Reported to the data bank? There's a lot you can do to mitigate damage

Make your side of the story clear

Once a report is filed with the National Practitioner Data Bank (NPDB), it is "virtually impossible to get rid of it, absent a provable error," says Robert S. Iwrey, JD, a founding shareholder with The Health Law Partners in Southfield, MI.

On the other hand, says Cynthia Grubbs, RN, JD, director of the Department of Health and Human Services' Division of Practitioner Data Banks, a NPDB report "isn't really the black mark that physicians make it out to be. It doesn't mean the physician won't ever get hired again. All it does is confirm what a practitioner would need to put on their application anyway." (For more information about the content of NPDB reports, who reports to the NPDB, and who can access the reports, go to http://www.npdb-hipdb.hrsa.gov and select "About Us.")

If physicians apply or reapply for privileges, renew their license, or apply for a license in a new state, they'd be asked whether they have any open claims or have made any payments, says Sharon C. Peters, JD, an attorney with Williams Kastner in Portland, OR. The NPDB is "essentially a flagging system" to provide an additional layer of background checking for healthcare entities or hospitals when bringing on a new doctor, she says.

A plaintiff's attorney can access the NPDB only if there is evidence that a hospital failed to conduct a query that it should have as part of its credentialing process, adds Peters. "The attorney may be very interested to know if the doctor they are suing has been reported, but they cannot get that information," she says. "It all falls under the umbrella of confidential peer review."

Elise Dunitz Brennan, JD, a partner with Conner & Winters in Tulsa, OK, recommends that physicians query the NPDB on themselves. "See if there is anything in there you don't know about," she says. "The physician would have gotten notified and given an opportunity to dispute it, but may not have paid much attention to it if they were tangentially involved."

A physician's ability to practice isn't generally affected by a NPDB report involving a medical malpractice payment, says Harriett T. Smalls, JD, an attorney with Smith Moore Leatherwood in Greensboro, NC.

It might be all business

Medical malpractice payments aren't necessarily an indication that malpractice actually occurred, and settlements often are made for business reasons, notes Grubbs. "We understand that at the data bank. We are not here to be the bad guy," she says. "We try to get the message out that just because you have a payment or even a couple, it doesn't make you a bad practitioner."

Most employers take into account that physicians in high-risk practices are more likely to be sued, adds Smalls, and they usually aren't overly concerned unless the care that led to the suit was egregious or there was a pattern of neglect.

Physicians should be far more concerned if an NPDB report involves denial or restriction of privileges, according to Grubbs. "Those are the actions that cause physicians the most concern. There really aren't many of those taken per year," she says. "Hospitals do take those very seriously when hiring or privileging."

Results can be severe

These reports can result in denial of credentialing, loss or limitation of privileges, exclusion from participation in health plans, loss or limitation of license, and increases in professional liability insurance premiums or even exclusion from coverage, says Smalls.

Physicians can add their own statement to the NPDB report, which goes out to anyone who queried the NPDB in the previous three years and every report sent out afterward, says Grubbs. Out of more than 800,000 total reports for all practitioner types captured in the system, only 44,273 included statements.

"If a report is filed, it's very important to take the time to thoroughly put in your response on the matter," advises Brennan. "Sometimes, physicians just let that go." Here are particularly important items to convey:

• Explain that multiple reports involved a single incident.

"Sometimes there is a 'piling on' effect," says Brennan. For example, if an adverse action at a hospital results in a physician's clinical privileges being terminated, this might then result in the state board of licensure restricting the physician's license. If the physician applies for privileges in another state, this might be denied because the multiple reports appear to involve separate incidents.

"In that scenario, you definitely need to get your statement out in front of future queriers," says Brennan. Explain that both NPDB reports involved the same incident and that the state board didn't have any independent knowledge of anything that was wrong, she recommends.

• Clarify your involvement.

If a malpractice settlement names multiple practitioners as defendants, each will be reported to the NPDB, even if not all were involved in the incident, says Brennan. In this case, a physician should include a statement such as "I was named in the lawsuit, but I was not the primary surgeon in this matter," or "I was not involved in the incident that led to the lawsuit," she advises.

"A third party looking at this file will realize the physician just got caught up in the whole process, but it wasn't his or her actions that caused the filing of the report," says Brennan. (See related stories on preventing an NPDB report, below, and negotiating the wording of the report, p. 4.)

Sources

For more information on mitigating or preventing National Practitioner Data Bank reports, contact:

  • Elise Dunitz Brennan, JD, Conner & Winters, Tulsa, OK. Phone: (918) 586-8585. Fax: (918) 586-8315. Email: ebrennan@cwlaw.com.
  • Robert S. Iwrey, JD, The Health Law Partners, Southfield, MI. Phone: (248) 996-8510. Fax: (248) 996-8525. Email: riwrey@thehlp.com.
  • Sharon C. Peters, JD, Williams Kastner, Portland, OR. Phone: (503) 944-6913. Email: speters@williamskastner.com.
  • Harriett T. Smalls, JD, Smith Moore Leatherwood, Greensboro, NC. Phone: (336) 378-5424. Fax: (336) 433-9905. Email: Harriett.Smalls@smithmoorelaw.com.

Actions might prevent needless data bank report

It might be advisable for you to retain an attorney

A physician dismissed from a lawsuit probably assumes he or she won't be reported to the National Practitioner Data Bank (NPDB), but this assumption isn't necessarily the case.

In some states, if a judgment is issued or the case later settles and the physician's name or information sufficient to identify the physician is contained in the release or judgment, the physician still will be reported to the NPDB, warns Harriett T. Smalls, JD, an attorney with Smith Moore Leatherwood in Greensboro, NC. "Be sure your name or identifying information is not included in the subsequent judgment or settlement agreement," Smalls advises.

Similarly, if a physician agrees to make a payment on the condition that his or her name not appear in the settlement, he or she might not realize that this payment is still reportable, she says. "If money is paid on behalf of a physician in response to a written demand, whether by a hospital, a professional corporation, or other business entity in which the physician is the sole practitioner, it must be reported even if it does not progress to an actual filed lawsuit," Smalls says.

Here are some other ways to potentially avoid NPDB reports:

• Retain an attorney to ensure that procedural aspects of the medical staff bylaws are complied with, such as the right to a fair hearing.

To avoid being reported to the NPDB, physicians must prevent any adverse actions that would be in effect for more than 30 days and fight any attempts to place restrictions or sanctions on their license by the hospital or professional societies, says Smalls.

Sharon C. Peters, JD, an attorney with Williams Kastner in Portland, OR, says that once the physician is under investigation, "an attorney may be advisable, particularly in situations that may lead to a contested disciplinary action."

• Consider using personal funds to make medical malpractice payments.

If a medical malpractice payment is paid by an insurer or any entity other than the individual physician, this information is reported to the NPDB regardless of the amount, notes Robert S. Iwrey, JD, a founding shareholder with The Health Law Partners in Southfield, MI. However, if the individual physician makes a medical malpractice claim out of personal funds, the payment is not reportable.

• Don't withdraw applications for privileges during an investigation.

If physicians are considered to be "under investigation" by the hospital as defined by medical bylaws, and they withdraw an application for privileges during the investigation, that information is a reportable event, says Elise Dunitz Brennan, JD, a partner with Conner & Winters in Tulsa, OK.

"When it comes to a doctor's attention that they might not be able to get privileges at a facility, they need to find out whether they can remove themselves from the situation without being considered as 'under investigation,'" she says. "If you know that is coming up but haven't gotten to that point yet, withdrawing to try to prevent a report is probably a good idea."

Once the investigation concludes, physicians always can resign if they choose, without being reported, if the findings are in their favor, says Peters. "Physicians really need to allow the peer review process to work and cooperate wholeheartedly, even if they believe the investigation has no merit whatsoever," she says.

• Attempt to rectify the matter with the reporting entity by requesting that the report be corrected or vacated due to error.

If the reporting entity is unwilling to do so, the physician may initiate a dispute of the report with the NPDB, which then becomes a part of the report, says Iwrey.

If the reporting entity declines to change the report, the physician may request a review of the matter by the secretary of the Department of Health and Human Services (HHS), but only for the accuracy of the factual information contained within the report and to ensure that the information in the report was required to be reported, says Iwrey. "There is no review available questioning the merits of a medical malpractice payment, or of the basis for a professional review or state licensing action," he says.

The only other recourse is to file for judicial review in a federal court, according to Iwrey. "At the review, the physician must establish that the secretary's decision was 'arbitrary and capricious' — a virtually impossible barrier to overcome," he says.


Reports can do damage if 'severely worded'

You should provide input early on in the process

How much will a National Practitioner Data Bank (NPDB) report adversely affect a physician? That depends in large part on the underlying events and the wording of the report, according to Robert S. Iwrey, JD, a founding shareholder with The Health Law Partners in Southfield, MI.

Because state licensing boards routinely query the NPDB, Iwrey says that a severely worded report can trigger a licensing action against the physician's license to practice medicine. Physicians requesting staff privileges at hospitals or ambulatory surgery centers typically have to provide additional information regarding matters reported to the NPDB, he adds.

"If the report's wording is severe, no explanation or additional information may be enough," Iwrey says. "Severely worded reports can be the 'death knell' to a physician whose specialty requires him or her to have staff privileges at a hospital."

If a NPDB report cannot be avoided, physicians should attempt to have as much input into the process of wording the report as they possibly can, says Iwrey. It's also important to give input on the adverse action classification codes used, which are used to identify the action when submitting a report, such as probation, he says. Also, include the basis for action codes, which indicate the reason the action was taken, such as failure to comply with health and safety requirements, he advises.

"Physicians are well-advised to gain input into the process of selecting these codes, in order to mitigate the adverse impact of a report," Iwrey says.

Obtain an attorney fast'

Physicians should retain an attorney as soon as they are notified of an investigation by a healthcare facility or state licensing board, advises Elise Dunitz Brennan, JD, a partner with Conner & Winters in Tulsa, OK. Hospitals expect physicians to have medical malpractice actions and weigh the importance of these, she explains, "but if you're in there for a licensing or hospital action, that is pretty hard to explain."

Lawyers might be able to negotiate the wording of the report to allow the doctor to avoid future problems with obtaining privileges, such as the hospital putting in a statement that they didn't look at a radiologist's behavior if the report involves a surgical error that resulted from a misread X-ray, says Brennan.

Similarly, the hospital leaders might agree to say they made a decision without obtaining external medical experts, or that the medical expert focused solely on one issue and there was an extenuating factor that never was decided.

"If it's something that is factually correct, the hospital might agree to it. That could allow the doctor to say, 'This wasn't looked at,' down the road," says Brennan.