Doctors being forced out of practice by meritless litigation and the rising costs of malpractice insurance premiums are now seeing the sun set on First Amendment rights as well. Let the Sunshine In On Medical Malpractice Lawsuits

In a setback to efforts by physicians at self-help medical malpractice tort reform, a new national database set to track litigious patients, attorneys and expert witnesses was pulled from the Internet last week. After opening in November under the direction of a Texas physician, the site’s slogan read, "they can sue, but they can’t hide." For a nominal monthly fee, physicians were encouraged to query the database of public records of litigation in order to "assess the risk of offering [their] services to clients or potential clients." In a nutshell, a physician could learn the litigation proclivities of potential patients before, rather than after, rendering services.

Here’s the background. Since 1986, the Emergency Medical Treatment and Labor Act has required emergency rooms to provide care to people regardless of their ability to pay. Consequently, an on-call physician has an obligation to provide medical care to all patients who present themselves at the emergency room, regardless of insurance history, medical history or malpractice history. The physician does not, however, have the same obligation in nonemergency situations and is thereby free to deny services to a patient, barring prohibited forms of discrimination such as sex, race, religion, sexual orientation or HIV status. Certainly, if a potential patient has sued his last five doctors, a physician might want to think twice about whether he or she would like to risk becoming number six.

Data regarding a physician’s malpractice history is available to the public in several states, including Massachusetts, California and Arizona. A prudent patient in those locations would certainly seek to know more about his potential physician’s background. In today’s litigious environment, it only makes sense that the physician would want to do the same vis-à-vis a patient.

But, responding to consumer groups who charged that the DoctorsKnow.us website amounted to a blacklist of patients, the site’s organizers shut it down, leaving only a message saying: "The controversy this site has ignited was unanticipated and has polarized opinions regarding the medical malpractice crisis. Our hope is that this controversy will spark a serious discussion that results in changes that are equitable to both patients and physicians. All charges that have been collected will be returned to members and trial members."

The website was not a blacklist. It was a database, much like the kind that credit card companies and banks use when they are making financial decisions about whether or not to do business with us. Databases of all sorts exist, cataloging such things as our DNA (the DNA Databank), the professional competence of health care providers (the National Practitioner’s Data Bank), and individuals' work practices (National Directory of New Hires). Some operate under the imprimatur of the government, but certainly not all. The National Lawyer Regulatory Data Bank, for example, is the disciplinary database maintained by the American Bar Association.

Indirectly, DoctorsKnow.us did have the blessing of the government. At least it did so long as the information contained on it was truthful and did not violate any privacy rights of a patient. That’s because this and databases like it constitute speech wholly within the protection of the First Amendment to the U.S. Constitution. The First Amendment does not merely protect popular speech with which a majority may agree. Noting the importance of the First Amendment in a democratic society, the U.S. Supreme Court stated in City of Houston v. Hill, 482 U.S. 451, 471 (1987), that: "We are mindful that the preservation of liberty depends in part upon the maintenance of social order . . . But the First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive."

No matter how unpopular or politically incorrect the DoctorsKnow.us website may have been, its removal should send a chill down every American’s spine. Special interest groups should not be permitted to silence physicians. Powerful lobbying groups have already successfully blocked legislative efforts to limit lawsuits against doctors, legislation that is sorely needed because the skyrocketing cost of malpractice insurance is forcing some doctors out of business, dramatically raising the costs of others. Citing fear of litigation, for the first time ever no member of the University of Maryland School of Medicine’s graduating class chose obstetrical residencies.

The patient-access crisis and health care will again be big political issues this election cycle, with Republicans and Democrats deeply divided on how to solve the problems. Years into the medical malpractice crisis, we have to wonder whether things can get any worse.

Well, folks, they just did. Doctors being forced out of practice by meritless litigation and the rising costs of malpractice insurance premiums are now seeing the sun set on First Amendment rights as well.

March 25, 2004
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