By PAULA TRACY, InDepthNH.org
CONCORD – To protect the health of the public and also weigh the professional reputation of good doctors, a House subcommittee is recommending new legislation next year to create more transparency and public information from the state Board of Medicine.
The report, which passed Monday states, “The citizens of New Hampshire have a right to information that they need in order to make informed decisions about the health-care professionals that they ask to care for them.
“Any health-care organization such as a hospital, group practice, multi-disciplinary practice or solo practitioners shall report any provider misconduct or known malpractice lawsuits to the Board of Medicine.”
In October, the Joint Committee on Oversight of the state Department of Health and Human Services appointed the subcommittee to make recommendations regarding the operations of the New Hampshire Board of Medicine.
It followed a Boston Globe spotlight investigation into New Hampshire medical malpractice reporting compared with Massachusetts.
Massachusetts reports malpractice cases settled in the courts and board actions against physicians where New Hampshire only reports on board actions, not malpractice cases.
However, if the New Hampshire board takes action based on malpractice lawsuits, it does report those now on its website, the subcommittee was told.
Separate to the work of the subcommittee are other matters related to medical transparency.
– An investigation by the Attorney General is underway related to the State Board of Medicine. The results are expected to be reported in the next month.
– Senate Bill 330, is exploring the relationship with the medical board and its administrative arm, the Office of Public Licensure and Certification, and the various organizations the OPLC oversees from tattoo parlors and hairdressers to physicians.
The report, drafted by state Rep. Jeffrey Salloway, D-Lee, passed with those recommendations Monday. The final subcommittee meeting included comments by Steve Ahnen, president of the New Hampshire Hospital Association.
Ahnen told legislators he appreciates the goal of the committee and expects to work on legislation in the coming months. He said the outcome should be “to balance a lot of varying factors.”
While the public has a right to know, Ahnen said the measure should not penalize “doctors and hospitals who are doing the right thing. This is going to require ongoing discussion and dialogue. We want to be part of the conversation.”
Hospitals take their responsibilities very seriously and they are governed and overseen, he noted.
Changes will likely require more staff and thus, more funding and a beefed-up website, https://www.oplc.nh.gov/report-non-compliance the report states.
Rep. James Murphy, D-Hanover, said there are many questions without answers as yet “but what should be the primary goal is the patients and their safety.”
“Most of the hospitals out there are trying to do their darndest,” he said.
Jim Potter, chief executive officer of the New Hampshire Medical Society, said there has been a lack of understanding about these processes and the medical society.
“There is clearly a rigorous investigative process in place,” he said in New Hampshire. He said the board treats reports from hospitals like any other complaint.
Potter noted that the Federation of State Medical Boards has an analysis chart of what is reported by each board of the 67 boards in the nation and only 19 publish hospital disciplinary actions. He said only 27 publish malpractice cases.
A settled lawsuit does not mean there is guilt or error, he noted.
Melissa Hanlon, an attorney representing physicians and hospitals for the past 20 years, told the subcommittee it is personal and stressful for a physician going through the process of a malpractice suit.
She said there is a misconception that malpractice cases are meritorious, as the state considers publicizing them.
Hanlon said sometimes settlements have to do with nothing about medicine but are to protect the assets of insurance companies and other considerations.
Many have nondisclosure agreements where the reasons for the settlement are not public.
“I am concerned about any of the changes you folks decide to proceed on in a retrospective basis,” she said, noting some language in the recommendations could be inferred to publish 10 years of past results.
They agreed to remove any reference to the retrospective release of information.
Kimberly Kirkland, an attorney and former law school professor, said she does not believe any of the recommendations in the document would change the lack of transparency in New Hampshire that led to the Globe story. And she said she does not believe the state board has the resources to thoroughly investigate.
“They just don’t have the adequate personnel and time,” Kirkland said.
On Nov. 18 the full committee will meet for further discussion.
CURRENT PROCESS
Lindsey Courtney executive director of the OPLC, said the office was created in 2015 for administrative support for all licensed groups, including the medical board.
Courtney said each board does not have separate staff or funding or location. Everything is run through the OPLC office and there is one website where the public can complain.
She said once a complaint is received there is a sort of triage to determine if it is an emergency.
If the issue could constitute one, the board chair is notified and can decide whether to hold a meeting. If it is not an emergency, it goes into the queue of complaints.
The board of medicine is unique to the OPLC because it has its own trained physician investigator. It will make a recommendation on whether more information is needed, and whether the matter should be dropped or be referred to the medical review subcommittee.
She said the current statutes do not permit OPLC to disclose information about an ongoing investigation to anyone, including to the complainant. That is problematic, she said.
“We are not permitted unless and until there is a final disposition,” Courtney said.
If the board dismisses a case, a letter goes out to the physician and to the complainant.
The same goes for a matter of concern found by the board.
She said there also seems to be “a hole” in that reporting system with respect to medical malpractice cases.
Dr. David Conway, a former member of the Board of Medicine and investigator for the board, said every complaint is investigated and either is dropped, or results in a reprimand, suspension or revocation. If there is discipline, it is reported. It could involve a fine for the doctor or a proctor to oversee care.
Conway said hospitals are required to report to the board of medicine which then takes disciplinary action.
If there is no action, the public would not know.
“This does not pass the common sense test to me,” said Rep. Jess Edwards, R-Auburn.
“You would still want to report to the public,” he said.
