The National Practitioner Database

By Ralph F. Holmes

In 1986, Congress enacted the Healthcare Quality Improvement Act to establish the National Practitioner Data Bank, which is a repository of information maintained by the Department of Health & Human Services concerning the competency of physicians, dentists, and other medical practitioners for use by hospitals and state licensing boards and in some instances medical liability plaintiffs. Among the findings cited by Congress as reasons for the law were the following:

"The increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State." [and]

"There is a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance."

The statute seeks to address these deficiencies in the health care system by requiring hospitals, other health care entities, and professional licensing boards to report to and retrieve from the Data Bank information about the competency of physicians, dentists, and other health care practitioners.

Specifically, the law requires hospitals to report to the Data Bank information concerning the suspension, curtailment, or revocation of clinical privileges of a physician, dentist, or other staff member and similarly requires state licensing boards to report any licensure revocation or suspension, reprimand, or order of probation relating to a physician's or dentist's professional competence or conduct. The law further requires anyone, including an insurance company, who makes a payment to settle or satisfy a claim for medical negligence against a physician, dentist, or other healthcare practitioner, to report the payment to the Data Bank, including the amount of the payment and a description of the patient's claims. The forgiveness of a debt, including outstanding medical bills, is not such a payment and does not need to be reported even if it is the consideration for the release of medical negligence claims by the patient.

The law encourages hospitals and other health care entities to engage in vigorous peer review in the examination of the privileges of clinical staff by providing limited immunity for peer review actions, which immunity, however, does not extend to medical negligence claims.

With respect to the retrieval of information from the Data Bank, the law requires hospitals to obtain information concerning any applicant for hospital staff privileges as well as information bi-annually concerning all existing staff members, including courtesy staff.

Data Bank information is generally not available to patients or the public; the Data Bank is not a consumer education tool. Data Bank information, however, may be obtained in litigation against a hospital where it is contended that the hospital negligently hired, retained, or supervised a staff physician or dentist. The regulations provide:

An attorney, or individual representing himself or herself, who has filed a medical malpractice action or claim in a State or Federal court or other adjudicative body against a hospital, and who requests information regarding a specific physician, dentist, or other health care practitioner who was also named in the action or claim [shall be provided information from the Data Base concerning such physician, dentist, or health care practitioner]. Provided, that this information will be disclosed only upon the submission of evidence that the hospital failed to request information from the Data Bank as required by § 60.10(a), and may be used solely with respect to litigation resulting from the action or claim against the hospital.

The statute thus requires the following as preconditions to the release of information:

1. The medical malpractice claim must be against both the hospital and the subject physician, dentist, or healthcare practitioner; and
2. The plaintiff must produce information that the hospital failed to request information from the Data Bank concerning this person as required.
   
   If a plaintiff is successful in obtaining Data Bank information, the statute defines the role of the evidence in the case against the hospital as follows:
   
   With respect to a medical malpractice action, a hospital which does not request information respecting a physician or practitioner as required under subsection (a) of this section is presumed to have knowledge of any information reported under this subchapter to the Secretary with respect to the physician or practitioner.

The hospital will thus be deemed to have hired and retained the professional with full knowledge of the information contained in the Data Base.