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Copyright 2000 Federal News Service, Inc.  
Federal News Service

September 20, 2000, Wednesday


LENGTH: 3606 words



Chairman Bliley, Congressman Dingell, and Members of the Committee, my name is Edward A. Loniewski, D.O. I am a retired orthopedic surgeon from Michigan and past president of the American Osteopathic Association (AOA). I am a member of the National Practitioner Data Bank Executive Committee. On behalf of the 44,000 osteopathic physicians represented by the AOA nationwide, I appreciate the opportunity to testify on the "Patient Protection Act of 2000" and specifically, the issue of public disclosure of information contained in the National Practitioner Data Bank (NPDB).

The AOA is the national professional organization for osteopathic physicians in the United States. In addition, the AOA is the recognized accrediting authority for colleges of osteopathic medicine, osteopathic postdoctoral training programs and osteopathic continuing medical education. Osteopathic medicine is one of two distinct branches of medical practice in the United States. While allopathic physicians (M.D.) comprise the majority of the nation's physician workforce, osteopathic physicians (D.O.) comprise more than five percent of the physicians practicing in the United States. Significantly, D.O.s represent more than 15 percent of the physicians practicing in communities of less than 10,000 and 18 percent of physicians serving communities of 2,500 or less. AOA's Position

The AOA opposes the NPDB and any attempt to make information in that data bank public in its current form. We take this position because the information regarding malpractice settlements and adverse actions contained in the Data Bank can be misleading. Therefore, we must also oppose the Chairman's H.R. 5122, the "Patient Protection Act of 2000." While the bill attempts to put medical malpractice information in context and provides disclaimer information, H.R. 5122 falls short of adequately and properly explaining such information.

Although the AOA opposes the current NPDB, the Association does support a federal data bank that is open to the public if the information accurately reflects the negligence of the practitioner. Such information should be submitted by state licensure boards which have professionally conducted a peer review of the physician in question. Information provided by state licensure boards could then be made public and would reflect the competency of a provider as evaluated by their peers. As I will emphasize later in my testimony, these practitioners can be best identified through true peer review. Mr. Chairman, we share your desire to ensure that incompetent physicians, dentists and other health care providers are not allowed to continue harming patients, however this legislation is not the appropriate means of doing so. I highlight the following reasons for not making public the information held in the NPDB.

1. The NPDB was not designed for public consumption. The information in the NPDB should not be used by the public to determine the competency of their physician, dentist or health care provider.

The NPDB was established through Title IV of the Health Care Quality Improvement Act of 1986, as amended. The intent of the law was to improve the quality of health care. Hospitals, state licensing boards and other health care entities including professional societies were encouraged to identify and discipline those who engage in unprofessional behavior. Such groups would then restrict the ability of incompetent physicians, dentists and other health care practitioners to move from state to state without disclosure or discovery of previous damaging or incompetent performance.

The NPDB is designed to act as a clearinghouse of information. Its records include data relating to medical malpractice settlements and judgements as well as adverse actions taken against the licenses, clinical privileges and professional society memberships of physicians, dentists, and other licensed practitioners. The Data Bank also contains information regarding practitioners who have been declared ineligible to participate in Medicare and/or certain other state health care plans under the Social Security Act.

2. Malpractice payment information is not provided in the proper context to evaluate the skills of a physician.

The NPDB places much emphasis on medical malpractice. When a medical malpractice payment is made on behalf of a practitioner, payment information must be reported to the Data Bank. However, settlement of a medical malpractice claim may occur for a variety of reasons that do not reflect negatively on the competence or conduct of the practitioner. In many cases, a physician's malpractice insurer will settle the case - not because the practitioner is guilty of malpractice - but to avoid the even greater expenses of taking the suit to court. Sometimes this is even done without the consent of, or notice to, the physician.

Although your bill allows for the comparison of physicians to their peers within their state, it still fails to evaluate the differences in patient population and level of risk associated with the physician's practice. The legislation also fails to recognize the differences in the litigation environment between rural and urban areas. To illustrate this point I would like to share the experience of one of our members. The AOA and the Kansas Association of Osteopathic Medicine recently filed a brief of Amici Curiae in the Kansas Court of Appeals on behalf of an osteopathic physician licensed to practice in the State of Kansas (.Miller v. Sloan, Listrom, et al, District Case # 95-CV-328). This lawsuit concerned the settlement of a medical malpractice claim by an insurer without the physician's knowledge or consent. In accordance with federal laws and regulations, the settlement then was reported to the National Practitioner Data Bank, where the report now stands as a permanent part of the physician's record.

Because a malpractice settlement was made without the physician's knowledge or consent, he had no opportunity to contest the settlement, deny his liability or explain to the NPDB his belief that he did nothing wrong when treating the patient. In fact, the doctor only learned of the settlement through the National Practitioner Data Bank, where the report has become a permanent scar on the doctor's record.

The harm created by the misleading entry concerning a malpractice settlement is very real. Now, whenever this doctor applies for a position or clinical privileges on a hospital's medical staff-- at any hospital in the United States -- that hospital is legally required to request information concerning the physician from the Data Bank and, thus, will learn of the settlement and consider it in connection with his application. As such, the physician's ability to secure positions at other hospitals in Kansas and elsewhere in the United States is severely damaged. In many cases, a malpractice settlement or judgement simply is not a good barometer for quality of care. A study published in The New England Journal of Medicine (December 26, 1996 -- Vol. 335, No. 26) showed that among the malpractice claims, "the severity of the patient's disability, not the occurrence of an adverse event or an adverse event due to negligence, was predictive of payment to the plaintiff.


The Rand Health Law Issue Paper of July 1999 (,4 Flood of Litigation? Predicting the Consequences of Changing Legal Remedies Available to ERISA Beneficiaries; Carole Roan Gresenz, Deborah R. Hensler, David M. Studdert, Bonnie Dombey-Moore, Nicholas M. Pace, A Rand Health Law Issue Paper, July 1999) stated that several studies have reviewed medical malpractice claims files to determine the relative frequency of appropriate and inappropriate suits and found that between half and two-thirds of claims are brought with no apparent indication of negligence" (Harvard, 1990; Cheney et al., 1989; Farber and White, 1991; McNulty, 1989).

3. Public disclosure of the information held in the NPDB eliminates the role of state licensure boards and overrides the efforts of many state programs already in operation.

The AOA supports the scope and authority of state licensure boards and believes that these entities are best suited to determine the competency of physicians, dentists and other health care providers. The use of state licensure boards allows for tmc "peer review" to be used in an effective manner and insures that all the qualifications of the provider in question are adequately evaluated. The NPDB is a resource for state licensing boards, hospitals and other health care entities in conducting investigations into the qualifications of practitioners they seek to license or hire or to whom they wish to grant membership or clinical privileges.

The Data Bank information should be considered with other relevant information by these entities in evaluating a practitioner's credentials. While the intent of the NPDB is to track negligent practitioners, the information currently housed in the data bank is often not appropriate for that purpose and, under no circumstances, suited for public interpretation. The use of misleading and often negative information by hospitals and insurers damages physicians' careers. Your legislation also would eliminate the need for state programs such as the one in Massachusetts, which were designed to provide the public information on physicians within their state. The AOA believes that state licensure boards are better suited to provide the public with the information regarding the physicians in their state. 4. The NPDB does not provide the practitioner an adequate right to recourse.

Currently, practitioners may not submit changes to reports. The practitioner must contact the reporting entity to request corrections. A practitioner may add a statement to the report and/or dispute either the factual accuracy or whether the report was submitted in accordance with NPDB reporting requirements. The practitioner may also request that the Secretary of Health and Human Services review the issues, if the practitioner and reporting entity cannot resolve the issues in dispute.

Mr. Chairman, your bill attempts to eliminate this issue, but it fails to provide adequate recourse for physicians. H.R. 5122 fails specifically to provide the amount of explanatory material a physician will be able to submit on a specific case. Also, a statement submitted by a physician is not a sufficient means of explaining the details of complex medical procedures. The public does not have the scientific and medical background to understand such details. We also feel that many individuals will fail to consider the explanatory information when evaluating their physician and will simply rely upon medical malpractice claims.

Hospitals and other eligible health care entities must report professional review actions that may restrict or revoke a practitioner's clinical privileges due to issues related to conduct or competence. Professional societies are also required to report specific information when any professional review action due to professional competence or conduct adversely affects the membership of the practitioner. These entities should be given legal liability protections when reporting negligent or incompetent providers. Currently, these entities are subject to litigation when they report or discipline providers, making them hesitant to file such reports or take disciplinary actions.

One small-town New Mexico physician was reported to the Data Bank after her obstetrical privileges were revoked. She reported that she could not relocate because of the Data Bank entry. Notably, that physician sued those responsible for making the Data Bank report on a number of theories, including defamation. She obtained a favorable jury verdict. On appeal, the court found that sufficient evidence was presented for a jury to have concluded the physician suffered impairment of reputation and standing in the community, when she applied for privileges at a new hospital and had to explain why her privileges had been revoked by the reporting hospital. Significantly, though the physician was ultimately granted privileges at the new hospital, the Court did not feel that the physician's damage claim was undermined since: "an opportunity for rebuttal seldom suffices to undo harm (sic) of defamatory falsehood."

5. Failure to address the problems associated with the use of a "Corporate Shield." Another problem that has arisen is what is termed the "corporate shield." This refers to those instances where an individual health care practitioner's name is removed from a case, usually during the settlement process, and replaced with some corporate entity. When this occurs, even though a settlement was made, no report is filed to the NPDB. Removing a person's name for the sole purpose of hiding that individual is illegal under the original statute under which the NPDB was created (the Health Quality Improvement Act of 1986).

To address this issue, the Health Resources and Services Administration (HRSA) published a proposed rule on December 24, 1998. HRSA defines the goal of the proposed change to be "to prevent the evasion of Data Bank medical malpractice reporting requirements." The proposed rule describes instances "in which a plaintiff in a malpractice action has agreed to dismiss a defendant health care practitioner from a proceeding, leaving or substituting a hospital or other corporate entity as defendant, at least in part for the purpose of allowing the practitioner to avoid having to report on a malpractice payment made on his or her behalf submitted to the Data Bank." In this circumstance, this "corporate shield" allows for no report to be filed with NPDB.

The AOA agrees with HRSA that this "evasion of the reporting requirement" is wrong. However, the remedy that HRSA proposes is equally wrong. It contains numerous factual, legal, and practical shortcomings. Among the problems are:

A. Failure to make any effort to create a factual record to document the existence and scope, if any, of the so-called "corporate shield" problem.

According to HRSA, the Department of Health and Human Services (DHHS) is aware of efforts to evade the reporting requirements, especially with respect to self-insured entities. However, no effort was made to document this assertion. As a member of the NPDB Executive Committee, I participate regularly in the Committee meetings. Audit results, studies, or other evidence of the existence or extent of the "corporate shield" problem was not reported during any of the meetings I attended.

B. Lack of statutory authority to expand the reporting requirements beyond those set forth in the Health Care Quality Improvement Act.

HRSA's plan would expand the reporting requirement beyond the name of "any physician or licensed health care practitioner, for whose benefit the payment was made," which is provided for by Congress in the Health Care Quality Improvement Act. In place of this narrow mandate, the proposed rule would make it the "responsibility of the payer, during the course of its review of the merits of the claim, to identify any practitioner whose professional conduct was at issue in that malpractice action or claim that resulted in a payment, and report that practitioner to the Data Bank." (emphasis added) This rule far exceeds the statutory authority delegated by Congress. C. Imposition of substantial administrative burdens and costs on health care providers and their insurers which will ultimately be passed on to health care consumers.

The requirement that the payer identify any practitioners whose conduct was at issue would impose investigative and claim costs far beyond those currently incurred by insurers in processing medical malpractice claims. The proposal would require the payer to identify each health care entity with which the practitioner is affiliated. This would include any managed care organization, group practice, clinic, medical society or other group that provides health care services and engages in a peer review process. In addition, the payer also would have to identify all practitioners who might be involved in the claim.

If this requirement were imposed, a significant administrative burden would be added to those already in existence for the payer. Cost of health care and medical liability insurance would undoubtedly increase, and ultimately be passed onto the consumer.

D. Lack of fairness and due process involved in reporting practitioners.

Serious fairness and due process concerns are raised by the requirement that payers report any practitioner whose conduct was at issue, regardless of whether or not that practitioner was actually named in the claim. Attention must be given to the adverse impact a report to the Data Bank may have on a health care provider's career and reputation.

The American Osteopathic Association, along with a large number of other organizations, brought this issue to the attention of the DHHS General Counsel, Harriet S. Rabb, and HRSA Administrator, Claude E. Fox, M.D., M.P.H. at a September 29, 1999 meeting, Dr. Fox said that HRSA would withdraw the December 24, 1998 NPDB proposal. However, to date no withdrawal notice has been published in the Federal Register, so the proposal has yet to be formally withdrawn.

6. The Patient Protection Act of 2000 lacks true peer review and is inadequate for public education and information.

While the AOA does not oppose a federal data bank open to the public, H.R. 5122 does not provide contextual information that has undergone true peer review. Negligent practitioners can be identified through true peer review, to-wit: when a professional organization, licensing board or true peer review organization (comprised of physicians of same license and specialty) rules that a practitioner has been negligent in his/her performance of patient care, the public has a right to know. But I emphasize that before any information is made public; it must pass the test of tmc peer review. Unfortunately, the Patient Protection Act of 2000 does not utilize this key element of physician evaluation and therefore we feel that the information is not suitable for public interpretation of a physician's competency. State medical and licensure boards need to do a better job of sharing information between different states. These common sense and simple solutions would go a long way toward weeding out truly negligent and incompetent physicians.

The NPDB has serious flaws, which make it inadequate for the purpose it is meant to fulfill. I encourage each of you to consider carefully the issues presented today. I also would like to highlight testimony submitted on March 16, 2000 by Thomas Croft, the Director of the Division of Quality Assurance, Bureau of Health Professions, Health Resources and Service Administration, when he testified before the House Commerce Subcommittee on Oversight and Investigations. As you know, Mr. Croft is the Director of the Division that oversees the operation of the NPDB.

Mr. Croft made two very strong points. First, "Nothing in the Data Bank's information, on the other hand, is intended to produce and independent determination about the competency of an individual practitioner. It rather is intended to supplement a comprehensive and careful peer review." He later quoted Secretary Shalala that "....there are privacy concerns regarding broad public disclosure of potentially incomplete negative information." I bring these statements to your attention to illustrate that even the individual who is responsible and most knowledgeable about the National Practitioner Data Bank is opposed not only to the public disclosure of the NPDB's information, but also to the NPDB being utilized as the only source of information when evaluating a physicians competency.


In closing, Americans have a right to the best medical care possible and physicians have a right to be treated fairly when under review by the public, government agencies, review boards, hospitals and their peers.

Mr. Chairman, the public would be better served by more than just misleading physician malpractice information. For instance, information regarding a physician's education, training, insurance plan participation, and hospitals of practicing rights would be useful and appropriate for public access. The sole purpose of your legislation is clearly the public dissemination of medical malpractice information and seems suspiciously antiphysician rather than pro- patient. I encourage you to reconsider carefully your position regarding this issue and to re-examine the propriety, usefulness, and accuracy of the NPDB information you seek to make available to the public.

Also, the AOA has serious concerns regarding both the timing of H.R. 5122 and the title of the bill. A heated debate is occurring on Capitol Hill regarding the Patients' Bill of Rights, with numerous versions being called a "Patient Protection Act." The two issues should not be confused, nor should the Patients' Bill of Rights be forgotten or lost in the shuffle of a last minute legislative free- for-all in the waning days of the 106th Congress. I respectfully request you use your leadership position as a managed care conferee to pass a meaningful, comprehensive and true Patients' Bill of Rights before Congress adjourns. Those are the real protections our patients need and deserve.

Thank you for the opportunity to testify today. The AOA stands ready to participate in a bipartisan effort to develop a public data bank that will truly provide consumer protection.


LOAD-DATE: September 22, 2000

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