Court protects VA cardiac surgery morbidity statistics

Court protects VA cardiac surgery morbidity statistics

02/26/96

FLORIDA–A Fort Lauderdale reporter whose efforts to report on safety and efficiency in Veterans Administration hospitals prompted Congress to amend the law governing confidentiality of VA records in early February lost a Freedom of Information Act lawsuit for mortality statistics on cardiac surgery programs at VA hospitals.

A federal District Court in Fort Lauderdale ruled in early February that Florida Sun-Sentinel reporter Fred Schulte cannot obtain mortality rates for the cardiac surgery programs at hospitals that have only one cardiac team. Disclosure would connect the head surgeon on the team to the mortality rates and “implicitly identify that surgeon,” the court said.

In 1984 Schulte, then a reporter at the now-defunct Fort Lauderdale News, asked the VA for morbidity and mortality data associated with the cardiac surgery program. The agency withheld the records, claiming that medical quality-assurance records were confidential under the federal law governing VA hospitals.

After examining Schulte’s difficulties in monitoring the VA, Congress in 1985 amended the VA law making aggregate data available “except to the extent that it explicitly or implicitly would identify an individual VA patient or employee.” The Senate report on the law notes that VA programs that have only a single staff physician would “obviously be identifiable to the individual surgeon.” Its list of surgical specialty programs with single physicians does not include cardiac surgery.

As Schulte’s current employer, the Sun-Sentinel continued litigation for the records, arguing that Congress did not intend to exclude from disclosure records about a team of physicians.

An exemption to the federal FOI Act allows agencies to withhold information that is protected by another statute. (Schulte and Sun-Sentinel Co. v. The Veterans Administration; media attorney: Kathy Pellegrino, Fort Lauderdale)