National Practitioner Databank (NPDB) - Pitfalls, Landmines and How to Stay Safe
The National Practitioner Databank (NPDB) is somewhat of an enigma among doctors and physicians: some medical professionals have never heard of it, others know it exists but don’t really worry about it, and still others fear it like the plague. What is it exactly, and is there anything that can be done about it?
The NPDB, in short, is a collection of permanent records of adverse actions taken against medical professionals. Hospitals, medical groups, surgery centers, and other larger collections of medical professionals check the NPDB when credentialing each physician. In her exceptional piece titled Malpractice, Mediation, and Moral Hazard: the Virtues of Dodging the Data Bank[1], Professor Haavi Morreim goes into great detail about the dangers of the Data Bank and its negative effects on both physicians and medical malpractice dispute resolution.
We will spare you the tedious (though important!) details for now, but suffice to say that an adverse NPDB report can be devastating to the career of a physician.[2] Every hospital or medical group with which a physician has credentials will be alerted of the report, as will the local state medical board or other licensing group. As some of you reading can likely attest, dealing with a state medical board investigation can be a harrowing experience if an individual is not prepared.
Something else to keep in mind is that any ‘adverse action’ can be reported to the NPDB. These adverse actions can be a state board determination, a suspension of your credentials at a hospital, or even (and especially) a lawsuit settlement. Most NPDB reports come in that exact form: after your MedMal insurance reaches a settlement on your behalf, they must report that settlement to the NPDB (even if it is just for a dollar!). These settlement reports are perhaps the most common and well-known type of NPDB report.
So, can anything be done about these NPDB reports? Can these damages be mitigated, or even avoided entirely? Well, we wouldn’t be writing this article if the answer to either of those questions was ‘no’.
There are two primary functions of attorneys in helping physicians deal with the consequences of NPDB reporting: 1- How to avoid reporting altogether, and 2- How mitigate the damages of a report if one is filed.
There are ways to avoid NPDB as a whole, in certain scenarios. The NPDB Guidebook itself describes the situations in which a report is not necessary.[3], [4] Perhaps the most common and well-known is the Corporate Shield, which allows a hospital or group practice to settle lawsuits in the name of the Company, rather than in any individual’s given name. When a doctor’s individual name is not on the settlement, that doctor does not need to be reported. This strategy of avoiding reporting is widely used in hospitals, and can be used in group practices with multiple providers as well.
There are several other ways to avoid reporting, but the other one worth mentioning is mediating a claim before a formal demand for a specific amount of payment has been made. Mediation is gaining popularity in the world of medical malpractice, and rightfully so.[5] Mediation is exponentially less expensive and less time consuming than a lawsuit, and if done properly, avoids NPDB reports.
Regrettably, NPDB reports cannot be avoided in all scenarios (if only!). As such, it is important to know what to do in order to minimize the impact of a NPDB report if you do become the subject of one.
There are two primary ways to reduce the negative impact of a NPDB report. The first is to negotiate what actually goes on the report, and the second is to file a response.
You can negotiate with the insurance company, hospital, or whoever else may be filing a report. There are no black and white rules about which words or phrasing will have the biggest impact on a doctor’s career, but general ideas about what just sounds good versus what sounds bad are a great place to start. A story can illustrate:
I once saw a NPDB report for a doctor detailing a settlement of $900. I thought “Hey! $900 is a great settlement for most MedMal claims,” and was feeling optimistic about the report. However, then I saw a description of the incident. The report stated that the reason for the settlement was “insufficient or inadequate care.” NO! Even though the settlement was only for $900, any state medical board or hospital licensing group will want to investigate that incident thoroughly.
If you can negotiate about what a report says, then do so. Encourage the individuals to submit a report that may indicate a disagreement or perhaps mitigating circumstances, but that does not settle on conclusions as to the quality or sufficiency of care.
Lastly, you can always submit a response to a NPDB report. A well worded response can go a long ways in protecting a physician’s reputation and ability to practice. Use the response to explain your side of the story, describe any mitigating circumstances, and allow anybody who reads the report to see the excellent quality of your care.
Attorneys can help with all of these things. At Irvine Legal, we have experience dealing with licensing issues, reporting, and the aftermath of MedMal disputes. We are happy to provide you with any assistance that you may need as it relates to your license and ability to practice medicine. Please feel free to reach out to us if you have any questions, or to schedule a consultation.
[1] Published in Ohio State Journal on Dispute Resolution Vol. 27:1 2012
[2] Katharine A. Van Tassel goes into depth on this issue as well in Blacklisted: The Constitutionality of the Federal System for Publishing Reports of "Bad" Doctors in the National Practitioner Data Bank, 33 Cardozo L. Rev. 2031, 2096 (2012).
[3] Section E of the NPDB Guidebook has a few different tables and charts that discuss reporting scenarios, but perhaps the most useful one is Graphic E-1.
[4] Professor Morreim details many of these reporting avoiding strategies in Section II part B of her article.
[5] Florence Yee, Mandatory Mediation: The Extra Dose Needed to Cure the Medical Malpractice Crisis, 7 Cardozo J. Conflict Resol. 393 (2006)