If even one dollar is paid for a malpractice claim, it is going to be reported to the National Practitioner Data Bank (NPDB). Many EPs assume it will immediately ruin their careers.
“In fact, many EPs have NPDB reports. Typically, NPDB reports aren’t career-ending,” says Ashley Dobbin Calkins, JD, an attorney in the Richmond, VA, office of Hancock, Daniel & Johnson.
Malpractice settlements, adverse verdicts, and adverse actions taken by state licensing boards all are reported to the NPDB. “EPs seem to have a general idea that NPDB reports are ‘bad,’ but aren’t sure if it could impact them down the line and, if so, how,” Calkins says.
NPDB reports are not available to the general public. However, the information contained in the reports often is publicly available. “Settlements or verdicts and adverse board actions are typically publicly available through state licensing board physician profiles,” Calkins notes.
NPDB reports are accessed by potential employers, facilities, and even health insurance companies. These entities often request a detailed explanation of the events leading to the report when considering hiring, credentialing, or recredentialing the EP as a participating provider, according to Calkins.
An excessive number of NPDB reports or a particularly egregious report could make it difficult for an EP to obtain clinical privileges. “Because EPs are hospital-based, an EP who cannot obtain clinical privileges will likewise have a difficult time obtaining employment,” says Jeremy R. Morris, JD, a partner in the Columbus, OH, office of Bricker & Eckler.
There is no national, state, or local standard applied to hospitals that are evaluating NPDB reports. Instead, each hospital will evaluate physicians who apply for clinical privileges and attempt to ascertain whether that physician meets that particular hospital’s standards. “As a result, a physician may be granted clinical privileges at one facility and denied clinical privileges at another, even with substantially similar applications,” Morris says.
An EP can add a statement to the report, which remains with the report unless the EP edits or removes it. “In my experience, it’s quite rare that a provider statement would be needed or warranted,” Calkins shares.
One exception is if an ED malpractice claim was resolved without the EP defendant’s consent (because the insurance policy did not require consent to settle). In a case like that, the EP might want to add a statement indicating he or she did not wish to settle and deny any wrongdoing. “This should be professional and succinct,” Calkins notes.
The EP should resist the urge to type an angry rant about the case, the judicial system, or insurance companies. “Anything that comes across as defensive, flippant, or arrogant could cause a lot more problems,” Calkins cautions.
The time to consider adding a statement to the NPDB report is “as early as possible,” says Kenneth Alan Totz, DO, JD, FACEP, a Houston-based attorney and practicing EP. “Yes, it is possible to have a say in what is articulated in the NPDB report.”
A good time for this input is when settlement talks have begun or there is a likelihood of an event that will trigger an NPDB report. “This will allow a thoughtful discussion with all parties who may need to agree on the wording of any inclusion,” Totz says.
The EP might want to note it was a tiny settlement, or that there were extenuating circumstances. For instance, at the time of a case alleging a delay, the EP might have been caring for multiple intubated COVID-19 patients in a short-staffed ED. “Anyone reviewing the report may consider the mitigating situation,” Totz suggests.
A short statement to explain what led to a NPDB report might be acceptable. A lengthy diatribe railing against the injustice of the lawsuit is not. “You’re likely to run afoul of HIPAA, and your best intentions will be viewed otherwise by a very cynical public,” Totz warns.
Before a physician submits a response to a NPDB report, he or she should seek counsel, Morris advises. In the response, physicians can include any information they believe to be missing from the original report.
“However, the physician must keep in mind that his or her response will be seen by everyone who submits a query,” Morris stresses. “Inflammatory statements could do more harm than good.”