Errors occurring in the medical care setting that injure patients are a prime issue in the minds of the public. To Err is Human: Building A Safer Health System, the seminal 1999 report by the Institute of Medicine (IOM), began a long public evaluation of the origin of errors. As a corollary issue, the public has become more concerned about the work of medical boards in regulating physicians, from the credentialing/licensing process to issues of discipline.
On behalf of the people several public interest groups have taken up the mantra of demanding “transparency” in the regulatory process. The Citizens Advocacy Center has developed a detailed policy proposal and program in regard to identifying physicians with competency issues and a method for remediation (retraining). The American Association of Retired Persons has become increasingly vocal about the need to protect seniors from bad doctors. Consumers Union, publisher of Consumer Reports, the president of which was a featured speaker at the 2007 FSMB Annual Meeting, insisted on the need for the public to have full access to all aspects of the regulatory process. We have seen again and again unfavorable comments in the lay press about “the white wall,” implying the disciplinary process is an uneven and biased platform for adjudication of complaints that favors, if not protects, physicians and other medical board licensees.
As a result of the personal sense of ownership patients have over the medical care system fueled by public interest groups, legislators have increased their interest in the issues and processes of regulation. In North Carolina this was part of the motivation for making significant revisions to the Medical Practice Act — changes that were made with good intentions to better protect the public while maintaining an equitable judicial and regulatory system.
Arising out of a specific instance where an aggrieved spouse was dissatisfied with the care of their loved one, a complaint was filed with the North Carolina Medical Board. After a thorough review of the case record, including an outside expert review, the finding was that no violation of the medical practice act occurred nor was the care rendered substandard. The complainant when informed of this finding was dissatisfied and requested copies of the licensee's response and the written review of the expert. As a matter of North Carolina law that, at the time, did not permit disclosure of any investigative materials, the request was denied. The complainant at this point took her issues, now a cause, to her local state representative. The end result was that language was added to North Carolina's Medical Practice Act permitting complainants to request to see written responses from the licensee provided to the board as a part of the complaint investigation process. Allowing access to this information was meant to add to the transparency of the complaint process by providing full information to the complainant. Prior to this change, licensees responding to a board inquiry knew their response would be protected and non-discoverable. Confidentiality is a cornerstone of frank, candid and full reporting of the situation under investigation. However, based on this new legislative right of complainants to request a copy of licensee responses, the North Carolina Medical Board has expressed concern that responses in the future will be more guarded, less candid and, more than likely, edited, if not written, by defendant's attorney or risk managers. The intent was to bring more openness to the process and the unintended consequence may be less transparency created by a situation calling for greater defensiveness.
Transparency is a term frequently used to describe a more open process that is readily understandable by an outside, non-involved group affected by whatever that process might be. Transparency should not be a design criteria that could oversimplify or undermine that very process to the extent the process itself is negatively affected. In the regulation of an endeavor as complex and nuanced as medicine, it may not always be possible to have the entire process so simplified as to be totally transparent to a non-professional audience without sacrificing the integrity of the regulatory process.
Medical boards must have the trust of the public to ensure the highest quality of medical practice. In earning this trust, medical boards must operate in the full light of informed scrutiny while balancing the quality of the process against the clamor for transparency.
- Copyright 2008 Federation of State Medical Boards. All Rights Reserved.
