1 See An Act Providing for Increased Public Access to Data Concerning Physicians, 1996 Mass.Acts ch. 307, § 5 (to be codified at Mass. Gen. Laws ch. 112, § 2) [hereinafter Physician ProfileAct] (reproduced infra Appendix I); see also Henriette Campagne, Weld Signs Doctors’ Disclosure Law, Mass. Law. Wkly., Aug. 19, 1996, at 25, 25.

2 See Campagnc, supra note 1, at 25; see also Physician Profile Act, 1996 Mass. Acts ch. 307,§5.

3 See Campagne, supra note 1, at 25.

4 See id.; Kong, Dolores, Spotlight: High Health Death Rates, Boston Globe, Oct. 3, 1994, at 1;Google Scholar O’Neil, Gerald et al., Malpractice in Massachusetts, Boston Globe, Oct. 2, 1994, at 1;Google Scholar see also Azevedo, David, Will Your Life Become an Open Book, Med. Econ., July 15, 1996, at 39, 39-40Google ScholarPubMed (summarizing the legislative history of the Profile Act).

5 Industry professionals define iatrogenisis as injury caused by doctors or health care institutions. See FURROW, BARRY R. et al., Health Law: Cases, Materials and Problems 24 (2d ed. 1991).Google Scholar

6 See O’Neil et al., supra note 4, at 1.

7 Although health insurers, Health Maintenance Organizations (HMOs), Preferred Provider Organizations (PPOs), and hospitals are consumers of health care, for the purposes of this Note, “consumers” refers to the general public.

8 See Azevedo, supra note 4, at 40; Kong, supra note 4, at 1; O’Neil, supra note 4, at I.

9 Advisory Comm. on Public Disclosure of Physician Information, Making Informedchoices About Doctors 1 (1995) [hereinafter Kramer Report].

Id. at 1; see also Miller, Frances H., Illuminating Public Choice: Releasing Physician-Specific Data to the Public, 8 Loy. Consumer L. Rep. 125, 127 (1996)Google Scholar (encapsulating the Committee’s findings).

10 See generally Kramer Report, supra note 9, at apps. 3-4 (listing those testifying at a public hearing and reproducing written testimony offered to the Committee).

11 Id. at app. 1.

12 See Azevedo, supra note 4, at 39. “Because of close media scrutiny and the high level ofpublic concern over physician qualifications,” the Society felt immediate involvement in the legislative process was critical. Borzo, Greg, Liability Records Going On Line in Massachusetts, Am. Med.News, July 1, 1996, at 1, 11Google Scholar (quoting Michael Kelly, director of government relations, Massachusetts Medical Society). By doing so, the MMS was able to inject several safeguards into the profilelegislation, some of which remained in the Act as passed. See id.

13 Kramer Report, supra note 9, at 10.

14 See Miller, supra note 9, at 128-30.

15 See Azevedo, supra note 4, at 40.

16 See 1996 Mass. Acts ch. 307, § 5(a)-(b).

17 See id. § 5(c)-(d).

18 See id. §5(f).

19 See Borzo, supra note 12, at 1, 11.

20 See infra note 45 and accompanying text; see also Borzo, supra note 12, at 1 (“The[B]oard . . . already has the authority to publish everything it plans to release except hospital disciplinary records.”).

21 The Public Records Law required boards of registration to permit inspection of public records and to provide copies of such documents, but did not require boards to compile information intoone document. See Op. Att’y Gen. 157, 165 (Mass. 1977).

22 See Mohl, Bruce, State Deluged by Requests for Doctor Records, Boston Globe, Nov. 14, 1996, at A36Google Scholar (stating that residents initially requested almost 1000 profiles daily).

23 See Szechenyi, Christopher, The Quack Hotline, Boston Mag., Feb. 1997, at 51, 51.Google Scholar

24 See id. at 51.

25 See A.P., Florida to Name Names: Report to List Punished Docs and Those Who Paid Multiple Malpractice Claims, Mod. Healthcare, Mar. 10, 1997, at 41, 41; Gregg, Katherine, Open-Records Legislation Likely to Face Uphill Fight, Providence Journal-Bulletin, Mar. 10, 1997, at A1Google Scholar; Snyder, Bill, State Might Help Public Check up on Doctors, Nashville Banner, Dec. 4, 1996, at B1Google Scholar; Statelines Maryland: To Allow Computer Access to Physician Data, Am. Health Line, Dec.16, 1996Google Scholar, available in Westlaw, ALLNEWSPLUS Database. “Disseminating this kind of information widely and in such detail is a harbinger of what other medical boards and health care networks will do ... . Other [registration boards] will do the same thing—some of them without physicians’ input.” Borzo, supra note 1, at 1 (quoting David B. Nash, M.D., Thomas Jefferson University Hospital, Philadelphia, Pa.); see also Editorial, Consumers Need Data on Doctors, Chi. Trib., Nov. 17, 1996, at 20 [hereinafter Consumers] (“It would behoove Illinois doctors and regulators to take a cue from Boston and serve up the needed information in proper context”). Florida, Maryland, Rhode Island and Tennessee are all considering bills based on the Massachusetts program. See Florida to Name Names: Report to List Punished Docs and Those Who Paid Multiple Malpractice Claims, supra, at 41; Gregg, supra, at Al; Snyder, supra, at B1; Statelines Maryland: To Allow Computer Access to Physician Data, supra.

26 See Consumers, supra note 25, at 20.

27 See infra Part III.

28 See infra Part IV.

29 See infra Part V.

30 See infra note 184 and accompanying text.

31 See Szechenyi, supra note 23, at 106; see also Miller, supra note 9, at 126.

32 See Szechenyi, supra note 23, at 106.

33 See generally Miller, supra note 9 (explaining the benefits and harmful effects of releasingphysician-specific data to the public).

34 See Borzo, supra note 12, at 11 (raising the issue of “whether it’s fair to ‘change the rules’by reporting malpractice cases that physicians settled at a time when they assumed their liabilityrecord would remain confidential”).

35 The Board kept confidential settlements of claims where the plaintiff did not file a civilcomplaint. See infra note 117 and accompanying text. While settlements of civil claims were notconfidential, the public had limited access to or knowledge of this data.

36 HUXLEY, T.H., On Elementary Instructions in Physiology (1877), in 3 Collected Essays (1895)Google Scholar, reprinted in Oxford Dictionary of Quotations 358 (Angela Partington ed., 4th ed.1992).

37 See Mass. Gen. Laws ch. 112, § 2 (1994); Mass. Regs. Code tit. 243, § 2.02(1) (1993).The Director of Registration supervises the Board, see Mass. Gen. Laws ch. 112, § 1, which the Executive Office of Consumer Affairs and Business Regulation oversees. See id. ch. 6A, § 1.

38 See Mass. Regs. Code tit. 243, § 2.02(1).

39 See id. Third parties also provide information concerning applicants’ backgrounds. See id.§ 2.04(2) (requiring third party references for each applicant’s moral character).

40 See id. § 2.04. The Board also sets substantive standards governing the practice of medicine.See id. § 2.07. The Board designs such standards to promote the health, welfare and safety of patients and physicians. See id.

41 See Mass. Gen. Laws ch. 66, § 10. “The basic purpose of the public records law is to ensure that governmental activities be open to public examination.” Jonathan Brant et al., Public Records, FIPA, and CORI: How Massachusetts Balances Privacy and the Right to Know, 15 Suffolk U.L. Rev. 23, 24 (1981). The Fair Information Practices Act (FIPA) limits the availability of personalinformation under the Public Records Law. See Mass. Gen. Laws ch. 66A, §§ 1-2. Informationheld by boards of registration in connection with licensing and certification formerly was personaldata, and FIPA generally restricted the dissemination of such information. See Op. Att’y Gen. 157,158 (Mass. 1977). When required by statute, however, holders may publish otherwise personal data.See Mass. Gen. Laws ch. 66A, § 2(c).

42 See Mass. Gen. laws ch. 66, § 10; see also Mass. Regs. Code tit. 243, § 2.01(12) (1995). “Documentary information obtained by the Board concerning a licensee is either a public record, asdefined by [Mass. Gen. Laws ch. 4, § 7], or personal data, as defined by [Mass. Gen. Laws ch.66A].” Mass. Regs. Code tit. 243, § 2.01(12). Information which was—and remains—privateincludes information on a licensee’s age, marital status, race, home address, and other such personaldetails. See id.

43 See Mass. Regs. Code tit. 243, § 1.02(8)(a).

44 See Mass. Gen. Laws ch. 112, § 5, amended by 1996 Mass. Acts ch. 307, §§ 4-5.

45 See Miller, supra note 9, at 128. Indeed, much of this information was publicly (but notwidely) available before passage of the Act. See Mass. Regs. Code tit. 243, § 2.01(12) (stating thatlicensee’s name, business address, license number, educational background, professional training,and experience were all considered documentary information for the public record, prior to the Act’spassage).

46 See Mass Gen. Laws ch. 112, § 5(g)-(h); see also Mass. Regs. Code tit. 243, § 2.01(12)(noting information available prior to the Act).

47 See Mass Gen. Laws ch. 112, § 5(i); see also Mass. Regs. Code tit. 243, § 2.01(12)(noting information available prior to the Act).

48 See Mass Gen. Laws ch. 112, § 5(o); see also Mass. Regs. Code tit. 243, § 2.01(12)(noting information available prior to the Act).

49 See 1996 Mass. Acts ch. 307, § 5(q).

50 See id. § 5(m).

51 See id. § 5(i); see also supra note 45 (citing information available prior to the Act). See generally 1-4 American Bd. of Med. Specialties, The Official ABMS Directory of Board Certified Medical Specialists (29th ed., Marquis Who’s Who 1997). “The Directory is the only official listing of board certified physicians authorized by the 24 member boards of the AMBS. . . .The Official ABMS Directory provides up-to-date, professional and biographical information ondiplomates who have met the certification requirements of their respective medical specialtyboards.” 1 id. at x (emphasis in original). The information provided includes medical school andyear of degree; internship, residency, and fellowship information; certification data; academic and hospital appointments; current office location; type of practice; and professional association participation. See id.

52 See Mass. Acts ch. 307, § 5(n).

53 See Kramer Report, supra note 9, at 18.

54 Mass. Gen. Laws ch. 221, § 26 (1994).

55 Miller, supra note 9, at 132.

56 Mass. Gen. Laws ch. 221, § 26.

57 See Kramer Report, supra note 9, at 18.

58 See id. at 5.

59 See Miller, supra note 9, at 132.

60 See id. at 132.

61 See Kramer Report, supra note 9, at 18-19.

62 Miller, supra note 9, at 132.

63 Id. at 133.

64 See Mass. Gen. Laws ch. 221, § 26 (1994), amended by 1996 Mass. Acts ch. 307, § 6. Thisincludes pleas of nolo contendere. See id.

65 Id. § 5, amended by 1996 Mass. Acts ch. 307, § 5(a).

66 See 1996 Mass. Acts ch. 307, § 5(a).

67 See id. § 5(b). Nolo contendere, Latin for “I do not wish to contend, fight, or maintain,” is astatement that a defendant will not contest charges made by the government. See United States v.Jones, 119 F. Supp. 288, 290 (S.D. Cal. 1954). Although not strictly a plea, see id., entering nolo contendere admits all facts stated in an indictment for purposes of a particular case, but parties cannot use such admissions elsewhere. See GIFTS, STEVEN H., Law Dictionary 320 (1991).Google Scholar

68 See Miller, supra note 9, at 134.

69 See id. at 134.

70 See 1996 Mass. Acts ch. 307, § 5.

71 See Miller, supra note 9, at 131.

72 Id.

73 See Op. Att’y Gen. 157, 164 (Mass. 1977).

74 See Mass. Regs. Code tit. 243, § 1.02(8)(c)(I) (1993). Indeed, some Board sanctions were “highly publicized,” even before the Profile Act. See Miller, supra note 9, at 131 (citing Gary S. Chafetz & Morris E. Chafetz, Obsession: The Bizarre Relationship Between a Prominent boston psychiatrist and Her Suicidal Patient (1994); Eileen Mcnamara, Sex, Suicide and the Harvard Psychiatrist (1994)). On the other hand, “[b]efore the Board issues a [s]tatement of[a]llegations, dismisses a complaint, or takes other final action, the Board’s records concerning adisciplinary matter are confidential.” Mass. Regs. Code tit. 243, § 1.02(8)(b).

75 See 1996 Mass. Acts ch. 307, § 5(c).

76 See id. § 5(d).

77 Mass. Gen. Laws ch. 111, § 53B (1994). “According to a recent report compiled by the Urban Institute, 70 to 80% of medical malpractice claims allege negligent hospital care.” Miller,supra note 9, at 142 n.52.

78 In the Commonwealth,

Mass. Gen. Laws ch. 111, § 53B. For purposes of this section, “restrictions” include a leave of absence taken for any reason related to a physician’s competence to practice medicine and hospitals must report such leaves of absence to the Board, “whether the leave is labeled as voluntary or involuntary.” Op. Att’y Gen. 31, 32 (Mass. 1990).

79 See Kramer Report, supra note 9, at 12.

80 Id

81 See id. at 17.

82 See Mass. Gen. Laws ch. 111, § 53B, amended by 1996 Mass. Acts ch. 307, § 2.

83 See id., amended by 1996 Mass. Acts ch. 307, § 5(e). The Board will only disclose suchrevocations that the hospitals take after affording due process. See id. The Profile Act does notmirror the Committee’s recommendations on this matter. See Kramer Report, supra note 9, at 17-18.

84 See Kramer Report, supra note 9, at 17-19. Examining the peer review policies of theCommonwealth, one commentator noted:

Miller, supra note 9, at 131.

85 See Kramer Report, supra note 9, at 14.

86 See id.

87 See id.

88 Id. (emphasis omitted).

89 See Mass. Gen. Laws ch. 111, § 53B (1994), amended by 1996 Mass. Acts ch. 307, § 3.

90 See 1996 Mass. Acts ch. 307, § 3.

91 See Kramer Report, supra note 9, at 18.

92 See id.

93 See id. Currently, hospitals must participate in risk management programs proposed by theBoard as a condition of their licensure. See Mass. Gen. Laws ch. 111, § 203(d). The Medical Malpractice Act of 1986 required the Board to establish risk management programs and permitted theBoard to establish regulations requiring physician participation as a condition of licensing. See1986 Mass. Acts ch, 351, § 13 (amending Mass. Gen. Laws ch. 112, § 5). As a result, the Boarddeveloped the Patient Care Assessment (PCA) program, which lays out elements of a “qualified” patient care plan. See Mass. Regs. Code tit. 243, §§ 3.00-.16 (1993). One requirement of theseplans is hospital reporting of certain “major” incidents. See id. § 3.08 (including fetal deaths, maternal deaths resulting from delivery, chronic vegetative states resulting from medical interventionand deaths in the course of or resulting from ambulatory surgical care, as well as “major or permanent impairments of bodily functions or deaths that are not ordinarily expected as foreseeable resultsof the patient’s condition or of appropriately selected and administered treatment”). The Committee’s evaluation of the PCA regulations concluded that there was no meaningful oversight, and recommended further Board involvement with the PCA program. See Kramer Report, supra note 9,at 17. The Committee did not, however, recommend that the Board make this information publicthrough the profiles (or any other means). See id.

94 Search of Westlaw, MA-LEGIS Database (Mar. 27, 1997),

95 See 1996 Mass. Acts ch. 307.

96 See Mass. Regs. Code tit. 243, § 3.04.

97 Id. § 3.01.

98 See Mass. Gen. Laws ch. 111, § 204; see also Mass. Regs. Code tit. 243, § 3.04 (declaringthat the functions of a “Medical Peer Review Committee,” as defined by Mass. Gen. Laws ch. 111, § 1, are confidential and to the extent allowable under Mass. gen. laws ch. 111, § 204 are notsubject to subpoena, discovery, or introduction into evidence; patient care assessment coordinatorsmay define which documents are “proceedings, reports, and records of a medical peer review committee”).

99 See Mass. Gen. Laws ch. 111, § 204.

100 See id. (exempting proceedings held by the Boards of Registration in Medicine, SocialWork, and Psychology). Courts cannot compel or permit participants in a peer review process totestify about peer review committee proceedings. See Beth Israel Hosp. v. Board of Registration inMed., 515 N.E.2d 574, 575 (Mass. 1987). The privilege also extends to “[i]nformation and recordswhich arc necessary to comply with risk management and quality assurance programs and which arenecessary to the work product of medical peer review committees.” Mass. Gen. Laws ch. 111, §205(b).

101 See Kramer Report, supra note 9, at app. 4 (reproducing the testimony of Attorney Leonard A. Simon, Chair of the Medical Malpractice Committee of the Massachusetts Academy of TrialAttorneys). The Massachusetts Academy of Trial Attorneys sponsored legislation to modify thecurrent peer review structure and permit discovery of underlying factual information and documentation. See id. This proposal would have retained the confidentiality of the opinions of personstestifying or the conclusions of a peer review committee. See id. This legislation would have required peer review committees to function in a more formal manner, insofar as it would have required maintenance of contemporaneous minutes of peer review committee meetings, documentationof records received, identification of individuals present, and summarization of oral and writtentestimony. See id. Judicial screening of documents would have ensured the appropriate dissemination of factual information otherwise retained by a peer review committee. However, neither theProfile Act nor any other legislation has amended the peer review confidentiality provisions.

102 See Mass. Gen. Laws ch. 112, § 5F.

103 See id.; Mass. Regs. Code tit. 243, § 2.07(23) (1995).

104 See Mass. Regs. Code tit. 243, § 2.07(23)(f). This option is also only available where: (1) the physician is otherwise not in violation of licensing regulations or statutes, see id. § 2.07(23)(a); (2) the health care provider receives confirmation of physician participation from the drug or alcohol program within 30 days of acquiring the “reasonable basis to believe” of the physician’s substance abuse problem, see id. § 2.07(23)(b); (3) the program is approved by a majority vote of the Board, see id. § 2.07(23)(c) and (4) the drug or alcohol program requires the physician to consent to disclosure of relevant information to the Board under certain conditions. See id. § 2.07(23)(d)-(e).

105 See Kramer Report, supra note 9, at 22 (noting that approximately one-third of the Board’s disciplinary actions per year involve chemically dependent physicians). “The A.M.A. has estimated that seven to eight percent of practicing physicians are alcoholics. The drug addiction rate for physicians is thirty to a hundred times higher than the rate for the general public.” Furrow et al., supra note 5, at 55.

106 See Kramer Report, supra note 9, at 22.

107 ld.

108 See generally 1996 Mass. Acts ch. 307, § 5 (providing for collection of the following licensee information: descriptions of criminal convictions for felonies and serious misdemeanors, descriptions of any charges to which physicians plead nolo contendere, descriptions of recent final board disciplinary actions, descriptions of recent final licensing board disciplinary actions, descriptions of revocations/restrictions of hospital privileges related to competence/character, malpractice judgments and arbitration awards, medical/graduate schools and graduation dates, specialty board certifications, number of years in practice, hospital(s) where licensees have privileges, appointments to medical school faculties, recent publications in peer-reviewed literature, professional/community service activities and awards, location of primary practice setting, identification of available translating services at primary practice location, and indication of participation in Medicaid program).

109 See Kramer Report, supra note 9, at 6.

110 See id. at 5.

111 See Mass. Regs. Code tit. 243, § 2,02 (1993). These include malpractice actions in other states. See id.

112 See Mass. Gen. Laws ch. 112, § 5C (1994). In Massachusetts,

1. (1)

   (1) A final judgment in any amount

2. (2)

   (2) A settlement in any amount

3. (3)

   (3) A final disposition not resulting in payment on behalf of the insured.

Id.

113 See id.

114 See id. ch. 231, § 60B (Supp. 1996). By law:

Id.

115 See id.

116 See id. (“The terms of such judgment, settlement, or other final disposition shall not besealed by agreement of the parties or by any other means and shall be available for public inspection. . . . “).

117 Nonfiled malpractice claims are those in which the claimant never filed suit, thus the reporting and disclosure requirements of Mass. Gen. Laws ch. 231, § 60B do not apply. Insurance companies (including all risk management organizations that provide malpractice insurance) must reportto the Board any payment for damages “alleged to have been caused by error, omission, or negligence in the performance of such physician’s professional services.” Id. ch. 112, § 5C.

118 See Kramer Report, supra note 9, at 5.

119 See 1996 Mass. Acts ch. 307, § 5(f).

120 see id.

121 See id.

122 See Mohl, Bruce, Now Consumers Can Give Their Doctors a Checkup, Boston Globe, Nov. 7, 1996, at A1.Google Scholar

123 See 1996 Mass. Acts ch. 307, § 5(f).

124 Id.

125 See id. Currently, the profiles include the following explanation:

Redacted Physician Profile, infra Appendix II.

126 See 1996 Mass. Acts ch. 307, § 5.

127 See Some Medical Advice, Boston Globe, Nov. 9, 1996, at A10.

128 See 1996 Mass. Acts ch. 307, § 9.

129 See Pham, Alex, Weld Expected to Sign Bill Making Doctors’ ‘Report Cards’ Available, Boston Globe, July 26, 1996, at E2.Google Scholar

130 See 1996 Mass. Acts ch. 307, § 9; Pham, supra note 129, at E2 (noting that the delay wasprompted by fears of anti-Semitic attacks against Jewish physicians and radical anti-abortion violence against physicians practicing reproductive medicine).

131 See 1996 Mass. Acts ch. 307, § 5.

132 See Borzo, supra note 12, at 11.

133 See 1996 Mass. Acts ch. 307, § 9.

134 See id.

135 PUNCH, , 86 Almanac 121 (1884)Google Scholar, quoted in Oxford Dictionary of Quotations 532 (Angela Parrington ed., 4th ed. 1992).

136 See supra note 109 and accompanying text.

137 See Miller, supra note 9, at 130; see also Paul C. Weiler et al., a Measure of Malpractice: Medical Injury, Malpractice Litigation and Patient Compensation (1993)(reviewing the Harvard Medical Practice Study). These studies also reveal that plaintiffs occasionally bring suit where the record docs not substantiate negligence claims. See Miller, supra note 9, at129. “The incidence of medical malpractice claims has escalated dramatically in the last 30 years.Recent figures, however, suggest that each year more than 7 of every 100 physicians can expect tohave claims filed against them.” Hickson, Gerald B. et al., Factors that Prompted Families to FileMedical Malpractice Claims Following Perinatal Injuries, 267 JAMA 1359, 1359 (1992).CrossRefGoogle ScholarPubMed

138 See Levinson, Wendy et al., Physician-Patient Communication: The Relationship with Malpractice Claims Among Primary Care Physicians and Surgeons, 277 JAMA 553, 553 (1997).CrossRefGoogle ScholarPubMed

139 See Mohl, supra note 122, at A1.

140 See id.

141 See id.

142 See id.

143 See id.

144 See Sharrott, Douglas, Note, Provider-Specific Quality of Care Data: A Proposal for Limited Mandatory Disclosure, 58 Brook. L. Rev. 85, 120-26 (1992)Google Scholar (analyzing outcome-measurementand subdividing the economic effect concept into “Reduction of Low-Quality Providers” and “Reduction of Health Care Costs Through Increased Provider Competition”); see also Miller, supranote 9, at 125-26 (describing these two aspects as both part of “informed consent”).

145 See Miller, supra note 9, at 125-26.

146 Sharrott, supra note 144, at 121. Informed consent serves six functions: it can (I) promotepatient autonomy; (2) protect the patient’s status as a human being; (3) avoid fraud and duress; (4)encourage doctors to consider their decisions carefully; (5) foster rational decision making by thepatient; and (6) involve the public generally in medicine. See Capron, Alexander Morgan, Informed Consent in Catastrophic Disease Research and Treatment, 123 U. Pa. L. Rev. 340, 364-76 (1974).CrossRefGoogle ScholarPubMed

147 See, e.g., Mass. Gen. Laws ch. 111, § 70E(n) (1994) (granting to every patient or residentof a facility “the right... to informed consent to the extent provided by law”).

148 The doctrine of informed consent in Massachusetts is found in both common law and statute. See Mass. Gen. Laws ch. 111, § 70E; Harnish v. Children’s Hosp. Med. Ctr., 439 N.E.2d 240,242 (Mass. 1982) (holding that “a physician’s failure to divulge in a reasonable manner to a competent adult patient sufficient information to enable the patient to make an informed judgment whetherto give or withhold consent to a medical or surgical procedure constitutes professional misconduct”).

149 Harnish, 439 N.E.2d at 243. Thus, Massachusetts has a common law, patient-oriented standard for informed consent. See Szczygiel, Anthony, Beyond Informed Consent, 21 Ohio N.U. L. Rev. 171, 209-11 (1994).Google ScholarPubMed

150 precourt v. Frederick, 481 N,E.2d 1144, 1148 (Mass. 1985). For a plaintiff to recover on a “lack of informed consent” claim, the plaintiff must demonstrate a causal relationship between theinjury and the physician’s failure to inform. See Aceto v. Dougherty, 615 N.E.2d 188, 192 (Mass.1993).

151 See Hidding v. Williams, 578 So. 2d 1192, 1196 (La. Ct. App. 1991).

152 See Hales v. Pittman, 576 P.2d 493, 500 (Ariz. 1978). The court gave the following example in dicta:

Id.

153 Cf. Aceto, 615 N.E.2d at 192 (avoiding explicitly whether informed consent requires physicians to divulge their rank within a hospital hierarchy).

154 See generally Precourt, 481 N.E.2d at 1145 (stating that the doctor had a duty to disclose arisk only “if he had, or reasonably should have had, information about that risk that he reasonablyshould have recognized [the patient] would consider important in deciding to undergo the proposedsurgery”); Harnish, 439 N.E.2d at 243 (listing examples of appropriate information to disclose, suchas the patient’s condition, probability of risks involved, benefits to be reasonably expected, irreversibility of the procedure, likely result of no treatment, and the risks and benefits of availablealternatives).

155 Cf. Bobinski, Mary Anne, Autonomy and Privacy: Protecting Patients from Their Physicians, 55 U. Pitt. L, Rev. 291, 330-70 (1994)Google ScholarPubMed (suggesting mandatory disclosure policies for economic conflicts of interest).

156 Annas, George J., Life, Liberty and Death, 12 Health Magmt. Q., First Quarter 1990, at 5, 5.Google ScholarPubMed

157 See Gerald Dworkin, the Theory and Practice of Autonomy 3-20 (1988) (delineating and examining the broad characteristics of autonomy). Indeed, “autonomy” may morelikely consist of the attributes to which it is most related. See id. at 6. “It is equated with dignity,integrity, individuality, independence, responsibility and self-knowledge. It is identified with qualities of self-assertion, with critical reflection, with freedom from obligation, with absence of externalcausation, with knowledge of one’s own interests.” Id.

158 See Natanson v. Kline, 350 P.2d 1093, 1104 (Kan. 1960). Physicians also have an (oftenoverlooked) interest in personal, professional, and medical autonomy. See Pellegrino, Edmund D., Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-Patient Relationship, 10 J. Contemp. Health L. & Pol’y 47, 51-52 (1994).Google ScholarPubMed “The physician-patient relationshipis one of mutual obligation—like any truly ethical relationship.” Id. at 51. The strength of the physicians’ autonomy interests—personal, professional, and medical—vary with their patients’ interests.See id. The personal autonomy interest develops from the physician’s status as a human being, withrational judgment and an ability to express moral judgments. See id. The interest in professionalautonomy arises from the fact that physicians “cannot avoid . . . that [they are] the focal pointthrough which harm and benefit of a clinical decision will flow in a majority of cases.” Id. at 52.Finally, an interest in “medical” autonomy is grounded in the responsibility conferred by the knowledge of treatment. See id. at 52-53. Although the physician can claim a legitimate, though limited,interest in “medical autonomy,” see id., practitioners must weigh the particular vulnerability of theirpatients to deception in the form of information they receive. See id. at 53-55. “The fact that physicians can so easily influence the patient’s choice [of treatment options] makes full operation ofpatient autonomy problematic.” Id. at 55. The Profile Act reduces physician autonomy, in that itincreases public access to potentially negative information about doctors, thereby reducing an individual physician’s ability to “mask” or downplay negative histories.

159 See Lidz, Charles W. & Arnold, Robert M., Rethinking Autonomy in Long Term Care, 47 U. Miami L. Rev. 603, 612 (1993)Google ScholarPubMed (noting that this interpretation—among the alternatives—is mostclosely related to informed consent).

160 See id. at 613-14 (stating that most decisions are not made with perfect understanding).

161 Arguably, presenting information to patients improves their autonomous decision making. However, for example, one could make similar arguments about the mandatory disclosure requirements of the Securities Act, 15 U.S.C. §§ 77a-77bbbb (1994). The Securities Act requires that issuers of securities provide investors with material information concerning securities offered for sale. See JENNINGS, RICHARD W. & MARSH, HAROLD JR. Securities Regulation: Cases and Materials 38 (1988).Google Scholar As a result, investors may make a realistic appraisal of the merits of the securities and exercise informed judgment in determining whether to purchase them. See id. Under a broad reading of the “decision-making” theory of autonomy, the Securities Act similarly increases individuals’ autonomous decision making.

162 physician profiles increase patient autonomy as they increase the patient’s ability to weighinformation the state deems important. Interestingly, that concept runs counter to one classical notion of autonomy: that individuals are better equipped to judge their own interest than even the mostbenevolent state. See MILL, JOHN S., Essay on Liberty 93 (Rapaport, Elizabeth ed., 1978).Google Scholar

163 Furrow et al., supra note 5, at 1057. “This principle, in its purest form, presumes that noother person or social institution ought to intervene to overcome a person’s desires, whether or notthose desires are ‘right’ from any external perspective.” Id.

164 See Dworkin, supra note 157, at 6.

165 See id.

166 See Consumers, supra note 25, at 20.

167 See Miller, supra note 9, at 126.

168 See Consumers, supra note 25, at 20.

169 Id.

170 See id. As a result, the Profile Act may encourage health care providers to include aspectsof their own profile information in advertisements and marketing literature.

171 SPANOGLE, JOHN A. et al., Consumer Law 166 (1991)Google Scholar (citing Schwartz, Alan & Wilde, Louis L., Intervening in Markets on the Basis of Imperfect Information: A Legal and Economic Analysis, 127 U. Pa. L. Rev. 630, 630 (1979)CrossRefGoogle Scholar (analyzing the Truth in Lending Act, 15 U.S.C. §§ 1601—1665a (1976))).

172 See Schwartz & Wilde, supra note 171, at 632; see also Beales, Howard et al., The Efficient Regulation of Consumer Information, 24 J.L. & Econ. 491, 502 (1981).CrossRefGoogle Scholar Without additional information, consumers would likely perceive all physicians as similar (i.e., average). See id. Above-average physicians, in this situation, would have an incentive to provide information about theirsuperior service. See id. Arguably, mandated disclosure is never efficient; the market will encourage superior physicians to provide the information, and consumers will discount physicians who donot. See id.

173 See Beales et al., supra note 172, at 491-94.

174 See Miller, supra note 9, at 125.

175 See Spanogle et al., supra note 171, at 166.

Id. at 166.

176 See Whitford, William C., The Functions of Disclosure Regulation in Consumer Transactions, 1973 WIs. L. Rev. 400, 424Google Scholar (noting that consumers make the “best buy,” allocating their resources effectively, when they have information on their options).

177 See Beales et al., supra note 172, at 502.

178 See id.

179 Posner, Richard A., The Right of Privacy, 12 Ga. L. Rev. 393, 399 (1978)Google Scholar (presenting aneconomic model for the various strands of law that commentators have commonly grouped into a “right to privacy”).

180 See Mohl, supra note 122, at Al.

181 Miller, supra note 9, at 129.

182 See Sharrott, supra note 144, at 126-27.

183 See Kramer Report, supra note 9, at 7.

184 See Sloan, Frank A. et al., Medical Malpractice Experience of Physicians: Predictable orHaphazard?, 262 JAMA 3291, 3291 (1989).CrossRefGoogle Scholar

185 See id. at 3293.

186 See id. at 3297. Later studies have reinforced the lack of relationship between malpracticehistories and physician competence. See, e.g., Entman, Susan S. et al., The Relationship BetweenMalpractice Claims History and Subsequent Obstetric Care, 272 JAMA 1588, 1588 (1994)CrossRefGoogle ScholarPubMed (concluding that physicians’ prior histories fail to predict the likelihood of future clinical errors).

187 See Sloan et al., supra note 184, at 3296-97 (finding no statistically significant variationregarding graduates of foreign medical schools, medical school ranking, or size of the physician’spractice).

188 See id. at 3297. Physicians with adverse claims experience were statistically more likely tohave faced discipline by the state’s regulatory board. However, none of the physicians with the mostadverse claims had their licenses suspended or revoked, and the board disciplined fewer than 10% ofthese physicians. “This pattern is consistent with two opposing hypotheses: perhaps physicians withadverse claims experience are not bad physicians. Bad claims may reflect taking on harder cases ora litigious client. . . . [Alternatively, the physicians may be bad], but the licensing system failed toact.” Id.

189 See Miller, supra note 9, at 130.

190 See Bovbjerg, Randall R. & Petronis, Kenneth R., The Relationship Between Physicians’Malpractice Claims History and Later Claims: Does the Past Predict the Future?, 272 JAMA 1421, 1424-25 (1994).CrossRefGoogle ScholarPubMed This data is thus highly useful for medical malpractice insurers when determiningrisk. See id.

191 See id. at 1425. Interestingly, a history of one or more small claims (including nonmerito-rious “nuisance claims” paid only to avoid the costs of litigation and not because the physicianfailed to provide adequate care) has slightly more impact than a history of large claims in raising theodds of subsequent claims of all sizes. See id. at 1425-26.

192 See Hickson, Gerald B. et al., Obstetricians’ Prior Malpractice Experience and Patients’Satisfaction with Care, 272 JAMA 1583, 1586 (1994).CrossRefGoogle Scholar

193 See id.

194 See id. Critics of previous studies noted that a plaintiffs “recall and interpretation ofevents may be transformed by the need to portray the defendant as the ‘bad guy’ in the litigationprocess.” Id. The Hickson study avoided this flaw by interviewing both nonplaintiff and plaintiffpatients of defendant-physicians. See id.

195 See id at 1586.

196 See 1996 Mass. Acts ch. 307, § 4.

197 See Levinson et al., supra note 138, at 553.

198 See id at 558.

199 See id. at 553.

200 See id. at 557-58.

201 See id. at 558.

202 See id

203 See id. (concluding that primary care physicians with no malpractice history typically usedorienting statements, facilitating practices, active listening, humor, and a friendly manner in theirroutine visits with patients). “Orienting statements” are comments by the physician to his patientabout the process of the visit. See id. For example, orienting statements include such comments as “First I’ll examine you and then we will talk the problem over.” Id. Facilitating practices, includingactive listening, are methods to elicit more information from patients about their condition or concerns. See id. Such facilitating comments include, “Go on, tell me more about that” and “What doyou think caused this to happen?” Id.

204 See id. This aspect of the study is surprising because “prior studies have found that patientsatisfaction is associated with physicians asking and counseling about psychosocial aspects of care.” Id

205 Compare Levinson et al., supra note 138, with Hickson et al., supra note 192, Sloan et al.,supra note 184, and Entman et al., supra note 186 for discussions regarding predictability in malpractice claims.

206 See Sharrolt, supra note 144, at 126-27.

207 Relman, Arnold S., What Market Values Are Doing to Medicine, Atlantic, Mar. 1992, at 98, 100.Google ScholarPubMed

208 See Faden, Ruth R. et al., Disclosure of Information to Patients in Medical Care, 19 Med. Care 718, 731 (1981).CrossRefGoogle ScholarPubMed

209 See supra note 125.

210 See Redacted Physician Profile, infra Appendix II. The Board recommends two sources ofinformation on the relationship between malpractice histories and physician competence to the public, a book by Randall Bovbjcrg, see Randall R. Bovbjerg, Medical Malpractice: Problems & Reforms (1995), and a journal article by Russell Localio, see Localio, A. Russell et al., RelationBetween Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard MedicalPractice Study III, 325 N. Eng. J. Med. 245, 249 (1991)CrossRefGoogle Scholar (contending that “[u]nless there is a strongassociation between the frequency of claims and that of negligence, the rate alone will be a poorindicator of quality because rates can easily vary widely at the same underlying frequency of negligence or adverse event”). Telephone conversation with Physician Profile Program, Board of Registration in Medicine (Feb. 19, 1997). Although the Board provides these two articles to explain malpractice histories, both of these writings critically question the relationship between physician competence and malpractice histories.

211 Sharrott, supra note 144, at 127-28.

212 See Szechcnyi, supra note 23, at 106.

213 See Hickson et al., supra note 192, at 1586-87.

214 See id.

215 See id.

216 See id. at 1587.

217 See Szcchenyi, supra note 23, at 51 (describing a physician with an above-average malpractice history, a temporarily revoked license to practice medicine, and noting that the doctor’sprofile information was “just another piece of the puzzle”).

218 See id. at 106.

219 See id.

220 See id. (noting the objections of Dr. Barbara Rockett, a surgeon and past president of the MMS).

221 See id.

222 See Editorial, Some Medical Advice, Boston Globe, Nov. 9, 1996, at A10 (noting that theMassachusetts legislature appropriated $300,000 for the program).

223 See Borzo, Greg, A Different Kind of Checkup: New Services Offer Doctor Dossiers via Internet, Am. Med. News, Oct. 14, 1996, at 3, 3.Google Scholar

224 Id “The service costs $15 for one physician profile and $5 for each additional profile ordered at the same time.” Id. See generally Medi-Net <http://www.askmcdi.com> (visited Feb. 21,1997).

225 See Borzo, supra note 223, at 3.

226 See id.

227 See 1996 Mass. Acts ch. 307, § 5 (to be codified at Mass. Gen. Laws ch. 112, § 5).

228 See generally Medi-Net <http://www.askmedi.com> (visited Feb. 21, 1997).

229 See Borzo, supra note 223, at 24.

230 Id.; see also Physician Select http://www.ama-assn.org (visited Feb. 21, 1997).

231 See Borzo, supra note 223, at 24. On the Physician Select web site, physicians may alsolink their personal biographical information to their own or to their practices’ web sites. See id.

232 See generally Sharrott, supra note 144, at 126-29 (arguing that patients will be able to understand complex risk information related to providers just as they are able to understand complexgeneral risk data in deciding whether to undergo treatment and in choosing among alternative treatments).

233 See Kramer Report, supra note 9, at 33 (noting that “Pennsylvania invested $17 millionin tracking physician performance on only two . . . diagnosis related group[s]”) [emphasis omitted].

234 John Milton, Samson Agonistes 336, 358 (H.C. Beeching ed., Encyclopedia Britannica,Inc. 1952) (1671).

235 See Kramer Report, supra note 9, at 6 (noting that physicians also argue that disclosedmalpractice data do not correlate directly with physician competence and that they can unfairlyprejudice physicians’ reputations because the general public does not understand this lack of correlation).

236 Roc v. Wade, 410 U.S. 113, 152 (1973). The U.S. Supreme Court first fully articulated aconstitutional right of privacy in Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating a statestatute prohibiting the use of contraceptive devices by married couples). Griswold found this privacy right implicit in the First, Third, Fourth, and Ninth Amendments. See id. at 484.

237 See Hernandez, Dennis F., Litigating the Right to Privacy: A Survey of Current Issues, 446 PLI/Pat. 425, 430 (1996),Google Scholar available in Westlaw, PLI-PAT Database; see also Garcia v. United States, 666 F.2d 960, 964 (Former 5th Cir. 1982); 16B C.J.S. § 631 (1985) (noting that the right toprivacy safeguards all citizens from unwarranted intrusion by government officials).

238 Cf. Opinion of the Justices to the Senate, 668 N.E.2d 738, 756 (Mass. 1996).

239 See id. Readers should carefully distinguish the constitutional right to privacy from the unrelated state common law tort of invasion of privacy. See McNally v. Pulitzer Publishing Co., 532F.2d 69, 76 (8th Cir. 1976). The common law tort of privacy encompasses four distinct aspects:intrusion, public disclosure, “false light,” and appropriation. See David A. Elder, The Law of Privacy § 1:1, at 3 (1991) (citing Restatement (second) OF Torts, § 652A, cmt. a (1977)). Thetort aspect of privacy law is outside the scope of this Note.

240 Borucki v. Ryan, 827 F.2d 836, 840 (1st Cir. 1987) (quoting Whalen v. Roe, 429 U.S. 589, 598-600(1977)).

241 See id. Readers should distinguish the autonomy branch of privacy jurisprudence from thephilosophical and ethical concepts of autonomy addressed above.

242 See id. The U.S. Supreme Court has defined this right in several contexts. See, e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975) (finding that first amendment concerns trumpa right of privacy); Katz v. United States, 398 U.S. 347, 352 (1967) (holding that the wireless tap ofa phone booth violated an individual’s fourth amendment right to “assume that the words [spoken]into the mouthpiece will not be broadcast to the world”).

243 See Paul v. Davis, 424 U.S. 693, 713 (1976).

244 See Clark, Bruce W., Note, The Constitutional Right to Confidentiality, 51 Geo. Wash. L. Rev. 133, 135 (1982).Google Scholar

245 See Wisconsin v. Constantineau, 400 U.S. 433, 434-37 (1971) (holding that a statute providing for “posting” the name of any individual, without notice or hearing, who “by excessive drinking . . . expose[s] himself or family ‘to want* or . , . become[s] ‘dangerous to the peace’ of the community” was unconstitutional due to the “stigma or badge of disgrace” imposed on “a victim of an official’s caprice”).

246 See Paul, 424 U.S. at 729-30. In Paul, the Court recognized that “serious damage . . .could be inflicted by branding a government employee as ‘disloyal,’ and thereby stigmatizing hisgood name.” Id. at 706. However, it also noted that “defamation of an individual [was not] sufficient to invoke guarantees of procedural due process absent an accompanying loss of governmentemployment.” Id.

247 Clark, supra note 244, at 135; see also Whalen v. Roe, 429 U.S. at 598-99. In 1973, theCourt considered public dissemination of a school report that named individual students as disciplinary problems. See Doe v. McMillan, 412 U.S. 306, 312 (1973). Although the Court avoided themerits of the claim, see id. at 324-25, a separate concurrence would have held unconstitutional theunjustified exposure of an individual’s private affairs. See id. at 330 (Douglas, J., concurring)(noting that, in this situation, the “names of the specific students were totally irrelevant to the purposes of the study”). Circuit courts have implied that individuals should have some right to controlthe extent of government disclosure of criminal records. See Utz v. Cullinane, 520 F.2d 467, 488(D.C. Cir. 1975) (upholding an ordinance proscribing the routine dissemination of juvenile and arrest records to other law enforcement officials); see also Menard v. Mitchell, 328 F. Supp. 718, 726(D.D.C. 1971) (holding impermissible wide dissemination of arrest records absent a clear showing ofcompelling public necessity).

248 See Redding v. Brady, 606 P.2d 1193, 1195 (Utah 1980).

249 See Frith v. Associated Press, 176 F. Supp. 671, 674 (E.D.S.C. 1959) (granting summaryjudgment to the defendants and holding that the state’s releasing of the plaintiffs’ “mug shots” andthe Associated Press’ subsequent publication of them was not an unwarranted invasion of privacybecause the arrest had made the plaintiffs “figures of public interest”).

250 See Watkins v. United States, 354 U.S. 178, 198-200 (1957) (holding that compelling anindividual to testify before the House Committee on Un-American Activities was impermissible, asthe Committee’s sole purpose was the exposure of individuals to public harassment). Additionally,the Court has noted that the government may not deter the enjoyment of other constitutional rightsby requiring disclosure of related material. See Planned Parenthood of Cent. Missouri v. Danforth,428 U.S. 52, 81 (1976) (finding that a state statute requiring disclosure of certain abortion recordswas constitutional if sufficient safeguards existed to guarantee secrecy of the information); NAACPv. Alabama, 357 U.S. 449, 462-63 (1958) (freedom of association deterred by requiring the publication of membership lists).

251 See Whalen, 429 U.S. at 591.

252 See id. at 591-92.

253 See id. at 591.

254 See id. at 594.

255 See id. at 598.

256 See id. at 603-04.

257 Id. at 602.

258 Chlapowski, Francis S., Note, The Constitutional Protection of Informational Privacy, 71 B.U. L. Rev. 133, 145 (1991).Google Scholar

259 See Whalen, 429 U.S. at 597 (noting that this statute was “manifestly the product of an orderly and rational legislative decision”); Chlapowski, supra note 258, at 145-46.

260 See Chlapowski, supra note 258, at 146; see also Whalen, 429 U.S. at 598-604.

261 Chlapowski, supra note 258, at 146.

262 See Clark, supra note 244, at 138.

263 Whalen, 429 U.S. at 605.

264 Id. at 606 (Brennan, J., concurring).

265 See id. at 608-09 (Stewart, J., concurring).

266 See id.

267 See, e.g., J.P. v. DeSanti, 653 F.2d 1080, 1087 (6th Cir. 1981) (reading Whalen narrowly toprovide a right of privacy only for fundamental rights relating to marriage, procreation and child-bearing); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980) (setting forthseven factors that guide findings of privacy violations: type of information requested; the information it contains; the potential for harm as a result of disclosure; the injury from disclosure to therelationship in which the information was generated; the adequacy of safeguards to prevent unauthorized disclosure; the degree of need for access, and whether there is an articulated public policy favoring access to the information); Plante v. Gonzalez, 575 F.2d 1119, 1132-33 (5th Cir. 1978) (holding that Whalen did not provide an explicit standard, but the court would not apply strict scrutiny, as informational privacy is not a fundamental right). The Sixth Circuit may have erred in its analysis in DeSanti regarding the application of Whalen. See Borucki v. Ryan, 658 F. Supp. 325, 327-30 (D. Mass. 1986), rev’d on other grounds, 827 F.2d 836 (1st Cir. 1987); see also Chlapowski, supra note 258, at 149.

268 See, e.g., Barry v. City of New York, 712 F.2d 1554, 1559 (2d Cir. 1983).

269 See, e.g., Doc v. Webster, 606 F.2d 1226, 1243-45 (D.C. Cir. 1979) (balancing the needs oflaw enforcement agencies to have access to juvenile criminal records against the juvenile’s interestin unimpaired reintegration into society in a record expungement hearing, and finding that set asideconvictions must be wholly expunged, but that conviction records could be kept by law enforcement).

270 See Borucki, 827 F.2d at 841.

271 See Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. Unit B Jan. 1981) (holding that a validclaim of invasion of privacy existed where state revealed to insurance companies information properly obtained from the plaintiff in a criminal investigation).

272 See Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir. 1990) (upholding the statutedue to the state’s compelling interest in the information).

273 See Borucki, 827 F.2d at 842.

274 See id. at 848.

275 See id.

276 433 U.S. 425 (1977).

277 Id. at 429. The statute in Nixon, the Presidential Recording and Materials Preservation Act,required:

Id.

278 See id. at 435.

279 Id. at 459.

280 See id. at 457-58.

281 See id. at 463-65.

282 Id. at 458. Nixon may have limited use as precedent, due to the claimant’s highly publicstatus. Pre-Nixon cases held that a state cannot award damages to a public official for defamatoryfalsehood relating to his official conduct unless he proves “actual malice.” See New York Times v.Sullivan, 376 U.S. 254, 255 (1964).

283 The discussion of privacy in Nixon arose in a Fourth Amendment context. See Nixon, 433U.S. at 455. “Consequently, the relevance of the Court’s finding that Mr. Nixon had an expectationof privacy in his personal papers, to situations that do not implicate the [F]ourth [A]mendment, isunclear.” Borucki v. Ryan, 827 F.2d 836, 844 (1st Cir. 1987).

284 See Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986). A pie-Nixon case noted, however, that the seriousness of any invasion of privacy resulting from disclosure of records is reducedsubstantially when the same information is available from other sources. See Campbell v. UnitedStates Civil Serv. Comm’n, 539 F.2d 58, 61 (10th Cir. 1976).

285 See Cox Broadcasting Corp, v. Cohn, 420 U.S. 469, 495 (1975) (holding that the states cannot restrict the dissemination of truthful information contained in court records); see also United States v. Brown, 600 F.2d 248 (10th Cir.), cert, denied, 444 U.S. 917 (1979) (holding that, where areasonable expectation of privacy does not exist, there can be no violation of an individual’s constitutional right to privacy).

286 See Oden v. Cahill, 398 N.E.2d 1061, 1063-64 (III. App. Ct. 1979) (“However wide itsscope, we are confident that the constitutional right to privacy . . . does not extend to matters ofpublic knowledge.”); see also 16B C.J.S. § 634 (1985) (“[W]hatever the scope of the right of privacyin terms of the dissemination of information by one person regarding another person, it is clear thatthe interests in privacy fade when the information involved already appears on the public record.”).

287 See Redding v. Utah, 606 P.2d 1193, 1195 (Utah 1980) (holding that editor of studentnewspaper entitled to employee names and their gross salaries).

288 See Alma Soc’y, Inc. v. Mellon, 459 F. Supp. 912, 916 (S.D.N.Y. 1978) (holding that adultadoptees should be denied access to records of natural parents because state had a legitimate interestin protecting confidentiality).

289 See id.

290 See Ensminger v. C.I.R., 610 F.2d 189 (4th Cir. 1979), cert, denied, 446 U.S. 941 (1980)(holding that statute basing right to dependency deductions on relationship not unconstitutionalbecause there was a rational basis in attempting to conform federal and state tax laws).

291 See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1984) (analyzing under the equalprotection clause, and holding that, in general, social or economic legislation purporting to protectthe health or safety of the public is presumptively valid).

292 see Mass. Gen. Laws ch. 231, § 60B (Supp. 1996).

293 See supra note 286 and accompanying text.

294 See Wilson v. California Health Care Facilities Comm’n, 167 Cal. Rptr. 2d 801, 804 (1980),appeal dismissed, 450 U.S. 1036 (1981).

295 Cf. Redding v. Utah, 606 P.2d 1193, 1195 (Utah 1980).

296 See Whalen v. Roe, 429 U.S. 589, 606 (1977) (Brennan, J., concurring).

297 See Martinelli v. District Court, 612 P.2d 1083, 1092 (Colo. 1980).

298 See Bobinski, supra note 155, at 337-38. In addition, physicians probably do not have aFourth Amendment “reasonable expectation of privacy” in the collection of information published inthe Profiles. See id. at 334. The heavily regulated character of the health industry diminishes such expectations. See id. at 334 n.152 (noting that courts have restricted the “reasonable expectation of privacy” of employees in highly dangerous, highly regulated, or sensitive positions).

299 If the legislature designed the Profile Act to safeguard public health, it chose a mannerlikely to create inconsistent results—only patients equipped with the savvy to contact the Board willdo so. Indeed, if physicians with negative histories are a threat to public health, the Board hasavoided its statutory duty to license only capable physicians. More accurately, the Act attempts tomake the medical industry more effective and efficient through disclosure of information.

300 See CELLA, ALEXANDER J., 39 Massachusetts Practice § 1252, at 626-67 (1986)Google Scholar (notingthat Massachusetts courts have not found a right of privacy in the provisions of the MassachusettsConstitution).

301 See Wilson v. California Health Care Facilities Comm’n, 167 Cal. Rptr. 2d 801, 805 (1980)(noting that the right to privacy guaranteed by Article 1, section 1 of the California Constitutionprotects a larger zone in the areas of “financial and personal affairs” than the U.S. Constitution guarantees).

302 See Cella, supra note 300, at 626.

303 See Attorney Gen. v. Collector of Lynn, 385 N.E.2d 505, 508 (Mass. 1979).

304 Id.

305 See id. at 509.

306 See Opinion of the Justices to the Senate, 668 N.E.2d 738, 756-57 (Mass. 1996).

307 Id. at 757 (citations omitted).

308 Although chemical dependence information is more personal than much of the data currently provided in the profiles, the current legal standards appear to permit publication of this information, as the protection of the public from chemically dependent doctors is almost certainly a compelling state interest.

309 States appear to have broad powers to disseminate highly personal information, but severalcases have indicated that individuals have a constitutional right to the confidentiality of their HIVstatus. See Doe v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994); Doe v. Town of Plymouth,825 F. Supp. 1102, 1108 (D. Mass. 1993) (balancing the individual’s interest in confidentiality withthe state’s interest in disclosure).

310 See supra note 59 and accompanying text.

311 See, e.g., Mitchum v. Hudgins, 533 So. 2d 194, 202 (Ala. 1988) (dismissing claim of aphysician bringing malpractice suit against an attorney, challenging the attorney’s settlement of aclaim against the physician as inappropriate, as the physician allegedly had no knowledge of thesettlement and did not consent to settle such claims); Shuster v. South Broward Hosp. Dist. Physicians’ Prof’1 Liab. Ins. Trust, 591 So. 2d 174, 176 (Fla. 1992) (addressing claim of a physicianagainst insurer, alleging that the insurance company’s settlement of a malpractice claim within policy limits resulted in injury to the physician’s reputation, an inability to maintain malpractice insurance, lost business income and emotional distress); Lieberman v. Employers Ins. of Wausau, 419A.2d 417, 419 (N.J. 1980) (alleging that settlement of suit within policy limits caused injury to thephysician’s reputation); see also I Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.7:303, at 256.2-56.6 (2d ed. Supp. 1997) (discussing the ethical implications of such situations); Monroe H.Freedman, Understanding Lawyers’ Ethics 175-78 (1990).

312 Freedman, supra note 311, at 176,

313 See 1996 Mass. Acts ch, 307, § 5(f) (to be codified at Mass Gen. Laws ch. 112, § 2).

314 See id.

315 This negative history will remain on the physician’s profile for ten years. See Mass. Acts ch. 307, § 5(b) (to be codified at Mass Gen. Laws ch. 112, § 5). For purposes of settlement, the important value is not the actual effect of dissemination on public perception, but rather the effect that the physician perceives will occur. Thus, the actual numbers of patients who receive the profiles is not critical to physicians when they determine whether to litigate or settle. Instead, physicians are more concerned with their perception of the Profile’s publicity.

316 See 14 Couch on Insurance § 51.8 (2d ed. rev. vol. 1982). As physicians’ interest in litigation increases, the demand for such ‘pride’ provisions in malpractice policies will also increase.As a result, the premiums that physicians will pay for such provisions will also likely increase.Medical malpractice policies typically empower the insurer to make investigation and negotiationwith the written consent of the insured, such settlement of any claim or suit as the company deemsexpedient. See id. Further, the insured can withdraw his consent to settle, even absent proof that theinsurer acted on the consent to its detriment. See id.

317 See Brion v. Vigilant Ins. Co., 651 S.W.2d 183, 184 (Mo. App. 1983). Consent requirements alone, however, do not always prevent insurers from settling claims the physician otherwisewould litigate. See Jon Epstein, Liability of Insurer to Insured for Settling Third-Party Claim WithinPolicy Limits Resulting in Detriment to the Insured, 18 A.L.R.5th 474, 485 (1994). For example,insurance policies covering both institutional policyholders as well as staff may require only theconsent of the institution for settlement of a third-party claim. See Jayakar v. North Detroit Gen.Hosp., 451 N,W.2d 518, 519 (Mich. App. 1989).

318 See Appeals Court Experiments with Backlog, MASS. Law. wkly., Jan. 25, 1993, at 4(noting a steadily increasing number of cases before the Massachusetts Appellate Court); Backlog inSuperior Court Is Shrinking, MASS. Law. WKLY., May 20, 1991, at 3 (noting that at the end of 1991,the number of pending cases was expected to be 45,000).

319 See Hagen, Thomas P., Note, “This May Sting a Little” — A Solution to the Medical Malpractice Crisis Requires Insurers, Doctors, Patients, and Lawyers to Take Their Medicine, 26 Suffolk U. L. Rev. 147, 147 (1992)Google Scholar (contending that inflation of insurance premiums has alsocaused physicians to screen out high risk patients).

320 See Bundy, Stephen McG., The Policy in Favor of Settlement in an Adversary System, 44 Hastings L.J. 1, 37 (1992)Google Scholar (questioning the utility of settlement-oriented policies, but acknowledging that “settlement might... be preferred to continued litigation because it better serves the publicinterest”). Settlement may provide better substantive justice to the parties at a lower cost to both theparties and society. See id. at 37-41. As the cost of defending tort suits such as malpractice claimscan range from $20,000 to $200,000, the advantages of settlement to individual parties seems apparent. See Weinzierl, Michael E., Wisconsin’s New Court-Ordered ADR Law: Why It Is Needed and Its Potential for Success, 78 Marq. L. Rev. 583, 585 (1995)Google Scholar (examining employee disputes, but notingthat this figure is “realistic for other civil actions as well, such as personal injury, contract, commercial, or libel disputes”).

321 See Priest, George L., Private Litigants and the Court Congestion Problem, 69 B.U. L. Rev. 527, 553 (1989)Google Scholar (citing Posner, Richard A., An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Leg. Stud. 399 (1972)CrossRefGoogle Scholar) (noting that increases in settlement costs increase the attractiveness of trial).

322 See Miller, supra note 9, at 125-27; Fein, Esther B., Medical Schools Are Urged to Cut Admissions by 20%, N.Y. Times, Nov. 17, 1995, at D2.Google Scholar

323 Miller, supra note 9, at 126.

324 Robert E. Keeton & Alan I. Widiss, Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices § 7.6(a)(1), at 808 (Practitioner’s cd.1988).

325 Id. at 809.

³²⁶Id. at 810.

327 See id.

328 See Bruce L. Beron, Litigation Risk Management Analysis: A Comprehensive, Logical Approach to Litigation Decision-Making, 550 PLI/LlT. 27, 33-35 (1996), available in Westlaw, TP-ALL Database. See generally Steven Shavell, Suit, Settlement and Trial: A Theoretical AnalysisUnder Alternative Methods for the Allocation of Legal Costs, 11 J. Legal STUD. 55 (1982)(presenting models of incentives for suit or settlement that vary with the expected value of a claim).

329 Expected value is a tool for valuing uncertain events. To determine expected value, a decision-maker must multiply the probability of an event by the cost or benefit of an event. See Beron,supra note 328, at 31-32. For example, the expected value of a 10% chance of receiving $100 is$10. Similarly, the expected value of a 1% chance of receiving $1,000 is $10. A “risk neutral” person is equally satisfied with either option. Generally, individuals are “risk averse,” see On ShakyGround, ECONOMIST, Dec. 3, 1994, at 14, but corporations are “risk neutral,” see Beron, supra note328, at 33.

330 See Beron, supra note 328, at 33-35.

331 Keeton & Widiss, supra note 324, § 7.8(a), at 875 (quoting Spencer v. Aetna Life & Casualty Ins. Co., 611 P.2d 149, 158 (Kan. 1980).

332 See id. § 7.6(b), at 822 (noting that typical liability insurance contracts both obligate the insurer to provide the insured a defense and entitle the insurer to control the defense).

333 James F. Mchugh & Alice Olsen Mann, 20 Massachusetts Jurisprudence § 19:17, at285 (1995) (citing Abrams v. Factory Mut. Liab. Ins. Co., 10 N.E.2d 82, 83 (Mass. 1937)); seeChristian v. American Home Assurance Co., 577 P.2d 899, 902 (Okla. 1977) (stating that insurancecompanies have a duty to act in good faith and deal fairly with their insureds when they handle thirdparty claims against their insureds).

334 See Keeton & Widiss, supra note 324, § 7.6(b), at 822.

335 See, e.g., National Serv. Indus., Inc. v. Hartford Accident & Indem. Co., 661 F.2d 458, 461(5th Cir. Unit B 1981) (applying Georgia law); Coleman v. Holecek, 542 F.2d 532, 537 (10th Cir.1976) (applying Kansas law); Levenfeld v. Clinton, 674 F. Supp. 255, 258 (N.D. III. 1987) (“Everyinsurer must give its insured’s interest at least equal weight to its own when considering whether toaccept a settlement.” (citation omitted)); Brisco v. Meritplan Ins. Co., 643 P.2d 1042, 1044 (Ariz.1982). “While the insurer is not compelled to disregard its own interests in representing or defending an insured, the insured’s interests must necessarily come first.” Lieberman v. Employers Ins.,419 A.2d 417, 422-23 (N.J. 1980); see also Keeton & Widiss, supra note 324, § 7.6(b), at 823.

336 See Abrams, 10 N.E.2d at 84; see also Magoun v. Liberty Mut. Ins. Co., 195 N.E.2d 514,518-19 (Mass. 1964).

337 Commentators have noted that the Massachusetts cases permitting insurers to weigh theirown interests above those of their insureds are most likely a historical aberration. See Keeton & Widiss, supra note 324, § 7.6(b), at 823 n.7.

338 See Magoun, 195 N.E.2d at 518-19.

339 See Murach v. Massachusetts Bonding & Ins. Co., 158 N.E.2d 338, 340-41 (Mass. 1959).Many of the cases addressing an insurer’s duties regarding settlement deal with failure to reach asettlement agreement. The Act creates a disincentive to settle cases, see text accompanying supranotes 310-15, and thus will potentially create a new jurisprudence of suits for overly zealous settlement.

340 Keeton & Widiss, supra note 324, § 7.6(d)(1), at 842.

341 See id.

Id.

342 See id. § 7.6(b), at 823 (suggesting the presentation of a “readily comprehensible, written communication” to the insured explaining the conflict).

343 See id. § 7.6(d)(2), at 843.

344 See id. § 7.6(b), at 823 (noting that “[t]he existence of some types of conflicts have madesuch a recommendation a standard practice”).

345 See id. at 824.

346 Cf. Magoun v. Liberty Mut. Ins. Co., 195 N.E.2d 514, 519 (Mass. 1964) (holding that an insurer who retained his own counsel was entitled to fee payment from his insurer).

347 See Keeton & Widiss, supra note 324, § 7.6(c), at 830; see also Brooke Wunnicke, TheEternal Triangle: Standards of Ethical Representation by the Insurance Defense Lawyer, For the Defense, Feb. 1989, at 7, 13 (providing an excellent analysis of the conflict of interest created byattorney representation of insurer and insured).

348 See Keeton & Widiss, supra note 324, § 7.6(b), at 822.

349 See id. at 823; Wunnicke, supra note 347, at 9; Hazard & Hodes, supra note 311, §1.7:303, at 256.2-56.6.

350 See Mass. Supreme Jud. Ct. R. 3:07.

351 See id. at introduction (2).

352 See id. at Canon 5.

353 Id. at Canon 5 DR 5-105(B). The Canons define “differing interests” to include “every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether itbe a conflicting, inconsistent, diverse, or other interest.” Id. at definitions (1).

354 Id. at Canon 5 DR 5-105(C). This exception imposes a heavy burden on, rather than grantsrelief to, the insurance defense lawyer. See Wunnicke, supra note 347, at 8.

355 See Mass. Supreme Jud. Ct. R. 3:07 introduction (2).

356 Model Code of Professional Responsibility EC 5-1 (1980); see Wunnicke, supra note347, at 8.

357 EC 5-14 (emphasis added); see Wunnicke, supra note 347, at 8.

358 EC 5-15 (emphasis added); see Wunnicke, supra note 347, at 8-9.

359 See ABA Comm. on Professional Ethics and Grievances, Formal Op. 282 (1950).

360 See id.

361 See, e.g., Rogers v. Robson, Masters, Ryan, Brumand & Bclom, 392 N.E.2d 1365, 1373 (111.App. 1979), aff’d 497 N.E.2d 47 (111. 1980); see also Wunnicke, supra note 347, at 9.

362 See Wunnicke, supra note 347, at 9.

363 Hazard & Modes, supra note 311, § 1.5:102, at 95 (noting that both the Model Code andthe Model Rules explicitly provide that attorneys should not permit nonclicnt payors to interferewith the client-lawyer relationship); see Mass. Supreme Jud. Ct. R. 3:07 Canon 5 DR 5-I07(B).

364 See Mass. Supreme Jud. Ct. R. 3:07 Canon 5 DR 5-105(C).

365 See, e.g., Steele v. Hartford Fire Ins. Co., 788 F.2d 441, 447 (7th Cir. 1986) (finding thatthe attorney in this situation exercised proper judgment, and his disclosures were “models of how toexplain law to laymen”). Practitioners have interpreted this case to require insurance defense attorneys to make a “careful audit trail of his or her representation of the insured.” Wunnicke, supra note347, at 14.

366 See Wunnicke, supra note 347, at 7.

367 Moliere, Le Medecin Malgre Lui act II, sc. vi, in 2 The Dramatic Works of Moliere(Charles Heron Wall trans., MacMillan 1908) (1666).