer in the U.S. Army in the role of a hospital administrator, to repay a full scholarship to medical school.
