The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
This matter comes before the Court on the motion of plaintiff
Medical Society of New Jersey ("MSNJ" or "Plaintiff") for an
order enjoining Mary Lou Mottola, Executive Director of the
Medical Practitioner Review Panel, and Reni Erdos, Director of
the Division of Consumer Affairs, both sued in their official
capacities (collectively "Defendants"), from publishing
information regarding settlement agreements of malpractice claims
entered into by New Jersey doctors. Specifically, Plaintiff's
motion seeks two forms of relief from this Court. First,
Plaintiff seeks to enjoin Defendants from enforcing the New
Jersey Health Care Consumer Information Act, N.J.S.A. §
45:9-22.21, et seq. ("NJHCCIA"), which was enacted by the New
Jersey Legislature on June 23, 2003 and is scheduled to become
effective June 23, 2004. Second, Plaintiff seeks to enjoin
Defendants from disclosing to North Jersey Media Group, Inc.,
d/b/a The Record ("The Record") certain information contained
on medical malpractice payment notices submitted to the State of
New Jersey ("the State" or "New Jersey") pursuant to N.J.S.A. §
Defendants oppose the motion for preliminary injunction and
cross-move to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) & (6).
The Record, a daily newspaper with circulation in northern
New Jersey, moved to intervene in this action and filed
opposition to Plaintiff's request for injunctive relief.
This Court properly exercises jurisdiction over Plaintiff's
federal claims pursuant to 28 U.S.C. § 1331. Venue is proper
pursuant to 28 U.S.C. § 1391(b).
This Court held oral argument on June 7, 2004 and issued an
oral Opinion from the bench as well as a written Order. This
Opinion supercedes the Court's oral Opinion on June 7th.
For the reasons stated below, Plaintiff's motion for
preliminary injunctive relief is denied. Defendants' motion to
dismiss pursuant to Rule 12(b)(1) is denied, and the motion
pursuant to Rule 12(b)(6) is granted.
MSNJ was founded in 1766 and is the nation's oldest state
society of physicians. Approximately 8,000 physicians hold
individual memberships in MSNJ, and MSNJ is one of New Jersey's
leading voices representing doctors in the health care field.
MSNJ moves for a preliminary injunction on two distinct
grounds. First, MSNJ seeks to enjoin Defendants from enforcing
the NJHCCIA, in particular the section mandating that medical
malpractice data be made available to the public through the
Internet and a toll-free consumer phone line. Second, MSNJ seeks to enjoin Defendants from complying with a March 9, 2004 Order of
the Honorable Sybil R. Moses, Assignment Judge, Superior Court of
New Jersey, Bergen County, which ordered Defendants to disclose
to The Record certain information contained on medical
malpractice payment notices submitted to the State Board of
Medical Examiners pursuant to New Jersey law.
In 1986, Congress passed the Health Care Quality Improvement
Act of 1986 ("HCQIA"), 42 U.S.C. § 11101, et seq. The HCQIA
requires that certain information regarding malpractice payments,
sanctions, and professional review actions taken with respect to
medical professionals be reported to the federal government.
42 U.S.C. § 11131-7 (Subchapter II). Specifically, the HCQIA
requires that "[e]ach entity (including an insurance company)
which makes payment under a policy of insurance, self-insurance,
or otherwise in settlement (or partial settlement) of, or in
satisfaction of a judgment in, a medical malpractice action or
claim shall report . . . information respecting the payment and
circumstances thereof." 42 U.S.C. § 11131(a). The information
reported pursuant to the HCQIA includes:
(1) the name of any physician or licensed health
care practitioner for whose benefit the payment is
(2) the amount of the payment,
(3) the name (if known) of any hospital with which
the physician or practitioner is affiliated or
(4) a description of the acts or omissions and
injuries or illnesses upon which the action or
claim was based, and
(5) such other information as the Secretary
determines is required for appropriate
interpretation of information reported under this
Id. § 11131(b).
The regulations promulgated pursuant to the HCQIA established
the National Practitioner Data Bank ("Data Bank") to collect and
organize the reported information as required by the HCQIA.
45 C.F.R. § 60.1. The Data Bank created a centralized clearinghouse
for state licensing boards, hospitals and other healthcare
entities to obtain relevant background information about
physicians. An insurer must, within 30 days of payment, directly
report to the Data Bank all medical malpractice payments,
including settlements and partial settlements, made with respect
to each insured physician. 45 C.F.R. § 60.7.
Hospitals are required to request information from the Data
Bank with respect to each physician or health care practitioner
who applies for staff membership or clinical privileges.
42 U.S.C. § 11135. Insurance carriers are required not only to make
reports to the Data Bank but also to the appropriate state
licensing board. 42 U.S.C. § 11134(c); 45 C.F.R. § 60.7.
Moreover, the Data Bank makes the information it collects
available "to State licensing boards, to hospitals, and to other health care entities (including health maintenance organizations)
that have entered (or may be entering) into an employment or
affiliation relationship with the physician or practitioner or to
which the physician or practitioner has applied for clinical
privileges or appointment to the medical staff."
42 U.S.C. § 11137(a).
Section 11137 outlines the confidentiality provisions
applicable to the information collected pursuant to the HCQIA.
Specifically, the HCQIA mandates:
Information reported under this subchapter is
considered confidential and shall not be disclosed
(other than to the physician or practitioner
involved) except with respect to professional review
activity . . . or in accordance with regulations of
the Secretary promulgated pursuant to subsection (a)
of this section. Nothing in this subsection shall
prevent the disclosure of such information by a party
which is otherwise authorized, under applicable State
law, to make such disclosure. Information reported
under this subchapter that is in a form that does not
permit the identification of any particular health
care entity, physician, other health care
practitioner, or patient shall not be considered
42 U.S.C. § 11137(b)(1) (emphasis added). Accordingly, unless
otherwise provided by state law, all information collected by the
Data Bank and "reported under this subchapter" is presumed
confidential and is released only as specifically mandated by the
B. New Jersey Reporting Requirements and the Medical
Practitioner Review Panel
The Division of Consumer Affairs is a division of the Department of Law and Public Safety of the State of New Jersey.
The Medical Practitioner Review Panel ("the Panel") is a
component of the Division of Consumer Affairs.*fn1
In 1983, three years before Congress passed the HCQIA, the New
Jersey Legislature enacted N.J.S.A. § 17:30-D17, which created
reporting requirements similar to those in what would become the
HCQIA. The original version of N.J.S.A. § 17:30-D17 required
notice of malpractice settlements over $25,000 to be sent to the
State Board of Medical Examiners within seven (7) days of
settlement. N.J.S.A. § 17:30D-17 (Historical and statutory
In 1989, N.J.S.A. § 17:30D-17 was amended and other notable
changes were made to the statutory framework. First and foremost,
the Panel was created pursuant to N.J.S.A. § 45:9-19.8. The Panel
is authorized and required to receive notices from health care
facilities or health maintenance organizations detailing actions
those entities may take against practitioners, as well as notices
"from an insurer or insurance association or a practitioner, . . .
regarding a medical malpractice claim settlement, judgment or
arbitration award or a termination or denial of, or surcharge on,
the medical malpractice liability insurance coverage of a practitioner. . . ." N.J.S.A. §§
45:9-19.9(a)(1)-(2). The Panel is empowered to investigate all
notices and complaints received and to recommend appropriate
action to the State Board of Medical Examiners. Id. at
The 1989 amendments also changed the reporting requirements
outlined in N.J.S.A. § 17:30D-17, which requires insurance
companies and individual practitioners to report to the Panel any
malpractice claim settlement, judgment or award.
Any insurer or insurance association authorized to
issue medical malpractice liability insurance in the
State shall notify the Medical Practitioner Review
Panel established pursuant to section 8 of P.L. 1989,
c.300 (C.45:9-19.8) in writing of any medical
malpractice claim settlement, judgment or arbitration
award involving any practitioner licensed by the
State Board of Medical Examiners and insured by the
insurer or insurance association. Any practitioner
licensed by the board who is not covered by medical
malpractice liability insurance issued in this State,
who has coverage through a self-insured health care
facility or health maintenance organization, or has
medical malpractice liability insurance which has
been issued by an insurer or insurance association
from outside the State shall notify the review panel
in writing of any medical malpractice claim
settlement, judgment or arbitration award to which
the practitioner is a party.
N.J.S.A. § 17:30D-17.
In addition to these reporting requirements, New Jersey law
requires that the Panel maintain records of all such notices.
N.J.S.A. § 45:9-19.10(a) ("The review panel shall maintain
records of all notices and complaints it receives and all actions
taken with respect to the notices and complaints."). Currently,
these records are protected by certain privacy provisions, namely N.J.S.A. §§ 45:9-19.3 & 45:9-19.10(c).*fn2
A main point of disagreement between the parties in this action
is how the HCQIA interacts, if at all, with the State reporting
requirements. The parties agree that the information at issue,
namely data regarding malpractice claim settlements and the
amount of those settlements, is reported to the federal
government pursuant to the HCQIA and to the State pursuant to its
statutory framework. Therefore, the HCQIA requires insurers to
provide to the federal government the very same information that N.J.S.A. § 17:30D-17 requires that they submit to the State. In
practice, insurance companies routinely comply with their State
law reporting obligation by providing the Panel with a paper copy
of the report that the insurance carrier submits to the Data
Bank, pursuant to the HCQIA. (Mottola Cert. ¶ 4.)
Although the parties agree that the data collected by both the
HCQIA and N.J.S.A. § 17:30D-17, with regards to medical
malpractice information, is identical, the parties' respective
interpretations of the interplay between the two statutory
frameworks is significantly different. Plaintiff contends that
the HCQIA amounts to a federal protection of privacy that
supercedes rights afforded under the State statute, while
Defendants and The Record argue that the two statutes set forth
obligations that are separate and distinct.
C. New Jersey Health Care Consumer Information Act
In this action Plaintiff also challenges the constitutionality
of the NJHCCIA, N.J.S.A. § 45:9-22.21, et seq., which was
enacted into law on June 23, 2003, to be effective upon the
365th day following enactment.*fn3 The NJHCCIA requires
the Division of Consumer Affairs to create profiles for all licensed
physicians and podiatrists in New Jersey and to make these
profiles available to the public, both by electronic and other
means. Id. § 45:9-22.22(a). The profiles will include, inter
alia, the medical school education and post-graduate medical
training of each practitioner, the year of initial licensure in
New Jersey or elsewhere, the location of office practice sites,
and certain information concerning criminal convictions, board
disciplinary actions, and hospital privilege actions. Id. §
In addition, the NJHCCIA provides for the disclosure of medical
malpractice judgments and settlements as part of each
practitioner's profile. The NJHCCIA mandates the publication of:
All medical malpractice court judgments and all
medical malpractice arbitration awards reported to
the board, in which a payment has been awarded to the
complaining party during the most recent five years,
and all settlements of medical malpractice claims
reported to the board, in which a payment is made to
the complaining party within the most recent five
years. . . .
Id. § 45:9-22.23(a)(10).
The NJHCCIA provides that pending medical malpractice claims
shall not be included in the practitioner profiles, and
information about these pending claims will not be disclosed to
the public. Id. § 45:9-22.23(a)(10)(a). In addition, the
profiles will identify those judgments that are being appealed.
Id. § 45:9-22.23(a)(10)(b). Each profile shall place the number of judgments, arbitration
awards and settlements against each physician or podiatrist into
one of three graduated categories: average, above average and
below average number of judgements, settlements and awards. Id.
§ 45:9-22.23(a)(10)(c). "These groupings shall be arrived at by
comparing the number of an individual physician's or podiatrist's
medical malpractice judgments, arbitration awards and settlements
to the experience of other physicians or podiatrists within the
same speciality." Id.
Finally, the NJHCCIA provides that each profile shall include
the a statement instructing consumers not to make negative
inferences from the information published in the profile:
The following statement shall be included with the
information concerning medical malpractice judgments,
arbitration awards and settlements: "Settlement of a
claim and, in particular, the dollar amount of the
settlement may occur for a variety of reasons, which
do not necessarily reflect negatively on the
professional competence or conduct of the physician
(or podiatrist). A payment in settlement of a medical
malpractice action or claim should not be construed
as creating a presumption that medical malpractice
Id. § 45:9-22.23(a)(10)(d).
The very purpose behind the NJHCCIA is to make certain
information about physicians more accessible to members of the
public.*fn4 As a result, the privacy provisions outlined in N.J.S.A. §§ 45:9-19.3 & 45:9-19.10(c), which currently provide
limited confidentiality protection to information released to the
Panel pursuant to N.J.S.A. § 17:30D-17, are not applicable to the
information included in the practitioner profiles under the
NJHCCIA. Moreover, on the date the NJHCCIA becomes operative, the
following language will be added to N.J.S.A. §§ 45:9-19.3 &
45:9-19.10(c) to provide an exception for information included in
the profiles: "The provisions in this section shall not apply to
information that the division, or its designated agent, is
required to include in a physician's or podiatrist's profile
pursuant to P.L. 2003, c. 96."
The NJHCCIA provides that the Director of the Division of
Consumer Affairs, "in consultation with the State Board of
Medical Examiners, shall adopt regulations pursuant to the
`Administrative Procedure Act,' P.L. 1968, c. 410 (C.52:14B-1,
et seq.) necessary to effectuate the purposes of this act."
N.J.S.A. § 45:9-22.25. Practitioners were advised in writing of the manner in which information concerning malpractice histories
shall be set forth in the profiles. In a letter dated April 26,
2004 the Director of the Division of Consumer Affairs, defendant
Reni Erdos, advised licensed physicians and podiatrists in New
Jersey as to the impending effective date of the NJHCCIA.
(Kornett Decl., Ex. C.) The letter also included information
regarding the database of practitioner profiles that will be
available to consumers both over the Internet at
www.njdoctorlist.com or by writing or calling the Division of
Consumer Affairs' Profile Call Center.*fn5 (Id.) The April
26th letter encouraged practitioners to update their personal
and professional information in order to ensure the most accurate
II. PRIOR STATE COURT ACTION
The Record is a daily newspaper with circulation in northern
New Jersey, specifically the City of Hackensack as well as Bergen
and Passiac Counties. In March 2003, The Record began gathering
information regarding medical malpractice payments made by or on
behalf of medical practitioners licensed in New Jersey. During
this process, The Record learned of the existence of the Panel
and the requirements under N.J.S.A. § 17:30D-17 that notices of
any medial malpractice claim settlement, judgment or arbitration award involving any practitioner licensed by the State Board of
Medical Examiners be submitted to the Panel. (Lesser Decl. ¶ 3.)
On April 11, 2003, a specialty writer with The Record
submitted a written request pursuant to the New Jersey Open
Public Records Act, N.J.S.A. § 47:1A-1, et seq. ("OPRA"), to
the Division of Consumer Affairs for, inter alia, every notice
submitted pursuant to N.J.S.A. § 17:30D-17 by malpractice
insurers or any other responsible body to the Panel notifying the
Panel of malpractice payments. (Sforza Decl., Ex. C., 1/23/04 Tr.
at 13 ("J. Moses Op."); Lesser Decl. ¶ 5, Ex. A.) The Record's
OPRA request was denied by the Division of Consumer Affairs on
April 23, 2003 based in part on the fact that the confidentiality
provisions contained in N.J.S.A. §§ 45:9-19.3 & 45:9-19.10(c)
allegedly exempted the notices from disclosure under OPRA. (J.
Moses Op. at 13; Lesser Decl. ¶ 6.)
In August 2003, The Record brought an action, by way of order
to show cause, in the Superior Court of New Jersey, Law Division,
Bergen County, against the State of New Jersey, Division of
Consumer Affairs and Medical Practitioner Review Panel
(collectively "State Defendants").*fn6 The State action was
captioned North Jersey Media Group, Inc. v. State of New Jersey,
Division of Consumer Affairs and the Medical Practitioner Review Panel, Docket No. BER-L-5771-03.
In its complaint, The Record sought to compel the disclosure
of the payment notices submitted by malpractice insurers or any
other responsible body to the Panel notifying the panel of
malpractice payments. The Record sought the disclosure of this
information both pursuant to OPRA and to the common law right to
In September 2003, State Defendants submitted opposition to
The Record's application, and The Record learned, for the
first time, that State Defendants maintained the information
sought in a computer database. (Lesser Decl. ¶ 5.) Thus, concerns
about the costs that State Defendants would bear in turning over
the information to The Record were all but obviated.
Additionally, at that time The Record amended its request to
limit the information sought from the payment notices to the
following four components: (1) name of physician; (2) license
number; (3) date of payment; and (4) amount of payment.
The parties appeared before the Honorable Sybil R. Moses on
October 14, 2003. During the course of the conference, the
parties agreed that certain notices were exempt from disclosure
under OPRA because they were protected by the confidentiality
provision contained in N.J.S.A. §§ 45:9-19.3 & 45:9-19.10(c). (J.
Moses Op. at 14-15.) The Record, seeking disclosure of all the
payment notices during the previous five years, proceeded with its common law claim for access, and State Defendants
submitted opposition to that claim. On January 23, 2004, Judge
Moses, in a ruling from the bench, granted The Record's request
for common law access to the payment notices. (Id. at 47-48.)
In her oral opinion, Judge Moses made several key points. First,
Judge Moses found that since insurers are required to submit the
payment notices to the Panel pursuant to N.J.S.A. § 17:30D-17,
the notices are, as a matter of law, common law public records.
(Id. at 32-33.) Second, the court found that The Record had
the requisite interest in the payment notices. (Id. at 33-34.)
Finally, Judge Moses held that the public interest in disclosing
the payment notices outweighed any interest in confidentiality.
(Id. at 34-48.) Judge Moses based her determination of the
public interest in part on the New Jersey Legislature's passage
of the NJHCCIA, which mandates that the payment notices be made
public. (Id. at 47.) ("The Health Care Consumer Information Act
sets forth the Legislature's current intent with respect to the
confidentiality of medical malpractice payment records.")
On March 9, 2004, Judge Moses entered an Order granting access
to the payment notices. (Kornett Decl., Ex. B.) Pursuant to the
March 9th Order, State Defendants were ordered to send to all
affected practitioners copies of the information contained in
State Defendants' files regarding all medical malpractice
payments made on the practitioner's behalf from March 15, 1999 through March 15, 2004, "for the purpose of permitting the
practitioner to review the accuracy of the information therein."
(Id., Ex. B, ¶ 2.) The March 9th Order gave practitioners
until May 10, 2004 to dispute any claimed inaccuracy in the
records collected by State Defendants. Judge Moses ordered the
release to The Record of all undisputed notices and those
notices for which a dispute had been resolved by May 11, 2004.
For those notices for which a dispute had yet to be resolved,
Judge Moses ordered State Defendants to resolve any outstanding
issues and release those notices to The Record by June 10,
2004. If the practitioner requested an extension to submit
supporting information disputing the accuracy of the information
in a disputed notice, the deadline for State Defendants to
release that notice was June 25, 2004.
MSNJ did not take part in the State ...