Docs on the Record: Good or Bad?

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You’re a Medicare patient, climbing the stairs. You miss a step, fall to the landing and break a hip. At the hospital, your doctor administers drugs, orders x-rays and consults with your family. Then, suddenly, something goes terribly wrong — and instead of planning your rehabilitation, your relatives are planning a funeral.

Your family files a complaint, and your doctor is investigated by a peer review board, particular to Medicare, whose findings are (at least ostensibly) available to injured patients and their families. But when relatives try to see the results, they’re told the findings have been blocked by the implicated physician — a move that is perfectly legal. "Because there is such a fear of litigation," says Robert Field, Director of the Graduate Program in Health Sciences at the University of Sciences in Philadelphia, "patients’ families often can’t get the information they need," even if they’re simply looking for emotional closure rather than a legal foothold.

This painful situation should happen less often from now on. According to Tuesday’s New York Times, federal officials are poised to change laws governing disclosure of Medicare treatment, allowing patients or their families access to peer review reports without the consent of the doctor concerned.

The downside? Such a change would render doctors who take Medicare patients virtually defenseless against absolute disclosure of medical errors, not to mention resultant lawsuits capable of destroying a their careers. Such vulnerability, some doctors fear, could lead to a dangerous sort of self-censorship if healthcare providers decide to protect themselves by excluding key (potentially contestable) orders from their Medicare patients’ charts.

Ironically, there could be an upside to all this honesty as far as doctors and hospitals are concerned. Non-Medicare patients, says Field, have to file suit against a hospital before they can access their doctor’s records as part of discovery. If the new statutes are adopted, Medicare docs may actually be named less often in lawsuits than their HMO counterparts — at least initially — because Medicare patients’ families won’t have to go to court to expose the truth. What happens once they've uncovered that truth, of course, may be a different story altogether.