Health Care Lawyer Blog

An agency from the Department of Health and Human Services has restored the public use database to the National Practitioners Data Bank, two months after removing the data amid concerns of inappropriate usage.

However, individuals who use the public access database must now agree that they will not link the information in the database with public information, such as court records, in order to identify the doctors.

The National Practitioner Data Bank (NPDB) is a nationwide repository where hospitals and other entities are required to report malpractice payments and other adverse actions taken against physicians, such as denial of clinical privileges or restrictions. While access to the database is generally restricted, there is a public use file that contains redacted information. Access to the database was shut down in September after certain individuals matched court records in malpractice cases to information in the database, thus publicly identifying the doctors.

In a statement released yesterday, the administrator of the Health Resources and Services Administration (the agency within HHS that manages the NPDB) said that the new restrictions are needed to avoid violating legal requirements on confidentiality. Pursuant to federal statute, information in the NPDB may only be disclosed to certain delineated individuals and organizations, and cannot be obtained via subpoena.

I have been somewhat amazed by the protest surrounding the Department of Health and Human Services' decision to shut down public access to the National Practitioner Data Bank. Given that the only NPDB records available to the general public are devoid of any identifying details like names of parties, ages, or even the amount of malpractice settlement, it initially seemed that perusing the "public" version of the database would be about as exciting as reading a blank notebook.

However, apparently what some creative journalists and public interest groups had been doing was matching the facts in the redacted NPDB reports with court records, thereby identifying the specific individuals involved in certain reports such as malpractice payments.

Consumer watchdog groups such as Public Citizens have alleged that by removing public access to the NPDB, HHS is denying them access to data that is "is crucial to patient safety and research aimed at informed public policy decisions concerning malpractice, tort reform, peer review, and medical licensing." However, supporters of HHS's decision claim that this lack of confidentiality places even more stress on the peer review environment.

Personally, I am more concerned that the practice of viewing redacted NPDB reports and matching them with court records may lead to a physician being erroneously "identified", or even unfairly classified as a "bad physician" by laymen who have no medical background or formal training.

Continue reading "Public Outcry Follows HHS Decision To Cut Off Public NPDB Access" »

The United States Department of Health and Human Services has shut down public access to the National Practitioner Data Bank (NPDB), according to several reports.

The NPDB stores information on physicians and other health care professionals which is used by hospitals, state medical boards, and other entities to make decisions regarding credentialing and licensing. Such information includes reports on if the physician has ever been terminated for issues related to patient care; settled or had a judgment rendered against him/her in a malpractice case; if a physician resigns while under investigation; and certain other adverse events.

Public access to the NPDB has historically been limited - members of the public could review records, but identifying details such as names and ages were removed, along with the dollar amounts of malpractice settlements. However, HHS has now decided to eliminate public access to the NPBD entirely. Now, the database may only be accessed by licensing or credentialing agencies such as hospitals, medical board, insurers, etc.

A spokesperson for HHS claims that NPDB information must be kept confidential, and even limited public access allows users to "triangulate" data. Patient advocacy groups have protested the public access removal.

A federal judge for the District of Las Vegas has ordered the University Medical Center to void a report made with the National Practitioner Data Bank (NPDB) against a physician whose privileges were suspended by the hospital’s medical staff.

The order resulted from a 2008 lawsuit filed by OBGYN Dr. Richard Chudacoff. In 2007, Chudacoff was granted staff privileges at the University Medical Center of Southern Nevada in the Obstetrics and Gynecology department. In April 2008, Chudacoff wrote an email to the OBGYN chair, expressing concerns over the skills of certain OBGYN residents that he supervised at the hospital. The email included several recommendations for improving the quality of care.

Several weeks later, Chudacoff received a letter from the hospital’s Chief of Staff stating the hospital’s Medical Executive Committee had “suspended, altered or modified his medical staff privileges.” Before Chudacoff could be afforded a Fair Hearing, the hospital filed a report with the NPDB stating that Chudacoff’s privileges had been “suspended indefinitely for substandard or inadequate care and substandard or inadequate skill level.” The report cited four cases where Chudacoff caused “serious operative complications during gynecological surgery,” one incident where Chudacoff failed to respond to a medical emergency, and numerous complaints of disruptive behavior.

After the jump - legal analysis

Continue reading "Judge Orders Las Vegas Hospital to Void NPDB Report Against Physician" »

Last week a Mississippi Appeals Court affirmed a lower court decision dismissing a physician's defamation claim against a hospital for stating in an NPBD report that he was "unable to practice safely", when an independent evaluator reported that the physician could practice if certain precautionary steps were taken.

In Lambert v. Baptist Memorial Hospital – North Mississippi, Inc., plaintiff Dr. C. Jake Lambert signed an employment agreement with Baptist Health Services in February of 2004 to provide cardio-thoracic-surgery services. Shortly after his hiring, the hospital began to receive complaints from staff and patients about Dr. Lambert’s angry and abusive behavior, as well as occasions where he “froze up” during surgery.

Following the complaints, Dr. Lambert agreed to be referred to the Mississippi Professional Health Program (MPHP), which referred him to a physician (Dr. Anderson) for evaluation and treatment. Following the evaluation, Dr. Anderson issued a detailed statement to the hospital with several recommendations, including that Dr. Lambert enter a five-year monitoring program with MPHP, and that he should enter an intensive, structured treatment to address the disruptive behavior. Dr. Anderson later filed an addendum to the report stating that:

"It is our impression that Dr. Lambert is currently unfit to practice medicine with reasonable skill and safety, based on the report of a credible source that he has 'frozen up' on three separate occasions in the midst of a surgical procedure. However, this is based on a second-hand report…”

Based on Dr. Anderson’s conclusion, the hospital suspended Dr. Lambert’s privileges and issued a letter informing him that his staff privileges were suspended pending successful completion of the treatment program. Due to the suspension, his employment with the health system was terminated and the suspension was reported to the National Practitioner Data Bank (NPDB).

After the jump - legal analysis

Continue reading "Mississippi Court Rejects Physician's Defamation Claim Following NPDB Report" »

FHW attorney Michelle D. Bayer contributed to this post.

Many physicians go their whole careers without ever facing a credentialing, privileging, or licensing issue. Those physicians are fortunate. However, other physicians who are not so lucky sometimes fail to appreciate the seriousness of their situation and take action too late in the proceedings, thereby jeopardizing their livelihoods.

This post provides an overview of the key issues for physicians from the onset of any hospital investigation or other disciplinary/credentialing action, and includes a step-by-step assessment to help physicians determine if an “investigation” is present, and tips on how to best protect their rights, privileges and medical licenses and avoid a report to the National Practitioner Data Bank (NPDB).

Step #1

It is crucial to immediately determine whether disciplinary/credentialing proceedings initiated by a hospital qualify as an “investigation.” While seemingly innocuous, this distinction is important because both Michigan State Licensing Board (SLB) and National Practitioner Data Bank (NPBD) guidelines require physicians (including dentists) to be reported if they resign during an “investigation”. Many times, resignation seems like a reasonable alternative during the proceedings, and unwitting physicians resign (without challenging the substance of the charges against them) only to discover later that the resignation itself is reportable.

What constitutes an “investigation” and how these investigations are conducted are usually defined in some manner in medical staff bylaws. However, some bylaws are poorly written, vague (intentionally or unintentionally) and fail to properly define an investigation, or how the investigation, review, and appeals process should be conducted. Vague procedures for the investigation/review and appeal processes favor the hospital and can do a great disservice to the physician.

In situations where “investigations” are not clearly defined under the bylaws, the NPDB Handbook and case law provides guidance to determine if an “investigation” is present. Generally, an “investigation” must meet the following criteria:
- Formal notice of the investigation must be given to the physician.
- An investigation must be carried out by a health care entity, not an individual. Thus, just because a lone individual has raised concerns about a physician’s quality of care, this does not mean an investigation is present. Generally during an “investigation,” a physician’s files are reviewed by an ad-hoc committee or submitted for outside, independent review.
- A routine or general review of cases is not considered an investigation; generally, in cases where courts uphold NPDB reports arising from resignations during “investigations,” the investigation is triggered by a specific complaint or incident.
- The investigation must be related to issues directly pertaining to patient care, not documentation or administrative issues.

After the jump - Step #2 - What Are My Rights?

Continue reading "Tips on Handling Hospital Investigations and Avoiding a Report to the NPDB" »