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The Courier-Journal (Louisville, KY.)
Jul 24, 2001
by JAMES R. CARROLL
Doctor investigations must be disclosed
Louisville man filed lawsuit for results of Medicare reviewA Louisville man devastated by his wife's 1999 cancer death has won a court ruling that could open to Medicare patients, and their families, the findings of investigations about the care provided by doctors.
David Shipp, believing that physicians' errors contributed to the death of his wife, Doris, complained to Medicare, the federal health-care insurance program for the elderly and disabled. The case was reviewed by other doctors - through a process called "peer review" - but the government refused to tell Shipp what they found about his wife's treatment.
So Shipp and Public Citizen, consumer advocate Ralph Nader's group, sued. In a ruling released last week, a federal judge in Washington ordered Medicare officials to disclose the results of Doris Shipp's review and all other cases in which a patient or family member has complained of medical mistakes or poor care.
The government could appeal the ruling, but if U.S. District Judge Ellen Huvelle's decision holds up, it would mark a dramatic victory for Medicare patients who have tried for years to learn what doctors discover behind closed doors about the work of other doctors.
"I'm doing this to help other people. It's not the money involved at my age," said David Shipp, 72, who has a pending lawsuit against the hospital and the three doctors who treated his wife. "I want to improve health care for everyone."
It very well could do that, consumer advocates said.
"It's a step forward," said Jamie Court, executive director of the Foundation for Taxpayer and Consumer Rights, a Santa Monica, Calif.-based watchdog organization. "It gets us back to a level of decency that still needs to get a lot higher. It's a pretty outrageous situation when people who have lost a loved one can't find about the facts of that death."
BUT THE American Medical Association fears that the ruling could compromise efforts to get at healthcare problems.
"Health-care experts and policymakers agree that an important key to improving quality of care is to create an environment in which physicians feel comfortable discussing incidents of substandard care and the reasons behind them," said Dr. Timothy Flaherty, chairman of the AMA Board of Trustees.
Flaherty said the AMA is concerned that full disclosure from peer review investigations "jeopardizes current efforts aimed at improving the quality of care."
In December 1998, Doris Shipp went to Baptist Hospital East in Louisville with severe abdominal pain. At first, doctors thought she had an abcess, then appendicitis, then a bladder infection, said David Shipp.
At one point, one doctor told her she had "old lady's pain" that she'd just have to live with the rest of her life, he said. But in April 1999 doctors performed exploratory surgery and found colon cancer. She died two months later at age 70.
Shipp is convinced that the doctors missed his wife's colon cancer until it was too late.
But when he tried to get the results of the Medicare investigation of the care provided by his wife's doctors, two of the three doctors opposed releasing the findings. They cited federal rules protecting the confidentiality of such investigations done by other physicians.
SHIPP SAID he had read about Public Citizen taking on the peer review disclosure case of a man trying to get information about his mother's death at a Florida hospital, so he contacted the group. Earlier this year, the Clinton administration agreed before leaving office to turn over information in that case.
In Shipp's case, the Public Citizen Litigation Group argued that Congress intended that the peer review process be more open than Medicare wants.
"These are taxpayer-funded investigations," said Public Citizen attorney Amanda Frost. "The government can't hide medical errors that it discovers through its investigations."
Attorneys for the federal Department of Health and Human Services - Medicare's parent agency - argued that government regulations bar disclosure of how a particular doctor or hospital provided care. Medicare beneficiaries are entitled to be notified that a complaint was received, investigated and, if deemed necessary, corrective action was taken.
Further details of the findings are prohibited by law from being released, the agency argued.
Huvelle disagreed, writing in her decision that prohibiting disclosure of peer review results is "contrary to law."
"Congress has provided for certain limited disclosures to beneficiaries regarding quality of care issues," the judge wrote. "Congress specifically considered and rejected language that would have required a (peer review organization) merely to inform a complainant that his complaint had been received and addressed."
SHE ORDERED the Department of Health and Human Services to notify peer review organizations, which conduct the investigations under contracts with Medicare, within 20 days that they are required to disclose what they find.
Frost said patients and their families have a right to know whether an investigation found a violation in the accepted health-care standards, what the violation was and what action was taken.
Government attorneys are still deciding whether to appeal.
"The ruling is under review and we're considering all our options," said Channing Phillips, principal assistant U.S. attorney for the District of Columbia, who declined to comment on the decision.
Shipp, a retired school book sales consultant, said the ruling "should improve health care overall. I think the truth should be told and not kept in a file someplace by the government."
The Shipps, married for 49 years, met at Centre College in Danville.
"She loved people," Shipp said. ". . . She was a very easy person to know, and she had a good sense of humor."
Shipp called his wife the "card missionary." He said she sent out dozens of cards from their home each month to friends celebrating anniversaries, birthdays, weddings, new babies - you name it.
When she ended up in the hospital, she was repaid in kind. "She got a ton of them," he recalled.
Shipp filed a lawsuit last year in Jefferson Circuit Court against Baptist Hospital East and the three doctors who treated his wife, alleging medical negligence in failing to diagnose her cancer. The suit seeks unspecified damages.
THE HOSPITAL does not believe it did anything wrong in its treatment. "Baptist Hospital East was not a subject of the peer review organization investigation which resulted in the federal district court ruling," said hospital spokeswoman Kit Fullenlove. "We are unaware of any quality-ofcare issues raised in the investigation which involved hospital care."
In their answers to the lawsuit, the three doctors - Thomas Dedman, Peter Thurman and David Jolgren - denied that they had been negligent. The doctors say in court papers that Doris Shipp's death was caused by an "act of God" or possibly her own negligence.
"It's not the money involved at my age. I want to improve health care for everyone."
David Shipp, 72, who sued to force disclosure of the results of a Medicare investigation into doctors' care of his wife.
David Shipp of Louisville and his wife, Doris, met at Centre College in Danville and were married 49 years. She died of cancer in 1999. Shipp is suing Baptist Hospital East and three doctors over her care.
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