New state health “reform” law destroys patient privacy in the name of improving care


Should your medical records be protected from prying eyes? Huge majorities of Americans think so. According to a Gallup Poll, 92 percent of Americans oppose government agencies looking at their medical records without their permission, and 82 percent oppose insurance companies pawing through their records without their permission. Sixty-seven percent even oppose researchers looking at their records without their consent.

We think of our medical records the way we think of our homes—unless there is a compelling public interest at stake (such as solving a crime or stopping an epidemic), we believe our homes and our medical records should not be invaded by state officials or private parties unless we say it’s OK.

Until last spring, Minnesota law reflected the high value Minnesotans place on medical privacy. Minnesota has long had a law that says your medical records can’t be shown to third parties without your written consent. But the Minnesota Legislature ripped a huge hole in that law on May 29. That was the day Governor Tim Pawlenty signed the health care “reform” law that requires Minnesota’s doctors and hospitals to turn over any medical records the Minnesota Department of Health (MDH) asks for if MDH says they need them to measure quality of medical care.

Under the new law, MDH is authorized to issue report cards on the quality of care offered by Minnesota’s doctors and hospitals beginning July 1, 2010, and to start collecting data from providers (doctors and hospitals) by January 1, 2010. The law sets no limits on the scope of the report cards. It gives MDH the authority to issue report cards on each of the state’s 17,000 doctors and 131 hospitals, and for each of the 15,000 diseases and conditions known to Western medicine.

Governor Pawlenty and legislators who support report cards say more information on the quality and cost of care will lead to more competition between clinics and hospitals, and this will bring costs down. Here is how a task force co-chaired by Sen. Linda Berglin (DFL-Minneapolis) and Rep. Tom Huntley (DFL-Duluth) put it in its final report published last February: “Providers should … compete based on the cost and quality of care they deliver….” In other words, health care is just like any other “market,” for example, the market for fast food or the market for ceiling fans. If competition is tweaked a little bit with report cards, it can force providers to improve quality and reduce costs.

Although this idea of Consumer-Reports-style report cards on providers may sound good when you first hear it, the idea loses its appeal the more you think about it. There are huge differences between doctors and nurses, on the one hand, and vacuum cleaners, toasters and the other products that Consumer Reports typically evaluates. Doctors and nurses are far more complex than vacuum cleaners and toasters. Similarly, patients are far more complex than dusty floors and untoasted bread.

When you turn on a vacuum cleaner or pop bread into a toaster, the appliance mindlessly does the same thing every time—the vacuum cleaner sucks debris down a tube regardless of whether the debris is cat fur or toenail clippings, and the wires in the toaster heat up regardless of whether you put bread, pita bread, or a frozen waffle in the toaster.

But doctors and other health care professionals cannot mindlessly do the same thing every time, and patients vary tremendously in their health care needs and their ability and desire to follow their doctor’s recommendations. The greater complexity of patients, and the great variety among them, means that making apples-to-apples comparisons of health care providers is far more difficult than making apples-to-apples comparisons of vacuum cleaners and toasters.

To take one example, let’s say the rate at which heart surgery patients die is 2 percent at Hospital A and 6 percent at Hospital B. Would it be accurate to say heart surgery is better at Hospital A? Of course not. Unless you know something about the patients who were operated on at the two hospitals, you’re in no position at all to declare one hospital better than the other. It’s entirely possible the patients at Hospital B were at much higher risk of dying when they entered that hospital, either because they were older, they had more severe coronary artery disease, they had other diseases that affected their ability to survive surgery (such as cancer or diabetes), their surgery was being done on an emergency basis because they were having a heart attack rather than on an elective basis to prevent a heart attack, and so on. It’s entirely possible that Hospital B, even with its 6 percent mortality rate, is superior to Hospital A.
For many legislators of both parties, the report card proposition reminded them of President George W. Bush’s controversial No Child Left Behind report cards on schools. Just as Bush assumes that the problems afflicting our schools are primarily caused by incompetent teachers, so Sen. Berglin and Rep. Huntley (the chief authors of the new law) and other medical report card advocates assume the health care crisis is caused primarily by incompetent doctors. Just as Bush assumes the solution to problems with our schools is report cards on schools, so Berglin and Huntley assume report cards on clinics and hospitals will somehow address the health care crisis.

Not surprisingly, several of the legislators who led the fight against the report card provisions were teachers, including Reps. David Bly (DFL-Northfield) and Carolyn Laine (DFL-Columbia Heights). “I know that report cards on schools distract teachers and cause schools to spend money in ways that do not improve teaching, or learning,” said Bly, who voted against the final bill. “There are methods of accountability that can help teachers improve what they are doing, but these report cards cause schools to focus on getting rid of problem learners rather than working to solve their problems. I don’t see how the end result can be different for health providers. It will force providers to think about how they can improve how they look rather than improving the quality of their care.”

“I don’t want to see the same thing happen to doctors and nurses that has happened to teachers,” said Rep. Laine.

Problems analogous to those identified by critics of No Child Left Behind report cards—teachers devoting more time to what will be tested and less time to subjects that won’t be tested, and schools getting rid of problem kids —have already been shown to be problems for medical report cards. One of the oldest and most highly respected report cards in the country is the one on New York heart surgeons issued annually by the New York Department of Health since 1991. This is a widely respected report card because the publishers adjust the quality score—mortality rate within 30 days of surgery—with at least 72 measures of patient health (for example, blood pressure at the time surgery begins). The data collection and number-crunching required for this one annual report card requires five full-time employees at the Department of Health and one employee at each of the 36 hospitals in New York where heart surgery is done.

But despite the effort and expense devoted to making this heart surgery report card accurate, studies have shown that the report card is harming sicker patients. Here is what a 2003 study reported: “[O]ur results show that report cards [on heart surgeons] led to … marginal health benefits for healthy patients, and major adverse health consequences for sicker patients. … [M]andatory reporting mechanisms inevitably give providers the incentive to decline to treat more difficult and complicated patients …. [M]ore severely ill … patients experienced dramatically worsened health outcomes.”