Copyright 2000 Federal News Service, Inc.
Federal News Service
September 20, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 3606 words
PREPARED STATEMENT OF EDWARD A. LONIEWSKI, D.O. AMERICAN OSTEOPATHIC ASSOCIATION
BEFORE THE HOUSE COMMITTEE ON COMMERCE
SUBJECT - PATIENT PROTECTION ACT OF 2000
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
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.
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.
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.
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
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
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
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.
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
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
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