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Who’s Protecting the Patient?


Public access to the National Practitioner Data Bank was blocked by the Department of Health and Human Services during the past month. A doctor listed therein for having been sued successfully by several patients complained that a newspaper in his area had published that he had also been disciplined by one of the hospitals where he practiced. Alan Bavley, a reporter for the Kansas City Star, had done some detective work with encoded information in the data bank, found the hospital disciplinary measure and by publishing it crossed a line drawn by HHS.

The data bank was established in the eighties by Congress to store information about all disciplinary actions against doctors by their hospitals and by the state boards of medicine. An additional portion of the information, and, in practice, by far the largest, comes from malpractice insurance carriers about settlements and verdicts in medical liability cases. It gives a summary of each case which is often based on the complaint submitted by the patient’s lawyer. The doctors’ names were never accessible to the public. Only in the last few years, just over a decade, was the bank’s data available to the public but it was obscured by assigning numbers to the doctors and keeping their names secret.

The reporter’s research, which included partial access to the bank’s data via its public portal, had enabled him to put 2 and 2 together. He already had the doctor’s name and the scenarios of multiple lawsuits against him, things that were in the public domain. He had been assisted by at least one plaintiffs’ attorney. By matching the summaries of the allegations in several suits with those of a doctor listed in the data bank he was able to break the code and match the name to the number. Taking things a fateful step further, he found a hospital disciplinary report under the number. Such a report is not in the public domain and, a spokesman for HHS maintains, was illegal for the Star to publish. An $11,000 fine was threatened but the newspaper went ahead with the report anyway. Then HHS shut down public access fearing that other reporters could easily triangulate the data and get hospital disciplinary reports on other doctors.

I became familiar with using the data bank as a hospital chief of staff for five years. The only people allowed to use it unveiled were officials of the hospitals which had received applications for staff privileges from a doctor. They were required by the law that established the bank to check out all the entries for an applicant, who was, for them only, identified by name. The information was read by the privileged few lay administrators and doctors who had to make recommendations whether or not to accept the new doctor on their staff. It was meant to protect the public from harm by unfit doctors. In practice, very few are kept off hospital staffs this way.

A large minority of American hospitals have never reported a doctor for having been disciplined at their institutions to the data bank. The malpractice insurers, on the other hand, are reliable reporters to both the data bank and the state boards of medicine. One of the chief concerns expressed in the Kansas City Star was that the Kansas state board of medicine had not taken action against the doctor even though several cases which had resulted in judgments against the doctor had been reported to it by the insurers in compliance with state law. Most states have such laws.

In my state, Florida, a large proportion of malpractice settlements or verdicts are reportable to the state. All reports are investigated. The last time I checked with a lawyer who defends doctors, she told me that only about 1% of such reports result in actions against a doctor’s license. There have been revocations based on a plethora of judgments against a single doctor, but usually the malpractice cases do not cross the threshold for action. There are several explanations for this. The legal standard for many state boards of medicine is higher than that for malpractice suits. The latter require that the predominance of the evidence go against a defendant. The former insists that “clear and convincing” evidence be presented.

Many malpractice cases are settled to avoid court costs. Many have questionable merit. A Harvard study showed that 40% of about 1300 closed cases were invalid, most involving no liability. Although most boards of medicine can be very severe and are still the strongest bulwark of the public against bad practitioners, they still are vulnerable to the criticism of leniency toward their peers because almost all boards are made up mostly of doctors.

When the public portal to the data bank was open, a tabulation was made that showed that an average of only 250 of America’s 650,000 doctors had their licenses revoked each year, less than 0.04%.  Some would argue that this is too small a fraction of physicians. Others say that the doctors who get reported to the state are often the victims of flawed health care delivery systems and this must be taken into account in determining what, if any, disciplinary measure is appropriate in the case of an individual practitioner. There is a joint statement of the state medical boards of the U.S. and Canada in 2008 to that effect.

When the Harvard Medical Practice Studies, the gold standard on medical errors, were done, they were blind to the existence of physicians whose actions resulted in multiple adverse events, so that we do not have a good handle on how many doctors there are with repeatedly bad outcomes. This is data that is sorely lacking and must be obtained before we can say that certain practitioners are the source or not of a disproportionate number of adverse events.

That would require a much greater transparency than the medical profession has tolerated up until now. From that standpoint, shutting down the data bank is a step in the wrong direction.

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