Access to Public Records is a Matter of Life or Death

By: Bharani Padmanabhan – June, 2015

duggan-dizoglio96This month, Valley Patriot Publisher Tom Duggan was front and center in this state’s media environment for a couple of days. Most media people referred to him by name except for Dan Kennedy who refused to do so while using Tom’s testimony to support the new public records bill.  

Tom had authored a bill that was passed out of committee last year, but died with the end of the last legislative session.

This year it is back in committee, which held a public hearing. This hearing at the State House, in a small room with no Wi-Fi or live streaming, attracted an overflow crowd from numerous sectors including the press, Common Cause, the Massachusetts ACLU and the public.

Tom was the first non-legislator to testify and presented clear powerful testimony that named names. It made clear the absolute importance of public access to public records held by the government we fund through our hard work.

All of this is not academic or abstract in any way. Allow me to illustrate with a couple of simple examples.

The Massachusetts Board of Registration in Medicine is funded by the Legislature and answerable to it directly. The Board exists specifically to protect the public from substandard doctors and to ensure doctors meet spec. We pay its bills to do just this.

Being a Massachusetts Board however, it couldn’t be bothered about letting the public know if it really does so.
One of the orders from the Legislature, a mandate, a mandatory requirement that the Board absolutely cannot avoid or ignore, requires the Board to receive reports and complaints about doctors from other doctors. These are called 5F Reports from the Law that requires them – MGL Chapter 112, Section 5F.

The Legislature further ordered the Board to establish timelines that dictate how long the Board takes to investigate and resolve 5F Reports and further requires the Board to prioritize investigations based on the severity of the threat to the public.

It thus follows that the Board should, as ordered by the Legislature, immediately investigate a 5F Report documenting a doctor giving the wrong medicine to a patient that puts the patient at a high risk of death.
I put in a public records request to the Board asking 4 simple questions –

(1) How many 5F Reports were filed in 2014, 2013, and 2012 by physicians against other physicians?
(2) How many 5F Reports were properly investigated by the Board and acted upon?
(3) What is the percentage of 5F Reports that resulted in disciplinary action against the physicians named?
(4) How many 5F Reports have been filed against physicians so far in the year 2015?
The Board wrote back that it received 24 5F Reports in 2012, 30 in 2013 and 25 in 2014 and 8 so far this year.
The Board however declared that it had NO RECORDS responsive to questions 2 and 3.
Did you get that? The Massachusetts Board of Registration in Medicine claims it has zero records documenting how many 5F Reports it actually investigated in 2012, 2013, 2014 and 2015.

The Massachusetts Board further stated that it couldn’t say how many 5F Reports resulted in disciplinary action against doctors.

I personally sent in two 5F Reports against 2 different doctors, one in 2013 for giving the wrong drug to an MS patient that placed him at great risk of bleeding to death and the other in 2015 for lying on his license renewal application.

The Board refused to tell me if they were even going to investigate the 2 doctors even though I am the person reporting a serious threat to the public. In both cases the Board has not taken any action and their profile on the Board website remains trouble-free.

It is a major threat to public safety to have a Board of Registration in Medicine that refuses to investigate major threats to public safety and flatly refuses to obey the clear mandate of the Legislature.

It is totally unbelievable that the Board has no records documenting how many 5F Reports the Board investigates every year. Of course it has the records, but the Board cannot afford to let sunlight shine on how it lets some favored doctors walk even when they are severe threats to public safety.

There is a strong indication that the Board cuts corrupt deals with doctors who have broken the law and gets such doctors to testify in favor of the Board in exchange for letting them walk, exactly as certain confidential informants are immune from the law.

Only transparency can restore the will of the Legislature and begin to protect the people of this Commonwealth. Withholding all funding to the Board should improve accountability in a speedy fashion.

Bharani-PadmanabhanBharani Padmanabhan, MD, PhD is a neurologist who specialises in multiple sclerosis in the Boston area.