“CONCERNS WITH THE NATIONAL PRACTITIONER DATA BANK”
by Michael J. Jordan
Two decades ago, when Congress enacted the Health Care Quality Improvement Act of 1986, it created the National Practitioner Data Bank (“NPDB”) in an effort to discourage physicians from relocating, from state to state, without the disclosure of problematic actions in which they were involved in previous locations. While the Congressional action was laudable, the practical application of the law, in the years since its adoption, has sometimes posed career-threatening problems for physicians who are far from incompetent.
The NPDB acts as the receiver of reports concerning physicians in several categories, including those pertaining to malpractice payments made for the benefit of the practitioner, licensing actions taken by state medical boards, adverse professional review actions taken by medical entities, DEA actions and exclusions from Medicare and/or Medicaid programs. These reports are made available to hospitals which, as designated health care entities under the statute, are essentially required to inquire about the background of a physician when he or she applies for clinical privileges. It is also incumbent upon the hospital to follow up with an inquiry every two years thereafter, as long as the individual remains on staff or retains privileges.
Hospitals also have an obligation to make reports to the NPDB when problems arise concerning a staff physician. For example, information must be sent to the data bank whenever a person’s clinical privileges have been adversely affected by a professional review action which extends beyond thirty days. They are also required to make a report whenever a physician surrenders privileges while under investigation concerning allegations of incompetent or unprofessional actions, or if the hospital foregoes an investigation on the condition that the doctor surrenders his or her privileges.
Physicians do have the right to add a personal statement to any report which is submitted to the NPDB by a medical institution and, in addition, may ask the Secretary of Health and Human Services to review a report for alleged inaccuracies. However, history has shown that these reports are rarely revised by government officials.
When confronted with a situation which may ultimately result in the filing of a report with the NPDB, physicians sometimes fail to respond in the most judicious manner. For one thing, it is imperative that a medical professional facing a peer review action address the situation immediately. Though doctors may feel that matters can be handled amicably in a peer review setting, it is not always easy to sort things out in an objective manner under these circumstances.
If the review eventually results in the suspension of clinical privileges, the physician should attempt to resolve the situation, with the hospital administration, within thirty days. This may give the hospital administrators some flexibility when they are trying to determine whether to file a report with the data bank. Once this time period has passed, the hospital has no choice but to submit its findings.
Some physicians who hold staff privileges at multiple institutions also make the error of relinquishing their privileges at one hospital, while under peer review there, under the belief that they can pursue their practice at their other places of employment without any adverse consequences. The problem with this approach, of course, is that all of the physician’s employers will eventually learn of any report made to the NPDB by the one hospital which initiated the peer review process.ÂÂÂ
Medical professionals under peer review may also make the mistake of attempting to negotiate an agreement which, they feel, will not adversely affect their practice. However, if the agreement still makes it necessary for the institution to file a report with the NPDB, little benefit will have been gained by the physician.
Doctors must, in addition, be aware that peer review actions can sometimes be used to stifle a staff member who is critical of the institution or its administrators. Citing a staff member’s outspokenness as “misconduct,” hospital officials can attempt to muzzle an individual, knowing that administrative review actions have been afforded a strong measure of immunity under the 1986 Act. Thus, a physician is forced to consider such possibilities before he or she decides to challenge established policies or procedures.
Once a decision has been rendered by a peer review board or by a hospital’s board of directors, it is often very difficult for a physician to have it overturned by a legal proceeding. Courts have shown a reluctance to second-guess such decisions, even when they involve non-medical “misconduct” allegations. This reinforces, for the physician, the importance of addressing an adverse situation before it reaches that point. By acting quickly, by fully evaluating the consequences before agreeing to relinquish privileges or resign from an institution, and by exercising caution in order to avoid allegations of misconduct, a physician may be able to prevent the submission of a potentially damaging report to the NPDB.
(In order to read the article in its entirety, please see the November/December, 2007 issue of Northern Ohio Physician, Vol. 92, No. 6, published by the Academy of Medicine of Cleveland & Northern Ohio).
