OP-ED

Reforming the NPDB: An Open Letter

 

Kathleen Sebelius, Secretary
U.S. Department of Health and Human Services
200 Independence Avenue, S.W.
Washington, D.C. 20201

Mary K. Wakefield, Administrator
Health Resources and Services Administration
5600 Fishers Lane
Rockville, MD 20857

Re: Public Use File of the National Practitioner Data Bank

Dear Secretary Sebelius and Administrator Wakefield:

The undersigned are academic researchers who work in the areas of public health, health care quality/patient safety, medical liability, and related fields. (Signatories are listed alphabetically by last name. Academic affiliations are provided for purposes of identification only.)

We write to condemn, in the strongest possible terms, HRSA’s recent decision to make the Public Use File (PUF) of the National Practitioner Data Bank (NPDB) unavailable. We also request that HRSA restore the PUF’s availability immediately.

The NPDB is the only nationwide database of closed medical malpractice claims that is publicly available to researchers. Academics use it extensively. A search on “National Practitioner Data Bank” in Google Scholar’s “articles and patents” database returned a multitude of hits. The same search run in WESTLAW’s “journals and law reviews” database returned 576 articles. In PubMed, the search generated 399 articles. Not all of these articles contain new empirical findings, but many do, and the sheer number of publications attests to the NPDB’s importance.  The NPDB is an indispensable resource for academic researchers.

The NPDB is also amazingly safe for the thousands of medical practitioners with stored claim histories. Even though the PUF has existed for over 20 years, we know of no academic researcher who has ever used it to identify a medical practitioner by name in published research.

Nor, to our knowledge, has any academic researcher ever used any other publicly or privately available malpractice claim dataset for this purpose. Academic researchers have an unblemished history of preserving the anonymity of individual medical practitioners when studying closed medical malpractice claims. An important reason is that publishing practitioners’ names would serve no academic purpose.

The HRSA’s decision to pull down the PUF was reportedly made, unilaterally and without  public comment, after the agency received a complaint from a physician who was identified in an article written by a journalist and published in the Kansas City Star.1 According to that article, the physician who complained, Dr. Robert Tenny, had been sued for medical malpractice 16 times, with resulting payments of about $3.7 million. 2

The reason that a journalist found it desirable to reveal Dr. Tenny’s name is obvious. Readers of the Kansas City Star might have wanted to decide for themselves whether Dr. Tenny posed a danger to them. Few doctors are sued 16 times.3 Moreover, the purpose of the news story was to show that the public officials who regulate the practice of medicine in Kansas were derelict.

The article reports that Dr. Tenny was sued many times, paid millions in settlements, and had his privileges suspended by a hospital that considered him an immediate threat to patients’ health. Yet, again according to the article, Kansas’ medical board had never disciplined him. In possibly posing a danger but having a clean disciplinary record, Dr. Tenny was not alone. According to the article, “21 doctors … ha[d] spotless Kansas and Missouri licenses even after lengthy histories of malpractice cases.”

HRSA defends its action by claiming that the publication of the Kansas City Star article shows that “the PUF in its current form can be manipulated to identify individual practitioners.” Letter from Mary K. Wakefield to Charles Silver, September 21, 2011. This is incorrect. The article makes plain that “[NPDB] files available to the public … are stripped of information identifying doctors by name. The [Kansas City] Star linked Tenny to entries in the Data Bank by comparing [NPDB’S] public reports to information about Tenny contained in court filings.” To identify Tenny and other physicians with large numbers of malpractice claims, the journalist did not “manipulate” the PUF; he consulted court filings, which are public documents outside the control of HRSA.

By claiming that the PUF was “manipulated to identify individual practitioners,” HRSA appears to contend that the journalist violated the law, which reads as follows:

45 CFR 60,15

(a) Limitations on disclosure. Information reported to the NPDB is considered confidential and shall not be disclosed outside the Department of Health and Human Services, except as specified in §§ 60.12, 60.13, and 60.16. Persons who, and entities which, receive information from the NPDB either directly or from another party must use it solely with respect to the purpose for which it was provided. Nothing in this paragraph shall prevent the disclosure of information by a party which is authorized under applicable State law to make such disclosure.

(b) Penalty for violations. Any person who violates paragraph (a) shall be subject to a civil money penalty of up to $11,000 for each violation. This penalty will be
imposed pursuant to procedures at 42 CFR part 1003.

Under this regulation, it was perfectly lawful for the journalist to do what he did. He used the PUF for “the purpose for which it was provided,” namely, to learn about the frequency of medical malpractice claims. He then used other sources, not the PUF, to identify individual doctors. The regulation permits that.

By pulling down the PUF to prevent other journalists from doing the same thing, HRSA is exceeding its mandate. It is seeking to prevent journalists from using sources outside the PUF (and, indeed, outside the NPDB) to identify physicians with large numbers of malpractice claims. This is unlawful and is certainly inconsistent with the spirit of the First Amendment to the U.S. Constitution, which protects the freedom of the press.

That the journalist expended the additional energy needed to identify Dr. Tenny is a good thing. The healthcare system is notoriously opaque. Important information about quality and patient safety is often hidden or, for other reasons, impossible to obtain. Recently, this has begun to change, but the movement toward transparency is still in its infancy. By identifying the worst offenders in the physician population and prodding public officials to disclose more information, journalists provide an important stimulus.

By pulling down the PUF at the request of a single physician with 16 prior malpractice claims, the HRSA took a large step in the direction of the “bad old days” when secrecy prevailed and providers’ interests took precedence over patients’ safety and well-being. Fortunately, we no longer live in those times. Today, everyone recognizes that patients come first. Instead of pulling down the PUF, HRSA should have recognized the importance of the NPDB and considered whether the time has come to make more variables available to researchers.

We condemn the HRSA’s action. We urge you to restore the PUF immediately.

G. Caleb Alexander, MD, MS
Associate Professor of Medicine
University of Chicago Medical Center
5841 S. Maryland Avenue
Chicago, IL 60637

Jennifer Arlen
Norma Z. Paige Professor of Law
NYU School of Law
New York, NY 10012

Ronen Avraham
Thomas Shelton Maxey Professor in Law
University of Texas School of Law
Austin, TX

Tom Baker
Deputy Dean and William Maul Measey Professor of Law and Health Sciences
University of Pennsylvania Law School
Philadelphia PA 19104.

Bernard S. Black
Chabraja Professor
Northwestern University Law School and Kellogg School of Management
Chicago, IL

Nathan Cortez
Assistant Professor
SMU Law School
Dallas, TX

Barry R. Furrow
Professor of Law and Director
The Health Law Program
Earle Mack School of Law at Drexel University
Philadelphia, PA

Mark A. Hall
Professor of Law and Public Health
Wake Forest University
Winston-Salem, NC

Allison Hoffman
Acting Professor of Law
UCLA School of Law
Los Angeles, CA

David A. Hyman
Richard & Marie Corman Professor of Law and Professor of Medicine
University of Illinois
Champaign, IL

Peter D. Jacobson, JD, MPH
Professor of Health Law and Policy
Director, Center for Law, Ethics, and Health
University of Michigan School of Public Health
Ann Arbor, Michigan

Timothy S. Jost
Robert L. Willett Family Professor of Law
Washington and Lee University School of Law
Lexington, VA

Eleanor D. Kinney
Hall Render Professor of Law Emeritus
Co-director of the William S. and Christine S. Hall Center for Law and Health, Emeritus
Indiana University School of Law – Indianapolis

Indianapolis, IN

W. Bentley MacLeod
Professor of Economics and International and Public Affairs
Columbia Law School
New York, NY

Christopher T. Robertson
Associate Professor
James E. Rogers College of Law
University of Arizona
Tucson, AZ

Meredith B. Rosenthal
Professor of Health Economics and Policy
Department of Health Policy and Management
Harvard School of Public Health
Boston, MA

William M. Sage
Vice Provost for Health Affairs & James R. Dougherty Chair for Faculty Excellence
University of Texas School of Law
Austin, TX

Charles Silver
McDonald Chair in Civil Procedure
University of Texas School of Law
Austin, TX

Frank A. Sloan

J Alex McMahon Professor in Health Policy
Fuqua School of Business
Duke University
Durham, NC

David M. Studdert
ARC Federation Fellow, University of Melbourne
Professor, Melbourne School of Population Health
Professor, Melbourne Law School
207 Bouverie Street, Carlton VIC 3053

Eric J Thomas MD MPH
Associate Dean for Healthcare Quality
Director, UT Houston-Memorial Hermann Center for Healthcare Quality and Safety
Griff T Ross Professor in Humanities and Technology

Professor of Medicine
University of Texas Medical School at Houston
Houston TX

David Warner
Wilbur Cohen Professor of Health and Social Policy
LBJ School of Public Affairs
University of Texas at Austin
Austin, TX

Kathryn Zeiler
Professor of Law
Georgetown University Law Center
Washington, DC

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I agree that access to this data base should be closed to everyone but credentialing entities. The legal wonks have no right to know.