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When Does Malpractice Equal Negligence?

When Does Malpractice Equal Negligence?

Medical Board Provides Consumers With Background

BY WILLIAM A. MILLER

Special to the Business Journal

If you’re reading this article, chances are you’re an employer or employee.

Under that assumption, more than 90 percent of you receive health care through your employer or provide someone else with a health care plan. Cost is a driving factor in choosing a health care provider, but do you also consider the quality of the doctors available in a plan?

Have physicians in the plan selected by the company been sued for malpractice? Do most consumers and business personnel know exactly what malpractice means and should they have a right to that information? Does malpractice equal negligence?

The National Practitioner Data Bank (NPDB) was created in 1986 to serve as a vital tool in the process of practitioner credentialing. The NPDB essentially flags physicians who lack the high ethical standards required for patient care.

The NPDB then makes the information available to hospitals, state licensing boards, professional societies and other health care entities. The organization is especially useful in keeping state medical boards informed of doctors’ records in other states , in case a doctor leaves the state and applies for a medical license elsewhere.

This sounds like information the public has a right to access. Wouldn’t you want to know if any of the physicians in your HMO had a history of malpractice payments and disciplinary actions?

Except the issue isn’t that straightforward.




Claims Vs.

Inherent Risk

What most people don’t realize is the NPDB system for collecting medical liability settlements and verdicts is not an accurate measure of the competence of a physician.

Even though the NPDB collects a variety of information, a majority of the data available is malpractice claims against physicians. But being sued for malpractice isn’t necessarily a sign of incompetence.

In addition, the NPDB has no threshold for judgments and settlements, which mean payments are listed regardless of the amount. In essence, a $7,000 payment would have the same value as a $7 million payment , one mark on the physician’s record. Many times, malpractice lawsuits are settled because it is less expensive than the price of defending a lawsuit.

Which means settlements aren’t necessarily an admission of guilt.

In today’s legal landscape, when any citizen with $199 can file a lawsuit, a physician’s legal options are limited.

The NPDB also fails to reflect the risk of a given practitioner’s specialty. Some specialties and procedures are inherently risky. Therefore, the normal rate of claims differs among the specialties.

This lack of separation harms areas such as obstetrics and high-risk or cutting edge procedures where a good job often may produce an unfortunate outcome. An excellent obstetrician , because they are so good ,will often get the most difficult cases. As a result they may have less than ideal outcomes, but that doesn’t make the physician less able.

Since better doctors are sued more often, giving access to malpractice claim information could result in fewer doctors going into risky specialties or performing difficult but necessary surgeries.

So, what’s the solution? Just because the NPDB may not be suited to the needs of the consumer doesn’t mean that employers and employees shouldn’t have a right to know if a physician in their HMO is negligent.




Board Maintains Web

Site, Information Unit

Fortunately for California businesses, there is an answer. The state of California provides public organizations with relevant, reliable, verified, accurate and contextual information about the competence of physicians in the state through the California Medical Board.

Anyone can obtain physician information from the Medical Board regarding licensing information or disciplinary action taken against that doctor. The Board provides this information through its Web site and also maintains a Consumer Information Unit in Sacramento.

The California Medical Board keeps a wealth of information for consumers. By law, the Medical Board is authorized to provide the public with a physician’s address, medical education record, California license number, current status of the license, as well as pending disciplinary charges and completed disciplinary actions.

The Medical Board also supplies the public with the same information that the National Practitioner Data Bank won’t let the public access; malpractice claims paid by physicians in California. The Medical Board employs a payment threshold of $30,000, which places malpractice settlements in a context that is useful to those researching an HMO.

A final word of advice to employers and employees , malpractice really happens. The law recognizes that medicine isn’t an exact science and undesirable things happen in the absence of negligence.

So if you’re an employer, encourage your employees to make educated decisions regarding the doctors in their HMO. And if you’re an employee, choose the doctor within your plan with confidence and keep the information you collect within context.

Miller is a partner with Higgs, Fletcher & Mack LLP.

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