Editorial: ‘Open’ Obama protecting privacy of doctors who maim

Talk about it

The Obama administration is protecting physicians who commit malpractice, at the expense of the public’s right to know about their misdeeds.

In September, federal authorities shut down a website that long has provided the public with data about the malpractice and disciplinary histories of thousands of physicians, without explicitly identifying the individuals.

The administration took the action after a physician’s lawyer complained that the Kansas City Star newspaper used the database to help identify a doctor. Like other reporters, Star reporter Alan Bavley combined records he obtained elsewhere and data gleaned from the site to flesh out a story about a specific doctor, Robert Tenny, who had been sued numerous times for malpractice.

This year the News Tribune’s Brandon Stahl and Mark Stodghill accessed the same public files of the National Practitioner Data Bank for a series of reports about former Duluth neurosurgeon Dr. Stefan Konasiewicz.

The administration’s action to shut down the website was heavy-handed, to say the least, and was protested by researchers, advocates, journalism organizations and U.S. Sen. Charles Grassley, R-Iowa, among others.

Last week, the website was restored — but with a caveat. Under new rules, people using the information must promise they won’t use the data to help publicly identify individual health-care providers. If researchers breach that promise, they would be denied the right to use the database again. The restriction is unworkable and could become an unconstitutional attempt at prior restraint.

It places journalists and other researchers who discover the names of the bad actors in an impossible position. They’d have to withhold information that could warn the public about bad doctors or publish the names and, in the process, break a promise they made to gain access to the data.

The Star ran afoul of the administration by using the database to report that Tenny was one of 21 physicians who had spotless licenses issued by Kansas and Missouri, despite having been sued successfully for malpractice many times.

When other newspapers produced similar reports in past years, the U.S. Health Resources and Services Administration, which oversees the database, offered a canned answer: It would refuse to confirm or deny the identity of individual physicians in the Public Use File, noted Charles Ornstein, president of the Association of Health Care Journalists.

That worked fine. News organizations would publish names, once they were sure of their facts, and the public would be forewarned.

“Without such articles,” Ornstein noted, “some unsafe doctors would very likely continue to be practicing with clean licenses and patient protection legislation in several states likely would not have been enacted.”

The Obama administration came into office promising openness. Now, the administration has positioned itself on the side of protecting the privacy of doctors who maim patients.

It also seeks to act as a Nixonian monitor, watching how reporters go about their business. President Obama once taught constitutional law. He ought to reread the First Amendment.

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