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. <strong>The</strong> 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 <strong>For</strong> <strong>The</strong> <strong>Defense</strong> n <strong>July</strong> <strong>2010</strong>Establishment and Operation of NPDBLegislation and Policy Rationale for NPDB<strong>The</strong> 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). <strong>The</strong> 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.” <strong>The</strong> 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). <strong>The</strong> 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 <strong>For</strong>m No. 2039001-02233.02.01. <strong>The</strong> 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. <strong>The</strong> state board must also report
any known instances of a health care entity’sfailure to report such adverse action tothe board. 45 C.F.R. §60.9(b).Who Can Access the NPDB<strong>The</strong> following may, and in some instancesmust, query the NPDB:• A hospital, regarding a physician, dentistor other health care professionalwho has clinical privileges at that hospital.Hospitals are required to query theNPDB when a health care professionalapplies for a position on its staff or forclinical privileges, and every two yearsfor professionals on staff or holding privileges.45 C.F.R. §60.10(a).• A physician, dentist or other health careprofessional, about him- or herself.• State boards licensing boards.• A plaintiff’s attorney, or pro se plaintiff,where a medical malpractice action isfiled against a hospital in a state or federalcourt or other adjudicative body,where the practitioner on whom theinformation is requested is named inthe action or claim and where the plaintiffcan provide independent proof thatthe hospital did not make the legallyrequired query under Part 60.10.Plaintiffs are not permitted to querythe NPDB in medical malpractice claimsagainst individual practitioners only. <strong>The</strong>NPDB may also be queried by analysts andresearchers in a manner that will not permitidentification of individual practitioners.45 C.F.R. §60.11(a)(7).Overlap with Other Reporting ObligationsHealth Care Integrity andProtection Data BankAn even broader range of practitionersand institutions are subject to reportingunder the Health Insurance Portabilityand Accountability Act (HIPAA), someof which overlaps with NPDB reporting.Enacted in 1996, HIPAA in part directedthe creation of the Healthcare Integrity andProtection Data Bank (HIPDB), which collectsinformation designed to inhibit Medicareand Medicaid reimbursement fraud.<strong>The</strong> following is reported to HIPDB:• Federal and state prosecutors mustreport criminal convictions against“health care providers, suppliers andpractitioners” that relate to health caredelivery or service. 45 C.F.R. §61.8.• Federal and state attorneys, along with“health plans,” must report civil judgments(like the NPDB), including butnot limited to medical malpractice judgments,against health care providers,RESPONDING TO YOUR NEEDSERI Quality and Servicesuppliers or practitioners that “relate” tohealth care delivery. Judgments must bereported even if appealed. 45 C.F.R. 61.9.A “health plan” includes any programor entity that provides health benefits,Why spend valuable hours of your staff’s time trying to locate the rightexpert? With over 30,000 areas of expertise in our registry, helping youfind the right expert is rarely a problem.EXPERTS ON EXPERTS ®HELP YOU NEED…WHEN YOU NEED IT SINCE 1979800-383-48571225 EAST SAMUEL AVE. • SUITE B • PEORIA HEIGHTS, IL 61616-6455Fax 888-815-2778 • www.expertresources.com<strong>For</strong> <strong>The</strong> <strong>Defense</strong> n <strong>July</strong> <strong>2010</strong> n 31
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