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Prescription for delay

Malpractice rules head back to legislature for possible review

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A plan to publicly disclose malpractice payments is now headed to the General Assembly after opposition by doctors and their advocates.

Although a state commission that oversees changes to N.C. code unanimously approved the plan Aug. 21, the plan received more than 50 objections -- more than five times the amount the law says is needed to require legislative review. Now the plan now goes to legislators, who could scrap it or let it quietly take effect.

The N.C. Medical Board has been angling to add meat to its online doctor profiles by disclosing malpractice payments. In July, the board unanimously approved rules that would require disclosure of payments of more than $25,000 made on or after Oct. 1, 2007. The profiles also would require doctors and physician assistants to disclose felony and certain misdemeanor convictions.

The move put the board among a growing number of state medical oversight boards that disclose such information. It would allow the public to access information previously found only by venturing to a county courthouse, and it also would let patients learn of cases that never made it to a courtroom. The board would rely heavily on doctors to disclose payments. If physicians don't, the board could reprimand them or even revoke their licenses, although the latter sanction is rarely applied.

The N.C. Medical Society, a trade association of nearly 12,000 doctors and physician assistants, has vigorously opposed the rules. Its leaders have said they support disclosure but have argued that settlements should only be posted if the board determines they involved negligence or substandard care. "We don't want consumers to be misled," society spokesman Mike Edwards said. "The medical society believes they should have information that is accurate and helpful and that they understand."

With the Rules Review Commission's approval of the malpractice reporting rules last month, the plan would normally have taken effect Sept. 1. But state law requires rules must go back to the legislature if the review commission receives only ten objections. This rule elicited at least 50. "After that, I stopped counting," said Joe DeLuca, an attorney for the commission.

Now, the legislature could take up the issue when it convenes in January. If a lawmaker files legislation dealing with malpractice reporting, the rules won't take effect until the bill is voted down or the session ends in late summer or early fall. And if no lawmaker files a bill within 31 days of the session's start, the rules will immediately take effect.

Most likely, such a bill's filing would be at the behest of opponents of the rules, such as the medical society. In the first six months of 2008, the society donated about $130,000 to state political campaigns. Edwards said the society hasn't decided a course of action. "A lot remains to be seen," Edwards said. "You've got an election [coming up]. Who's going to be there? Who's going to be the faces in play?"

It was the legislature, in fact, that in 2007 authorized the board to post malpractice payments. But lawmakers did not specify which ones should be posted. The only "no" votes against the authorization were cast by Sens. Don East, a Pilot Mountain Republican, and Neal Hunt, a Raleigh Republican. A few other lawmakers didn't vote.

Nevertheless, the medical board doesn't expect the delay to affect when malpractice information is available online. Even if the rules had taken effect Sept. 1 as the board had hoped, the board likely wouldn't have been able to gather enough information to put the profiles online until fall 2009. The board is now preparing to gather information from physicians.

Some protests put forth by doctors, physician assistants and their advocates have worked. Doctors had vehemently objected to an early suggestion that the Web site immediately include the past seven years of malpractice information; they argued that new rules shouldn't apply to payments made when doctors would have had no way of knowing such settlements would one day be reported publicly. Doctors, insurers and attorneys also said such reporting would essentially nullify confidentiality agreements.

And the original plan called for reporting of all malpractice payments, regardless of amount. The $25,000 threshold that was approved should result in most payments being reported, however: A board analysis of recent malpractice payments indicated that posting those greater than $25,000 will mean about 90 percent of all payments will be included.

The revisions mesh somewhat with what a board-commissioned survey found state residents wanted. Eighty-four percent of 1,000 residents queried wanted seven years of data available immediately. And most residents wanted all payments to be posted, but a sizeable minority -- 48 percent -- said "it would be desirable" for the board to leave out low-dollar payments. The latter finding surprised some at the board.

David Henderson, executive director of the medical board, said he's satisfied with the results and hopes the Web information will rank on par with the Internet sites of medical boards in Virginia and New Jersey, which have been ranked the best in the nation by Public Citizen, a consumer advocacy group. The group, founded by Ralph Nader, has in previous years given the N.C. board low marks for transparency and vigilance.

"I think it's going to provide one of the best Web sites in the country, as far as information that will be available to the public," Henderson said.

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