On Behalf of Hadley Callaway, MD

The NCMS met with representatives of the Medical Board many times to discuss this issue.  We repeatedly asked the Board to post only those malpractice settlements that were determined to result from sub-standard medical care. 
 
The Medical Board wants to post all malpractice settlements and judgments.  If this happens, then no doctor will agree to settlement with a plaintiff.  The doctor will take his case to a jury rather than get a “black mark” on the Medical Board web site.  If a doctor provides good care but agrees to settle a case, then he will have an undeserved black mark on the website.
 
The NCMS wants only the settlements with sub-standard care to be posted.  If this happens, then the doctor will resist “settling” with the Medical Board.  He will want the Board to hear his case, clear his name, and not put a black mark next to his name on the web site.  In borderline cases, doctors will be unwilling to accept a “letter of concern” because it will be listed on the web site.  He will take his case through the Medical Board hearing process to its final determination.  This will load the Medical Board with many more contested cases.  However, the only doctors with a black mark on the website will be those who were determined by the Board to have given sub-standard care.
 
The NCMS feels that it is better to post only the sub-standard cases.  It will require extra work by the Medical Board, but the public will benefit greatly from having accurate information about physician quality on the Board website.
 
Please let us know if you agree or disagree, and we will pass that on to the Medical Board.
 
Hadley Callaway, MD

Subchapter 32W – Practitioner Profile Information
21 NCAC 32W .0101   Required information.
A. Pursuant to N.C. Gen. Stat. § 90-5.2, all physicians and physician assistants licensed by the Board shall provide the following information on an application for licensure and annual registration.  Additionally, all physicians and physician assistants shall provide the following information within 30 days of any change in the information on the profile:
(1)  The names of all medical, osteopathic, or physician assistant schools  attended and the year of graduation.
(2)  Any graduate medical or osteopathic education at any institution approved by the Accreditation Council of Graduate Medical Education, the Committee for the Accreditation of Canadian Medical Schools, the American Osteopathic Association, or the Royal College of Physicians and Surgeons of Canada or any graduate physician assistant training.
(3)  Any specialty board certification and whether that board is approved by the American Board of Medical Specialties, the Bureau of Osteopathic Specialists of American Osteopathic Association, or the Royal College of Physicians and Surgeons of Canada.
(4)  Specialty area(s) of practice.
(5)  Current hospital affiliation(s).
(6)  Address and telephone number of the primary practice setting.
(7)  An e-mail address or facsimile number which shall not be made available to the public and shall be used for the purpose of expediting the dissemination of information about a public health emergency.
(8)  Any final disciplinary order or other action required to be reported to the Board pursuant to G.S. 90 14.13 that results in a suspension or revocation of privileges.
(9)  Any final disciplinary order or action of any regulatory Board or agency including other state medical Boards, the United States Food and Drug Administration, the United States Drug Enforcement Administration, Medicare, the North Carolina Medicaid program, or another state’s Medicaid program.
(10)  Any felony convictions including the date of the conviction, the nature of the conviction, the jurisdiction in which the conviction occurred, and the sentence imposed.
(11) Any misdemeanor convictions other than minor traffic offenses.  The report must include the nature of the conviction, the jurisdiction in which the conviction occurred, and the punishment imposed.  A person shall be considered convicted for purposes of this rule if they pled guilty, were found guilty by a court of competent jurisdiction, or entered a plea of nolo contendere.  Certain convictions will be published pursuant to 21 NCAC 32W .0104.
(12)  Any medical license, active or inactive, granted by another state or country.
(13)  Malpractice payment information as described in 21 NCAC 32W .0103.

 
21 NCAC 32W .0102   Voluntary information.
Physicians and Physician Assistants may provide additional information on hours of continuing education earned, subspecialties obtained, academic appointments, volunteer work in indigent clinics, and honors or awards received.

21 NCAC 32W .0103   Reporting of medical malpractice judgments and settlements.

A. Pursuant to N.C. Gen. Stat. §§ 90-5.2 and 90-14.3, all physicians and physician assistants licensed by the Board shall report all medical malpractice judgments and settlements affecting or involving the physician or physician assistant on an application for licensure and annual registration.  Additionally, all physicians and physician assistant licensed by the Board shall report all medical malpractice judgments and settlements affecting or involving the physician or physician assistant within 30 days of the initial payment or the date of the judgment. A judgment or settlement shall include a lump sum payment or the first payment of multiple payments, a payment made from personal funds, or payment made by a third party on behalf of a physician or physician assistant. 

B.  Each report of a settlement or judgment shall indicate:

(1)  The date the judgment or settlement was paid.

(2)  The specialty in which the doctor was practicing at the time the incident occurred that resulted in the judgment or settlement.

(3)  The total amount of the judgment or settlement in United States dollars.

(4)  The city, state, and country in which the judgment or settlement occurred.

(5) The date of the occurrence of the events leading to the judgment or settlement.

C. For each physician or physician assistant, the Board shall publish all payments made or judgments entered within the past seven years along with the date of the occurrence associated with the payment or judgment and the date of the payment or judgment.  Additionally, the Board shall publish whether public disciplinary action was taken based on the Board’s review of the care that led to the malpractice payment.  The Board shall not release or publish the individually identifiable numeric values of reported judgments or settlements or the identity of the patient associated with the judgment or settlement.

D.  For each malpractice payment or judgment that is published, the physician or physician assistant will be given the opportunity to provide a brief statement explaining the circumstances that led to the payment or judgment.  The physician or physician assistant shall not publish identifiable numeric values of reported judgments or settlements or disclose the patient’s identity, including information relating to dates and places of treatment or any other information that would tend to identify the patient.  In the event the statement provided by the licensee does not conform to the requirements of this rule, the Board will edit such statements to ensure conformity.

21 NCAC 32W .0104  Publishing Misdemeanor Convictions
The Board will only publish those misdemeanor convictions involving offenses against a person, offenses of moral turpitude, offenses involving the use of drugs or alcohol, and violations of public health and safety codes.  The Board will publish such convictions for a period of ten years from the date of conviction. 

21 NCAC 32W .0105    Noncompliance or falsification of profile information.
A. Pursuant to N.C. Gen. Stat. §90-5.2(d), failure to provide the information required by 21 NCAC 32W .0101 and 21 NCAC 32W .0103 within 30 days of the request for information by the Board or within 30 days of a change in the information on the profile may constitute unprofessional conduct and may subject the licensee to disciplinary action by the Board.
B. Pursuant to N.C. Gen. Stat. §90-14(a)(3) and 90-5.2(d),  providing false information to the Board for the physician profile system shall constitute unprofessional conduct and shall subject the licensee to disciplinary action by the Board.

The proposed rules are the result of a new state law that requires the NC Medical Board to make certain information available to the public. The law, however, does not specify what information must appear on the NC Medical Board’s website.
 
The NCMS opposes posting all malpractice judgments and settlements on the Board’s website.  The NCMS recommends posting only those cases that have resulted in public disciplinary action by the NC Medical Board.  This will assist and inform patients by publicizing only those cases where quality of care was inadequate. 
 
The NCMS believes the proposed rule, which requires posting all judgments and settlements, will make the public believe such judgments and settlements indicate poor quality of care.  This is incorrect and misleading.  Many factors lead to malpractice settlements, including business decisions by the insurance carrier.  Physicians who treat complex injuries and severe illnesses may be more subject to litigation.  The number of malpractice judgments and settlements is therefore an unreliable indicator of quality.

Over the past two years, the NC Medical Board has strengthened its process for reviewing these cases.  The NCMS believes that the NC Medical Board is uniquely qualified to determine whether the quality of care standard has been met.  Publishing only those cases where the physician or physician assistant has been determined by the NC Medical Board to warrant public discipline provides the public with information that is more informative and less misleading.

The NCMS has made its position clear to the NC Medical Board and will file comments opposing this provision during the rulemaking process.  The NCMS encourages all licensed physicians and physician assistants to read the proposed rules carefully and participate in the public comment and public hearing process.  Comments are due by June 30, 2008.

There are other features of the proposed rule which the NCMS supports.  For example, we agree that no dollar amounts or patient identifying information should be posted.  

Send Your Comments
Written comments on the proposed rule can be sent to Janelle Rhyne, MD, president, NC Medical Board, with a copy to Katherine Carpenter, at PO Box 20007, Raleigh, NC, 27619-0007; or an email can be sent to Dr. Rhyne and Ms. Carpenter at: janelle.rhyne@ncmedboard.org and katherine.carpenter@ncmedboard.org.  Comments are due by June 30^th.   The public hearing will take place on June 30^th at the NC Medical Board office at 1203 Front Street, Raleigh, NC, 27609-7533.
 
Members are requested to share their thoughts and concerns on the proposed rules including copies of formal comments to the NC Medical Board with the NCMS.   Please forward any written comments to Melanie Phelps at mphelps@ncmedsoc.org