Federal agencies do not report malpractice cases, study shows.

Three agencies of the U.S. Department of Health and Human Services (HHS)--the Indian Health Service (IHS), the Health Resources and Services Administration (HRSA), and the National Institutes of Health (NIH)--failed to report 474 medical malpractice cases to the National Practitioner Data Bank, despite being required to do so, according to an October 2005 report by the HHS inspector general. The cases involved treatment rendered by government health practitioners from June 1997 through September 2004.

Managed by the HRSA, the data bank collects information related to malpractice claims against health care providers, including settlements and judgments, disciplinary actions, Medicare and Medicaid sanctions, and license suspensions and revocations. Hospitals, other health care organizations, and state licensing boards access the information to evaluate credentials and identify practitioners with persistent problems.

Although private insurers and self-insured health providers are required to report malpractice settlements to the data bank, federal government agencies that provide health care are generally not required to do so. However, HHS has directed its agencies to report cases whenever payments are made as a result of a claim being filed against a government health care provider. Since the data bank's inception in 1990, HHS agencies have reported 257 malpractice cases.

The HHS inspector general's report is not the first to note incomplete reporting to the data bank. A 2001 report by the same office documented that 84 percent of managed care organizations reported no adverse actions to the data bank between September 1990 and October 1999, concluding that the relatively small number they actually reported (715) constituted nonreporting. (Sara Hoff man Jurand, Managed Care Companies Don't Report Bad Doctors, Federal Study Finds, TRIAL, Aug. 2001, at 80.)

Jim Perdue Sr., a medical malpractice attorney in Houston, said the data bank is a failure regardless of who is doing the reporting.

"The whole idea is to have government involved in protecting people from dangerous doctors. But it hasn't worked very well in the private sector either, because there are ways to get around it," Perdue said.

"For example, if you have a case against a hospital and a doctor, often it appears in the data bank as though the only party settling is the hospital. And a lot of times the fact that it has to be reported has been an impediment to settlement because the doctor will say, 'If I settle this case, it will go to the databank.' So to that extent, it has made settlements more difficult."

In the current report, the inspector general found that lost files and incomplete records partially accounted for the nonreporting. In some instances, the practitioners involved were not named because the government determined that the standard of care had been met.

In a 2003 meeting with the inspector general, HHS officials said they wanted the reporting policy revised so that "the only cases reported by HHS would involve claims in which the standard of care was not met," according to the report. (Private insurers and practitioners are required to report all settlements and judgments, regardless of standard of care.) Still, the report noted, of the 474 unreported cases, HHS's own peer review determined that the standard of care was not met in 226 IHS cases, 100 HRSA cases, and 1 NIH case.

"Underreporting of the department's own medical malpractice cases lessens the usefulness of the [data bank] and undermines departmental efforts to regulate private- and public-sector compliance with [data bank] requirements," the inspector general concluded. "Furthermore, since HHS policy and procedures require that [HHS] report to state licensure boards at the time a report is submitted to the [data bank], failure to report ... deprives state licensure boards of potentially useful information for their regulatory activities."

Perdue agreed with that conclusion.

"Nonreporting is harmful to the medical profession because the whole idea was that we could identify these dangerous doctors and get them out of business," he said. "And state boards have been notoriously lax. We just don't do much to protect the public, and the data bank has not contributed to that goal in anyway."

The report, HHS Agencies' Compliance with the National Practitioner Data Bank Malpractice Reporting Policy, is available at http://oig.hhs.gov/oei/reports/oei-12-04-00310.pdf.