In the mid-1980s, it became clear to Congress that some of the worst doctors in the country were able to commit shocking malpractice in one state after another, with relative impunity. State health departments and medical boards weren’t sharing their records, and negligent or incompetent doctors went undetected for years.
To combat this, in 1986 Congress authorized the National Practitioner Databank. It compiled state disciplinary records against doctors and collected medical malpractice verdicts and settlements. A decade later, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) created the Healthcare Databank to collect records of judgments and punishments for medical fraud and abuse.
In Connecticut, one of the most mysterious and sensational cases to hit these databases is that of Greenwich gynecologist Ben Ramaley. He was sued in 2005 for allegedly substituting his own sperm for the husband’s in an artificial insemination procedure. In a world where next-day DNA test results are possible, the genetic mystery lingers to this day.
It was hanging over the state Supreme Court’s recent decision in which the justices ruled that neither database can be accessed by the public under freedom of information laws. The justices said the 2010 Affordable Care Act requires the bulk of the information in both databases to be exempt from public disclosure.
The decision was a disappointing one for patient’s rights advocates.
Jean Rexford, a founder of Connecticut Center for Patient Safety, said it’s a good thing there is a national database that gives hospitals and medical schools access to the physicians’ histories, for hiring purposes. However, she said, medical consumers should be able to access similar information.
“People in Connecticut are spending more and more of their money on health care, and have a right to know a physician’s record,” she said. “Clearly we are not there yet. But there is so much of a push for transparency and accountability, and this decision goes counter to that empowerment.”
A Connecticut couple, suing as John and Jane Smith, alleged that Ramaley intentionally failed to use the semen sample provided by John Smith, an African-American. Jane Smith is Caucasian. Instead, the suit claimed, Ramaley substituted his own. Because the couple’s twin fair-haired girls did not look like their parents, people asked whether they were adopted, the civil complaint alleged.
Before the suit got very far, Ramaley, represented by Stephen Errante of New Haven’s Lynch, Traub, Keefe & Errante, settled for an undisclosed sum. The case file was sealed and shredded.
The state Department of Health learned about Ramaley’s case when it was notified of the settlement by the National Practitioner Databank in 2007. It began an investigation into Ramaley with the aid of Hartford Dr. Robert J. Gfeller, from the American Board of Obstetrics and Gynecology. Gfeller found gross violations of the standard of care by Ramaley, concluding he had used the wrong man’s sperm.
The Department of Health never obtained a DNA sample from Ramaley, and without a DNA test, Gfeller would not opine on the question of whether Ramaley substituted his own sperm for that of John Smith.
Ramaley, in a 2008 consent order accepted by the State Medical Board, admitted no guilt or wrongdoing, and paid a $10,000 fine. His license was not restricted, let alone revoked. Ramaley stated in the consent order that he no longer performed artificial inseminations.
As reported by the Greenwich Time, several members of the state Medical Board who approved the consent order said they were not aware that Ramaley may have used his own sperm. With key questions about the case still unanswered, the newspaper filed a freedom of information request, asking to see Gfeller’s report, which contained information from both the National Practitioner Database and the Healthcare Database.
A 2009 state Supreme Court decision interpreted federal regulations as allowing FOIA release of information from the practitioner database, but not the health-care database.
So when the case reached the Connecticut Freedom of Information Commission, it followed this split approach, and authorized release of information from the practitioner database only. New Britain Superior Court Judge Henry Cohn upheld that view.
However, in the period between Cohn’s decision and the case going to the state Supreme Court, the Patient Protection and Affordable Care Act of 2010, colloquially known as Obama­care, called for the merger of the two databases, with a single confidentiality standard. And that standard barred public access to information from either database.
“Whatever ambiguity might have remained has been dispelled by the recent amendments of the governing scheme,” stated state Supreme Court Justice Andrew McDonald, writing for the majority in Commissioner of Public Health v. FOIC and Greenwich Times. “There is no question that, under current law, the newspaper would not be entitled to either Practitioner Data Bank records or Healthcare Data Bank Records.”
McDonald did add that if similar information was in the files of state agencies, that it would be disclosable under state freedom-of-information laws.
Colleen Murphy, executive director of the Connecticut Freedom of Information Commission, acknowledged in an interview that the passage of the Affordable Care Act made the accessing of databases through state FOI law an “essentially moot” point.
New York-based lawyers for the Hearst Corporation, who argued on behalf of the Greenwich Time, did not respond to requests for comment. Errante, Ramaley’s lawyer, said he was unable to discuss specific details of the case because of confidential settlement.
But as a lawyer who often works for plaintiffs, Errante said he was not personally in favor of secret settlements that might hide an ongoing danger from the general public. He acknowledged there is a publicly accessible version of the federal medical records database, but it contains so little information and detail as to be virtually useless.
“Which is, I think, unfair,” he said, “because the public should know if a doctor gets sued and makes a big settlement. The public should be able to find that more readily.”
Rexford said that Connecticut is one of about seven states which has chosen to adopt an “all-payer claims database” under the health-care exchange feature of the Affordable Care Act. She said it holds promise that the public may be better informed about the performance records of health-care providers.
“The public needs to know,” Rexford said. “The minute the public began to have an idea of hospital infection rates, those rates began to improve. It is that sunshine, that spotlight on previously private data, that is driving some change within the delivery system.”•
Thomas B. Scheffey is a former senior writer for the Connecticut Law Tribune. He is now a member of the newspaper’s Editorial Board.