Q&A with Mary Flowers, Part 1: Bringing medical mistakes out of the shadows
Even before the Supreme Court of Illinois pulled the rug out from under a patient safety law that allowed consumers to review malpractice histories for doctors, state Rep. Mary Flowers was looking for a way to repair the damage. Flowers had authored a bill in 2002 called the Patient Right-to-Know Act that would have given the state Department of Financial and Professional Regulation the ability to post these malpractice histories on the agency's website. That bill went down in flames under the fire of both the doctors' lobby and the agency itself. Flowers, though, saw another opportunity in 2005.
Malpractice reform fever had caught hold in Springfield, and there was a bill that seemed destined to win approval. It would put a $500,000 cap on non-economic damages. Flowers proposed three amendments to the bill, all of which won approval. One allowed the state Division of Professional Regulation broader authority to investigate 10 years of a doctor's medical records. Another, called the "I'm Sorry" amendment, encouraged doctors to apologize for mistakes they made by making the apology itself inadmissible as evidence in a malpractice case. And the third allowed the division to post information online about a doctor's malpractice payments and settlements in a new, easy-to-use physician database called the "Physician Profile." Proponents of the malpractice cap also wrote into the bill that should any provision of the law be overturned in court, all the provisions would go down with it.
They were foreseeing trouble. The Illinois Supreme Court had struck down a medical malpractice cap in 1997. Now that the most recent malpractice cap has been removed – and the Physician Profiles with it – Antidote wanted to ask Flowers what her next move would be.
I reached her at her office in Springfield. The interview has been edited for space and clarity.
Q: You first made an effort to reveal the malpractice histories of doctors in 2002, right?
A: It's actually been a longer fight than that. I was first elected in 1984, and I have been working on this for a very long time. In our state, in order to find out about the medical history of a doctor you had to know where the doctor came from. So if you find a doctor in Kane County, you don't necessarily know the damage that he may have done in Cook County. If you did know, for some reason, that he came from Cook County, you would have to go to the courthouse in Cook County and look up any malpractice cases against him. We have 102 counties, so you can imagine how that could quickly become a real problem.
Q: It's hard enough for a reporter to try to track down these cases even using some of the subscription services, such as Lexis-Nexis, that are available. They don't always include every court case.
A: And we're talking about people who are sick or people who have a loved one who is sick or dying. A person would have to go through 102 counties just to find out whether the doctor has had to pay because of any malpractice cases. And that's just assuming that the doctor was from the state in the first place. What a lot of patients didn't know was that their doctor had a clean record here in Illinois but he left behind a mess in California.
Q: What kinds of messes are we talking about?
A: There was a lot of rape going on. There were murders going on, and all kinds of other horrible things. There was a dentist who was doing horrible things to people. I was appalled to find out that my body - you only get one - could be treated like this by a licensed medical professional.People know from a young age that you don't undress in front of strangers. So when we are in a doctor's office, we are giving them a lot of trust. When you send your wife and daughter to total strangers, you are giving them your trust. But what was happening is that these women were being abused and misused, and they were afraid to talk about it because they thought that no one would believe them. It was this code of silence.
Q: But you thought that if they could see that other people had taken on this doctor in court for similar accusations they might either avoid that doctor or feel emboldened to do something about their own situation.
A: I thought if I want to buy a car, I can kick the tires. If I want to buy a house, I can walk through it. If I want to buy some clothes, I can try them on. If I want to go see a doctor, I can't know anything about him beforehand.
Q: The 2002 bill that I mentioned before didn't pass. But you were able to revive much of the same language in 2005. How?
A: There were all of these scare tactics going on about doctors leaving the state because malpractice insurance was so high. The doctors put on a real good campaign. All of us would be in danger. If you got into an accident on the highway there would be no neurosurgeon around to treat you. That's how the bill got called and passed. I suggested to my leaders, Speaker Madigan, that if we were going to put a cap on a patient's life, we should at least allow patients to learn more about these doctors before they go to see them. It was accepted as an amendment and passed with the bill.
Q: So did you vote for the malpractice cap just so you could see that malpractice information made public finally?
A: I did not. I don't believe in putting a price on a person's life. So I spoke against the bill that I had amended. I told the speaker under no circumstance was I going to vote for that legislation despite the fact that I had the amendment put on. I just wanted to hit back in some kind of way. The only way I could hit them back and show them how phony they were. That's why they codified the language to say that if one part of the law was struck down, the whole bill would be struck down.
Q: That was your doing?
A: No. Making it so the law was not severable was their doing. I knew the court was going to strike down the malpractice cap because they had done it before. But I also thought that if we could get these Physician Profiles up and running everyone would see the demand for them. And you can call the department yourself, and you will hear how many hits we had. It was a very popular website. Now the people of this state are being deprived of important information.
Q: Shortly after the Supreme Court ruling, back in February, you had a new bill written and introduced addressing the Physician Profiles. When the court was preparing to take up the case late last year, did you have a sense that the 2005 law was going to be overturned?
A: That's the only way you can survive. You have to move quickly. I figured that the court was going to do this, and I knew because of the severability provision that everything that was good in that law was going to be struck down, too.
Q: So why wasn't the new version of the law passed in February or March?
A: The trial lawyers had a problem with the "I'm Sorry" part of the legislation. And there were a couple of little hitches that caused me to not to get it done before the session ended.
Q: Were you surprised that the Division of Professional Regulation took the Physician Profile site down so quickly after the ruling?
A: I was surprised because the departmenthad said they were going to continue it even without the law because of the hits it had gotten. They were getting something like 100,000 hits a week. They could have just kept the site going by rule. With 100,000 hits a week, there is clearly a public need for this type of information. What other reference do you need? But the doctors are the doctors, and they have the money and the power.
Q: Who told you that the division was going to keep the site going despite the Supreme Court's decision?
A: When I was introducing the bill the second time around in February, there were some staffers there who said that. But, as you may know, we have had problems in our state with our governors. I think when this new governor came in, his staff probably had good intentions of wanting to do it. They know that there is a public need for this. And then something prevailed and caused them to take the site down. I have no idea what exactly happened. Anything I might say would just be speculation. I thought for sure that the governor was going to say something profound. "By executive order I will make sure that this website is up and running." But, unfortunately, he did not.
Q: So has the bill lost momentum now?
A: I guarantee you it has not gone away. To make a long story short, it is ready to go, and I am going to try to call it during our veto session in November.
Monday: Why it's important for doctors to say "I'm sorry" and why so few do
Related Posts:
Q&A with Mary Flowers, Part 2: Bringing medical mistakes out of the shadows
Chicago's Buried Bodies, Part 1: Illinois regulators make backgrounding doctors near-impossible
Chicago's Buried Bodies, Part 2: Millions in malpractice judgments amount to nothing in Illinois
Chicago's Buried Bodies, Part 3: The doctor discipline ball bounces to the legislative court