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National Practitioner Data Bank: by The article, "The NPDB and Surgical Residents, " by Josef E. Fischer, MD, FACS, in the April 1996 Bulletin, contained several factual errors concerning the requirements of the Health Care Quality Improvement Act of 1986 and the operating policies of the National Practitioner Data Bank (NPDB). These errors have caused considerable confusion among participants of some residency programs. This letter is written with the intent to correct the inaccuracies cited and resolve some of the confusion created by the article. The article states that "once a physician's name is listed in the NPDB, it is impossible for that physician to have his or her name deleted. " This is not the case. Numerous reports have been deleted from the data bank. A practitioner who thinks that he or she has been reported in error can request that the reporting entity change or void the report. If a satisfactory resolution is not reached, the practitioner may appeal the report to the Secretary of the Department of Health and Human Services (DHHS). Physicians also may file their own statement that will become part of the report in question each time it is released by the data bank. Dr. Fischer is correct, however, when he states that reports are not "aged " out of the data bank. This helps prevent use of a deceased physician's credentials by an imposter. Surveys indicate that credentialing authorities tend to weigh the importance of older reports based on number and types of reports in the record. As stipulated in the 1986 act, only hospitals are required to query the NPDB. HMOs, PPOs, and so on, are permitted to query the data bank, but are not required to do so. Dr. Fischer contends that many queries are simply to "differentiate between individuals who are listed in the NPDB and those who are not. " While this misuse of the data bank's information may take place, our surveys of data bank queriers indicate that they discount the importance of any one report. In fact, queriers look for patterns of malpractice and examine the contents of the reports. They do not generally simply look for the existence of a report. Dr. Fischer further incorrectly states that hospital risk management officials may report "the identical payment " reported by malpractice insurers. Only entities that actually make a medical malpractice payment may report it. Hospitals cannot report a payment made by a malpractice insurer. If both a malpractice insurer and a hospital made separate payments for the benefit of the same practitioner (a very unusual circumstance) two reports for the same incident but not for the same payment will be made. Furthermore, it would be clear to anyone reviewing data bank reports that the same incident resulted in more than one payment and, therefore, more than one report. It should also be noted that if a hospital erroneously reports a payment it did not make, the named practitioner may request the hospital to void the report or appeal to the DHHS Secretary to have it removed. Dr. Fischer is correct when he says that not all malpractice payments represent substandard care. Data bank queriers are often given information in the reports that will help them to determine if a payment represents substandard care or was simply made for convenience. It is widely recognized that the dollar amount of a payment is not necessarily a good indicator of actual substandard care. Average payment amounts vary greatly by practitioner and specialty type. Dentists, for example, have relatively few large payments (for example, over $30,000) even when substandard care is noted. Settlements over $30,000 for convenience may be commonly made for other practitioner types. The data bank report serves as a flagging system that allows qualified professionals and peer reviewers to determine the significance, or lack of significance, of individual reports. Implementing reporting thresholds based on an assumption that "small " payments represent settlements for convenience may have unexpected and unfortunate results. States with reporting thresholds have very predictable payment amount distributions. For example, in California—which has a state reporting threshold of $30,000—more than 6.8 percent of all malpractice payments are for exactly $29,999. Payments in this amount are almost unheard of in other States. Many California plaintiffs appear to be taking advantage of the $30,000 threshold by refusing to settle for anything less than $29,999, even though in the absence of the threshold and the leverage it provides they might have settled for less or even received no payment at all. Many physicians are apparently willing to settle for an amount just under the threshold to avoid any possibility of being reported tothe state. The same pattern is also observed in other states with reporting thresholds. Although state reporting requirements (and the data bank reporting requirement) may discourage settlement of malpractice cases because practitioners who do not want to be reported simply refuse to settle for any payment at all, this behavior seems uncommon. Any widespread movement toward refusal to settle claims seemingly would lead to an increase in the proportion of payments made as a result of court judgments. Such an increase has not taken place. Court judgments remain responsible for fewer than 3 percent of all malpractice payments. Dr. Fischer also is in error regarding the prevalence of NPDB reports concerning residents. Residents are reported on the same basis as otherpractitioners. They must be named in a claim and a payment must be made for their benefit. This is a rare event. In fact, as of the end of 1995, and after 5- years of data bank operation, there were only 900 reports in the data bank concerning interns and residents out of over 98,000 malpractice payment reports in the data bank. While the NPDB cannot determine the number of these reports that involve surgical residents, only 190 of these 900 reports concerned surgery. Presumably, some may have involved minor surgical procedures performed by other types of residents. Thus, while surgical residents may be reported to the data bank, such reports are highly unusual. Furthermore, as Dr. Fischer suggested, self-insured hospitals (as well as attorneys) can take steps to avoid any unfair reporting of residents who provided or failed to provide the care that led to the malpractice payment. The Division of Quality Assurance is always ready to provide information and interpretations concerning data bank requirements as well as to cooperate with authors and researchers seeking aggregate information concerning NPDB reports. Had Dr. Fischer made an inquiry to the division or to the data bank, the confusion created by his article might have been avoided. Vivian Chen, ScD, MSW Robert Oshel, PhD When I received a copy of Drs. Vivian Chen's and Robert Oshel's letter, both of whom are employed by the Bureau of Health Professions, Department of Health and Human Services, I was hopeful that this was the beginning of a dialogue that might improve the National Practitioner Data Bank, especially regarding the principal issue of which I wrote: the needless and wrongful inclusion of residents in the NPDB. Unfortunately, this was not the case. Let me respond to the issues they have raised: 1. When I stated that once a physician's name is listed in the NPDB, it is impossible to have his/her name deleted, I was, of course, correct. While Drs. Chen and Oshel claim this is not the case, what they state is that if a report by which the physician is placed in the NPDB is incorrect or erroneous, that is, if the physician was listed for an event in which that physician's name should not have been reported, then the physician "may appeal to have his/her name deleted. " Of course, the appeal would be honored if, in fact, the physician was listed for an event that did not take place. This action does not address the principal issue—that once a physician's name is listed in the NPDB and this listing reflects an actual event that took place, no matter how unjust or how minuscule the payment or how long ago it took place, that physician's name will be in the NPDB forever. That statement stands unchallenged because it is true. Drs. Chen and Oshel say that I am correct in that the reports are not aged out of the data bank. The argument that this fact prevents use of a deceased physician's credentials by an imposter is the product of the imagination of a person I would like to meet. It is an absolutely unbelievable justification for a practice that is patently unfair. 2. Drs. Chen and Oshel also state: "Surveys indicate that credentialing authorities tend to weigh the importance of older reports based on number and types of reports in the record." It would be nice to see that data. If that data exists, it has not made its way into the public domain. 3. The Health Care Quality Improvement Act stipulates that "only hospitals are required to query the data bank." While only hospitals may be required to query the data bank, the fact is that HMOs and PPOs query the data bank in an effort to winnow down their panels. Unfortunately, residents who apply for a job are not aware that they are in the data bank until they apply to a HMO or PPO for inclusion on a panel and are told they are in the data bank and therefore will not be included in the panel. Drs. Chen and Oshel apparently think that because HMOs and PPOs are not required to query the data bank, they do not do so. In fact, they do. We are aware of many situations where residents who were unaware that they were in the data bank find that in trying to get on a panel for their first position they are excluded because they are in the NPDB. Drs. Chen and Oshel state: "our surveys of data bank queries indicate that they discount the importance of any one report. In fact, queriers look for patterns of malpractice and examine the contents of the reports." Again, if these data exist, it would be nice if the data were available in the public domain and that it withstood the test of statistical significance. In addition, the NPDB does not report malpractice—it records payments, often in minuscule amounts. The two may not be related. 4. One notices that Drs. Chen and Oshel did not address a principal question of my article and that was, "Do plaintiff's attorneys have access to the data in the National Practitioner Data Bank?" This access was specifically excluded in the legislation. If, in fact, the plaintiff's attorneys or other attorneys have access to the data in the NPDB, this is a violation of the original legislation. 5. The authors state that hospital risk management officials may report the identical payment reported by malpractice insurers. They state that this could not be correct because only entities that actually make a medical malpractice payment may report it. It is they who are incorrect. Some hospitals are self-insured for an initial deductible such as $1 million and rely on an external insurer to pay the additional monies, which may result from an award in excess of their initial deductible. Thus, one has a situation in which both the hospital and the external insurer have made a payment. Both will report a payment for the same incident. I don't believe the data bank has software that can pick up the fact that the report of two payments, which may not be identical, is for the same episode. They as much as admitted this in the paragraph. Thus, my statement as originally submitted is unchallenged. While Drs. Chen and Oshel claim that "if both the malpractice insurer and a hospital made separate payments for the benefit of the same practitioner (a very unusual circumstance) two reports for the same incident but not for the same payment will be made." I would point out that the number of practitioners with more than one report is relatively small. It is possible, indeed likely, that a number of the multiple reports in the National Practitioner Data Bank concerning a single physician could be two reports for the same incident that the data bank's software cannot pick up. Thus, my initial statement is correct. The authors further state that "it should also be noted that if a hospital erroneously reports a payment it did not make, the named practitioner may request the hospital to void the report or appeal to the Secretary to have it removed." Imagine if one had to appeal to the Secretary of DHSS for every bit of data that was incorrect. Could the Secretary actually handle the volume? 6. While Drs. Chen and Oshel agree with the critical statement that not all malpractice payments represent violations of standards of care, they bring in dentists to argue that the $30,000 cap is not appropriate. Once again they have not addressed the principal issue. As anyone who has any familiarity with the professional liability payment system knows, there are a number of payments that are made merely to get the event off the books; that is, to have the patient and the plaintiff's lawyer go away. Those states that have instituted caps have instituted them with the belief that a sum of approximately $30,000 represents a nuisance payment. Indeed, the average payment in the National Practitioner Data Bank is $12,000. As anyone who has ever been involved in professional liability or its study knows, $12,000 represents the cost of doing business. If it implies anything, it implies no substandard care but just the price of getting the plaintiff's attorney to go away. The argument in the paragraph that follows simply does not address the issue. Another critical point in the argument was that, far from pointing out any pattern of substandard practice, what the NPDB ends up doing, if the average payment is still $12,000, is providing a complete list of the nuisance payments to plaintiff's attorneys. 7. With respect to the issue of residents, I am afraid that Drs. Chen and Oshel have totally missed the point of the article. One of the principal points of the article is that residents in general, and surgical residents in particular, never have the final responsibility for a patient's care. There is always an attending physician who is the responsible party. Thus, any resident listed is listed in error simply because that resident never had the final responsibility for the patient's care. Once the award has been made, the resident's name should be deleted and should not find its way into the NPDB. With regard to the number of residents in the NPDB mentioned in my article, I had reference to the number of resident matches. The NPDB regularly publishes only the number of matches concerning residents and not the number of residents on record, and that is why I used the number of matches in my article. My figures on the number of residents in the data bank were derived from the Report of the Office of the Inspector General of Health and Human Services of August, 1994 (OEI-01-94-1003), Appendix A. My number of 1,430 is derived when one adds the number of matches for the allopathic residents of 1,298 and the osteopathic residents of 132. If, in fact, the 1,430 matches listed are based on a total of 900 residents, that fact is even more devastating for the residents. Some residents must be named in more than one match, which is even more unfair for a resident who is not responsible for his/her name being placed in the NPDB. It is obvious that the NPDB is even more damaging to the residents than you realize. If a large number of these matches are due to increased inquiries by HMOs before they hire these young residents, the resident's chance for acquiring a position with the HMO is truly hindered. Finally, although Drs. Chen's and Oshel's rebuttal letter adds heat, but not light, to the inquiry, I cannot agree that, "Had Dr. Fischer made an inquiry to the division or the data bank, the confusion created by his article might have been avoided." This statement clearly is not correct. In the first place, as I just recently pointed out, if there were 1,430 matches in the data bank reported by the Office of the Inspector General of the Department of Health and Human Services, which I am under the impression supervises the NPDB, then there certainly could not have been only 900 at the end of 1995. Sadly, rather than using their rebuttal letter to the Bulletin as an opportunity to discuss aspects of the NPDB that are incorrect and especially unfair to residents, they have used arguments based on word games to defend a system which, especially to residents, is patently unfair. Sadder still, by their own words they have proven my points. Josef E. Fischer, MD, FACS __________ Bulletin of the American College of Surgeons
by the American College of Surgeons, Chicago, IL 60611-3211 |