Judge tosses lawsuit seeking to bar physician rating program

The California Medical Assn. says "blue ribbons" are based on inaccurate information and perpetuate misperceptions about care.

By — Posted April 11, 2011

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A judge has dismissed a lawsuit filed by the California Medical Assn. that attempted to block a physician quality rating program established by Blue Shield of California.

The CMA sued Blue Shield of California in September 2010, about four months after the insurer's Blue Ribbon Physician Recognition Program launched online. The lawsuit alleged that the rating program is based on faulty data and creates misleading perceptions of physicians' care. The program provides "blue ribbons" to California physicians whom Blue Shield deems "high quality" based on a series of factors, including doctors' practice of preventive health screenings.

In a March 23 decision, the Superior Court of the State of California for the County of Alameda threw out the suit, ruling that the program is protected under freedom of speech laws. The CMA failed to show how the program contributes to any loss of business for physicians, the court said.

"There is no admissible evidence that anyone -- a Blue Shield member or member of the public -- has relied upon the blue ribbons for any purpose, let alone that the reliance has caused plaintiffs to incur harm," Superior Court Judge Steven A. Brick wrote. "Nor is there any competent evidence that a member of the public who uses the defendant's website to locate physicians will be deceived by blue ribbon designations in light of the clear qualifications and disclaimers made available on the same website."

Blue Shield of California said the ruling proves its program is a valid initiative.

"[The decision] is a validation that Blue Shield has every right to recognize high-performing physicians through its Blue Ribbon Physician Recognition Program, and that none of the claims asserted by the CMA had legal merit," Michael-Anne Browne, MD, medical director for Blue Shield of California, said in a statement.

The CMA is disappointed with the ruling and is considering an appeal, said Long X. Do, CMA director of litigation. Because the suit was dismissed based on freedom of speech protections, the court never examined whether the blue ribbon criteria were fair, Do said.

"The judge dismissed our lawsuit without giving us a chance to litigate our concerns about the Blue Ribbon Program," he said. "There's no finding by the court that the Blue Ribbon program is accurate."

Methods questioned

The claims data and methodology Blue Shield uses to determine high-performing physicians were developed by the California Cooperative Healthcare Reporting Initiative, a coalition of businesses, insurers and physicians. The CMA initially was involved with the CPPI project, until withdrawing in April 2010 because of objections to the rating method. The CMA never challenged the insurer's right to rate physicians, Long said, but objected to how doctors were measured.

For example, some physicians are not considered for blue ribbons because they work in specialties where preventive health or cancer screenings are rarely practiced, Long said. Adequate explanation of these program limitations is not being provided to patients, he added.

"You can draw all sorts of bad conclusions about why a physician doesn't have a blue ribbon, even though some physicians never had a chance to get a blue ribbon," he said.

Some patients are mistakenly linked to the wrong doctor in the program's data, Long said, meaning the wrong physician receives credit toward a blue ribbon.

Blue Shield of California said ample information about its program is provided on its website, including a warning that quality measurement systems have a risk of error and should not be the sole basis for selecting a health care professional. Consumers are informed that certain types of specialists are not measured.

"We continue to make the Blue Ribbon Physician Recognition Program available to our members and the general public," the company said. "We are fully committed to providing them with information they can use in evaluating the physicians who best fit their needs."

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Case at a glance

Should a physician quality rating program by Blue Shield of California be allowed to continue?

The Superior Court of the State of California for the County of Alameda dismissed a lawsuit by the California Medical Assn. against a physician quality rating program, ruling that the program is protected by freedom of speech laws. The CMA is considering an appeal.

Impact: California physicians will continue to be rated based on Blue Shield of California's Blue Ribbon program criteria. The CMA maintains that the program is an economic profiling scheme that causes physicians without "blue ribbons" to appear to be lower quality than other doctors.

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