Web postings: Docs would rather fight than settle

Steve Stanek Dec. 23, 2004, 4:46am

Every year for several years, legislation to identify individual physicians involved in medical malpractice lawsuits has been introduced in the Illinois General Assembly without advancing to a vote.

The chief sponsor of the Patient Right-to-Know Act, Rep. Mary Flowers (D-Chicago), has said she plans to reintroduce the bill in 2005. A recent article in the New Jersey Law Journal, highlighting the impact of similar legislation which took effect there in July of this year, may provide an indication of what to expect in Illinois if the Patient Right-to-Know bill were to become law.

In "Online Posting of Med-Mal Payouts Is Seen as Chilling Settlements," published Nov. 17, New Jersey Law Journal reporter Mary P. Gallagher wrote, "Nearly five months after a state government web site began posting doctors' malpractice histories, the publicity may be having a chilling effect on settlements.

"Lawyers on both sides of the aisle say that some doctors, faced with the reality that even a confidential settlement will end up on the Internet, are opting to take their chances in court."

This does not surprise John Hopkins, an Edwardsville plaintiff's attorney and Madison County Record columnist.

"I've never heard of anything like that. The settlement is usually confidential," Hopkins said.

Defendants often want settlements to remain confidential, because many settlements are made without an admission of negligence or wrongdoing. Defendants fear damage to their reputation.

Hopkins said plaintiffs also sometimes want settlements they receive to remain confidential.

"Many plaintiffs don't want people knowing their business," he said. "They wouldn't want any computer geek to go online and find that information."

The Illinois State Medical Society, which lobbies on behalf of physicians, opposes the concept, according to Dr. Kenneth Printen, ISMS president.

"The Illinois State Medical Society strongly believes consumers should have access to relevant information to help them make educated choices about their health care," Printen said in a statement. "We also believe that a doctor who does not practice good medicine should be disciplined. We do not, however, feel that publishing information on malpractice verdicts and settlements will provide reliable information for patients to use in selecting a doctor."

He said that to "simply reduce a doctor's qualifications to a list of verdicts and settlements is misleading to the consumer and can unfairly scar the reputation of a physician who provides exceptional care."

One local supporter of the concept is Doug Wojcieszak of Victims and Families United, a trial lawyer-backed advocacy group.

"This is something a lot of patients and consumer advocates have been asking for for a long time," he said. "We can find out stuff on other services, but information on doctors entering into settlements is not disclosed."

He said much of the debate over medical malpractice is based on anecdotal information, which renders the debate meaningless.

"It's a bunch of stuff generated by press people," Wojcieszak said. "Only when we get honest numbers can there be an honest discussion. We really need a good database that's accessible to everybody."

Agreeing in theory but opposing the Patient Right-to-Know Act in practice is Susan Hofer, spokeswoman for the Illinois Department of Financial and Professional Regulation, which oversees physician licensing.

"We are not opposed to the idea of making available to the public information we receive as a mandatory report," Hofer said. "We were one of the first states to make licensing information available to the public. Our concern is with the way the bill is drafted. We don't think we could administer it. My understanding is it would be incumbent on the department to go out and seek information. We don't have the resources to do that."

The state requires insurers to report to the department any verdicts or settlements in medical malpractice cases. Hofer said the Patient Right-to-Know Act would require the department to also seek out information on hospital disciplinary actions, active lawsuits and other items that are not reported, she said.

"We don't receive a report until a verdict or settlement is reached," Hofer said, adding that hospital disciplinary actions are not reported to the state. "If a civil suit involved an insurance settlement, we do receive that information and would be willing to disclose it, but the law would need to be changed significantly to do that. Right now I can't tell you if an investigation has been opened against a specific doctor."

Disciplinary actions after investigations are made public, however. Hofer said malpractice verdicts that go against a doctor and out-of-court settlements usually result in the state conducting an investigation.

State Sen. John Cullerton (D-Chicago) earlier this year tried to broker a medical malpractice reform package through the General Assembly. The package stalled after the major parties involved could not reach agreement.

Cullerton said he doubts any bill that would allow lawsuit information on specific doctors to be publicized would pass the General Assembly. But he does have hopes for legislation to allow the insurance department to collect such information in the aggregate.

"We're trying to address this information issue from the point of view of the insurance regulator," Cullerton said. "How much are awards? How much for pain and suffering, that kind of thing. Right now there are no good numbers. The issue of a chilling effect on settlements if information on individual doctors is published is valid, but we can give regulators information to know if these insurance rates are valid."

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