NPDB and Due Process

By Alex Stein

An aggrieved patient files medical malpractice suit against a hospital in which he was treated. The hospital and the patient subsequently settle the suit. Their settlement agreement states that the hospital settles the suit “for the benefit of” a physician who treated the patient. Because the patient did not sue the physician, the physician was not a party to this agreement. Pursuant to the Healthcare Quality Improvement Act of 1986 (HCQIA), the hospital reports the agreement to the National Practitioner Data Bank (NPDB). Prior to filing this report, the hospital allows the physician to provide her account of the relevant events. The physician demands a process within which she could demonstrate that her treatment of the patient was faultless, but the hospital denies this demand.

Can the physician challenge the report?

Last week, the Court of Appeals for the Eighth Circuit decided that she cannot: Rochling v. Dep. Vet. Aff’s, — F.3d —-, 2013 WL 4017143 (8th Cir. 2013).

The physician’s principal claim—violation of procedural due process—appeared promising, but the Court turned it down because the physician failed to show the requisite deprivation of a constitutionally protected “life, liberty or property interest.” The physician argued that the report was analogous to a disciplinary proceeding that must comply with due process, but the Court held that “the NPDB report by itself is not a rebuke, censuring or reprimanding.” Rather, explained the Court, “the report simply means that a payment was made “for the [physician’s] benefit.”

Really?

The report could not “simply” mean that the hospital made a payment for the physician’s benefit. After all, it was filed with the NPDB pursuant to HCQIA and not with the IRS, pursuant to the tax code. This filing had only one plausible meaning: having the physician’s name on the government’s [black]list of actual and suspected malpractitioners—viewable by state licensing boards and the physician’s prospective employers (HCQIA, §11137)—might improve the quality of healthcare in our country. The contemplated improvement involves employers refusing to hire or credential the physician (Cf. Katharine A. Van Tassel, Blacklisted: The Constitutionality of the Federal System for Publishing Reports of “Bad” Doctors in the National Practitioner Data Bank, 33 Cardozo L. Rev. 2031 (2012)).

If so, the report’s filing clearly diminished the physician’s employment opportunities and earning capacity. There is no other way to see it. The physician’s employment opportunities and earning capacity may not qualify as a “property” interest, but they certainly fall under the “new property” definition (Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964)). The Court nonetheless decided that the report’s effect on the physician’s future employment does not make it a protected “property” interest. I find this decision disappointing and unsatisfactory.  I also find it hard to reconcile with the Supreme Court’s reasoning in Mathews v. Eldridge, 424 U.S. 319 (1976).

Am I wrong?

9 thoughts to “NPDB and Due Process”

  1. I’m not convinced the claim is ripe, and don’t buy that a report of a settlement made “for the benefit of” a physician is the equivalent of a blacklisting.

    Notionally, it’s possible that Rochling could suffer damage. But this was not a report generated as a result of a disciplinary proceeding by the VA, a hospital or a licensure board against Rochling, nor is it a report of a verdict or settlement against defendant Rochling. Furthermore, from my reading of the case (available here: http://media.ca8.uscourts.gov/opndir/13/08/122828P.pdf), he did not demonstrate repercussions (loss or denial of licensure, privileges, etc.) other than having to disclose to a licensing board that the payment was made.

    1. Thanks for your comment!

      As the court had said, Dr. Rochling suffered no damage yet from being [black]listed at NPDB without a process.

      But under the Matthews v. Eldridge framework, actual harm isn’t necessary here: all that needs to be shown is a probability that the individual will sustain a tangible deprivation. The extent of the process due to a person is a function of her expected harm; and so if the expected harm isn’t zero, the person must have some procedure to challenge the adverse governmental action. Dr. Rochling’s expected deprivation wasn’t zero — I hope you’ll agree with this!

      That said, one should acknowledge here the hospital’s difficulty as well. As a VA hospital, it was sued under FTCA — a statute that allows plaintiffs to file suits only against the government and not against its employees. So Dr. Rochling could not technically be sued by the patient, which statutorily positioned him outside the process. But he still ought to have been given an opportunity to mount a meaningful opposition to the patient’s accusations.

      A.S.

  2. I’m not convinced the claim is ripe, and don’t buy that a report of a settlement made “for the benefit of” a physician is the equivalent of a blacklisting.

    Notionally, it’s possible that Rochling could suffer damage. But this was not a report generated as a result of a disciplinary proceeding by the VA, a hospital or a licensure board against Rochling, nor is it a report of a verdict or settlement against defendant Rochling. Furthermore, from my reading of the case (available here: http://media.ca8.uscourts.gov/opndir/13/08/122828P.pdf), he did not demonstrate repercussions (loss or denial of licensure, privileges, etc.) other than having to disclose to a licensing board that the payment was made.

  3. Your post does not take into account the fact that the defendant in this matter was apparently the Dept. of Veterans Affairs under the Federal Tort Claims Act, so presumably it would have been impossible for the plaintiff to sue the physician.

    The VA reports to the Data Bank under a Memorandum of Agreement, as called for in the Health Care Quality Improvement Act of 1986. When a payment is made by the US government for alleged malpractice in a VA facility, the VA uses a review panel to determine whether or not standard of care was met. If it wasn’t, then they file a report of the payment to the NPDB which names the responsible party. Presumably that is what happened here. It would be interesting to know more of the facts in this matter and how the review panel made its determination.

    Concerning the NPDB itself, it is not a “blacklist” of actual and suspected malpracticing physicians. It simply is a list of all malpractice payments made for the benefit of physicians (and also licensing and clinical privileges actions) so that licensing boards and credentialing authorities can decide if they want to seek more information to determine whether a payment (or action) represents something significant to them.

    Note that the NPDB contains no information that an applicant is not already required to reveal on applications for licensure or clinical privileges. In fact, applications usually ask for more information than the NPDB discloses, such as pending claims. The purpose of the NPDB is to keep applicants honest. Unfortunately it seems that many are not. A survey of NPDB users found that 9 percent of the time when the NPDB provided reports to queriers the reports contained new information not previously known to the querier (i.e., not included in the applicant’s application even though it should have been) that affected their licensure or clinical privliging decision.

    So the only physician potentially harmed by the NPDB’s reports are those who have “bad memories” or lie on their applications. If other physicians have problems because of their records, it is the fault of their records, not the NPDB.

    1. Thanks for your input!
      I addressed the special FTCA aspect in my exchange with Ross Silverman. The court, however, has delivered a general ruling that doctors have no “property” based interest in NPDB records. This ruling applies across the board, which, I think, doesn’t sit well with Matthews v. Eldridge and the old idea of “new property.” The general VA procedures you’re describing make a lot of sense. Alas, in the case at hand, the doctor was only able to provide the hospital an explanatory letter — this is hardly a due process, in my opinion.
      I cannot agree with your observation that NPDB “is not a “blacklist” of actual and suspected malpracticing physicians.” See HCQIA § 11135(b): “With respect to a medical malpractice action, a hospital which does not request information respecting a physician or practitioner as required under subsection (a) of this section is presumed to have knowledge of any information reported under this subchapter to the Secretary with respect to the physician or practitioner.” A hospital disregarding negative information about a physician to whom it grants attending privileges exposes itself to a suit for negligent credentialing. Hence the incentive not to hire blacklisted doctors. Please also take a look at Katharine Van Tassel’s important article, referenced in my post. A.S.

  4. Your post does not take into account the fact that the defendant in this matter was apparently the Dept. of Veterans Affairs under the Federal Tort Claims Act, so presumably it would have been impossible for the plaintiff to sue the physician.

    The VA reports to the Data Bank under a Memorandum of Agreement, as called for in the Health Care Quality Improvement Act of 1986. When a payment is made by the US government for alleged malpractice in a VA facility, the VA uses a review panel to determine whether or not standard of care was met. If it wasn’t, then they file a report of the payment to the NPDB which names the responsible party. Presumably that is what happened here. It would be interesting to know more of the facts in this matter and how the review panel made its determination.

    Concerning the NPDB itself, it is not a “blacklist” of actual and suspected malpracticing physicians. It simply is a list of all malpractice payments made for the benefit of physicians (and also licensing and clinical privileges actions) so that licensing boards and credentialing authorities can decide if they want to seek more information to determine whether a payment (or action) represents something significant to them.

    Note that the NPDB contains no information that an applicant is not already required to reveal on applications for licensure or clinical privileges. In fact, applications usually ask for more information than the NPDB discloses, such as pending claims. The purpose of the NPDB is to keep applicants honest. Unfortunately it seems that many are not. A survey of NPDB users found that 9 percent of the time when the NPDB provided reports to queriers the reports contained new information not previously known to the querier (i.e., not included in the applicant’s application even though it should have been) that affected their licensure or clinical privliging decision.

    So the only physician potentially harmed by the NPDB’s reports are those who have “bad memories” or lie on their applications. If other physicians have problems because of their records, it is the fault of their records, not the NPDB.

    1. Thanks for your input!
      I addressed the special FTCA aspect in my exchange with Ross Silverman. The court, however, has delivered a general ruling that doctors have no “property” based interest in NPDB records. This ruling applies across the board, which, I think, doesn’t sit well with Matthews v. Eldridge and the old idea of “new property.” The general VA procedures you’re describing make a lot of sense. Alas, in the case at hand, the doctor was only able to provide the hospital an explanatory letter — this is hardly a due process, in my opinion.
      I cannot agree with your observation that NPDB “is not a “blacklist” of actual and suspected malpracticing physicians.” See HCQIA § 11135(b): “With respect to a medical malpractice action, a hospital which does not request information respecting a physician or practitioner as required under subsection (a) of this section is presumed to have knowledge of any information reported under this subchapter to the Secretary with respect to the physician or practitioner.” A hospital disregarding negative information about a physician to whom it grants attending privileges exposes itself to a suit for negligent credentialing. Hence the incentive not to hire blacklisted doctors. Please also take a look at Katharine Van Tassel’s important article, referenced in my post. A.S.

  5. Is the risk different if they do intervene? Is there any potential liability for the hospital? What could the monitors do to reduce the risk of liability in return for their agreement to monitor care?

    My medical staff is concerned about the continuing viability of its “shadowing” program to monitor new staff members (and those requesting new privileges) to confirm their competence to maintain the privileges they have been conditionally granted. (The National Practitioner Databank Guidebook indicates that if a hospital medical staff assigns a monitor to all physicians or dentists initially granted clinical privileges rather than when a doctor with privileges receives a monitor as a result of questionable care, there is no need to report such action to the NPDB and AMA policy encourages such programs.) Specifically, the supervising physicians on the panel feel they are “damned if they do and damned if they don’t” when it comes to situations where they feel the need to intercede and take over the procedure when the supervised doctor is proceeding in a manner the monitor would not.

  6. Is the risk different if they do intervene? Is there any potential liability for the hospital? What could the monitors do to reduce the risk of liability in return for their agreement to monitor care?

    My medical staff is concerned about the continuing viability of its “shadowing” program to monitor new staff members (and those requesting new privileges) to confirm their competence to maintain the privileges they have been conditionally granted. (The National Practitioner Databank Guidebook indicates that if a hospital medical staff assigns a monitor to all physicians or dentists initially granted clinical privileges rather than when a doctor with privileges receives a monitor as a result of questionable care, there is no need to report such action to the NPDB and AMA policy encourages such programs.) Specifically, the supervising physicians on the panel feel they are “damned if they do and damned if they don’t” when it comes to situations where they feel the need to intercede and take over the procedure when the supervised doctor is proceeding in a manner the monitor would not.

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