Court approves doctors' suit over ranking program

Doctors in Massachusetts won round one in their legal fight to knock down a ranking program they say has misled patients while besmirching doctors' reputations.

On March 30, a trial court green-lighted a lawsuit brought by the Massachusetts Medical Society and five doctors to halt a physician tiering program mandated in 2006 by the Group Insurance Commission, a state agency that oversees health insurance for public employees. Doctors also are suing two health plans participating in the program, called the Clinical Performance Improvement Initiative. It purports to improve quality and restrain costs by grading doctors' performance based on those factors.

Patients get an incentive, through discounted co-payments, to choose so-called better-performing doctors, who are ranked "Tier 1" out of three tiers.

But physicians contend that the methodology used to rate them is faulty and has led to serious errors that have forced patients to pay more for their care and unfairly damaged physicians' credibility. A Suffolk Superior Court judge allowed the doctors to sue over claims that the tiering program defames them and defrauds patients. The court dismissed other parts of the suit.

"There's no evidence this is actually going to result in what the program alleged as reasons for doing it, which is improvement in quality of care and bending the curve in the cost trend," said MMS President Bruce S. Auerbach, MD.

He cited examples of physicians being graded on procedures they didn't perform or patients they didn't see. In addition, ranking standards vary from insurer to insurer, and doctors have little chance to correct mistakes.

"We just want it done right, and there are standards out there for doing this properly," Dr. Auerbach said, citing the 2008 "Patient Charter for Physician Performance Measurement, Reporting and Tiering Programs" -- a national set of guidelines endorsed by the AMA, insurers, employers, consumer groups and doctors.

AMA policy states that rating systems should be transparent and based on evidence-based quality measures, rather than cost. The AMA also urges health plans to allow physicians to review the data behind such ratings and have the ability to appeal them.

Seeking changes to the program

Massachusetts doctors are asking the court to stop the tiering program or require administrators to follow specific standards, including disclosure of the ranking methods, physician input, appeals processes and independent oversight.

GIC Executive Director Dolores L. Mitchell praised the court for narrowing the scope of the litigation but called the lawsuit "regrettable." She acknowledged that the program is not perfect but said the commission continues to look for improvements.

"There's a crying need for this kind of analysis," Mitchell said, adding that the tiering program uses nationally recognized measures, such as those from the National Quality Forum. "We know that costs are becoming unsustainable. And there continues to be enormous variability in physician performance, and that is a quality issue of serious dimension."

It's not the first time doctors have turned to the courts over concerns with insurers' rating systems.

A similar case brought by a group of Connecticut doctors against several health plans is pending in Danbury Superior Court. The parties are engaged in settlement negotiations.

In New York, a number of major health plans in 2007 consented to more transparency in their ranking programs after the attorney general raised concerns that the rankings could mislead consumers. In 2006, Regence BlueShield settled defamation claims by the Washington State Medical Assn. and the Litigation Center of the AMA and State Medical Societies, and agreed to include doctors in developing its quality measures.