Lisa McGiffert of Consumers Union with the press.

Secrecy is bad medicine (Oct. 2002).

Imagine yourself a parent of a child who is harmed during a surgical procedure by a doctor who had previously settled multiple lawsuits relating to similar procedures. Then you learn that the Texas Board of Medical Examiners had placed the physician on probation following years of other disciplinary actions.

Needless to say, had you known about the potential danger, you may have chosen a different doctor for your child. Sometimes, what we don't know can hurt or even kill you or a loved one.

When it comes to doctors and hospitals, Texans are mostly in the dark. The parent in the above scenario could find out that the BME had taken formal action but not easily. (www.tsbme.state.tx.us/index.htm) Only the most tenacious consumer can find details of such board orders or the kinds of limitations the board may have put on a doctor's practice - even though this information is public. However, there is much more information held by the BME that is confidential, including settlements of malpractice cases, complaints made by consumers, and whether a doctor is under investigation, all of which can be essential in evaluating a doctor's fitness.

Texans today have a similar lack of information about quality of care in hospitals. We're in the dark about consumer complaints, infection rates and medical errors. Even when hospitals address these problems, we don't know what the problems are or how officials are responding to specific problems. All of this information is confidential by law.

"Consumers play a most crucial role in the regulation of doctors and hospitals," says Lisa McGiffert, senior policy analyst for the Southwest Regional Office of Consumers Union. "Through their complaints they serve as the eyes and ears of those in government whose job is to protect their safety."

The problems are serious. According to a 2000 survey by the nonprofit Voluntary Hospital Association, 49 percent of respondents had a bad family experience with a doctor or hospital in the previous three years. In a highly publicized report published in 1999, the federal Institute of Medicine found that between 44,000 to 98,000 Americans die each year from medical errors.

McGiffert says ending secrecy won't come easy, and there already have been key setbacks along the way. In 1999, the Texas Hospital Association inserted an obscure provision into a bill that made it impossible for the public to even find out what complaints have been filed against a hospital - information that had been public for years. Two Consumers Union-backed bills to reverse the new secrecy law were vetoed by the governor in 2001.

There is one bright light on the horizon. Later this year, the Health Care Information Council (www.thcic.state.tx.us) will release its first quality report on Texas hospitals. The report, seven years in the making, will include information on 25 medical procedures. It will mark the first time that consumers in Texas will be able to compare hospitals' performances on specific procedures. The state agency will continue to produce future reports and the data files on which the reports are based will be available to researchers. They may use the information to analyze quality of care issues more extensively.

Improving quality of care is key to solving the much publicized problem of rising medical malpractice insurance premiums. "We must address quality of care issues before taking away consumer access to the courts -- one of the few places a victim can go for help," McGiffert says.

During the 2003 legislative session, CU will continue to oppose a concerted lobbying effort by business and the health care industry to reduce the ability of consumers to access the courts when they have been harmed by doctors or hospitals. "The medical malpractice system, though not perfect, remains an effective way for injured patients to receive compensation - and justice. This is especially important given the shroud of secrecy covering problems in medicine and the failure of regulators to adequately regulate doctors, " she says. "We need to make sure first and foremost that the general public is protected."

Acknowledging that just as there are some doctors who cause harm to patients, there are lawyers who file bad cases that harm consumers and the medical profession, McGiffert added, "We should target and punish those lawyers rather than eliminating or weakening an important forum for patient protection. Likewise, just as public awareness of complaints and actions against bad doctors is crucial to patient protection, sunlight on lawyer practices is equally important to consumer protection." The sunset review of the State Bar of Texas provides an opportunity to address public access to information relating to bad legal practices as well as better regulation of lawyers who abuse the process.

Further, consumers should have access to information about medical malpractice suits currently held by the BME. Information about medical malpractice lawsuits is public now, but a consumer must search for it at the 254 courthouses in Texas.

McGiffert is quick to note that while the insurance industry points the finger squarely at the liability system first, it is more likely that lack of oversight in a deregulated insurance market has resulted in higher rates and an insurance industry that is calling all the shots. "If the insurance market were properly regulated, we wouldn't be seeing the outrageous premium increases that are threatening the ability of doctors to cover their practice of medicine."

With legislators returning to Austin in just over three months, CU will soon be working on proposed legislation to:

• Make hospital and doctor complaint information readily available to the public.

• Provide more details about physician and hospital disciplinary orders in a consumer friendly format.

• Make medical malpractice information about doctors and hospitals available to the public at a central location.

• Make information about lawyer misconduct and abuse of process available to the public.