'A long time' before Congress takes up medical error transparency

AUSTIN (KXAN) — If your doctor was sued for medical malpractice and had to pay up, would you want to know? How about if patients died? We found laws in Texas, and elsewhere, designed to prevent the public from ever finding out — protecting physicians over patients, advocates say.

KXAN is looking at transparency — not just in Texas, but across the country — when it comes to medical error transparency. The exact number of patients who die every year due to medical errors is unknown and debated. One often-cited study from Johns Hopkins, published before the pandemic in The BMJ medical journal, found medical errors to be the third leading cause of death in the US. In 2016, those researchers found more than 250,000 deaths a year were "due to medical error," surpassing respiratory disease.

Eight members of Congress declined to talk about this issue with us, or didn't respond, including leaders of the Senate's Health Committee.

The only person who agreed to talk with us is a Texas congressman, and doctor, who opposes any changes.

"I actually fail to see the problem that you're talking about," said U.S. Rep. Michael Burgess (R-Texas). "Of course, that is a state issue, not a federal issue."

The North Texas Republican congressman said the decision to disclose medical errors should be left up to individual states. He also wants the National Practitioner Data Bank — a confidential clearinghouse of doctor discipline records — to stay sealed to patients and the public.

"I don't know what purpose that would serve [to open the NPDB]," he said. "I think the Texas Medical Board actually does a pretty good job."

The Data Bank was established by Congress in 1986. Under federal law, it's only accessible to hospitals and state medical boards. It is not public "by design," Burgess notes.

While he doesn't support a federal transparency standard, he does support one thing: capping how much a jury can award victims of medical malpractice.

"I mean, look, if we want to get into a whole argument, should medical liability be a federal issue? Yeah," he said. "I'd like to see a federal limit on non-economic damages, like we've done in Texas."

Fill-in-the blank bills

Those opposed to opening doctor discipline records to patients say those records may lack context, unfairly damaging a physician's reputation if made public. They point out doctors can settle lawsuits for business reasons rather than guilt. Lobbyist groups like the American Medical Association blame lawsuits for malpractice insurance rate hikes and have pushed for so-called "tort reform."

The AMA drafts ready-made model bills where lawmakers can fill in the blanks with their state's name suggesting reforms like: setting statute of limitations, capping non-economic damages at $250,000 like in Texas, and requiring an affidavit from a board-certified doctor swearing "reasonably prudent" care wasn't followed even when a patient dies. The AMA suggests calling the bill the "Frivolous Lawsuit Reduction Act."

'They really believe every lawsuit is frivolous'

"Most doctors do not accept that even in a situation of clear malpractice that they have done anything wrong," said executive director of the Center for Justice and Democracy at New York Law School Joanne Doroshow. "They really believe just about every lawsuit is frivolous."

Doroshow has testified before Congress on this issue before. She believes insurance rate hikes are causes by medical errors — which she says has killed or injured "way too many people." Increasing transparency would help weed out bad doctors, she argued.

In 2020, citing the Johns Hopkins study, then-Rep. Tulsi Gabbard introduced a bill — the Medical Error Transparency Act — that would have ensured "patient access to data and reports for medical injury due to medical error, negligence, or malpractice." It had no cosponsors and went nowhere.

"They're not getting any pressure from any large lobby groups to deal with it," said Doroshow, who notes this issue comes up cyclically and often when rates are up. "And, so, it's going to be a long time before Congress even considers doing something again on this."

For now, Rep. Burgess said the Constitution will likely keep this out of Congress.

"The states are where that jurisdiction currently exists," he said. "And under the 10th Amendment, that's likely where it's going to stay."

In Texas, after our nearly yearlong series of reports, several state lawmakers have pledged to work on making the system more transparent. In June, the TMB approved a new rule change requiring doctors to self-report criminal convictions, out-of-state disciplinary actions and medical malpractice claims within 30 days. Previously, it was every two years. The following month, the TMB requested $2.5 million to hire more staff and pay for continuous background checks with the National Practitioner Data Bank.

"You could always argue for more transparency," Burgess said. "And that's, perhaps, a fair argument. But I know the Texas Medical Board has made changes."

The Texas Medical Association, which represents tens of thousands of physicians across the state, did not respond to a request for comment.

After getting a Republican perspective, KXAN reached out to other lawmakers, including the ranking member on the Senate Health (HELP) Committee, Sen. Richard Burr (R-North Carolina) and Chair Sen. Patty Murray (D-Washington). We also contacted other Democrats including: Rep. Lloyd Doggett (D-Austin), Rep. Raul Ruiz, M.D. (D-California), Rep. Katie Porter (D-California), Rep. Kathy Castor (D-Florida), Sen. Elizabeth Warren (D-Mass.) and Sen. Ron Wyden (D-Oregon). Our requests for an interview or comment were either not returned or declined.

States take on medical transparency

When it comes to medical malpractice lawsuit transparency, a number of states provide patients more information about their doctors than Texas.

In Texas, when doctors are found liable for medical malpractice, the state medical board doesn't always disclose that — even though it's required to by law — a KXAN investigation found.

In Texas, patients and the public can only find out about medical malpractice lawsuits when a jury determines a doctor is liable and appeals are exhausted. That doesn't happen often. When it does, the Texas Medical Board isn’t always quick to make that information public.

Other states believe patients have a right to know. North Carolina publishes all cases that result in a payment of over $75,000 for a period of seven years. Colorado requires any final judgment, settlement or arbitration awards since Sept. 1, 1990 be made public so patients can "make the best healthcare decisions."

"Some studies have shown that there is no significant correlation between malpractice history and a healthcare professional's competence," a disclaimer on Colorado physician profiles reads. "At the same time, consumers should have access to malpractice information. To make the best healthcare decisions, you should view this information in perspective."

KXAN is not naming the physicians and hospitals in our reporting in order to focus on problems within the system. We attempted to get comments from all physicians and hospitals involved but either did not hear back or they chose not to comment.

Graphic Artists Rachel Gale and Aileen Hernandez, Director of Investigations & Innovation Josh Hinkle, Investigative Photojournalist Chris Nelson, Digital Special Projects Developer Robert Sims and Digital Director Kate Winkle contributed to this report.