Request By:
C. William Schmidt
Assistant Secretary
Kentucky State Board of Medical Licensure
3532 Ephriam McDowell Drive
Louisville, Kentucky 40205
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on the subject of health care malpractice insurance. More specifically, your question deals with the report which is required to be made to the Commissioner of Insurance by the malpractice insurer of the health care provider, or the health care provider if self-insured, of malpractice claims settled or adjudicated to final judgment against a health care provider. Your question is the following:
"Can the medical Licensure Board secure a report (commonly called a closed claims report) from the Department of Insurance in view of the current open records statute?"
We will deal with your question on two levels -- (1) KRS 304.40-310 pertaining to malpractice insurance and (2) the Open Records Law, KRS 61.870-61.884. KRS 304.40-310 reads in part as follows:
"(1) All malpractice claims settled or adjudicated to final judgment against a health care provider shall be reported to the Commissioner of Insurance by the malpractice insurer of the health care provider or the health care provider, if self-insured, within sixty days following final settlement or disposition of the claim. The report to the Commissioner shall recite the following:
(a) name and address of health care provider involved;
(b) name and address of claimant;
(c) nature of the claim;
(d) damages asserted and alleged injury; and
(e) the amount of any settlement or judgment.
"(2) The Commissioner of Insurance shall forward the name of every health care provider against whom a settlement is made or judgment is rendered to the appropriate licensure board or regulatory agency for review of the fitness of the health care provider to practice his profession. . . . ."
You state in your letter that the licensure board receives only the names of the health care provider, not a copy of the full report. While that seems to comply with a literal reading of the statute quoted above, we do not believe that it fulfills the legislative intent. The purpose of forwarding the name of the health care provider to the licensure board is "for review of the fitness of the health care provider to practice his profession. " This leads us to conclude that the legislature intended that the licensure board would receive the full report made to the Commissioner of Insurance under this statute. We cannot conceive that it was the legislative intent for the licensure board to have to start its review from scratch and without the benefit of the report made by the insurance company or the health care provider. (You also state in your letter that while you are now receiving the names only of the health care providers, you are noting that on a number of occasions the same name reappears as a physician for whom a malpractice insurance settlement has been made.)
The Open Records Law deals mainly with records being made available to the public at large, however, it has a special provision for the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function. KRS 61.878(4). We need not deal here with the question of whether the general public would be entitled to inspect a "closed claims report" to the Commissioner of Insurance because your question only involves two state agencies -- the Department of Insurance and the Board of Medical Licensure. Apart from the interpretation of KRS 304.40-310 given above, we believe that the review to be made by the Medical Licensure Board comes under the ambit of "the performance of a legitimate government function" and the Department of Insurance should therefore make available to the Board any records it desires. It is not for the Attorney General to settle such a question, however, because KRS 12.100 provides that when disputes arise between agencies they shall be resolved by the Governor with the advice of his executive cabinet.
In summary, it is our opinion that "closed claim reports" should be made available by the Department of Insurance to the Board of Medical Licensure.