Almost without exception, at some point during the first fifteen minutes of the initial meeting with a doctor who has been sued for malpractice, we get a question about the dreaded National Practitioner Data Bank (NPDB). Our experience has taught us that this common fear among physicians derives more from what they don’t know about the NPDB than what they do. Usually, after a brief question and answer session, the doctor’s concerns are substantially diminished. Below is an attempt to cover the basics in a frequently asked questions format.
What is it? The NPDB was created to promote patient safety across state lines by giving hospitals a tool to check a physician’s history for “competence and conduct.” To achieve this goal, the NPDB requires that specific information be reported by specific entities.
What is reported? The information required to be reported includes payments made on behalf of physicians and other health care practitioners involving judgments, arbitration awards, and settlements. Malpractice insurers must report payments made on behalf of all licensed practitioners, no matter the amount. In addition, state licensing boards must report adverse actions taken against a provider’s license, and hospitals must report instances where staff privileges are affected for more than thirty (30) days.
What if payment information is not reported? Failure to report a payment may result in a penalty of up to $11,000, and attempts to circumvent the system are severely punished in order to deter such conduct. Responsibility for enforcement lies with the Secretary of the Department of Health and Human Services.
Who has access to the information? NPDB records may be released only to authorized entities, including hospitals and other health care entities, state licensing boards, professional societies, and practitioners requesting their own records. However, a plaintiff’s attorney can access a physician’s information if there is a lawsuit filed against a hospital, the physician is a defendant in that lawsuit, and the hospital neglected to submit a query regarding that physician as required during the credentialing process. Thus, it is not unusual for a plaintiff’s attorney to request in discovery proof that a hospital made the required search.
What if the information is wrong? Because the reported information may have an impact on licensure, privileges, and insurability, it is important for the individuals reporting the information and the affected healthcare professionals to carefully review all information submitted. If the information published in a report is inaccurate, a physician may dispute the content within sixty (60) days from receiving notice of the report from the NPDB. Occasionally, hospitals are the target of defamation type claims from providers as a result of reporting privilege issues to the NPDB. In such instances, hospitals are provided with statutory immunity if the report stems from a “professional review action” based on a physician’s “competence or professional conduct.”
What are the criticisms of the NPDB? As with all things, the NPDB is not perfect. Perhaps the most frequently criticized aspect of the system is the requirement that all settlements be reported. Critics claim that this is an impediment to the efficient resolution of claims involving lower damages which might otherwise be settled for nuisance value, because physicians with a consent clause in their insurance policy routinely refuse to settle for any amount in order to avoid the mandatory reporting requirements. Critics also allege that the NPDB is flawed because there is no uniformity as to what gets reported. For example, based on the same set of facts, one hospital may take an action that would trigger reporting requirements while a different hospital may not. Also, hospitals may take a less severe action than they otherwise would under the same circumstances solely to avoid having to report a physician, such as requiring medical education, but no loss of privileges, or revoking a physician’s privileges for twenty-nine (29) days or less.
What are the consequences of having a settlement reported? Anecdotally, it appears that the reporting of a single settlement that is not excessively large does not have much of an impact on the reported physician. From our experience, it is only when a doctor has multiple settlements reported, or one that is very large, that the NPDB can present obstacles for the provider with respect to state licensure issues, obtaining hospital privileges, and finding affordable malpractice insurance.