By Randy Evans, Executive Director
Iowa Freedom of Information Council
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The Iowa Legislature’s “To Do” list should be a little longer after last week.
And people need to contact their senators and representatives in the Legislature to make sure they understand their duty is to protect the health and safety of Iowans.
The reason? The Iowa Supreme Court handed down a decision Friday that will pretty much keep the public in the dark when a physician is charged by state regulators with professional misconduct.
For decades, the Iowa Board of Medicine released the facts and legal basis for disciplinary charges the board filed against doctors. That basis might include a physician being impaired by alcohol or other drugs. The doctor may be accused of sexually molesting a patient in the exam room. Maybe the physician is accused of using improper, unnecessary or unskilled treatments.
All of these have occurred in Iowa. Each time, the board has shared basic case details with the public after filing charges, although patient names are never disclosed.
But under the Supreme Court’s unanimous decision last week, those basic facts and circumstances must be kept confidential until the medical board issues its final ruling. That process often takes a few years. During that time, Iowans are deprived of vital information they should have when picking a doctor.
The court’s decision was based on the justices’ interpretation of the language in Iowa’s licensing and disciplinary laws for physicians and other professions, including dentists, nurses, chiropractors and pharmacists.
The law says “investigative information” gathered as part of a complaint against a licensee must be kept confidential until the board issues its final, written decision — which is a public record.
Lawmakers wrestled long ago with a similar what-is-public-what-is-private conundrum involving criminal charges. They decided the facts and circumstances forming the legal basis for those charges must be made public when someone is accused of a crime.
With its decision last week, the Supreme Court seems to embrace the notion that the disciplinary charges filed by the medical board involve raw, unproven allegations.
The board does not simply type up and file unverified charges after receiving allegations about a physician. The board’s investigators dig into the accusations. They interview people. They study medical and scientific evidence with the help of experts.
Then the staff goes before members of the Board of Medicine and asks them to decide whether there is adequate legal basis and justification to warrant disciplinary charges. The board members are appointed by the governor, subject to confirmation by the Iowa Senate. Seven of the 10 members must be physicians.
The board staff and board members do not take their responsibility lightly. They know they are making decisions that could affect the livelihood of a physician — as well as the health and safety of the patients the doctor treats.
Kent Nebel, the executive director of the Board of Medicine, told reporters the implications of the court ruling are disturbing.
The board receives about 600 complaints each year against Iowa’s 6,600 active physicians. Those complaints are kept confidential. It is only when the board concludes there is a factual and legal basis for filing disciplinary charges that a doctor is identified.
Only 25 to 30 of those 600 complaints lead to charges, Nebel said.
The medical board does have the power to order the emergency suspension of a physician’s license if the person poses an immediate danger to the public. But that power is rarely used.
The Supreme Court case involved a heart surgeon, Dr. Domenico Calcaterra, who worked at the University of Iowa Hospitals when he lived in Iowa. The medical board accused him of “a pattern of disruptive and/or unethical or unprofessional conduct.”
The statement of charges in 2013 said he shoved another physician during surgery. The allegations were not the first against him. He had been accused of disruptive behavior at the hospital in 2003-2004 and again in 2007-2008.
Calcaterra eventually agreed to pay a $5,000 fine to settle the latest charges.
He objected to the earlier allegations being made public because he said he had not admitted them. Those earlier allegations unfairly limited his employment opportunities, he said.
The dispute comes down to this: Is the Board of Medicine correctly balancing a physician’s desire for privacy against the public’s desire to know when a physician may have jeopardized the health, safety and welfare of patients?
It’s the position of the Iowa Freedom of Information Council, the nonprofit organization I lead, that the facts and circumstances of such cases need to be disclosed immediately when the Board of Medicine brings disciplinary charges against a doctor. Otherwise, if secrecy is allowed to surround the basis for the medical board’s charges, consumers cannot make informed decisions when they need a physician.
That is why the Legislature needs to step in and resolve this public-versus-privacy dispute.
It would be disturbing if lawmakers decide the public’s safety is of less concern than ensuring that doctors accused of misconduct can keep their patients and prospective patients in the dark while these cases are being decided.
Randy Evans is executive director of the Iowa Freedom of Information Council. He can be reached at IowaFOICouncil@gmail.com.