Big Brother is Keeping Score

A nationwide medical malpractice claim tracking system will soon be on line. This system will enable the federal government to keep tabs on the medical community and help hospitals keep chronically negligent physicians off their staffs.

The vehicle for this massive computerized undertaking is the National Practitioner Data Bank, an entity authorized under the Federal Health Care Quality Improvement Act of 1986. The inauspicious purpose of the data bank was to collect and disseminate basic information relating to the professional competence of physicians and other health care providers. The proposed regulations have several key provisions including who must provide information, how the information must be reported, and when it must be reported.

Who must report

Briefly, hospitals, health care entities, boards of medical examiners, professional societies taking adverse action and any individuals or other entities, including insurance companies that make payments as a result of medical malpractice claims, have a statutory obligation to report.

In other words, anyone making a payment of any amount arising out of a medical malpractice claim must report certain information to the National Practitioner Data Bank.

What must be reported

The following information must be reported:

The physician's name, work address, home address, Social Security number, date of birth, professional school and year of graduation, license number, field of licensure and the name of the state or the territory in which the license is held, DEA registration number, and the names of each hospital with which the health care practitioner is affiliated.

Additionally, the date of the incident, the date of the judgment, the amount paid and the date of payment are required information. If the case made it into formal litigation, the federal government wants to know the case number and the court where the action was filed. Reporters are also required to set out a description of the acts or omissions and the injuries or illness on which the claim was based. It is clear from the proposed regulations that the Secretary of Health and Human Resources may require additional information from time to time.

Anyone failing to report the data to the National Practitioner Data Bank is subject to a civil monetary fine of up to $10,000 for each payment involved.

Each board of medical examiners must report similar information to the data bank when it revokes, suspends, censures, reprimands, or places any of its licensees on probation.

For those few states which do not already require reporting of adverse actions against physicians by hospitals, the new regulations mandate that any professional review action by a hospital adversely affecting clinical privileges for a period longer than 30 days, or the surrender of clinical privileges or, any restriction of privileges by the physician after he is already under investigation, must reported. The information that must be reported is similar to the information required to be submitted by the person affecting the settlement of the malpractice action.

As a cross-check, the state licensing board of medical examiners also must report any information which has been reported by a hospital, and the state must report a hospital's failure to report required information as well. This failure to report can lead to an investigation and hearing on the noncompliance.

Disclosure

Every time someone applies for courtesy or staff privileges at a hospital, that hospital is required to run a check on the health care provider through the National Practitioner Data Bank. The hospital also must run a data bank check on every health care practitioner on staff every two years, regardless of whether the institution has reason to believe the physician may not be qualified to practice medicine.

Any hospital not requesting this information is presumed to know any and all information in the data bank on the health care provider. From a legal standpoint, this could be particularly damaging. On the other hand, if the hospital requests and receives the information, it may rely upon the information provided by the data bank and will not be held liable unless hospital officials have knowledge that the information on the physician was false.

The board of medical examiners and the physician himself also may request information from the National Practitioner Data Bank. Of course, the physician can only request information on himself or on behalf of his professional association, which may be entering into an employment relationship with another physician.

Whenever information is filed with the data bank, the subject of the report is supposed to be routinely mailed a copy of the report. If the physician or other health care provider disputes the accuracy of the report, the health care provider has 60 days in which to dispute the report. The procedure requires that:

1. The doctor inform the Secretary of Health and Human Services and the entity filing the report in writing of the disagreement and the basis for the disagreement.
    
2. The doctor must ask that the information be entered into a "disputed" status and that this status be reported to all those inquiring of the physician's status.
    
3. The doctor should enter into discussions with the entity filing the report in an attempt to resolve the dispute.

If the entity filing the report refuses to revise the reported information, the written information from both sides will be reviewed by the Secretary who will have the ultimate decision on the accuracy of the information. The entity filing the report is charged with the responsibility of informing all those to whom reports have been sent of any subsequent revisions.

An attorney or a claimant who has filed a medical malpractice action against a hospital may, under certain circumstances, be able to obtain information on a physician if it can be proven that the hospital failed to run the required background check on a staff physician. The information obtained under those circumstances may be used only in a plaintiff's case against the hospital, and not against the physician.

The legislation also has a provision allowing dissemination of the statistics involved in this massive undertaking as long as the name of the hospital, doctor, dentist, or other health care practitioner is not disclosed.

The information reported to the data bank is considered confidential, and its further dissemination is prohibited except as outlined above. Moreover, anyone who receives information from the data bank must use it only as so provided by the legislation. Any violators of the confidentiality provision also are subject to a $10,000 fine for each violation.