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Vanderbilt Law Review

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1263

Abstract

The medical malpractice crisis of the last few years has tapped a lot of scholarly energy. Time not spent on original research-adding to the store of knowledge about the medical malpractice system-is often spent communicating with policymakers and the public. These experiences have led us to think a lot about the amount and quality of information circulating within or concerning the medical malpractice system, and about public policy reforms that would improve information flow in the future.

No grand theory has emerged from this meditation. Instead, we have formed definite, though not immutable, opinions about a desirable information policy for patient safety and medical malpractice. Two specific recommendations convey a sense of our view. First, the mandatory malpractice payment reporting provisions of the National Practitioner Data Bank should be repealed. Second, confidential settlements of tort claims in medical malpractice cases should be prohibited, except perhaps as to the dollar amount of the payment.

But aren't these inconsistent? The former would reduce available information, while the latter would increase it. Furthermore, wouldn't combining the two reforms be self-defeating, with a net result of reconstructing national data simply by aggregating individual settlements? We hope to persuade readers of this Article that these recommendations should receive a more favorable descriptor: "pragmatic." For reasons explained below, any seamless information policy is likely to reflect a foolish consistency-perhaps political ideology, perhaps tunnel vision regarding policy goals or regulatory silos-and should be avoided. Rather, information policy should be incremental and contextual. That is, it should be sensitive to the complicated, contentious history and psychology of health care quality oversight and medical liability.

One can model malpractice information policy by envisioning a "signal pathway" that divides the disclosure process into segments. Beginning from a medical incident, the critical steps in conveying information are content (signal), packaging (categorization), accessing (transmission), and interpretation (processing) of malpractice-related information about health care providers. Each stage of the pathway modifies the signal as it moves forward. Therefore, significant variables at each stage can affect the end result: what content is chosen, how it is categorized, who has access to it, and the final impression it creates.

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