Statement of Consumers Union Senate Special Committee on prompt pay of health care providers relating to medical malpractice insurance issues (Oct. 2002).

Consumers Union appreciated the opportunity to speak to the Committee on October 18th. As was clear during the hearing, most are focused on changes to the medical malpractice laws, but all seemed to understand the complexity of the current problems facing our state. Capping non-economic damages in medical malpractice cases, using the California law, MICRA, as an example of how to solve the crisis of is not going to be the answer to reducing skyrocketing insurance premiums. Caps may be something to consider as a last resort, but we believe we are not anywhere near last resort measures.

There are enough issues around regulation of insurance and quality of care that should be resolved before reducing the ability of consumers to go to courts to try to address injuries they have suffered. In fact, we need to be sure that consumers have access to courts because of the lack of regulation of doctors and hospitals in our state. Protection of the general public should be your first and foremost concern.

After the state has addressed quality of care and insurance issues, then is the time to come back and start looking at whether or not we need adjustments in our liability system. Since you have received much testimony and information about the insurance market and our medical malpractice laws, we would like to offer the following recommendations to begin to address some of the quality of care issues facing health care consumers.

ACCOUNTABILITY TO THE PUBLIC IS THE FIRST STEP

The Board of Medical Examiners and other regulatory agencies should be more accountable to the public than to the health care professionals they license. They should approach their work with a clear understanding that their job is to protect the public - a public that trusts when the shingle goes up, it means the professional is trained and not likely to harm them.

Anyone who watches these regulatory boards over the years knows of a cyclical phenomenon: they are ignored for years and then get caught up in a scandal that draws attention to the agency leading to outraged policymakers and a shocked public. Typically the agency receives more funds to do a better job (often they need more resources) and sometimes gets a new director who pledges to improve enforcement and who typically does generate activity. But consistently, two things have always remained the same that ensure the cycle will return:

• SECRECY: Information about a bad doctor only gets to the public at the very end stage, which can take years. The public has no ability to watchdog the agency because no analysis can be done on how they respond to complaints. And individuals cannot obtain important information about their personal health care providers.

• FUNDAMENTAL STRUCTURE AND PHILOSOPHY: The majority of the members on these boards are the very professionals they regulate Ð a prime opportunity for conflicts of interest and self-protection. They have a natural inclination to protect their own and the ones being regulated make up the rules. Watch any of these boards for a period of time and you will recognize that their sense of duty is focused on the professionals not the public.

Health care consumers need more information about health care providers and the facilities in which their care is delivered. This is essential to improving the quality of health care and is essential to helping consumers make more informed health care decisions. These health-licensing agencies hold a great deal of information that consumers should have — some is public, but much is confidential by law.

CONSUMERS UNION RECOMMENDS THE FOLLOWING:

• Make complaint information on hospitals and physicians — currently confidential by law — available to the public.

• Provide more details about physician disciplinary orders and the formal complaints filed by the agency in a consumer friendly and easy to access format. Any disciplinary orders that have been overturned by a court should remain public.

• Make medical malpractice information about specific doctors available to the public at a central location. This information is already public but not readily accessible.

• Create standard procedures for all health-related licensing agencies for the handling of complaints that eases the complaint-filing process and that provides the most complete public access to licensing, complaint, and disciplinary order information.

• A majority of licensing board members should be representatives of the public and not of the profession being regulated. Advisory committees of professionals should be used to assist in reviewing clinical information relevant to discipline.

These recommendations could be implemented with little or no additional cost. Our explanation of these recommendations is below.

MAKE COMPLAINT INFORMATION ON HOSPITALS AND PHYSICIANS — CURRENTLY CONFIDENTIAL BY LAW — AVAILABLE TO THE PUBLIC.

Consumers serve as the eyes and ears of licensing boards through their complaints. Often their complaints are labeled 'invalid' because the specific issue they raise does not violate a law. However, in the many studies Consumers Union has done of consumer complaints -- from optometrists to manufactured homes - we find that these complaints often identify issues that perhaps should be against the law or that clearly indicate a problem. We also find very few totally frivolous problems. Complaints are important pieces of the quality of care puzzle.

Case in point, when we looked at their complaints, we found that the Board of Optometry failed to adequately respond to consumers identifying barriers to getting their contact lens prescriptions, even after the legislature passed a law requiring eye doctors to provide the prescriptions. Many issues consumers raised were not specifically addressed by the law (e.g., eye doctors withholding prescriptions until the insurance company paid their claim), but others were certainly implied (e.g., requiring the patient to buy the trial pair but selling it only in a package of multiple lenses). Even the complaints that were clear violations of the law were not acted upon as long as the eye doctor eventually gave the consumer their prescription.

The TSBME complaints are not available to the public so we do not know if consumers are identifying serious problems with doctors that should be addressed by the legislature. There is virtually no way of knowing if the board is responding appropriately to complaints unless we can look at what is coming in the door.

The complaint information should not reveal the identity of the patient or any identifying information -- just as is done with medical-related complaints at the Texas Department of Insurance.

Opponents to this concept suggest that doctors who are the subject of a complaint have a right similar to 'innocent until proven guilty' that would somehow be violated if the boards made these complaints public. But these are not typically criminal offenses - rather they are violations of the privilege of practicing licensed medicine. Some of these complaints take years to resolve -- in the meantime, a patient who sought to find out if there were problems with a doctor would be told nothing -- even if the complaint was so serious that it ultimately led to revocation of a license.

Another typical response is that perhaps the board should simply release the number of complaints the doctor has received without any details about the nature of the complaint. We contend such a system would be unfair to doctors as well as consumers Ð it equalizes the most egregious complaints with the most benign. Consumers are intelligent enough to come to their own conclusions if the nature of a complaint is a problem for them. For example, a person may not switch doctors because theirs did not maintain his record keeping, but if their surgeon is continually reported to be under the influence of drugs or alcohol, they may choose someone else to perform their operation.

HOSPITAL COMPLAINTS: As consumers, we know very little about hospitals, although there is much information in existence, most is held in secret: infection rates, medical errors, and basic quality of care information are now typically being run through hospital peer review committees Ð a blatant tactic to keep important information from the public. Hospital complaints used to be public. They were made confidential by an amendment to a 1999 bill. In 2001, Representative Patricia Gray and Senator Jane Nelson added provisions in two separate bills to reinstate consumer access to complaint information. Both bills were vetoed by the Governor.

While more and more hospital quality of care information is becoming available to the public, complaints made by patients about their care in a facility are held as top secret. We would also like to see more information about infection rates and medical errors available. The paucity of public information about the most expensive and extensive source of care in our health care system is appalling.

One man in San Antonio was so furious when he could not obtain the information about a hospital in which he thought his father received poor care that he went to a local television station to investigate. A Lubbock television reporter called me this summer following public concern about a local hospital's quality of care. She asked where consumers should go to find out about a hospital's record. There were no easily accessible places to send her.

As an aside, the Texas Health Care Information Council released their first hospital quality report in October. For the first time, Texans can compare hospitals in their areas on various performance measures. The reports are available at www.thcic.state.tx.us. The Fort Worth Star Telegram has already taken the THCIC's public use data file and produced similar hospital quality reports for their area in a series of articles last July. While this annual report will improve each year, the first one is a significant step forward for Texas in providing consumers with useful information about their health care system.

PROVIDE MORE DETAILS ABOUT PHYSICIAN DISCIPLINARY ORDERS AND THE FORMAL COMPLAINTS FILED BY THE AGENCY IN A CONSUMER FRIENDLY AND EASY TO ACCESS FORMAT. ANY DISCIPLINARY ORDERS THAT HAVE BEEN OVERTURNED BY A COURT SHOULD REMAIN PUBLIC.

While more information needs to be made available to the public, all agencies regulating health care professionals and facilities could be doing a better job at providing consumers with information that is currently public. All licensing information and details of disciplinary orders (including information about why the orders were made) should be available on the agency's web page in a searchable format. Consumers should be able to use this information to find out about a particular doctor or to search among a group of doctors in a particular specialty or in a particular location.

I have included some examples to illustrate my point.

• Attached is a listing of disciplinary actions from the TSBME newsletter from earlier this year. The descriptions are fairly typical -- violations involving abuse of alcohol or drugs are clear, but there are many which are merely listed as 'unprofessional conduct,' restrictions to the license without advising how it is restricted, administrative penalties, or a general listing of possible acts.

• Attached is a copy of a board order and one of two official complaints filed by the board detailing the problems with this particular doctor. Consumers must call in and request a copy and pay a fee to get this level of information.

• Attached is a search on the TSBME web site to verify the license of a doctor mentioned in one of the Dallas Morning News articles. As you read through the pages, you discover that the board began restricting this doctor's license in 1994 after which he was cleared and restricted again; he is currently restricted, but it is not exactly clear to the public what he is not supposed to do in his practice.

• Attached is the introductory page of the 'Physician Profile' that the legislature required the board to create in 1999. Of note are the multiple disclaimers to consumers about the accuracy of the information to be provided and the revelation that most of the information is self-reported by the doctors. The one disclaimer at the end does not instill confidence to the public: 'Neither the State of Texas, the Board nor any employee thereof may be held responsible for the accuracy of the data.' After three years, we still don't know when these profiles will be on line. It has been in 'pilot phase' since early last year.

Give consumers the tools to make informed decisions based on the same information the board has. In today's world of managed care, people may have to change doctors when they change jobs and move into different health plan networks. They need easy access to quality of care information and about the service a doctor provides. It would not be difficult for the board to make this information available, if they had the desire to do so. For example, the full text of disciplinary orders should be put on line, but the board has not managed to do so, even though they have said they would for almost a year. These are documents created on computers that should be easy to put on line.

Recent Board improvements. The Board and staff that have recently rolled up their sleeves and are tackling their job in a more aggressive manner. The TSBME has been lax at policing doctors and there is certainly evidence that they are starting to pay more attention to their work. That has happened because of public pressure generated by a public exposure of the board operations.

The Dallas Morning News has done Texans a great service with an ongoing series about making doctors more accountable to the public they serve. The newspaper has spent hundreds of hours reading disciplinary orders about doctors, discovering old files that had been tucked away by board staff and never acted upon, talking to consumers who were sexually abused by their trusted doctor, and cross referencing medical malpractice information with disciplined doctors to see if patterns of problems existed. Then, they came out and told the rest of us what they found. If the TSBME had done the same depth of research, they may have been more motivated to act. Often sunshine on the matter from the outside is the most certain way to create accountability. These articles were provided to the committee and we urge you to read them — they are full of real peoples' stories.

There is no question that the current administration at the TSBME has identified significant problems and is working diligently to address them with limited resources. They are definitely moving in the right direction and we support them in their effort to be more responsive. But this too will pass unless we create a more systematic way to hold them more consistently accountable for fulfilling their duties. Depending on a scandal to surface puts too many people at risk.

Consumers Union supports giving the board the tools they need to do their job. They need adequate investigative staff and lawyers and the ability to protect the public quickly if they have credible evidence that a physician presents a danger to patients.

'Competency testing:' We do not support the Boards' proposal to require Texas doctors to take a 'competency test' every ten years. They should first focus on doing the job of investigating complaints in a timely manner and ensuring the public has information about doctors who have been disciplined.

As we understand it, the paper and pencil tests would be given to each doctor who has not take specialty board exams in the past ten years. Each doctor would have three tries over a two-year period to pass the test. Doctors who do not pass the test in two years would be put on inactive status OR go to Colorado for a more extensive and expensive hands-on test Ð they would have 6 months to pass this test. If they fail, then they would go through one year of remediation to help them pass the test. The bottom line: This process will take more than 13 years to weed out a truly incompetent doctor. The public will not be told of doctors who repeatedly fail the competency test until they have spent at least three and a half years trying — and even then, the public may not be told. This proposal will not benefit or protect the public, will be costly to administer, and will distract the Board from the problems they know exist already — without a test.

MAKE MEDICAL MALPRACTICE INFORMATION ABOUT SPECIFIC DOCTORS AVAILABLE TO THE PUBLIC AT A CENTRAL LOCATION.

Medical malpractice lawsuit documents are public. However, you have to go to every courthouse in Texas and look them up. While one can find out how many doctors of a specific specialty in a specific location were sued and the outcomes, the public cannot get information on an individual doctor who may have been repeatedly sued for the same problem. This information, which is currently collected by the TSBME, should be included in the physician profiles (which may require a statutory change).

The information collected about medical malpractice needs to be improved. Currently the TSBME receives notice of claim letters from insurers and follow-up information when settlements or court decisions are made. But the Board has no way of ensuring that all medical malpractice carriers are reporting Ð many are not even regulated by the state so it is unclear if they could be compelled to report. Most doctors are providing good care and good services. Some of them get sued. But some get sued or settle suits over and over. This is important information to the public -- to individual parents whose children are being operated on, for example.

CREATE STANDARD PROCEDURES FOR ALL HEALTH-RELATED LICENSING AGENCIES FOR THE HANDLING OF COMPLAINTS THAT EASES THE COMPLAINT-FILING PROCESS AND THAT PROVIDES THE MOST COMPLETE PUBLIC ACCESS TO LICENSING, COMPLAINT, AND DISCIPLINARY ORDER INFORMATION.

The Health Professions Council is completing a study that should reveal that these agencies are all over the map when it comes to their regulatory processes. There is no compelling reason for this phenomena. There is no public interest served or public protection achieved by distinguishing between complaints against optometrists (public) and complaints against physicians (secret). The procedures and the information available to the public should be standard among these health care agencies. And the secrecy-laden TSBME should not be the model.

Some examples of uniformity that would be helpful to consumers:

• Uniform access to information on the Internet -- such as profiles for all professionals. A general web site with links to each agency could help consumers sort through who they need to go to for help.

• All agencies should provide multiple methods for consumers to file complaints -- by mail, by phone, by email. Consumers Union advises consumers to always make complaints in writing so there is a record, but this may prove difficult for some people and the boards should take the complaints in any usable format.

• Complainants should receive feedback on the processing of the complaints in a timely manner and they should be informed as their complaint moves through the process. They should be invited to participate in the process. The investigation of complaints should never languish for years at an agency.

• Ongoing training should be held for board and staff of these agencies, some of which have very small staff. The training should include sessions on public responsibility, rulemaking, the SOAH process, investigations, and the public's right to information held by the government.

The quality of care issues should be a major component of any discussion about the medical malpractice insurance crisis. We hope you will give our recommendations full consideration. Consumers Union appreciates the opportunity to comment and we look forward to working with the committee on these issues in the upcoming session.