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Changes to National Practitioner Data Bank reporting - effective or not?

The National Practitioner Data Bank was created by the Health Care Quality Improvement Act (HCQIA) of 1986, Title IV of Public Law 99-660. The Data Bank has been amended several times, including Public Law 100-93 (Section V of the Medicare and Medicaid Patient and Program Protection Act of 1987), which requires state licensure agencies to report adverse licensure actions taken against all licensed, certified, or registered health care practitioners. It has also been amended in Public Law 100-177 and Public Law 103-66. The regulations that implement the Data Bank appear at 45 Code of Federal Regulations, part 60, which were published in the Federal Register on Oct. 17, 1989. The Data Bank opened on Sept. 1, 1990 and received its final certification for permanent operation on March 1, 1991. HHS operates the Data Bank. HHS has published a guidebook and supplement on the Data Bank that are available through the government.[1,2]

The guidebook gives a good summary of the legislation's purpose: "The intent of this legislation ... is to improve the quality of medical care by encouraging physicians, dentists, and other health care practitioners to identify and discipline those who engage in unprofessional behavior; and to restrict the ability of incompetent physicians, dentists, and other health care practitioners to move from State to State without disclosure or discovery of the practitioners' previous damaging or incompetent performance.

"To encourage and support professional review activity of physicians and dentists, the law provides that the professional review bodies of hospitals and other health care entities, and persons serving on or otherwise assisting such bodies, are offered immunity from private damages in a civil suit under Federal or State law when their professional review responsibilities are conducted with the reasonable belief it is furthering the quality of health care and it is conducted with proper regard for due process. There are exceptions under the law of civil rights actions, and antitrust actions brought by Federal and State governments."

Some commentators apparently believe the Data Bank is a beneficial creation, although this author respectfully disagrees. Hackney has said that "effective peer review of physicians, dentists, and other licensed health care practitioners benefits everyone, except the marginal practitioner .... The HCQIA was developed to benefit patients, physicians, hospitals, and other health care providers. It has the potential to provide that benefit with the support and understanding of those in the best position to make it work-physicians and hospitals."[3] Believing that many good and competent doctors are undeservingly sued, the author is not prepared to acknowledge that the Data Bank is a good idea in the first place. HCQIA requires a "Medical Malpractice Payment Report" to be filed any time a payment is made that is within the scope of the act. Somewhat simplified for this article, any time an insurer or self-insurer makes a payment because of a malpractice claim (with or without suit), the report must be filed. HCQIA has always allowed the reporting entity (not the practitioner) to make a 600-character description of the case being reported in Item 38, Section C, of the Medical Malpractice Payment Form.

Before the changes, if the practitioner disagreed with the factual accuracy of the report (and factual accuracy was the only basis for dispute), the formal review process was, and remains, both limited and complex. The practitioner:

* Was limited to 60 calendar days to initiate the dispute

resolution process.

* Could only dispute the factual accuracy of the report;

many times the report can be factually accurate but

lead to the wrong conclusion.

* Must try to resolve the dispute with the reporting entity;

presumably, if the dispute were so easily resolved, it

would not have existed in the first place.

* Failing resolution with the reporting entity, could submit

the dispute for resolution by the Division of Quality

Assurance of HHS by a panel of three professionals and

legal counsel for the Office of General Counsel; the

panel's recommendation is submitted to the Director of

Quality Assurance. There is no appellant mechanism.

Again, this article's review of the dispute resolution process is superficial but makes the point that there was no practical mechanism for the practitioner to tell his or her "side" of the story.

Now the new changes. By a public announcement on March 31, 1994, effective March 7, 1994, the Data Bank will allow the practitioner to add a 600-character "rebuttal," without using the formal review process briefly described above. The "rebuttal" is not limited to the factual accuracy of the report, as is the formal dispute process. The "rebuttal" provisions are in addition to the formal review process, so a practitioner has basically three choices:

* Formal dispute resolution without a "rebuttal."

* A "rebuttal" without formal dispute resolution.

* Both "rebuttal" and formal dispute resolution.

Our original question now resurfaces: Does the 600-character "rebuttal" make the Data Bank fair? Not really. While it is a step in the right direction, by no means does it make it fair.

Why not? First, the change was accomplished by an informal policy change under the already existing dispute resolution process. The change is not incorporated into either the statute or the regulations. As easily as this change has been "given," it can be "taken away." This change (and others, in the author's opinion) should formally become part of the law.

Second, it is too little. Assuming seven characters per word, a 600-character rebuttal will consist of about 86 words. It is common for a fully prepared medical malpractice case to consist of 10,000-15,000 pages by the time it is ready for trial.

Third, the new change fails to recognize the long-standing problem of nuisance or frivolous suits. This problem has been known since the very beginning of the Data Bank. In the Federal Register of Oct. 17, 1989, when the regulations were published, it stated: "Numerous comments were made regarding the interpretation of malpractice payments. Respondents pointed out that nuisance or frivolous claims are frequently settled by small payments which do not reflect on the professional competence or conduct of the physician, dentist, or other health care practitioner in issue." The Secretary of Health and Human Services "agreed" with these comments by adding an "interpretation" that payment on a medical malpractice case "shall not be construed as creating a presumption that medical malpractice has occurred." This was an empty gesture.

In the Guidebook Supplement, it stated: "The Secretary is appreciative of the fact that some medical malpractice claims, particularly those that are often referred to as nuisance or frivolous claims and that may be settled purely for reasons of convenience, are frequently settled by payments that do not reflect on the professional competence or professional conduct of the physician, dentist, or other health care practitioner in issue. In such cases, the event upon which the medical malpractice claim (and payment) was based may not have arisen because the practitioner provided substandard care."[2]

The proposed solution was for the reporting entity to state whether or not malpractice occurred; the practitioner could not comment. Again the basic problem was not addressed.

While the "rebuttal" is insufficient, every reported practitioner should still use it. A "rebuttal" of a few words (well chosen) is better than silence.

What additional reforms are needed? First, we should stop reporting medical malpractice payments at all. It is time to face the clear reality that medical malpractice cases are filed by plaintiff s lawyers who hope to make money on them, usually supported by alleged "experts" from a distant city who commonly testify outside of their specialties for considerable fees. The result in any given medical malpractice case may reflect more on the quality of the advocacy by plaintiff and defense counsel, as well as the sympathy of the jury, than on the quality of medicine given. It is simply unfair to report to the Data Bank cases that reflect so many intensely subjective factors rather than the quality of the care. Unless a medical malpractice case has had some consequence on the practitioner's credentials, it should not be reported.

Second, no medical malpractice case should be reported unless and until it has been certified by a local panel of practitioners in the same specialty, who have reviewed all of the records and certify that malpractice was committed. The panel should consist of at least five or seven practitioners to have a broad cross section of opinion; a majority vote would be sufficient to certify a case for reporting to the Data Bank.

Third, there should be a "floor" below which no case would be reported. This idea has been debated for some time, but with no substantial progress. Louis W. Sullivan, MD, HHS Secretary when the legislation was passed, has been quoted as proposing to urge to Congress a $30,000 threshold on malpractice payments before they must be reported to the Data Bank; the American Medical Association had previously been advocating a $50,000 threshold. The same report quotes an AMA spokesman as indicating that the $30,000 threshold would eliminate 44 percent of the 15,000 malpractice reports filed in the Data Banles first year.[4] This author advocates a threshold of at least $50,000; in urban jurisdictions that characteristically have a higher incident of excessive jury awards, the threshold should be $100,000. If we were to use a "national threshold," $50,000 would probably be acceptable, but not optimum. A fairer threshold would be one established either state by state or by Standard Metropolitan Statistical Area on the basis of socioeconomic factors. While the formula for a threshold can be debated, in fairness a threshold should be created.

Fourth, no malpractice case would be reported if the insurer, reporting entity (if different from the insurer), and defense counsel all certified in writing that a case was settled for economic reasons and denied the existence of any malpractice. If any of the certifying persons or entities refused to certify, the case would be reported.

Fifth, another alternative would be to allow a settled case to be reported only if the defendant practitioner agreed to the settlement. As the system now works, the decision to settle is commonly made by insurance companies or other entities, without the consent of the practitioner. Thus, while the practitioner may have no power to control the settlement, he or she is the person reported to the Data Bank and has no control (or no practical control) over the settlement.

Sixth, settlements and verdicts should be apportioned among practitioners in those cases where there are multiple practitioners. As the Data Bank now stands, if it is impossible or impractical to assign a percentage of the total settlement or verdict to each practitioner, each practitioner is reported as being responsible for the entire settlement or verdict. This is simply unfair. For example, a practitioner whose malpractice is hypothetically only responsible for 10 percent of a $1 million verdict could be reported for the entire $1 million. While apportionment is not this author's first suggestion, it would at least inject some element of fairness.

Seventh, under no circumstances should information in the Data Bank be revealed to consumer groups or public advocacy groups. This author fully respects the right of the public to know "good" doctors from "bad" doctors, but the Data Bank is not the proper vehicle for that decision. The information put into the Data Bank was not designed for consumer use and it would be unfair (especially retroactively) to allow consumer groups to use the information (much of it inaccurate and misleading) currently in the Data Bank.

In conclusion, the 600-character "rebuttal" is at least a tiny step in the right direction; every reported practitioner should probably file a "rebuttal." However, this short "rebuttal" by no means addresses the basic problems and inequities of the Data Bank. The author's final advice: Write your congressman and demand changes.


[1.] National Practitioner Data Bank Guidebook. Washington, D.C.: Superintendent of Documents, U.S. Government Printing Office. [2.] National Practitioner Data Bank Guidebook Supplement. Washington, D.C.: Superintendent of Documents, U.S. Government Printing Office, Aug. 1992. [3.] Hackney, V. "The National Practitioner Data Bank: A Step toward More Effective Peer Review." Journal of Health and Hospital Law 24(7):201, July 1991. [4.] "Sullivan Reportedly Will Seek a $30,000 Threshold on Malpractice Reports." National Health Lawyers News Report 20(12):3, Dec. 1992.

David E. Manoogian is an attorney with Epstein Becker and Green in its Washington, D.C., offices.
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Author:Manoogian, David E.
Publication:Physician Executive
Date:Jul 1, 1994
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