Law & Medicine

The perils of the National Practitioner Data Bank


 

Question: With reference to the National Practitioner Data Bank (NPDB), which of the following statements is incorrect?

A. Both court judgments and out-of-court settlements are reportable to the NPDB.

B. Adverse actions by a hospital against a physician are reportable within 15 days.

C. In states with “Disclosure, Apology, and Offer” laws, a prompt settlement through mediation need not be reported.

D. Hospitals, state licensing boards, medical organizations, and the physician himself/herself can access the NPDB.

E. A plaintiff’s attorney cannot access the NPDB for information regarding a defendant.

Answer: C. Congress implemented the NPDB to collect information about an individual doctor’s malpractice and disciplinary histories, with the objective of restricting errant doctors from moving from one state to another.1

Federal law requires medical liability payments stemming from either a court judgment or an out-of-court settlement be reported to the NPDB. An institution’s disciplinary actions against a medical staff member must also be reported. In turn, the NPDB is obligated to make its information available to hospitals, state licensure boards, and legitimate medical organizations charged with granting privileges or membership. A physician also can ask to see his or her own records, but a plaintiff’s attorney cannot access the NPDB unless there is evidence that a hospital failed to query the NPDB as part of its credentialing process.

Dr. S.Y. Tan, emeritus professor of medicine and former adjunct professor of law at the University of Hawaii
Dr. S.Y. Tan
The main reporting entities that affect health care professionals are insurance carriers, hospitals, health care employers, and state licensing boards. If an insurer or another entity makes a malpractice payment, this information is reportable to the NPDB, regardless of the amount. However, no reporting is required if the individual physician makes payment out of his or her personal funds. Insurance payments made in an out-of-court settlement, notwithstanding the parties’ denial of liability, are still reportable.

Some observers have claimed that the NPDB’s existence has hindered settlement negotiations, because many doctors fear being listed in the NPDB, thus significantly diminishing the likelihood of payments to satisfy a claim. It has been stated that within 6 years of NPDB’s inception, the probability that an injured patient’s claim would receive payment had fallen to 59% of the pre-NPDB level.

Many states have enacted so-called “apology laws” that promote full disclosure of medical errors and prompt out-of-court settlements, if warranted. However, the federal Department of Health and Human Services has ruled that all written demands for payment must be reported, even if the cases are resolved under state programs designed for early out-of-court resolution.

For example, a provision in the Oregon law asserts that a payment under the measure’s mediation mechanism “is not a payment resulting from a written claim or demand for payment.” The HHS has rejected this as “explicitly designed to avoid medical malpractice reporting to the NPDB for any claims that are part of the new process that do not proceed to litigation.”

Massachusetts’ 2012 apology law had proposed reporting only those cases where it was determined that a practitioner failed to meet the standard of care. The HHS responded by indicating that all cases had to be reported, regardless of whether care was determined to be up to standards, and that the state’s prelitigation notice to initiate the meditation process qualified as a reportable “written claim.”

Physicians can be impacted greatly by the NPDB. How much of an impact depends in large part on the underlying events and the wording of the report.

An NPDB account of a medical malpractice payment doesn’t necessarily affect a physician’s ability to practice, while those – especially when “severely-worded” – involving denial or restriction of privileges are taken more seriously by state licensing boards and employers. Physicians should therefore play an active role whenever a report to the NPDB appears likely.

The dispute review process is highly technical and requires the knowledge and skill of an experienced health law attorney. To start out, consider making a request to the reporting entity to correct or vacate the report due to error. If the reporting entity declines, the physician may request a review by the HHS and file an accompanying statement seeking to explain the report.

Yet, out of more than 800,000 total reports for all practitioner types captured in the system, apparently only 44,273 included accompanying clarifying statements by the physician. Risk managers have urged vigilance.

For example, it may be that multiple reports involved a single incident, leading to a “piling on” effect. If an adverse decision at one hospital caused a physician’s clinical privileges to be terminated, this might lead the state medical board to restrict the physician’s license. It is necessary to explain that both of these NPDB-reportable events involved the same incident, and that the state board did not have any independent knowledge of anything that was wrong.

Others have advised that one should always clarify one’s involvement, e.g., “I was not the main doctor in the case.” And if dismissed in a malpractice lawsuit, be sure your name or identifying information isn’t included in the judgment or settlement agreement.

Hospital disciplinary actions being far more serious, physicians would do well to familiarize themselves with medical staff bylaws dealing with peer review and investigations. To avoid being reported to the NPDB, physicians must resist adverse actions that would be in effect for more than 30 days and fight attempts to place restrictions or sanctions on their licenses by the hospital or professional societies. Don’t withdraw applications for privileges during an investigation.

The 2015 NPDB Guidebook, the first update in more than 10 years, contains important changes pertaining to hospital adverse actions.2 The regulations now require any “surrender” of privileges while the physician is a subject of an investigation to be a reportable event. Previously, physicians sought to avoid being reported by simply giving up their privileges when an adverse decision appeared imminent.

Surrender includes not renewing one’s hospital privileges or the taking of a leave of absence, and “investigation” is widely defined to include any formal inquiry into a physician’s competence or conduct. And there need not be any “nexus,” i.e., connection, between what is being investigated and the privileges surrendered, in order to be reportable.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at siang@hawaii.edu.

References

1. Health Care Quality Improvement Act of 1986, 42 U.S.C. 11101 et seq.

2. 2015 NPDB e-Guidebook, available at www.npdb.hrsa.gov/resources/aboutGuidebooks.jsp.