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National Public Radio (NPR) - Talk of the Nation
Mar 10, 2004

by ANCHOR: NEAL CONAN

Web sites that blacklist patients who have filed medical malpractice lawsuits

NEAL CONAN, host: This is TALK OF THE NATION. I'm Neal Conan in Washington.

A Web site entitled DoctorsKnow.Us has been creating a bit of controversy. The Web site was a national database of patients and plaintiff attorneys who have sued for malpractice. It was recently taken down. The stated purpose of the Web site was to discourage patients from filing frivolous lawsuits. Plaintiff attorneys and patients think that the Web site amounted to a blacklist. Many practicing doctors are frustrated because of ever-increasing malpractice insurance hikes.

So we'd like to hear from you on this issue. If you're a patient who has sued for malpractice, give us a call. If you're a doctor, we'd like to hear your reaction to this kind of Web site When you add a new patient to your practice, are you worried about potential lawsuits? (800) 989-8255 is the number; that's (800) 989-TALK. Or the e-mail address is totn@npr.org.

Joining us now to talk about this Web site and its ramifications on patients and doctors is Jamie Court, president of the Foundation for Taxpayer and Consumer Rights, a consumer watchdog group.

And good of you to join us today.

Mr. JAMIE COURT (President, Foundation for Taxpayer and Consumer Rights): My pleasure.

CONAN: Also with us is Dr. Jack Lewin. He's a family practitioner and executive vice president of the California Medical Association.

And thank you for being with us.

Dr. JACK LEWIN (Executive Vice President, California Medical Association): You're welcome. Nice to be here.

CONAN: Jamie, let's start with you. Explain to us exactly how this Web site worked.

Mr. COURT: Well, we found through an article in a trade publication called Medical Liability Monitor. And what it announced was that 'Physicians now have a choice whether or not to treat those who have filed malpractice suits, whether they're patients or attorneys.' And basically, the tag line of the Web site was 'They can sue, but they can't hide.' So it basically is a blacklist that doctors were creating, or at least this one doctor and those who participated in the network based on a subscription service. So that if someone was an innocent victim of medical negligence and filed a case--doesn't matter if they won, lost, whatever--that doctors could then look them up on DoctorsKnow.Us and not treat them.

And it's a very dangerous, dangerous problem because, you know, people who've been victims of medical negligence, and...

CONAN: Mm-hmm.

Mr. COURT: ...these are people who've gone through an awful lot, would basically, if this idea succeeded, not be able to find doctors because they'd be blackballed. And that goes against the Hippocratic oath, which is why we've asked the American Medical Association's president last week to send a very clear signal to doctors across the country that participating in this type of blacklist is violating their own Hippocratic oath.

CONAN: Did the list show just anybody who'd file a lawsuit, or did it show somebody who'd filed maybe one or somebody who may have filed 16?

Mr. COURT: Well, it was taken down after we sent the letter out and there was some media coverage, because it's just such an outrageous notion. So we don't know. It would have cost us $2.50 for a trial subscription. And so this was a for-profit service. And we didn't...

CONAN: I see. So you never actually saw the Web site...

Mr. COURT: Yeah.

CONAN: You never actually saw it.

Mr. COURT: We saw the Web site, and we cruised through the free sections that explained it and saw its disclosures, but we didn't sign up for a trial subscription. We know what it advertised...

CONAN: So you didn't see the list.

Mr. COURT: We did not see the list.

CONAN: OK.

Mr. COURT: I think that, actually, to subscribe, as I saw the subscription form, there was some vetting process. So I believe only doctors could subscribe...

CONAN: OK. Dr. Jack...

Mr. COURT: ...and then they would get information based on that, about patients in their area.

CONAN: Let's get a response from Jack Lewin, a doctor and head of the California AMA.

Dr. LEWIN: Yeah. The California Medical Association didn't see the--we haven't examined the list itself either, or seen the Web site. But I would just make a couple comments. First of all, a patient who has been the victim of malpractice or a medical error should be nurtured, not ostracized or blacklisted. Such people, you know, have gone through something terrible, and physicians--that's why we have malpractice insurance, to deal with that kind of real event. And the patient should be treated very fairly and certainly not blacklisted. It's not their fault.

The unfortunate reality is, on the other hand, that there are just plain too many frivolous lawsuits bringing the cost of malpractice up and lawsuits in circumstances where there were no errors or no malpractice events. So I see some value, and doctors that I've talked to see some value, for those rare but real patients who simply are looking to sue their doctor every chance they get, and certainly for those attorneys who are involved in that. Physicians need to be able to protect themselves against people who are in the business of looking for a problem and trying to create a frivolous lawsuit. Unfortunately, in all too many circumstances,...

CONAN: Yeah.

Dr. LEWIN: ...juries and judges end up awarding something, even if the physician was not guilty of any kind of malpractice error or misjudgment or hospital or whatever.

So, you know, there are two issues here: the patients who've been harmed, who really should be treated with the ultimate fairness and not blacklisted, and then problem of those who are using the legal system to bilk money out of health care.

CONAN: All right. Let me ask Jamie Court--I mean, there are a lot of Web sites on the Internet that name doctors who've been sued for malpractice...

Mr. COURT: No, actually, they're only sites. And the AMA--in fact, the CMA have fought to keep even more information off the Web. But state medical boards report on doctors who've been sanctioned by their colleagues in the medical board, who have settlements or verdicts over $30,000 in the case of California. And we fought bitterly with the doctors around the country to open the National Practitioner Data Bank, which has all the state medical board records, and it refused to do it...

CONAN: But in essence...

Mr. COURT: ...even though these doctors have been sanctioned by their peers. So...

CONAN: Excuse me. In essence, then, aren't you advocating a list of doctors who you're saying maybe patients ought to boycott them?

Mr. COURT: No. Look, we're talking about regulatory agencies who've fined doctors for using drugs, sex offenses for--and those are the most common--or for repeated other types of problems. And there is a vetting here. What we are talking about, on the other hand, is doctors who apparently are so frantic about their malpractice premiums, which are a real problem for many--instead of turning against the insurance companies that are charging them the premiums, turning against patients. Look, people who suffer malpractice injuries are injured; they are hurt. And whether ultimately a jury or a judge says it was medical negligence, did they meet the standard care or not, they did not manufacture an injury.

I feel really that Mr. Lewin here--for Mr. Lewin to say that we have, you know, an epidemic of frivolous lawsuits is really going against the facts when you look at the fact that only one of 16 malpractice victims files a claim, according to the Harvard School of Public Health. And when you look at the fact that what has kept malpractice premiums down for doctors is insurance regulation, as we have in California, where recently, our consumer group has challenged two premium increases by medical malpractice insurers--and we do this for other insurers, as well...

CONAN: OK...

Dr. LEWIN: This is like a soliloquy here.

CONAN: It does seem like that.

Dr. LEWIN: Well, I'm Dr. Lewin, by the way, Jamie, as I think you know. And that...

CONAN: And let's have the opportunity to get some listeners involved...

Dr. LEWIN: Yeah.

CONAN: ...and let's avoid the polemics, if we can.

Our next caller is Ross, and Ross joins us from Grand Junction, Colorado.

ROSS (Caller): Well, thank you for taking my call, Neal. You know, this really hits at home for me. I'm a cardiologist. And people are talking about finances and malpractice coverage, but this cuts much deeper. Any physician who has been involved in being named in a malpractice suit--and I have never been involved in any kind of malpractice problem myself, fortunately--but having seen some people, colleagues, close to me--this problem destroys your family, it destroys your belief in what you do...

CONAN: And avoid polemics on the other side, Ross, too. What about the list? Do you think it's a good idea?

ROSS: You know, I think the list--'sort of' is the short answer. And the reason is, something has to happen. This epidemic does have to change. Doctors have to trust their patients. We need to get back to just doctoring and caring about our patients, not practicing medicine defensively, not worrying about whether the patient is someone who you're trying to help or whether they're your adversary. And what is happening now in the practice of modern medicine is you make decisions in such a way to--CYA is the expression that's used.

CONAN: I understand. So if there were a list, would you subscribe to it?

ROSS: I'm not sure.

CONAN: OK. I think that's a fair answer. Thanks very much for the phone call. We appreciate it.

ROSS: Thank you.

CONAN: Dr. Lewin, I think he expresses a condition--we've done shows on medical malpractice and the problems of insurance before, and I think he speaks for a lot of doctors. But obviously, as you point out, maybe this list isn't such a great idea.

Dr. LEWIN: Well, yeah. I think, as I said, if the list is dealing--you know, you have to discriminate. People that have been real victims of real malpractice or medical errors should not be blacklisted; you know, they should be nurtured. But I think Mr. Court, you know, obviously represents the lawyer side of this rather than the consumer side, as much.

CONAN: I think...

Dr. LEWIN: And I'd have to say that 80 percent of the cases filed today in California get closed without indemnity payment because there's been no finding of malpractice, no finding of a medical error. And, in fact, they are what we call frivolous lawsuits. They're suits filed because somebody had an adverse outcome or believed they had an opportunity to file. And that is what doctors need some warning about, in fairness, because, you know, the kind of lists that are being collected of doctors, and for the patient out there, oftentimes are the lists of the most effective doctors who take the sickest patients in trauma or in obstetrics, and they're going to be sued every three or four years--in fact, more often for many specialties--because it's just a matter of fact. These cases get thrown out 80 percent of the time, the doctor's harassed and, in fact, it raises the cost of health care for every one of us.

CONAN: I think Mr. Court might say he represents the patients rather than the lawyers.

But in any case, you're listening to TALK OF THE NATION from NPR News.

And let's get another caller on the line. And this is Bill, who's with us from Pocatello, Idaho.

BILL (Caller): Thank you for having me on.

CONAN: Sure.

BILL: And I called because long before the news of the list came out, my family found itself in a tough spot after my father died as a result of a medical misadventure at a hospital. Once news of the lawsuit came out, my brother was told by a doctor who treated his children that his children were no longer welcome at the clinic because of the lawsuit.

CONAN: And was this the only clinic in town?

BILL: No. No, but it was a doctor who had treated his children for--actually since they were born.

CONAN: Mm-hmm.

BILL: And it was because we had filed the suit. This was not a frivolous suit. The doctor's insurance carrier settled for a substantial amount.

CONAN: Right.

BILL: My father had a history of heart problems. He went into an emergency room, the EKG indicated something was unusual, but the doctor sent him home. And 40 minutes later, he was dead in my mother's kitchen.

CONAN: Mm-hmm. So not a frivolous suit, not the 17th of 18 suits or anything like that?

BILL: No. And for my family, it was the first time that we had ever been
involved in a lawsuit.

CONAN: Mm-hmm. So did you--what did you do after you were told this by the doctor?

BILL: My brother found another doctor to treat his children.

CONAN: Yeah.

BILL: But you know, the question is: If you're in a town and you have a limited number of doctors and you are blacklisted, then are you going to run the risk that your children or the surviving members of the family will go without health care or forgo the lawsuit?

CONAN: Bill...

Dr. LEWIN: You know--Neal, this is Dr. Lewin. And I think that a circumstance like that is extremely unfortunate. And I believe, having talked to many of my colleagues about this and this Web site in the last week or so as we learned about it, is that, in fact, doctors are not going to reject somebody who is the victim of a medical error or a judgment problem, as in this case apparently. I mean, that would make no sense at all. The issue for doctors wanting a list would be to deal with kind of the ambulance-chaser mentality, somebody simply looking for a way to make money and bilk money out of health care at the expense of doctors and patients.

CONAN: OK.

Dr. LEWIN: Anybody that's harmed should never be blacklisted.

CONAN: All right. Bill, thanks very much. Appreciate the phone call.

BILL: Thank you.

CONAN: And let's see if we can squeeze in one final call. And this is Jonathan, and Jonathan's on the line from Tulsa.

JONATHAN (Caller): Hello. Thank you, Neal.

CONAN: Sure. You're on the air.

JONATHAN: Yes, I was just calling--a quick comment. I've seen both sides of this. I'm a family practitioner, and I have not been through a lawsuit. I've had colleagues that have, and it is devastating, even if it's frivolous. And many of them are. Unfortunately, I've seen the other side. My fiancee's grandmother died of medical mismanagement in Florida. And because they've had so many problems there, the tort reform really swung the pendulum far to the other side, that unless you have children who are under the age of 18, you actually cannot bring a lawsuit there now.

And so I've seen both sides. And I think it's important that we remember that there are two sides of this, and that both sides need to have their voice heard and both sides need to have protection. But I think there does need to be a middle road.

CONAN: Thanks very much for the phone call, Jonathan.

I'm afraid we're out of time. And I wanted to thank both of our guests for being with us today. Appreciate both points of view. Jamie Court, president of the Foundation for Taxpayer and Consumer Rights, a consumer watchdog group, appreciate your time.

Mr. COURT: My pleasure. And if people want to check us out, they can go to consumerwatchdog.org to see who we do represent, in fact.

CONAN: Dr. Jack Lewin, appreciate your time today, as well.

Dr. LEWIN: Thank you very much, Neal.

CONAN: Dr. Lewin is a family practitioner and executive vice president of the California Medical Association, and joined us on the phone.

I'm Neal Conan in Washington. You're listening to NPR News.


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