For The Defense, July 2010 - DRI Today

M E D I C A L L I A B I L I T Y A N D H E A LT H C A R E L A Wprofessionals. That information is in turnmade available to hospitals, clinics, professionalreview committees and statelicensing boards for use in hiring, extendingpractice privileges, peer review and/or licensing of such providers. The availabilityof settlement information to a defendantpractitioner’s current and futureemployers, peer review committees, andPlaintiffs are notpermitted to querythe NPDB in medicalmalpractice claims againstindividual practitioners only.any institution to which he or she appliesfor privileges can chill any enthusiasm thepractitioner might have for settlement.In this article we present a summaryof the development of the laws and regulationscreating the NPDB, and a synopsisof its requirements and provisions.From there, we explore the practical problemspresented to the defendant, the defendant’sliability carrier, and defense counselby data bank reporting. Finally, we assessoptions for minimizing the harmful impactto the provider of reporting a settlement,and measures that can provide some protectionto defendant practitioners in casesthat can be settled for a reasonable figure.30 n For The Defense n July 2010Establishment and Operation of NPDBLegislation and Policy Rationale for NPDBThe NPDB was created by the Health CareQuality Improvement Act of 1986 (“HC-QIA”), 42 U.S.C. §11101, in which Congresssought to address “increased occurrence ofmedical malpractice and the need to improvethe quality of medical care” acrossthe nation. 42 U.S.C §11101(1). Congress’sgoals included encouraging more consistentand effective peer review processes acrossjurisdictions and among health care institutions,and preventing nomadic “incompetentphysicians” from moving state to statein an effort to mask a history of poor care.42 U.S.C §§11101(2)–(5). The actual operationof the NPDB was established via federalregulation. See 45 C.F.R. Part 60.Current Structure of NPDBWhat Must Be ReportedMedical and Dental Malpractice PaymentsAny entity, including an insurance company,who makes a payment for the benefitof a physician, dentist or any other “healthcare practitioner” for settlement or partialsatisfaction of a settlement or judgmentfor medical malpractice is required toreport to the NPDB. 45 C.F.R. §60.7 (2006).“Health care practitioner” is defined inTitle 45, Part 60.3 of the Code of FederalRegulations as an “individual other thana physician or dentist, who is licensed orotherwise authorized by a State to providehealth care services.” The NPDB Guidebook,compiled by the Health Resourcesand Services Administration (“HRSA”),contains a list of “examples of other healthcare practitioners,” which, depending uponwhether licensed by a particular state, mayinclude chiropractors, counselors, emergencymedical technicians, nurses andnurse aides, physicians assistants, therapistsof all disciplines, medical technicians,acupuncturists, athletic trainers,midwives, naturopaths and perfusionists.National Practitioner Data Bank Guidebook,United States Department of Healthand Human Services, Publication No.HRSA-95-255, p. C-3 (2001).Required data in medical malpracticereports to the NPDB includes:• the amount of settlement or judgment• a description of the acts, omissions, injuriesor illnesses in the claim• classification of the acts or omissionsusing a reporting code established underthe regulations.45 C.F.R. §60.7(b)(3)(iv). The NPDB Guidebookprovides a recommended procedurefor compliance with medical malpracticepayment reporting requirements, includinga Medical Malpractice PaymentReport (MMPR) prepared by HRSA. Inaddition to collecting identification information,license numbers, background andhospital affiliations of the reporting subject,the form contains a space in which upto 4,000 characters may be entered detailinga “description of the judgment or settlementand any conditions, including termsof payment.” HRSA Form No. 2039001-02233.02.01. The form also contains spacesfor up to 4,000 characters to describe theclaimant’s admitting treatment diagnosisand any co- morbidities, up to 4,000 charactersfor the procedures performed onthe claimant, and up to 4,000 charactersdescribing the allegations and the allegedinjuries. Id.Licensure Actions by Boardsof Medical ExaminersState boards must also report to the databank any action “based on reasons relatingto a physician’s or dentist’s professionalcompetence or professional conduct,” includingrevocation, suspension or restrictionof license; any professional censure,reprimand or probation; or any actionunder which a physician or dentists surrendershis or her license. 45 C.F.R. §60.8(2006). General inquiries to a state boardthat do not result in action are not reportedto the NPDB. Id.Adverse Privilege ActionsActions impairing the professional privilegesof physicians, dentists and healthcare practitioners must also be reportedto the data bank. Those reporting requirementsfall under a two-tiered reporting system.“Health care entities” are required toreport to the state board of medical examinersany professional reviews of physicianor dentist privileges that affect a practitionerfor more than 30 days, or any surrenderof privileges accepted while a physicianor dentist is under investigation relating topossible incompetence or improper professionalconduct. 45 C.F.R. §60.9(a)(1).“Health care entities” are defined as hospitals;other entities that provide “healthcare services” (which are not specificallydefined) and engage in professional reviewactivity through formal peer review/qualityassurance processes; and any professionalsociety of physicians, dentists or other“heath care practitioners” that engages informal peer review/quality assurance processes.Part 60.9(a).Reporting by a health care entity to astate board may in turn trigger licensureactivity, which would then be reportable tothe data bank. In addition, the state boarditself must then report to the data bank theinformation regarding adverse privilegeactions. The state board must also report