Holland & Hart Healthcare Law Blog

“Barking” Radiologist Bites Hospital for $4 Million Dollars.

On March 4, 2008, this blog published a story about St. James Healthcare in Butte, Montana and its having obtained an injunction against a radiologist, Dr. Jesse Cole, enjoining him from allegedly threatening staff and contacting prospective radiologists being recruited to St. James. The article was entitled “Montana Court Muzzles Barking Radiologist.”  Well, the tide has turned and Dr. Cole has taken a bite out of the hospital and its parent company, the Sisters of Charity of Leavenworth Health System to the tune of $4 Million dollars.

 

“Jumping Jelly Beans” and Surgeon’s “very bad day” lead to Summary Suspension and NPDB Report.

 

“Pitching a fit”  in a hospital operating room can land a  surgeon in the National Practitioner Data Bank. In Leal, M.D. v. Secretary, U.S. Dept. of HHS issued on September 22, 1010, the Eleventh Circuit Court of Appeals affirmed the decision of the trial court upholding the determination by the Secretary of HHS that Dr. Leal’s 60 day suspension for disruptive conduct was accurately reported and required to be reported to the data bank. When notified that there would be a delay in the start time for a urological surgery case, Dr. Leal broke a telephone, shattered the glass on a copier, shoved a metal cart into the OR doors causing damage, threw jelly beans down the hallway, threw a patient chart on the floor and verbally abused a nurse. In his review petition to the Secretary he suggested that he had merely been clumsy, a portrayal the Court was reluctant to accept from a urological surgeon.

 

THE VALUE OF CONSENT TO SETTLEMENT CLAUSES IN PROFESSIONAL LIABILITY INSURANCE.

    Many physicians appear to be unaware of the potential impact on their reputations of not having a right to consent to any settlement in their contract for professional liability insurance.  Without such a clause the insurance company, may settle a nuisance claim against a physician for a small token payment, yet in making a payment on behalf of a physician, no matter how small, the insurance company is required to report the payment to the National Practitioner Data Bank under the Healthcare Quality Improvement Act of 1986. It is in fact sometimes better for a physician to make a nuisance payment himself or herself to settle a case if the amount is small enough, because payments made by the physician are not reportable.

HEALTH CARE DATA CHASE: THE ARRIVAL OF HEALTH CARE ALL CLAIMS DATA BASES.

    The Colorado legislature is about to address a proposal to develop a state health care all claims data base as part of Governor Rittter’s health care initiative package. The pending bill, HB 1330, provides for the structure and development of a claims data base in the state with the hope of joining a number of other states that have already or are in the process of developing their data bases.  

MONTANA SUPREME COURT AFFIRMS INJUNCTION AGAINST HOSPITAL SUSPENSION OF PHYSICIAN WHO DENIED IT ACCESS TO HIS FAMILY’S PRIVATE MEDICAL RECORDS.

 The Montana Supreme Court affirmed the issuance of a preliminary injunction restraining Community Medical Center, a hospital in Missoula, Montana for suspending the medical staff privileges of a hospitalist whose only offense was to refuse to grant unrestricted access to his family’s medical records to a hospital subcommittee. The physician designated as “Dr. Doe,” in the case of John Doe, M.D. v. Community Medical Center, Inc., DA08-0397, decided on November 24, 2009, asserted that that Community Medical Center  (“CMC”) breached the terms of its contract with him embodied in CMC’s medical staff bylaws and policies by summarily suspending his privileges with no demonstration of “ a substantial likelihood of imminent impairment of the health or safety of any patient, perspective patient, employee or other person present in the medical center” –the sole designated basis for summary suspension at CMC.

LITERALISM RULES IN RESPONDING TO MEDICAL BOARD QUESTIONAIRE.

Dr. Savitra Bhama, a psychiatrist born in the former West Pakistan in 1934 has a license to practice medicine in Michigan and Kentucky. She applied for a license to practice in the State of Ohio. In the questionnaire that the State Medical Board of Ohio required to be submitted along with her application she was asked whether she had ever been terminated or resigned from a position she held or was ever asked to resign. She answered “no” to the question after interpreting the question in the context of her perception of the interests of the board to mean termination or resignation related to the actions related to patient care. The literal answer to the question was “yes.” Dr. Bhama argued that she had no intent to deceive the board and cited as evidence the fact that she disclosed her complete employment history and given the number of positions the board would have known that she terminated or was terminated from several positions. The Ohio board determined that her answer constituted a false, fraudulent, deceptive, or misleading statement” in order to secure a license and denied her application.

Getting Out of the National Practitioner Data Bank - Part II

Getting out of the NPDB is perhaps equivalent to escaping from Alcatraz – a near impossible feat. Yet there are those who have accomplished it. The easiest way of course is to convince the hospital or other reporting entity that the report was improvidently submitted and that it should be retracted and withdrawn as they are able to do. The other option is to convince the Secretary of HHS that based on the administrative record, the submission was in error and not reportable under the criteria for reporting set out in the NPDB Guidebook. If the Secretary persists in affirming the appropriateness of the report, the only remaining recourse is the filing of a judicial review action in a federal court under the federal Administrative Procedure Act, 5 U.S.C. §701 et seq., where you must establish that the decision by the Secretary was "arbitrary and capricious." One of the most contentions areas of data bank reporting is the obligation to report a physician who resigns or withdraws an application for privileges in order to avoid a peer review "investigation" or discipline. Two successful judicial review cases in which doctors have "escaped" from the NPDB are instructive.

Getting Out of the National Practitioner Data Bank, Part I

Once a physician or other health care provider is reported to the National Practitioner Data Bank, he or she is normally there for life. It is extremely difficult to get out. Some physicians have remarked that it is like having a "record," which like in the criminal context can result in the denial of hospital privileges, denial of jobs and potentially the destruction of careers. All hospitals are required to access the data bank reports on physicians every two years during hospital privieges re-certifications. State disciplinary actions are required to be reported as well as malpractrice insurance payments (no matter the amount). Peer review discipline is also reportable, although their are some limited exceptions.

DOCTOR SUIT DODGES HOSPITAL SLAPP

Every once in a while a story of hardball confrontation between Physicians and Hospitals over physician recruitment contracts run amok surfaces in telltale litigation.  Dureza v. Tenet Healthcare Corporation, an unpublished opinion of District 2 of the California Second Appellate District, filed on November 22, 2005, provides an interesting study.  It includes all of the drama of a hospital utilizing the career crunching vulnerabilities of a physician to negative reporting to the Material Practitioner Data Bank to avoid the financial ramifications of lucrative physician recruitment contracts and “on call” agreements which turn out to be unprofitable to the hospital.  Tenet of course has been rigorously defending a fraud and abuse attack brought by the U.S. Attorney in San Diego, California over alleged abuses of its physician recruitment program through two jury trials (the first resulted in a hung jury).

 

National Practitioner Data Bank Has Duty To Investigate Disputed Reports.

Under the Health Care Quality Improvement Act of 1986, hospitals, state medical practice boards and other entities have duties to report certain actions and suspensions of physicians, dentists and certain other practitioners to the specially created National Practitioner Data Bank. Hospitals are required by the Act to inquire of the Data Bank every two years concerning doctors and dentists on their medical staffs who are seeking the renewal of their hospital privileges. A physician or dentist who is reported to the Data Bank may well find his career at an end because of the reluctance of hospitals to grant privileges to a professional with documented "quality" or "competence" problems.