Opinion

A win for physician data privacy

A federal appeals court agrees that allowing raw Medicare claims data to be posted online would hurt doctors and patients.

Posted March 9, 2009.

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The American Medical Association has scored a major victory in the battle to protect physician privacy and to ensure that all patients are getting the best, most credible medical information.

At issue is a seemingly simple -- but ultimately unsound -- demand to see some government records. Consumers' Checkbook/Center for the Study of Services, a company that rates firms and services for subscribers, had sued the federal government in 2006 for the right to obtain Medicare claims data for physicians in four states and the District of Columbia. Checkbook/CSS planned to tally the number of selected procedures every physician in the state had performed in a year and then publish the results online for all to see.

Although a lower court in 2007 ordered the Dept. of Health and Human Services to turn over the claims data, the AMA urged the government to appeal that decision. The case was so important to physicians that when HHS announced it would appeal, the Association successfully requested to be added to the case as an additional appellant. The Jan. 30 decision by the appeals court to overturn that lower ruling keeps the claims data protected -- for now.

The higher court agreed that the Checkbook/CSS plan amounts to a "clearly unwarranted" invasion of physician privacy, one of the key factors in determining whether a Freedom of Information Act request should be rejected. For example, if a physician with a large Medicare patient base derives most of his or her income on a few procedures that happen to be on the list that is made public, anyone with a calculator and a Medicare fee schedule essentially could figure out how much that doctor makes in a year. One can only imagine the breach that would occur if a physician's more sensitive personal information inadvertently made its way online.

Checkbook/CSS insists that health care consumers could benefit from knowing how many procedures individual physicians in their state performed in a given year. Their theory is that patients could make a more informed decision by being able to choose a doctor who had more experience with those services.

The problem with that argument is that a high volume of procedures does not automatically translate into high quality of care. Many factors go into what makes a good doctor, and the very best of the bunch at a particular service may not be the one who does it the most. A high-risk patient, for example, might be much better served seeing a doctor who performs relatively few procedures but is particularly adept at handling complex cases.

By encouraging patients to make important medical decisions based on raw Medicare claims data, Checkbook/CSS would be doing a disservice to those it is attempting to help. The court agreed that when weighing the "nonexistent public interest against every physician's substantial privacy interest" when considering the data release, there was no question about which way to rule.

The medical profession supports legitimate transparency, and physicians want patients to have as much good information as they need to make informed medical decisions. But without making risk adjustments, connecting the data to consensus quality measures and ensuring adequate patient size to make legitimate comparisons, those who would publicize claims data would be leading patients astray. And doctors whose information was portrayed inaccurately would have no official way to set the record straight.

The victory in this case should not lead to complacency. Checkbook/CSS is weighing its options for continuing its effort to obtain the claims data, and firms in other states have expressed interest in acquiring such information on their own doctors.

Physicians must stay vigilant against this threat. Doctor privacy is too important not to protect. Meanwhile, patients need to know that simply collecting numbers from claims forms does not set a proper basis for a truly informed decision about choosing the physician in whose hands they will place their health.

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