Guest Post from Alan Scarrow, MD, FAANS
President of Mercy Clinic
Springfield, MO
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.
Reports to the Data Bank do not prevent practitioners from gaining privileges. Reports contain no information that practitioners are not required to disclose in applications for privileges. Only dishonest practitioners who fail to disclose their records are potentially harmed by Data Bank reports. And even then the real problem is the underlying event that led to the Data Bank report, not the report itself. Don’t blame the messenger; that’s all the Data Bank is.
Dr. Oshel’s comments contain an assumption and a not so subtle bias. His claim that NPDB reports “contain no information that practitioners are not required to disclose in applications for privileges” is not correct. It is up to individual hospitals as to what queries they ask physician applicants. The Joint Commission requires hospitals seek information on liability of final judgments only. While some may choose to ask questions more broadly and request all settlements or any payments from malpractice carriers, others may tailor the questions more narrowly to those made pursuant to malpractice claims. Barring Dr. Oshel’s contacting more than 6,000 U.S. hospitals to find out which ones ask which questions, his claim stands on assumptions.
He further states that “(o)nly dishonest practitioners who fail to disclose their record are potentially harmed by Data Bank reports” because, after all, the NPDB is only a “messenger”. Further he says that even when those dishonest physicians are harmed, it’s their poor judgment, lack of skill, inadequate knowledge or lack of caring causing injury to the patient that’s the real problem. So in sum, according to Dr. Oshel, it is only inept physicians with questionable character that could possibly be harmed by reports to the NPDB and when they are harmed, they deserve it. If only it was that simple.
In Dr. Oshel’s defense, I get where he is coming from. Having spent some time in D.C. in both the executive and legislative branches as a staff person, I understand the mindset. When faced with regulating an industry with such complexity as U.S. health care, it is natural to want to break it down to generalities. Bad doctors acting badly generate malpractice cases and they deserve what they get. Simple. Well, as former journalist H.L. Mencken is often quoted, “for every complex problem, there is a solution that is simple, neat and wrong.” Nineteen percent of all neurosurgeons get sued every year. Some of those cases get dropped, some get settled, some go to court, and yes, sometimes individual surgeons have behaved badly. The outcome of a particular case is dependent on many things. There are nuances, degrees of blame, biases, different versions of events, and always a lot that is unknown that must be filled in by the skill of the attorneys, witnesses and experts. Some of these cases end up being reported to the NPDB, some don’t, but believing that only cases with inept physicians and bad behavior end up being reported is naïve. The fear of being reported stifles many candid conversations which leaves the fate of settlements out of the hands of those most vested in the outcome.
We can be better than this. Let’s look forward and embrace policies that promote candid conversations, not backward at those that reinforce an unnecessary, oversimplified, and expensive game of blame.