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Chances are your hospital doesn’t provide timely, accurate reports of malpractice payments and physician disciplinary actions to the government, according to a recent investigation.
The National Practitioner Data Bank (NPDB), the federal government database that contains records of disciplinary actions and malpractice lawsuits filed against physicians and dentists, is not as complete, up to date, or accurate as it should be, charges a recent report by the General Accounting Office (GAO), the investigative arm of Congress.
Despite widespread concern that providers are not reporting all disciplinary actions to the databank as required by law, the agency that maintains the databank, the Health Resources and Services Administration (HRSA), has not included improved enforcement measures in its strategic plan, the report claims. HRSA falls within the Department of Health and Human Services.
In addition, according to GAO analysis of the data bank’s records, the disciplinary actions that are reported often contain inaccurate or insufficient information; almost half of the malpractice reports studied by investigators were filed more than 30 days past their due date, and 95% of these reports did not, as required by law, indicate whether the standard of care had been violated. (For more on missing information, see "Inaccurate, outdated, and flawed," in this issue.)
Investigators also noted that a 13-year-old law expanding the databank to include information on nurses and other providers has not been implemented, and the agency did not have an effective policy for evaluating the suitability of its user fees for accessing the bank’s information, and did not have a plan for ensuring collection of the fees in a timely manner.
The findings are detailed in the GAO’s recent report, National Practitioner Data Bank: Major Enhancements are Needed to Enhance Data Bank’s Reliability, made public in November of last year. (See editor’s note at end of this article for information on how to obtain the report.)
The critical report follows closely in the wake of attempts by some patients’ rights groups and Congressional representatives to open the databank to the public. Currently, only hospitals, insurance companies, and state licensing boards have access to the information. (For more on the databank, see "Facts on the National Practitioner Data Bank," in this issue.)
A bill introduced in Congress by Thomas Bliley (R-VA) to open the databank to the public has garnered little support by lawmakers, however, and is opposed by groups such as the Chicago-based American Medical Association (AMA), the Physician Insurers Association of America, and the American Academy of Orthopaedic Surgeons in Rosemont, IL.
The new information from the GAO makes clear that the databank is seriously flawed and should not be counted on as a reliable source of information on physician quality for the public, says Thomas R. Reardon, MD, immediate past president of the AMA.
Reardon and the AMA are in favor of an effort to link disciplinary information gathered by medical boards in different states rather than the federally overseen separate databank system. "Information about physician credentials and disciplinary action is available right now through state-based systems already in place," Reardon contends.
The Federation of State Medical Boards is implementing a computer system that would allow the public to access disciplinary information about physicians in every state via the Internet.
State boards traditionally do a better job of maintaining accurate information about physicians practicing in their state and this would be a more reliable information source for the public, says Reardon. However, the Federation system would not include information about malpractice suits and malpractice payments the NPDB currently does.
"When the [NPDB] was originally conceived, we supported it. We do think that there should be a national system to track problems with physicians," Reardon says. "But, then they decided to include malpractice information, and we were not in favor of that."
The fact that a physician has been sued for malpractice is not in and of itself an indication about whether he or she is a good physician, he notes. "Many physicians are sued several times over the course of their careers. And, those may be the physicians that I would go to or I would send my family to."
Malpractice lawsuits can be dismissed for lack of evidence, but the fact that a physician was sued remains. Some physicians decide to settle minor malpractice claims in order to avoid a lengthy and expensive trial. And, some carriers of malpractice insurance will agree to settle malpractice claims despite the physician’s desire to fight the case.
All of these situations would still result in a physician being reported to the NPDB — if the hospital or insurer were complying with the law.
Information about disciplinary measures taken against a physician, or even information about the number of malpractice suits filed against him in comparison with the average for that specialty are more reliable indicators of physician quality, Reardon believes.
Massachusetts is currently setting up a statewide physician database that will also report malpractice filings, but it will include information about how often someone in that specialty is sued and for what. "We are not supporting any one, single, state system, but, at least with what they [Massachusetts] are doing, they are attempting to put the malpractice information into some kind of context," Reardon says.
The AMA is not opposed to the public having information about problem physicians, he says. But, the information should be clear, accurate, and presented in its proper context.
One of the biggest problems with the NPDB is that there are a number of different reasons that a practitioner can be reported, but the criteria for reporting and what information should be reported is difficult to understand, says Jeffrey Oak, PhD, senior vice president of the Washington, DC-based Council of Ethical Organizations, a group that advises health care organizations on compliance and best-practice issues.
"There a number of different categories of action that are supposed to be reported to the databank," Oaks notes. "Examples include civil judgments and criminal actions. Criminal actions are pretty easy to verify and understand. Also, actions by government agencies that oversee licensing and certification are reportable. But, states are so very, very different in how that function is administered, that it is less easy to verify that information than it may appear at first glance."
Other things, such as exclusions from government payer programs, like Medicare and Medicaid, are reportable, but this information also is not easily verifiable and these physicians are not consistently reported, he says. "We work with hospitals and health systems that are doing background checks [on physicians] and a name either doesn’t appear that is actually on the list, or does appear and is there by mistake or confusion."
What actions will be taken against hospitals, insurance carriers or agencies that do not report physicians also is not clear, and action is not often taken, says Mark J. Pastin, PhD, the council’s president.
In his experience, hospitals are wary of reporting for fear of being sued by the physician for damaging his or her career, says Pastin. "They are very concerned about what could happen if they report a physician."
With the perception that punishment for failing to report is unlikely, evidence that other organizations are not reporting, and fear that the information will be recorded inaccurately make health systems reluctant to take the risk, he adds.
"I don’t think people fear any sanction for failure to report at this time and I don’t think there is an enthusiasm for applying a sanction because a provider can almost always escape through definitional issue of what has to be reported and what does not," he continues. "The criteria for what gets reported and what does not get reported and what sanctions will apply for failure to report needs to be much clearer."
One way to address some of the concerns about the accuracy of the information in the database is to have a process by which physicians could add comments of correction to the records about them, Pastin says.
"If you take as a model the Fair Credit Reporting Act, it requires that if somebody drops a negative about you in your [credit] record, you have the opportunity to respond and correct that record or add a comment that is corrective," he explains. "In some cases, you have your record cleared if you can substantiate that the claim against you is not valid."
If physicians were allowed to add comments explaining the actions that got them reported to the databank, they might feel more comfortable about increased access to that information. And, hospitals and other providers might be less reluctant to report.
"There has been an example in one of the news reports about a physician who was cited in a malpractice settlement because of a defect in an instrument," he relates. "The settlement relieved him of the responsibility for the instrument failure, but he was nonetheless named in the suit, and it was settled and he ended up in the national databank."
If that physician were allowed a process to appeal his placement in the bank, or at least add a comment to the record, it would present a more accurate picture of information.
Pastin and Oak doubt that a system administered by the state medical boards would be much more accurate than the current databank.
"A methodology such as [the Federation of State Medical Boards system] takes better account of the differences between states as far as licensing and discipline procedures," says Oak. "States do a better job of monitoring people in their own state, but it does not really address physicians who go to a different state. A standard, overall model has broader reach, but less ability to ensure consistency."
The quality and accuracy concerns would remain with a system administered by the state boards, Pastin adds.
"It is a hard thing to say, but it is an issue of the fox guarding the henhouse," he says. "The state boards are perceived by many patient groups as being dominated by a physician perspective. Whether that perspective is better than a federal perspective is debatable."
What actions will be taken in light of the GAO report is up to the priorities once the new Congress takes office, says Pastin.
"If you have leadership that is pushing tight federal control of health care, the likelihood is that the report will be viewed as requiring reassessment and review and enhancement of the processes that are in place in the databank," he says. "If you are inclined to look at government as running amok and destroying health care, then I think the argument will be that we have spent all of this money, and we have a databank that is not very useful, and we should remand it to a lower level."
In the end, control of the information will not be relegated to state medical boards, however, Pastin predicts. "I just don’t see it going back to the industry on this. I see as more likely there will be mechanisms for recourse, data ombudsmen, or processes where people are going to have the right to contest incorrect data that are entered into databases about them because of the potential harm of incorrect information being circulated about them. That system will be very costly and cumbersome, but I don’t see an alternative."
• Mark J. Pastin and Jeffrey Oak, Council of Ethical Organizations, 214 South Payne St., Alexandria, VA 22314. Telephone: (703) 683-7916. Fax: (703) 299-8836. Web site: www.corporateethics.com.
• Thomas Reardon, American Medical Association, 515 N. State St., Chicago, IL 60610. Telephone: (312) 464-5000. Web site: www.ama-assn.org.