What’s reportable and who has access to the information?
By David L. Freedman, MD, JD, FAAEM, Emergency Medicine Physician, Chelsea Community Hospital, Chelsea, MI; Attorney, Miller, Canfield, Paddock & Stone PLC, Ann Arbor, MI.
In a previous edition of ED Legal Letter (1999;10:37-48), we introduced the Health Care Quality Improvement Act of 1986 (HCQIA).1 After discussing the history of the Act, we focused our discussion on its effect on the peer review process. In this edition we return to the HCQIA now with our focus on the National Practitioner Data Bank (NPDB). The NPDB was created as part of the HCQIA, and final regulations governing its operation were published in the Federal Register on Oct. 17, 1989.2 The NPDB was established to create a central repository for information related to the professional conduct and competence, licensure actions, and malpractice payments of physicians and dentists. The purpose of the NPDB was to address the recognized problem of physicians disciplined in one state, moving to another state, being licensed by that state and credentialed by hospitals without knowledge of the previous discipline in the prior state: "There is a national need to restrict the ability of incompetent physicians to move from state to state without disclosure or discovery of the physician’s previous damaging or incompetent performance."3 The problem of a lack of a national repository of information on "bad" physicians was compounded by the common practice (still present to some extent despite the HCQIA) of hospitals agreeing to let problem physicians leave in return for silence on the part of the hospital.
We all, of course, hope never to be reported to the NPDB. Unfortunately, for emergency physicians there is a very significant likelihood that sometime during our careers we will have our names reported to the NPDB. In most cases, this will be the result of a malpractice payment made on our behalf. However, under a proposed amendment to the NPDB regulations, we might find our names reported any time a payment is made on behalf of a physician who subsequently treats a patient we have seen, even if we merely admitted the patient through the emergency department and were absolutely without responsibility for the subsequent alleged malpractice. The implications of this troubling proposed amendment to the NPDB regulations is specifically discussed below.
In some cases, you will be involved with the reporting of a practitioner after an adverse action resulting from the peer-review process. Whether your involvement is as a peer-reviewer, or as the subject of peer-review, it is essential that you have a basic understanding of the operation of the NPDB. In particular, you need to understand: 1) what actions are reportable, and 2) how they must be reported. In some cases, a situation which would appear to inevitably involve a very negative NPDB report may, through creative negotiation, result in either no report being filed or one being filed that is substantially less damaging than the initially proposed report.
There is significant confusion among physicians as to which actions are reportable and which are not, and I am frequently asked such questions as:
1. Is a suspension of clinical privileges related to failure to complete medical records reportable?
2. Are disciplinary actions taken against house-staff reportable?
3. Are all medical malpractice payments reportable?
4. Is a denial of membership or clinical privileges based upon a lack of board certification reportable?
5. When are summary suspensions reportable?
6. Are automatic or voluntary resignations reportable?
7. Is voluntary entry into an impaired physicians program reportable?
In this issue, we will address these questions and more, including the process of NPDB reporting, with a particular emphasis on which peer review actions are reportable and which are not.
Introduction
Case #1. In Pierre Le Baud, MD v Eric E. Rische, MD, et al,4 an orthopedic surgeon whose medical staff privileges were revoked brought suit against the hospital and various physicians. In his complaint he alleged violations of the antitrust laws, violations of his due process rights, and various libel, slander, and deceit claims against certain of the defendants. It is these later defamation claims related to the hospital’s submission of a report to the NPDB that are of primary interest in the context of this article.
On Jan. 10, 1994, the director of surgical services at the hospital sent an incident report concerning Dr. Le Baud to the hospital’s chief of staff. Based upon this report, the chief of staff and the chief operating officer (COO) of the hospital determined that an investigation of Dr. Le Baud’s practice was warranted. An outside review was conducted by an orthopedic surgeon not practicing at the hospital. Based upon this review, the chief of staff and COO determined that further review was necessary. After another outside review of all three physician members of the orthopedic surgery department, the chief of staff and COO summarily suspended Dr. Le Baud’s surgical privileges at the hospital.
After consideration of the extremely critical review of Dr. Le Baud’s practice, the hospital credentials committee unanimously recommended revoking Dr. Le Baud’s privileges at the hospital. The decision of the credentials committee was upheld at a medical staff hearing and, after Dr. Le Baud waived his right to appellate review, the decision became final.
The Federal District Court granted defendants’ motion for summary judgment on all of Dr. Le Baud’s claims, thereby dismissing the suit. Upon appeal, the U.S. Court of Appeals for the Tenth Circuit affirmed the District Court’s dismissal, including its dismissal of the defamation claim related to the hospital’s reporting of its action to the NPDB. The Court agreed with the District Court’s finding that there was "no evidence from which a reasonable jury could conclude that the report was false and that [the COO or the hospital] knew it was false."5 Therefore, as a matter of law (i.e., a decision for the judge, not a jury), the defendants were entitled to immunity in filing the NPDB report:
"The Health Care Quality Improvement Act confers immunity on any person who makes a report to the National Practitioner Data Bank without knowledge of the falsity of the information contained in the report.’6 . Thus, immunity for reporting exists as a matter of law unless there is sufficient evidence for a jury to conclude the report was false and the reporting party knew it was false."7
Therefore, in order for a plaintiff to prevail on a defamation claim related to a NPDB report, he or she must show not only that the report was false, but that the reporting party knew it was false, a high burden of proof indeed.
Required Reporting
Subchapter II of the HCQIA contains the provisions regarding the required reporting of malpractice payments, sanctions taken by boards of medical examiners, and certain professional review actions taken by health care entities (including professional societies).8 The provisions regarding the performance of peer review, which were discussed previously, are contained in Subchapter I of the HCQIA.
Malpractice Payments. The Act requires that payments in settlement of a medical malpractice judgment or claim be reported to the NPDB:
"Each 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."9
| Table. Adverse Action Codes |
| 610.01 Alcohol and Other Substance Abuse |
| 610.02 Incompetence/Malpractice/Negligence |
| 610.03 Narcotics Violations |
| 610.04 Felony |
| 610.05 Fraud |
| 610.10 Unprofessional Conduct |
| 610.20 Mental Disorder |
| 610.30 Allowing Unlicensed Person to Practice |
| 610.50 Disciplinary Action Taken in Another State |
| 610.80 Physical Impairment |
| 610.90 Other |
The information that must be reported is specifically listed:
1. The name of any physician or licensed health care practitioner for whose benefit the payment is made;
2. The amount of the payment;
3. The name (if known) of any hospital with which the physician or practitioner is affiliated or associated;
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 section.10
For the purposes of NPDB reports, medical malpractice payments are limited to exchanges of money. In addition, such payments must also result from a written complaint or claim demanding monetary payment for damages. The amount of the payment that is reported includes only the amount paid to the plaintiff by the insurer for the benefit of the practitioner. Loss adjustment expenses (e.g., attorney’s fees, expert witness fees, etc.) are not reported to the NPDB.
Use of an off-shore malpractice insurer, like self-insurance, does not preclude the reporting of medical malpractice payments. Payments from off-shore insurance companies, self-insurance plans, and employers are all required to be reported to the NPDB.
Adverse Actions. As to physicians and dentists, hospitals, and other health care entities, must report:
1. Professional review actions affecting physicians and dentists which are:
A. based on reasons related to professional competence or conduct, and
B. which adversely affect the professional’s clinical privileges for a period longer than 30 days.
2. Any voluntary surrender or restriction of clinical privileges while under, or to avoid, investigation of a matter related to professional competence or conduct, which could adversely affect the professional’s clinical privileges for a period longer than 30 days must be reported.11
In the case of "other licensed health care practitioners," the adverse review actions listed above may be reported, but reporting is not required. "Other licensed health care practitioners" is defined as individuals, other than physicians or dentists, who are licensed or otherwise authorized by a state to provide health care services (e.g., nurses, physician assistants, pharmacists, etc.).12
Only "adverse actions" are reportable. These include reducing, restricting, suspending, revoking, denying, or failing to renew a practitioner’s clinical privileges.
Each report to the NPDB of an adverse action affecting a practitioner’s clinical privileges must be coded. There are 11 codes which may be utilized, including "Other." (See Table on page 65.)
A review of the code list shows that the degree of specificity of the codes varies widely. They range from, for example, "Felony" which is quite specific, all the way to "Other," which is quite non-specific. "Other" includes any reason that does not clearly fall within one of the other nine categories. If there are multiple grounds for an adverse action or actions, only one report must be filed with the NPDB. The adverse action classification code then should reflect the principal reason for taking the adverse action. A summary of the other grounds should be included in the narrative description.13
What Actions Are Reportable?
The threshold requirement for the reporting of an adverse action to the NPDB is that it must: 1) be based on the practitioner’s professional competence or professional conduct which affected or could adversely affect the health or welfare of a patient, and 2) it must adversely affect the practitioner’s clinical privileges for a period of more than 30 days. The following adverse actions are reportable, so long as these threshold requirements are met:
1. Revocation of clinical privileges;
2. Suspension of clinical privileges for longer than 30 days;14
3. The "voluntary" restriction or surrender of a practitioner’s clinical privileges in return for the hospital, or hospital committee, agreeing not to conduct an investigation of professional competence and/or conduct;
4. The "voluntary" restriction or surrender of a practitioner’s clinical privileges while his or her professional competence or conduct is under investigation;
5. An application for medical staff appointment that is denied based on professional competence or conduct, including a decision based on assessment of professional competence or conduct as defined by the hospital;15
6. If clinical privileges are restricted (i.e., privileges granted are less than those applied for), and this action is based on a professional review action and relates to professional competence or conduct; and
7. Adverse actions taken due to substance abuse problems. (See "Substance Abuse" section on page 68.)
The categories for the other types of adverse actions (e.g., suspension of clinical privileges, reduction of privileges, license restrictions, etc.) are similar.
How Is Information Reported?
Entities required to report to the NPDB must utilize standard Adverse Action Report forms, one-page documents containing four sections:
1. Information identifying the reporting entity;
2. Information identifying the practitioner;
3. Descriptive information on the adverse action or malpractice payment; and
4. Name and signature certifying that the entity and individual submitting the report to the NPDB are authorized to do so.16
Reports must be filed within 15 days of the time that "the adverse action is made final by the entity’s authorized official or by the entity’s governing board."17 Therefore, as a general rule, an adverse action will not be reportable until after the physician has either exhausted or waived his or her rights under the medical staff bylaws to a hearing and appeal, and the hospital’s governing body has taken final action. An exception to this finality requirement exists when a practitioner’s clinical privileges have been summarily suspended. (See "Reporting Summary Suspensions" section on page 69.)
Hospitals, other health care entities, and professional societies are required to submit their Adverse Action Report forms to the applicable state medical or dental board, not directly to the NPDB. The state board then has 15 days to forward the report to the NPDB.
Hospitals and other health care entities not uncommonly allow some negotiation as to the content of a NPDB report and may cooperate with the disciplined practitioner in attempting to minimize the impact of the report. However, when a NPDB report is required, it is crucial that it be filed in a timely fashion. The penalty for an entity that fails to report information required by the HCQIA is potentially quite severe. The government will investigate and, if it determines that the entity was in noncompliance, it will provide the entity an opportunity to correct its noncompliance. If the Secretary of Health and Human Services (the "Secretary") then determines, after an opportunity for a hearing, that the entity has still failed to substantially report information in compliance with the HCQIA, the entity will be subject to the loss of qualified immunity protection as to its professional review actions for a period of three years.18 Loss of the qualified immunity of the HCQIA would, of course, be a very severe blow to any hospital’s peer review process.
In addition, a failure to properly report could result in the noncompliant hospital being named in a subsequent malpractice action involving the physician’s activity at another hospital. If: 1) the first hospital failed to properly report an adverse action against a physician; 2) a second hospital reasonably granted clinical privileges to the physician, in part based upon the lack of a required NPDB report; 3) the physician committed malpractice at the second hospital; and 4) the second hospital would not have granted the physician clinical privileges or would have required supervision of the physician had there been a NPDB report; a creative plaintiff’s attorney might attempt to hold the first hospital responsible, in part, for the patient’s injury.
Disputing NPDB Reports
Generally, before an entity sends a report to the state medical or dental board, it will provide a copy to the affected practitioner, the purpose being to try to avoid litigation over the specific language of the report. In some cases, the specific contents of the report will be the subject of negotiation between counsel for the reporting entity and the affected practitioner. It is always best for the reporting entity to come to an agreement on acceptable language with the affected practitioner, to the extent practicable, prior to submission of the report.
After an Adverse Action Report form has been submitted, if a practitioner did not have an opportunity to review the form prior to its submission and now disputes its content, he or she should first discuss the matter with the reporting entity. An attempt to resolve the issue at this level should always be undertaken. Reporting entities may make corrections or additions to previously submitted reports.
If a satisfactory agreement with the reporting entity cannot be reached, and the practitioner still disputes the content of the form, he or she may dispute the accuracy of the information in a report through use of the Practitioner Notification Document. There is a time limit of 60 days to initiate a dispute with the NPDB. In order to dispute the information in a report, upon receipt of a Practitioner Notification Document, a practitioner must:
1. Sign, in the appropriate place, the Practitioner Notification Document when it is received from the NPDB. This informs the Secretary that the practitioner disagrees with the report and that the practitioner is requesting that the report be entered into a "disputed" status;
2. Describe, in writing on the Practitioner Notification Document, the reason for the disagreement with the report;
3. Return the Practitioner Notification Document to the NPDB;
4. Inform the reporting entity, in writing, that the report is disputed, explaining the basis for the dispute; and
5. Attempt to resolve the dispute with the reporting entity.19
The Secretary will not review the merits of a claim in the case of a malpractice payment or the appropriateness of a health care entity’s professional review action.20 The Secretary will merely investigate whether the report accurately reflects the events that occurred. Any review on the merits of a professional review action, after the hospital’s governing body has taken final action, must be in the appropriate court.
If the dispute about the content of the report is not ultimately resolved between the practitioner and the reporting entity and the Secretary has addressed the dispute, and the practitioner is still dissatisfied with the content of the report, he or she may file a brief statement describing the disagreement.
Who Can Access NPDB Reports?
NPDB information is not available to the public. NPDB reports are available to specific individuals and entities under specific circumstances, including:
1. Hospitals. Hospitals must request NPDB information when screening applicants for medical staff appointment or granting clinical privileges and then every two years for physicians, dentists, and other health care practitioners on the medical staff. Hospitals may request information at other times as they deem necessary.
2. State licensing boards. State licensing boards may request NPDB information any time they deem it necessary.
3. Other health care entities. Other health care entities may request NPDB information when screening applicants for medical staff appointment or granting of clinical privileges, or to support their professional review activities.
4. Professional societies. Professional societies may request NPDB information when screening applicants for membership or affiliation and in support of any professional review activities they might undertake.
5. Plaintiff’s attorneys. A plaintiff’s attorney, or a plaintiff representing himself or herself, who has filed a medical malpractice action claim in court against a hospital may request data bank information if evidence is submitted which reveals the hospital failed to make a required query of the NPDB on the practitioner(s) also named in the action or claim.
6. Physicians, dentists, and other health care practitioners. These individuals may request copies of their own files.
Significantly, medical malpractice insurers may not request or directly receive information from the NPDB.
Persons or entities who receive information from the NPDB, either directly or indirectly, are subject to the confidentiality provisions governing the NPDB itself.21 The regulations provide for civil monetary penalties of up to $10,000 for each violation of the confidentiality provisions. Information in the NPDB is not subject to disclosure under the federal Freedom of Information Act (FOIA)22 because the HCQIA contains restrictions on information disclosure which supercede FOIA.
Substance Abuse
An "adverse action" taken by a hospital due to a practitioner’s substance abuse is reportable. In fact, there is a specific code for such actions (610.01). However, in many, if not most, cases of physician substance abuse, the problem is dealt with in a less formal manner and is treated differently than other discipline matters. Hospitals frequently have separate committees that deal with impaired physicians on a highly confidential basis. State medical boards may also treat physician substance abuse problems outside the normal disciplinary process. For example, in Michigan, a Health Professional Recovery Committee is created by statute to deal with impaired physicians.23 This statute creates a dedicated, confidential mechanism for dealing with impaired health care professionals that is separate from the standard disciplinary process. The state contracts with a private sector contractor to provide the service. So long as the professional cooperates with the committee, his or her participation is not reported to the Board of Medicine. Failure to cooperate with the committee results in the professional being reported to the Board of Medicine.
The entry of a physician into a voluntary substance abuse rehabilitation program is not, in and of itself, reportable.24 There is, therefore, no conflict with the federal statutes that provide for strict confidentiality of drug and alcohol treatment records.25 A leave of absence granted for the purpose of entering such a program is also not itself reportable. However, if a physician is subject to a professional review action because of a condition that affects professional competence or conduct and refuses to voluntarily enter a program, and the hospital takes a professional review action which adversely affects the physician’s clinical privileges for more than 30 days, that adverse action is reportable. In addition, any agreement by a physician to relinquish or restrict his or her clinical privileges in return for a hospital’s decision not to conduct an investigation of possible professional incompetence or improper professional conduct is also reportable.
The negotiation of agreements regarding clinical privileges in the context of a substance abuse problem is virtually always individualized and often quite complex. As a result, a hospital or hospital committee is well-advised to seek advice from competent legal counsel in such circumstances. This does not mean that the medical staff’s processes need to be usurped and engulfed in legalese; the attorney’s role may be strictly advisory in nature. A practitioner with a substance abuse problem should always consult with an attorney experienced with working with both hospitals and state medical boards prior to becoming involved in any disciplinary proceeding. This may well avoid a report to the state medical board and/or NPDB that is not strictly required.
Reporting Summary Suspensions
As discussed above, the general rule is that adverse actions are not reportable until they have been finalized by the hospital’s governing body. This will not occur until after the physician has either exhausted or waived his or her rights to a hearing and appeal under the medical staff bylaws. It is only then that the restriction on clinical privileges (or revocation, denial of application, etc.) actually will take effect. However, in the case of summary suspensions, the sequence of events is somewhat reversed.
In a summary suspension, the loss of clinical privileges is immediate and the right to a hearing and appeal is a subsequent right (i.e., after-the-fact). As in any other medical staff hearing and appeal process, the action will often not be completed for quite some time. It is not unusual for a physician discipline matter to drag on for as long as one year, even longer in some cases. Therefore, in the case of summary suspensions, a somewhat different definition of "final" is utilized, and depends to some extent on the medical staff bylaws. Generally, the summary suspension will be reportable following review and confirmation of the suspension by the authorized hospital committee (often the medical executive committee) or the hospital’s governing body.26
A summary suspension is reportable if it meets the following criteria:
1. The suspension is in effect for more than 30 days or is imposed for a period of time longer than 30 days;
2. It is based on the professional competence or conduct of the physician or dentist that adversely affected or could adversely affect the health or welfare of a patient; and
3. It is the result of a professional review action taken by the hospital.276
If the summary suspension, which had been reported to the NPDB, is later altered following a hearing or other procedure, the hospital should then file a revision to its original report made to the NPDB. As we discussed in our previous discussion of the HCQIA, the requirement that practitioners be given certain procedural rights (adequate notice and an opportunity to a hearing) is satisfied, in the case of summary suspensions, by procedural rights following the suspension, not before.
What Actions Are Not Reportable?
The following actions are not reportable:
1. Denial of clinical privileges due to lack of experience or training (e.g., lack of sufficient training, lack of board certification, geographic factors, lack of a sufficient number of procedures, lack of professional liability coverage, or contract exclusivity) is considered to be due to "administrative" reasons, not due to professional competence or conduct;
2. Voluntary entry into an impaired physicians program (See discussion in "Substance Abuse" section on page 68.);
3. Actions against housestaff in their roles as housestaff. Residents practicing outside the scope of their formal graduate educational program (e.g., moonlighting on the hospital’s helicopter service) are subject to the report of adverse actions regarding these clinical privileges. Malpractice payments made on behalf of housestaff and adverse licensure actions by the state affecting housestaff are reportable;
4. Censure, reprimands, and/or admonishments;
5. Matters not related to the professional competence or conduct of a practitioner (e.g., adverse actions based on a practitioner’s advertising practices, fee structure, salary arrangement, etc.);
6. Assignment of a proctor if the practitioner is not required to have the proctor’s approval prior to administering medical care. If the proctor’s approval must be obtained by the practitioner prior to administering certain medical care, the proctor assignment is reportable;
7. Routine assignment of proctors to physicians and dentists who have been granted new clinical privileges;
8. The voluntary restriction or surrender of clinical privileges by a physician or dentist, so long as the practitioner was not under investigation regarding his professional competence or conduct, and the surrender or restriction was not in exchange for an agreement not to investigate the practitioner’s professional competence or conduct;
9. Suspensions of clinical privileges due to failure to timely complete medical records (this is an "administrative" matter);
10. Investigations;
11. Denial or restriction of clinical privileges based solely on a determination that a practitioner does not meet a health care institution’s established threshold eligibility criteria for that particular privilege (e.g., board certification);
12. Loss of a clinical privilege based solely on a failure to meet an institution’s threshold eligibility criteria applied in a retroactive fashion (i.e., the hospital now requires all physicians to be board certified, without a "grandfather clause");
13. Failure to pass a competency test required by a hospital for the granting of a particular clinical privilege, whether the test is required at the time of an initial application or at the time of reappointment; and
14. The "voluntary" withdrawal of an application for medical staff appointment or clinical privileges, whether initial or renewal, prior to a final professional review action.
Properly notifying an applicant that his or her application is "problematic" and allowing the application to be "voluntarily" withdrawn can sometimes avoid a NPDB report. This is certainly a gray area and consultation with competent counsel is advised in these circumstances prior to guaranteeing an applicant that no report to the NPDB will be made.
Immunity for Reporting
The HCQIA provides for qualified immunity for those who participate in the peer review process and report adverse actions to the NPDB. In order to receive immunity, the action must have been taken:
-in the reasonable belief that the action was in the furtherance of quality health care;
- after a reasonable effort to obtain the facts of the matter;
- after adequate notice and hearing procedures are afforded to the physician or dentist involved or after such other procedures as are fair to the physician or dentist under the circumstances; and
- in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the notice and hearing requirement.28
In the Le Baud case discussed in the Introduction section on page 64, the Court held that the HCQIA confers full immunity on any person making a report to the NPDB, so long as either 1) the report was not false, or 2) if it was false, the reporting party did not have knowledge of its falsity.29
Proposed Amendments
Late last year, amendments to the NPDB regulations were proposed that, if adopted, could have very significant negative effects on physicians.30 These proposed regulations would require the reporting of payments in the settlement of malpractice claims (judgments or settlements) made on behalf of physicians who provided medical care to the patient whether or not they were named as defendants. Those who make such payments would be required to identify and report all practitioners "whose acts or omissions were the basis for the action or claim" and "whose professional conduct was at issue in any malpractice action."31 As a result, not being named in a malpractice lawsuit, or being dropped at some point prior to the conclusion of the case, would not automatically eliminate the possibility of being reported to the NPDB if a payment is ultimately made to the plaintiff.
This represents a very significant change from current regulations and interpretation where, in order for a physician to be reported as a result of a medical malpractice payment, the physician must "be named in both the written complaint or claim demanding monetary payment for damages and the settlement release or final adjudication, if any."32 Under current regulations and policy, "[a] practitioner named in the written complaint or claim, who is subsequently dismissed from the lawsuit and not named in the settlement release, is not reportable to the Data Bank."33
The reason advanced for this proposed amendment is that some practitioners have been able to avoid being reported to the NPDB by having another entity make the payment that satisfies the claim. For example, a hospital or professional corporation may make a single payment that satisfies the entire claim, even though the negligence was largely attributable to the physician, not the hospital.
If adopted, this amendment could make it difficult to avoid reporting most physicians who treated a patient who later received a payment as a result of a malpractice judgment or settlement. Not uncommonly, virtually all physicians who treated the patient prior to the alleged act of negligence will be named in a malpractice suit. As a result, their "acts or omissions [will be] the basis for the action or claim" and their "professional conduct [will be] at issue in [the] malpractice action." While the current regulation may not be perfect, there is at least some degree of objectivity in that practitioners are only reported if a payment is made specifically in satisfaction of a claim regarding their personal conduct. This will be the result of either a settlement agreement entered into between the physician and the claimant or as the result of a judgment.
Emergency physicians may be at particular risk if this proposed regulation is adopted. Plaintiff’s counsel may, either out of thoroughness or laziness, name in the complaint all physicians who treated the patient prior to the actual untoward event that precipitated the claim. I have seen numerous cases where an emergency physician appropriately treated and admitted a patient, and the patient subsequently suffered a bad outcome allegedly as a result of the negligence of another practitioner, sometimes after a considerable period of time in the hospital, and the emergency physician ends up being named in the compliant. While the emergency physician is often either dropped or settles the case for a nominal sum, under the proposed amendment, such physicians might be reported to the NPDB simply because they had previously treated the patient.
While an emergency physician may have done absolutely nothing wrong, under the proposed amendment, his or her name might still appear in the NPDB associated with a very substantial payment (e.g., in a case where the patient subsequently died). Under current rules, NPDB reports must not exceed 600 characters, including punctuation and spaces. This obviously leaves very little room for explaining how the actions of, for example, the emergency physician, were unrelated to the ultimate bad outcome.
A physician who is included in a NPDB report, despite having no responsibility for the patient’s bad outcome, will likely find little solace in the Department of Health and Human Services’ statement that "a payment in settlement of a medical malpractice action or claim shall not be construed as creating a presumption that medical malpractice has occurred."34 While the Department takes the position that the information in the NPDB is merely a "flagging’ or alert’ system for use in guiding discrete inquiry into and scrutiny of specific areas of a practitioner’s licensure, professional society memberships, malpractice payment history, and record of clinical privileges,"35 unfortunately, overburdened credentialing departments of managed care companies, hospitals, or other health care entities might use a NPDB report alone as reason to deny an applicant’s application.
The proposed amendment fails to address two key issues. First, what should an entity that made a malpractice settlement payment do if it has determined that one or more of the physicians named in the suit (or simply was previously involved in the care of the patient) had absolutely no responsibility for the outcome? Second, must an entity making a malpractice settlement payment report a physician whom it believes was, in part, responsible for the injury when that physician was never named in the suit?
Conclusion
We hope this article will provide you a basic understanding of the operation of the NPDB. You should now know the answers to the frequently asked questions listed at the beginning of this article:
1. Is a suspension of clinical privileges related to failure to complete medical records reportable?
No, this is an "administrative" action.
2. Are disciplinary actions taken against housestaff reportable?
No, unless the action related to activities outside the scope of their formal graduate educational program (i.e., moonlighting).
3. Are all medical malpractice payments reportable?
Yes, there is currently a zero-floor for reporting.
4. Is a denial of membership or clinical privileges based upon a lack of board certification reportable?
No, failure to meet basic threshold requirements for clinical privileges is not reportable.
5. When are summary suspensions reportable?
When hospital counsel determines they should be (there is no simple answer).
6. Are automatic or voluntary resignations reportable?
No, except voluntary resignations during or in lieu of an investigation regarding the practitioner’s professional competence or conduct.
7. Is voluntary entry into an impaired physicians program reportable?
No.
References
1. Title IV of Public Law 99-960, as amended (codified at 42 U.S.C. § 11001 et seq.).
2. 45 CFR Part 60.
3. 42 U.S.C. § 11101(2).
4. 1998 U.S. App. LEXIS 20311 (10th Cir. 1998).
5. Id. at 17.
6. 42 U.S.C. § 11137(c) (1994)
7. Id. (citations omitted).
8. 42 U.S.C. § 11131 et seq.
9. 42 U.S.C. § 11131(a).
10. 42 U.S.C. § 11131(b).
11. 42 U.S.C. § 11133(a)(1).
12. 42 U.S.C. § 11133(2).
13. U.S. Department of Health and Human Services, National Practitioner Data Bank Guidebook, ("Guidebook"), 1990:27.
14. Assignment of a proctor with the requirement that the involved professional obtain the proctor’s approval prior to administering certain medical care is reportable. A report would not be required if a proctor is appointed and the practitioner is not required to have the proctor’s approval prior to administering medical care. Guidebook, p.17.
15. A denial of clinical privileges that occurs "solely because a practitioner does not meet a health care institution’s established threshold eligibility criteria for that particular privileges is not reportable." U.S. Department of Health and Human Services, National Practitioner Data Bank Guidebook Supplement ("Guidebook Supp."), p.20 (1990).
16. Guidebook, p.9.
17. Guidebook, p.43.
18. 42 U.S.C. § 11111(b).
19. Guidebook, p.35.
20. Id.
21. 45 CFR Part 60.
22. 5 U.S.C. § 552a.
23. M.C.L. § 333.16166 et seq.
24. Guidebook, p.43.
25. 42 U.S.C. §§ 290dd-3 and 290ee-3.
26. Guidebook, p.21.
27. Id.
28. Guidebook, p.1.
29. 1998 U.S. App. Lexis 20311, at 18.
30. 63 Fed. Reg. 71255-57 (December 24, 1998).
31. 63 Fed. Reg. 71256.
32. Guidebook Supp., p.17.
33. Id.
34. Guidebook, p.2.
35. Id.
Physician CME Questions
13. Which of the following is not reportable to the NPDB?
a. Medical malpractice payments made by an insurer in satisfaction of a judgment
b. Medical malpractice payments made through a self-insurance fund in response to a written claim
c. Writing off a bill in response to a patient’s dissatisfaction with your treatment
d. Medical malpractice payments made by an off-shore insurer in satisfaction of a settlement agreement with a plaintiff
14. Adverse actions must be reported for all the following except:
a. medical doctors.
b. osteopathic physicians.
c. nurses.
d. dentists.
15. Adverse Action Report forms must contain:
a. information identifying the reporting entity.
b. information identifying the practitioner.
c. descriptive information on the adverse action or malpractice payment.
d. all of the above.
16. Who may access the NPDB?
a. Medical malpractice insurance companies
b. Hospitals
c. Patient rights groups
d. Dateline NBC and 60 Minutes
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