Federal Judge Orders HHS to Disclose Findings of Medicare Complaint Investigations to Beneficiaries

A federal judge has ordered Medicare officials to disclose findings when they investigate beneficiaries' complaints that doctors or hospitals provided "poor-quality" care or made medical errors that injured patients, the New York Times reports. The ruling, issued by Judge Ellen Huvelle of the Federal District Court in Washington, D.C., overturns a more than 20-year-old policy that has prevented Medicare beneficiaries from "obtaining data on doctors who botched their care" (Pear, New York Times, 7/17). Current rules state that peer review organizations, the entities under Medicare that investigate quality complaints, may only disclose information about a physician "with the consent of that practitioner," effectively limiting medical error disclosure to patients (Kaiser Daily Health Policy Report, 1/2). Although the Clinton and Bush administrations had supported the policy, citing "secrecy" as "essential to the peer review process" that doctors use to evaluate one another, Huvelle ruled that the policy violated the federal Medicare statute. She said that under federal Medicare law, Medicare officials must provide beneficiaries who file complaints with the "final disposition" of an investigation, regardless of whether doctors offer their consent. Huvelle ordered HHS Secretary Tommy Thompson to send a letter within 20 days to peer review organizations that investigate Medicare complaints, telling them that they must also disclose the results of investigations to beneficiaries who file complaints. "The [Medicare] statute requires a [peer review organization] to inform a beneficiary complainant of the substantive disposition of their complaint," Huvelle said. Patients also may use the information in medical malpractice lawsuits, the Times reports (New York Times, 7/17). Although the New York Times and the Associated Press reported in January that HHS would voluntarily reverse the disclosure policy, no changes occurred after HHS officials "stressed emphatically" that the news reports were incorrect (Kaiser Daily Health Policy Report, 1/5).

Reaction
Justice Department lawyers said that the "final disposition" provision in the Medicare statute "meant simply" that peer review organizations must inform patients that investigators had "disposed of" -- received and investigated -- complaints "without necessarily disclosing any details of the findings." However, Huvelle said that the government's interpretation of the law would "nullify the intent" of Congress, "since the beneficiary will learn nothing of value." U.S. attorneys said that they may appeal the case. A plaintiff in the case, David Shipp, whose wife died in 1999 at a Kentucky hospital after doctors misdiagnosed her colon cancer as an abscess of the appendix or a bladder abnormality, "welcomed" the decision. "I'm pretty pleased," he said, adding, "This should improve health care over all. The truth should be told and should not be kept in a file someplace by the government. We are all consumers." According to Amanda Frost of the Public Citizen Litigation Group, a not-for-profit firm that represented Shipp, "This decision means that the government can no longer hide the medical errors that it discovers through peer review investigations" (Pear, New York Times, 7/17).