Holland & Hart Healthcare Law Blog

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the hospital or other reporting entity that the report was improvidently submitted and that it should be retracted and withdrawn as they are able to do.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.