Courts set limits on confidentiality in disciplinary actions

Several state medical boards have found themselves tangled in recent legal battles to determine how much information should be disclosed when going public about misconduct charges against a doctor.

In Iowa, a physician and state regulators are headed to the state Supreme Court to answer that question. The South Carolina Supreme Court settled a dispute last year. And although there's been no lawsuit filed, a debate has ensued in Mississippi over a recently released medical board policy.

The medical community says these are difficult queries, because there is often a fine line between doctors receiving due process and patients receiving credible information.

The problem for doctors is "if charges made are not accurate, reputations are harmed, because you are deemed guilty before due process," said attorney Michael Schaff, a health law specialist with Wilentz, Goldman & Spitzer in New Jersey. Doctors don't dispute that the public has a right to know, he said, "but maybe not the complete details of the case."

American Medical Association policy supports providing accurate information to patients and acknowledges the merit of publicly reporting licensure revocations and reinstatements that are the result of due process and unbiased professional peer review.

Reporting unproven allegations "raises serious due process questions" and "can mislead the public and destroy the trust between patient and physician," said Duane M. Cady, MD, chair of the AMA Board of Trustees.

While states differ in their confidentiality laws and vary in how they define "formal charges," state boards in general "don't make information public until it reaches the formal complaints or charges stage," said Dale Austin, senior vice president of the Federation of State Medical Boards. He said boards are careful to take action only when they have found significant evidence that meets the state's legal requirements.

Constrained by state laws, medical boards are "in a delicate balancing act of providing good information to the public and protecting the rights of physicians," Austin said. Though Iowa might be a rare case that finds its way into the courts, "it doesn't surprise me there are these cases asking, 'Is it the right balance?' "

An Iowa trial court judge in December 2005 ruled that state law governing licensing agencies prohibits the Iowa Board of Medical Examiners from publicly disclosing the details of disciplinary charges against doctors before the charges have been addressed in a formal hearing. The board only can publish the name of the doctor and the nature of the violation, Polk County District Judge Michael Huppert ruled.

Under Iowa's "fair notice" requirement to inform parties of a legal proceeding, the board may publish "a short and plain statement," but "the statement of charges need not allege ultimate facts," Huppert ruled. But "all complaint files, investigation files, other investigation reports ... [are] privileged and confidential," he wrote.

Neither the doctor who filed the lawsuit nor board officials are happy with the decision. Both sides appealed to the Iowa Supreme Court. Attorneys say it could take more than a year for a resolution.

The physician who filed the lawsuit, Eduardo Reveiz, MD, appealed the ruling because he believes information should not be public record until doctors have had a chance to respond to charges in a formal hearing.

Dr. Reveiz, a Webster City, Iowa, general practice physician, brought the lawsuit after the medical board in October 2005 released its statement of charges of incompetence against him related to the treatment of three patients. He denies the allegations.

"The investigation file and the statement of complaint filed by the board are all confidential by statute," said Dr. Reveiz's attorney, Michael Sellers. Until the board files an official complaint, doctors do not have prior knowledge or a chance to respond.

The Iowa Board of Medical Examiners is appealing the court decision because it says the statement of charges, including details which led the board to its conclusion, should be open to patients and hospitals making daily decisions about their doctors.

"At the charging stage, the general statute requires us to tell the public and the doctor the factual basis for the board's decision," said Theresa Weeg, assistant Iowa attorney general, representing the Iowa Board of Medical Examiners. Under Iowa's public records law, Weeg said, everything is open unless a specific statute authorizes confidentiality. The board argues there is no such statute here.

The Iowa Medical Society has not taken a position on the court case.

The society supports the Iowa statute that allows "a short and plain statement of the matters asserted." Without that, a broad statement of the disciplinary accusation does not tell the public how serious the accusation against the physician is.

"Doctors have to ask themselves, are they better served by the public knowing at least some facts?" said Jeanine Freeman, general counsel for the Iowa Medical Society.

In Mississippi, the State Board of Medical Licensure came under fire in January when it issued a policy stating that all records are confidential until disciplinary charges reach a public hearing or settlement.

Although no lawsuit has ensued, attorney Leonard Van Slyke of the Mississippi Center for Freedom of Information contends that the policy violates the state's open records law.

Linda McMullen, general counsel to the Mississippi State Medical Assn., said the board's policy complies with an exception under the state's public records and meetings laws, allowing the board to confidentially investigate merits of charges.

"Our position is that once the board takes action, it must be public record. But until that point, the law protects confidentiality," she said.

In South Carolina, the state's Island Packet newspaper sued the administrative court judge when it was denied access to a physician disciplinary hearing. The South Carolina Supreme Court ruled last year that a lower court violated state law when it closed the hearing. While the South Carolina Medical Assn. did not take a position on the lawsuit, it said it has concerns over full disclosure in physician discipline hearings, depending on the nature of the accusations.