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New National Practitioner Databank Guidebook

November 26, 2013

The National Practitioner Databank hasn’t updated its Guidebook since September 2001. The September 2001 Guidebook can be found at this link.

Horty Springer, a Health Law firm in Pittsburgh, noted in an e-mail that the NPDB has just released an updated Draft Guidebook incorporating new policies and legislative changes. You can download a copy of the NPDB Draft Guidebook from Horty Springer or you can e-mail a request for the draft directly to the NPDB at NPDBPolicy@hrsa.gov.

There is an open comment period to submit remarks regarding the revised Guidebook which runs until at least January 10, 2014. For more information regarding the updated Draft Guidebook, see the NPDB news update here.

Signed Consent Bars Doctor’s Defamation Lawsuit

February 16, 2013

In this case, a Loyola radiation oncology resident, sued Loyola University and his program director Dr. Suneel Nagda after Dr. Nagda provided unacceptable recommendations on the resident’s application for staff privileges in an Arizona hospital. On one form, Dr. Nagda checked off a box stating that he “cannot recommend” the resident for the position. As a result of Dr. Nagda’s statements to the Arizona hospital, the resident’s hospital privileges were reduced from two years to one year and his practice at the hospital was “limited” in other ways – although he did still received privileges at the hospital.

The resident then sued, alleging that Loyola and Dr. Nagda defamed him, interfered with his prospective contract, and intentionally inflicted emotional distress upon him.

In the first opinion in this case, the court held that the resident had not made sufficient allegations to substantiate his contractual interference or emotional distress claims, but that he did sufficiently state a claim for defamation.

A substantial amount of litigation took place after the initial ruling.

Ultimately, Loyola and Dr. Nagda filed a motion for summary judgment.

In its ruling on the motion for summary judgment, the court ruled that the defamation claim also had to be dismissed. When the resident applied for hospital privileges, he signed a consent for release of information which stated in part:

I release UMC, all Provider Entities, all Third Party Payors, Accrediting Bodies, Organization and Authorities and their respective employees, agents, officers, directors, shareholders, members, medical staffs and the successors thereof from liability resulting from (a) any and all acts performed by them or delegated to others providing, obtaining, assembling, maintaining and sharing any information as authorized or contemplated hereby, (b) any recommendation any of the foregoing may make to any party concerning my Qualifications, and (c) the release of information as contemplated hereby.

The court noted that Arizona law (which it applied to this case) provides that “consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation.”

While the court may have made an exception to the consent for defamatory statements that a plaintiff “had no reason to anticipate,” the court also noted that the plaintiff had alleged that Loyola staff repeatedly “spread false rumors” about him since the beginning of his residency, so he had ample notice that Loyola would likely publish defamatory statements about him in a recommendation.

In summary, the court ruled, at least under Arizona law, that a signed consent is a complete defense to a plaintiff’s defamation claim, even if the defendants act maliciously when making the statements.

I think the court’s interpretation of the law went too far. Because defamation is an intentionally false statement that harms a person’s reputation, the court’s opinion seems to give those providing recommendations the ability to intentionally and maliciously make false statements that they know will affect an applicant’s chances of being employed. Would the court stand by its opinion if Loyola falsely stated that the resident was being investigated for murdering several patients?

Doctors are required to sign releases before they will even be considered for hospital privileges. There is no alternative. How can doctors protect themselves?

Until the courts narrow the applicability of the releases, insert additional language in the release clauses.

For example, had the phrase “provided that such actions are taken in good faith” been added to the end of the release language, the outcome in this case may have been much different.

Strongly consider whether you want to sign a release that does not contain a “good faith” requirement. If a hospital won’t agree to act in good faith during its dealings with physicians, should you really be taking a chance on working with that hospital?

Doctor Liable for PA’s negligence, not for PA’s unprofessional conduct

January 5, 2013
I just read about another instance of a state medical board filing inappropriate charges against a physician.
In the Vermont case of In re Jon Porter, MD, the Vermont Medical Board accused a physician of unprofessional conduct after the physician assistant whom the physician agreed to supervise was found to be inappropriately prescribing narcotics.
The PA was engaging in unprofessional behavior, therefore because the physician agreed to supervise the PA, the Board alleged that the physician was acting unprofessionally as well – even though the physician did not know of the PA’s actions until he heard about the inappropriate prescriptions from a nursing student.
Ultimately, the doctor prevailed, but he had to go all the way to the Vermont Supreme Court to do it. The Supreme Court’s opinion showed that there was no statutory basis for the Board’s claims.
If a physician filed a lawsuit against someone without a legal basis, they would likely be ordered to pay for the opposing party’s attorney’s fees and costs. When a medical board is involved … meh … maybe not.
Hopefully Dr. Porter filed a claim for fees and costs against the state and individually against the Medical Board members who made those unsupported allegations.
 
Importantly, the Supreme Court noted that the Vermont legislature sought to “affirm the path for a tort plaintiff to recover from the supervising physician where the PA has committed a tortious act.” In other words, if the PA commits malpractice, the doctor will be liable for damages.
When doctors sign supervising agreements for physician extenders or agree to supervise physician extenders when they sign their physician employment contracts, realize that if those people perform negligently, the law will likely consider that the doctors performed those negligent acts.

Physician Contract Basics

September 6, 2012

To everyone who attended the Resident Career Day and was jazzed up on caffeine enough to stay awake through my whole lecture, here’s a copy of the handout:

Physician Contract Basics

Feel free to ask any questions in the comments section and I’ll try to answer them.

Legal Case Update

August 11, 2012

Interesting conclusions in a couple of legal cases.

First, an Ohio federal distric court held that a malpractice insurer was entitled to withhold coverage (.pdf file) for an obstetrician’s medical malpractice because he committed a “criminal act” when delivering a child by going to work after drinking a large amount of vodka.

Second, St. Joseph’s Regional Medical Center in New Jersey, hospital CEO William McDonald, and the Ob/Gyn department chair Dr. Roger Kierce were hit with a jury verdict of $1.3 million when the department chairman harassed and belittled the physicians in his department and and the hospital failed to act upon complaints made by other hospital staff members.
The hospital, Dr. Kierce, and the hospital CEO were all found liable and each required to pay $423,000.
This jury apparently decided that hosptials and hospital CEOs may be legally liable if they sit idly by while staff physicians act inappropriately.

Rethinking “Choosing Wisely”

July 19, 2012

The ABIM Foundation is advocating a new campaign called “Choosing Wisely” to help physicians “be better stewards of finite health care resources.” The recommendations in the campaign have been published in Consumer Reports and has been distributed to AARP members. At first glance, the campaign seems to make sense. Limit “unnecessary” testing and decrease costs. However, I predict that the “Choosing Wisely” campaign will also have many less desirable effects. I picked out a few random examples of current “Choosing Wisely” recommendations to illustrate some of the problems that I perceive will occur.

The American College of Physicians recommended that we “Don’t obtain imaging studies in patients with non-specific low back pain.” Notice how the ACP didn’t describe how to classify back pain as “non-specific” prior to testing? Third party payors will be citing this recommendation routinely. Any back pain imaging that shows no pathology is likely to be retrospectively labeled as “unnecessary” because the back pain was “non-specific.” What if a patient has urinary retention with his acute back pain? Would anyone argue that an urgent MRI wasn’t indicated? However, the MRI shows nothing but an enlarged prostate and the urinary retention was probably just caused by the opiates the patient was taking for the pain. Retrospective diagnosis: Unnecessary test. Doctor should have known better. Patient gets stuck with bill.

The American Society for Clinical Oncology recommended that we “Don’t perform surveillance testing (biomarkers) or imaging (PET, CT, and radionuclide bone scans) for asymptomatic individuals who have been treated for breast cancer with curative intent.
Isn’t the idea of cancer survival to catch things early? By the time we wait for an asymptomatic metastasis to become symptomatic so that testing is “appropriate,” the cancer will most likely be too late to treat. Using this recommendation, third party payors will refuse to pay for follow up screens because they are “unnecessary.” Patients won’t get the testing, and more patients will die from cancer recurrence. Are most surveillance tests normal? Of course. But instead of having a group of “stewards” act as barriers to testing, patients should be presented with data regarding the effectiveness of the testing and then make an informed decision as to whether they want to have the testing performed. If ASCO truly believes that surveillance testing is inappropriate, it should check its own web site. The recommendation against surveillance testing isn’t even one of its own clinical practice guidelines for breast cancer. And if you look at ASCO’s recommendations for use of tumor markers in breast cancer, the Society DOES recommend use of some tumor markers which seems to contradict their own “Choosing Wisely” recommendation (“The following categories showed evidence of clinical utility and were recommended for use in practice: CA 15-3, CA 27.29, carcinoembryonic antigen, estrogen receptor, progesterone receptor ….”).

The American College of Radiology recommended that we “Don’t image for suspected [pulmonary embolism] without moderate or high pre-test probability of [pulmonary embolism].” The actual incidence of pulmonary embolism in patients with a low pre-test probability of pulmonary embolism is between 4% and 15%. Adhering to ACR recommendations, doctors would miss up to 1 in 7 cases of pulmonary embolism. About one in three patients with untreated pulmonary embolism die, meaning that up to 5% of patients with low pre-test probability of a pulmonary embolism would die using the ACR recommendations. Even if we obtain a normal D-dimer assay in patients with a low pre-test probability of pulmonary embolism, the incidence of pulmonary embolism in patients is still 0.7% to 2.0%. There is no test that detects pulmonary embolism 100% of the time, but shouldn’t patients be making an informed decision whether or not they wish to have testing performed to help decrease the likelihood of this potentially deadly disease?

To push the “steward” envelope in decreasing the number of imaging tests being ordered, the American College of Radiology has even created its own “Image Wisely” campaign. However, radiologists aren’t the ones who get sued for failing to order imaging tests — they’re only liable for failing to properly interpret tests that other doctors order. By telling other physicians not to order that testing, the radiologists look like great stewards, but have no skin in the game. If the American College of Radiology wanted to have an impact upon the amount of radiologic testing being ordered, it would have created an “Interpret Wisely” or a “Report Wisely” campaign to deter its members from recommending low yield follow up studies on questionable x-ray abnormalities.

While there are many appropriate entries on “Choosing Wisely’s” list (we don’t need antibiotics in acute sinusitis, folks), many of the “Choosing Wisely” recommendations either have little applicability or are just too vague. Even recommendations that make good clinical sense don’t appreciably affect the project’s stated goals. How much of our country’s “finite resources” will be saved by refusing that unnecessary $4 amoxicillin prescription for sinusitis, anyway? Many of the recommendations in this project will give bean counters extra ammunition to use against us in determining our worth as physicians, in determining whether we are appropriately compensated for our services, and in shaping a negative public opinion about how uncaring physicians perform “unnecessary” and “wasteful” testing and treatments.

In addition, many of the tests that “Choosing Wisely” recommends withholding from patients have some element of physician judgment involved in deciding whether the test is indicated. See catch phrases such as “low-risk”, “asymptomatic” and “non-specific” within the current “Choosing Wisely” recommendations. These “judgment calls” limit the applicability of the recommendations, but don’t we see where this is headed? Like the “non-specific” back pain example above, once a test has been interpreted as being “normal,” third parties are going to retrospectively second guess the physician’s judgment in order to avoid paying for the test: “The doctor misclassified the patient as ‘intermediate-risk’ when the patient was really ‘low-risk’ and therefore [insert name of negative test] was not indicated.” Insurance companies will have an incentive to use this discretionary language to refuse pre-authorization for expensive testing or treatments and to deny payment for tests that were performed.

Before any tests or treatments make the “Choosing Wisely” list, there should be proof that the involved activities are truly “unnecessary” and that no harm to patients will come from excluding those tests. If, instead, the tests are deemed “low yield” or “discretionary” an evidence-based assessment of the risks and benefits of the testing or treatment, including a summary with projected cost savings and projected morbidity and mortality, should be published along with the recommendation and the public should be allowed to comment on the summaries and recommendations. Using this information, patients could then decide whether or not they are willing to forego the testing and/or treatment based on their own assessment of the risks and benefits of the testing or treatment. Doctors need to focus upon informed consent, not upon paternalism.

“Choosing Wisely” also needs to emphasize that many low-yield tests are performed due to a fear of lawsuits and that those discretionary tests might not be necessary if physicians were not held liable for failing to diagnose highly unlikely diseases or for failing to prolong the lives of terminally ill patients by a few months.

The “Choosing Wisely” campaign has good intentions, but isn’t a good idea. There isn’t a “Suing Wisely” campaign for attorneys and there isn’t a “Legislating Wisely” campaign for Congress. The amount of discretionary medical testing performed in this country is undoubtedly excessive, but in order to diminish the amount of discretionary testing, we shouldn’t erect barriers to performing those tests. Instead, we should help our patients understand that medicine will never be “perfect” and that sometimes “doing everything” or “getting every test” isn’t in a patient’s best interests. Until we impart this wisdom upon our patients, it is unlikely that any recommendations from a “Choosing Wisely” campaign will be routinely followed.

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Dr. Kevin Pho has also graciously cross-posted this article on KevinMD.com

Physician Can Sue Hospital Over False NPDB Report

July 5, 2012

A hospital that allegedly provided false information to the National Practitioner Databank may be held liable for both intentional infliction of emotional distress and negligent infliction of emotional distress.

In the case Sheikh v. Grant Regional Health Center (11-cv-1-wmc, W.D. Wisconsin) (opinion here), a Federal District Court denied a defendant’s motion to dismiss IIED and NIED claims, stating that a jury could infer both that placing false information on the NPDB was intended to cause a physician emotional harm and that the harm is sufficiently severe to sustain claims for both intentional and negligent infliction of emotional distress.

Quotes from the court include

“This court finds that intentionally and knowingly publishing false information in a national database for the sole purpose of harming that person is the type of conduct that a reasonable jury could find to be extreme and outrageous.”

and

“A reasonable jury could certainly find a person has suffered “an extreme disabling response” as a result of having false and disparaging information published about them on a national database and being precluded by that information from obtaining future employment in their chosen profession, particularly if years were spent in qualifying one’s self for that work.”

Because damages in cases such as this may include a physician’s past and future lost wages, the potential liability can be significant if a hospital loses such a case.

Hospitals may be able to avoid liability for NIED and IIED claims related to NPBD reporting by verifying the accuracy of any information reported to the National Practitioner Data Bank.

If a hospital threatens to report untrue or inaccurate information about a physician to the NPDB, the physician may help to establish a hospital’s liability for doing so by putting the hospital on notice that the information is not true. Either the physician or the physician’s attorney sending the hospital administrator or the hospital attorney a certified letter or fax stating how the information is inaccurate and demanding that the hospital refrain from reporting the information might be a good first step to heading off problems in the future.