Constitutional Arguments in Favor ofModifying the HCQIA to Allow theDissemination of PhysicianInformation to HealthcareConsumers

I. IntroductionMeet Helen Cara Consumer, a 38-year-old resident of Arkansas. Inspired by the recent reality TV surgery programs, Ms. Consumer put aside a few paychecks and decided to undergo plastic surgery-a little nip here, a little tuck there. Ms. Consumer has collected brochures from several area plastic surgery groups touting the talents of their physicians. Although money is a large concern for Ms. Consumer, choosing the cheapest doctor does not necessarily seem like the best idea. Like any reasonable and responsible patient, Ms. Consumer wants to be sure that the physician she chooses has no skeletons in his closet-literally. She is especially concerned about plastic surgeon competency after reading an article about plastic surgeries gone horribly wrong in a popular women's magazine. Ms. Consumer would like to compare the doctors' practice histories with their prices. Unfortunately, medical malpractice information about specific physicians is not readily available to the public in Arkansas.1 What should Ms. Consumer do?This Note suggests that Congress could easily and pragmatically solve Ms. Consumer's dilemma. Dissemination of portions of the information in the National Practitioner Data Bank (NPDB) maintained by the federal government-in particular, physician credentials, malpractice judgments, and disciplinary and licensure actions-would facilitate intelligent consumer decisions in the current heavily commercialized Healthcare industry. Rather than arguing for the creation of an entirely new system to disseminate physician information to healthcare consumers, this Note concludes that Congress should modify the Health Care Quality Improvement Act (HCQIA) to grant the general public partial access to the information in the NPDB. Part II of this Note will provide background information pertinent to the ongoing debate over public access to the NPDB, including past federal legislative attempts to open the database to the general public. Part III will describe the arguments reflected in the scholarship opposing public access to the NPDB, especially the presumed need for confidential error reporting to encourage patient safety. Finally, Part IV will outline constitutional arguments in favor of granting limited public access to the information in the NPDB-comparing the information in the NPDB to commercial speech and comparing physicians to public figures-and rebut the arguments opposing public access to the NPDB.II. Background InformationIn 1999, the Institute of Medicine (IOM)2 released its To Err is Human: Building a Safer Health System report.3 Most notably, the IOM Report stated that at least 44,000, and possibly as many as 98,000, Americans die each year as the result of medical errors.4 The report created quite a stir and drew much media attention to the faults of the healthcare industry.5 However, long before the infamous IOM Report, physicians, healthcare administrators, legislators, and academics had been grappling with issues of healthcare quality, patient safety, and the public's right to access physician information.A. The National Practitioner Data BankAt the time of the 1999 IOM Report, Congress had several mechanisms in place for improving patient safety.6 Most notably, in response to growing concerns about the quality of medical care in the United States, Congress had enacted the Health Care Quality Improvement Act (HCQIA) in 1986.7 The HCQIA requires certain healthcare entities-defined as hospitals, entities that provide healthcare services (including HMOs and group medical practices), and professional societies of physicians that follow a formal peer review process to further quality healthcare8-to report medical malpractice payments,9 medical board licensure actions,10 and professional review actions11' to the NPDB, which the Department of Health and Human Services supervises. In exchange for compliance with reporting requirements, certain medical entities are granted access to the information in the NPDB. …