The Department of Justice (DOJ) recently announced a large healthcare system in the Northwest agreed to pay more than $22 million to settle allegations that two former spine surgeons falsified or exaggerated patient diagnoses and performed unnecessary surgeries.1 In addition to the noteworthy size of the settlement, the case is the latest to show how problematic physicians often are not reported to the National Practitioner Data Bank (NPDB).
Hospital staff reported concerns to administrators. The hospital conducted independent analyses of the surgeons’ practices, with both investigations lasting longer than 30 days. Hospitals are required by law to report to the NPDB any professional reviews that last over 30 days as well as any restrictions of clinical privileges, and when a clinician surrenders privileges while under or to avoid investigation.
The health system “admitted that, while it eventually placed both Dr. B and Dr. A on administrative leave in February 2017 and May 2018, respectively, it allowed both doctors to resign while on leave, and did not take any action to report Dr. A or Dr. B to the National Practitioner Data Bank” or the state department of health, the DOJ reported. Both surgeons eventually resigned.
NPDB Sometimes Misunderstood
Reporting requirements for the NPDB often are misunderstood, says Rebecca M. Lindstrom, JD, shareholder with Polsinelli in Chicago. One common misconception is that only physicians must be reported in certain circumstances.
“In fact, nurses are the profession most commonly reported to the data bank,” Lindstrom notes. “The reporting requirements actually apply to a wide range of healthcare practitioners, not just physicians.”
Querying the database also can be misunderstood. Many healthcare entities are eligible to query, but hospitals are the only entities mandated to query. Federal law requires hospitals to query the database when physicians, dentists, and other practitioners apply for medical staff appointment or clinical privileges, and then every two years thereafter.
Another common misconception is that querying the database is enough to satisfy due diligence. “A lot of times, administrators feel like once they query the database and get the results, they’ve done their job, everything they’re supposed to do. [It] was never the intent for the NPDB to be your sole source of information,” Lindstrom says. “It’s a flagging system, but people can rely on it too much. It only works if people use it properly. We can’t use it as the single way we’re going to catch everything.”
The NPDB’s usefulness depends on reliable input by those who are supposed to report, Lindstrom says. A healthcare entity’s failure to report required information breaks the system. The value of any query is diminished if users cannot rely on everyone reporting properly.
“If everyone reported everything they’re supposed to report, every time, the system would be more valuable, but it still wouldn’t be perfect,” Lindstrom says. “It can be dangerous to depend on the NPDB query to catch every bad person out there, because it doesn’t.”
Hospitals are required to report medical malpractice payouts, but some scenarios might be confusing, Lindstrom says. Hospitals must report a medical malpractice payment resulting from a written complaint or a written claim demanding monetary payment for damages.
The NPDB states it interprets this requirement to include “any form of writing, including pre-litigation written communications. The NPDB, not any other entity, determines whether a written claim has occurred for purposes of filing a report.”
The data bank also noted a medical malpractice payment report (MMPR) is submitted on a particular healthcare practitioner, not an organization. “For an MMPR to be submitted to the NPDB on a particular healthcare practitioner, the practitioner must be named, identified, or otherwise described in both the written complaint or claim demanding monetary payment for damages and the settlement release or final adjudication, if any,” the NPDB stated.2
Risk managers might encounter physicians who insist a malpractice settlement is not reportable if the terms of the settlement are confidential. “That’s not true. You still have to report it,” Lindstrom says. “A confidential settlement does not excuse the reporting requirements.”
The size of the settlement or award also does not matter, she says. Even small amounts trigger the reporting requirement. That can be a deterrent for a physician who otherwise would be willing to settle a complaint with a token payment.
Exactly where the funds originate can affect whether a payment must be reported, Lindstrom says. Before 1993, the NPDB required the reporting of all medical malpractice payments made on behalf of a practitioner, even if the payment was made with personal funds. A court determined that was not legal, so individuals are not required to report to the NPDB payments they make for their own benefit.
But a corporation or other entity that makes a payment for the benefit of a named practitioner must report that payment to the NPDB.
“When it comes to reporting malpractice payments, and also when you need to report adverse actions against clinicians, it is important to study the NPDB guide because there are a lot of nuances that might apply to your particular situation,” Lindstrom explains. “The NPDB provides a lot of useful guidance and explanations in their online guidebook, so it’s worth consulting that information before you assume what you have to report or don’t have to report.”
REFERENCES
- United States Department of Justice. Providence Health & Services agrees to pay $22.7 million to resolve liability from medically unnecessary neurosurgery procedures at Providence St. Mary’s Medical Center. April 12, 2022.
- National Practitioner Data Bank. Reporting medical malpractice payments.
SOURCE
- Rebecca M. Lindstrom, JD, Shareholder, Polsinelli, Chicago. Phone: (312) 463-6217. Email: [email protected].
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