On May 22, 2014, former Secretary of the U.S. Department of Health and Human Services (HHS) Kathleen Sebelius, issued a decision that settlements arrived under so-called “apology and disclosure laws” were reportable to the National Practitioner Data Bank (NPDB). Laws are written in several states to protect healthcare providers’ statements of disclosure and sympathy from being used as evidence of liability. In this case, Secretary Sebelius’ decision was whether state laws in Massachusetts and Oregon — which both go beyond traditional evidentiary protection by incorporating the potential for financial restitution outside the court system — met the NPDB’s Medical Malpractice Reporting Requirements. By engaging in voluntary pre-litigation conversations under the new laws, healthcare facilities or providers could make compensation offers to patients which, if accepted, would offer some protections from further litigation. A decision by Secretary Sebelius to exclude that settlement from reporting to the NPDB would likely result in more states adopting such laws. Conversely, a decision to require reporting to the NPDB would likely deter use of those laws in Massachusetts and Oregon and discourage other states from adopting similar progressive malpractice reforms. Secretary Sebelius chose the latter.
In September 2009, President Obama asked the Secretary to establish medical liability reform that would put patient safety first, foster better communication between practitioners and their patients, ensure that injured patients are compensated in a fair and timely manner while reducing the incidence of frivolous lawsuits, and reduce liability premiums. In June 2010, demonstration grants totaling $23.2 million from the Agency for Healthcare Research and Quality (AHRQ) were announced to promote such reforms. Massachusetts and Oregon were out in front and established their respective laws with an eye toward fulfilling the President’s laudable goals. Both states realized that creating a safe place for discussions to occur between providers and patients was key to changing behavior.
Why is this so important? For practitioners, a single report to the NPDB may prevent them from gaining privileges in hospitals or obtaining or renewing a state medical license; thus, keeping settlements out of the NPDB is important so as to foster a safe environment. In fact, the Oregon law was explicitly designed to avoid medical malpractice reporting to the NPDB for any claims that were part of their new process that did not proceed to litigation.
Secretary Sebelius’ decision was right in one sense. Including settlements from the new laws to the NPDB was most consistent to the NPDB’s past policies and practices, especially the traditional reporting of pre-trial settlements. Further, requiring a report to the NPDB is the only way to make sure that payments made on behalf of negligent practitioners would be reported. But being right doesn’t make one successful. If the goal was to encourage dialog between providers and patients, expedite settlements when patients are truly injured, and bring medical mistakes out of the shadows and into the light of day, how does a decision consistent with a past that discouraged those desires, also manage to encourage a change for a better future?
Henry Ford once said, “We do not make changes for the sake of making them, but we never fail to make a change once it is determined that the new way is better than the old way.” Unfortunately, in this case, we will never get to learn if this new way is better than the old because we have retained too much of the old approach. Fear will continue to keep relevant information off the table and court dockets full of both legitimate and frivolous cases. A chance to create a better medical liability system is wasted and bureaucracy claims yet another victory.
Neurosurgery is committed to delivering high quality care to our patients, but we also face the highest risk of being sued for medical malpractice because of the challenging and risky nature of neurosurgical procedures. We support a medical liability system that incorporates the goals that President Obama elucidated in 2009. Perhaps one day, the desire for change that meets these goals will match our tolerance to take a risk, learn something we didn’t know, and find justice in an area of our legal system that continues to crave it. Until then, an optimal malpractice system eludes us.