Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Most reports to the National Practitioner Data Bank (NPDB) are well known to the doctor. Perhaps a medical malpractice insurance company paid a professional liability claim on your behalf. Or the Board of Medicine delivered a disciplinary order. Or you were convicted of Medicaid fraud. These would be obvious.
There is one type of sneaky situation where the doctor may be entirely oblivious to being reported. Resigning while under investigation.
There, the doctor has privileges at a hospital. The magic is gone. The doctor has decided to leave. He has a new job lined up. He tells the credentialing department he is resigning his privileges. Then, he sets forth on his new path.
As he is applying for privileges at the new hospital, he learns that there’s a Data Bank report. It says he resigned while under investigation. He had no idea. While the former hospital has a formal process for initiating an investigation, it may or may not require the doctor be notified in advance of starting such an investigation. Frequently, it is NOT required. For example, if a hospital feels a need to move quickly and summarily suspend a doctor’s privileges, the investigation may last only a nanosecond, without formal notice to the doctor until the deed is done.
And the worst part of the label “resigned while under investigation.” Those reading that minimal report will naturally assume the worst. That you were a butcher leaving a trail of patient deaths.
How does the Data Bank define an investigation? Here goes.
Investigations (in it of themselves) should not be reported to the NPDB. However, a surrender of clinical privileges or failure to renew clinical privileges while under investigation or to avoid investigation must be reported.
NPDB interprets the word “investigation” expansively. It may look at a health care entity’s bylaws and other documents for assistance in determining whether an investigation has started or is ongoing, but it retains the ultimate authority to determine whether an investigation exists. The NPDB considers an investigation to run from the start of an inquiry until a final decision on a clinical privileges action is reached. In other words, an investigation is not limited to a health care entity’s gathering of facts or limited to the manner in which the term “investigation” is defined in a hospital’s by-laws. An investigation begins as soon as the health care entity begins an inquiry and does not end until the health care entity’s decision-making authority takes a final action or makes a decision to not further pursue the matter.
A routine, formal peer review process under which a health care entity evaluates, against clearly defined measures, the privilege-specific competence of all practitioners is not considered an investigation for the purposes of reporting to the NPDB. However, if a formal, targeted process is used when issues related to a specific practitioner’s professional competence or conduct are identified, this is considered an investigation for the purposes of reporting to the NPDB.
A health care entity that submits a clinical privileges action based on surrender, restriction of, or failure to renew a physician’s or dentist’s privileges while under investigation should have evidence of an ongoing investigation at the time of surrender, or evidence of a plea bargain. The reporting entity should be able to produce evidence that an investigation was initiated prior to the surrender of clinical privileges by a practitioner. Examples of acceptable evidence may include minutes or excerpts from committee meetings, orders from hospital officials directing an investigation, or notices to practitioners of an investigation (although there is no requirement that the health care practitioner be notified or be aware of the investigation).
Guidelines for Investigations
-
-
- For NPDB reporting purposes, the term “investigation” is not controlled by how that term may be defined in a health care entity’s bylaws or policies and procedures.
- The investigation must be focused on the practitioner in question.
- The investigation must concern the professional competence and/or professional conduct of the practitioner in question.
- To be considered an investigation for purposes of determining whether an activity is reportable, the activity generally should be the precursor to a professional review action.
- An investigation is considered ongoing until the health care entity’s decision-making authority takes a final action or formally closes the investigation.
- A routine or general review of cases is notan investigation.
- A routine review of a particular practitioner is notan investigation.
-
So, an investigation must pass the sniff test. It must be a bona fide investigation. It cannot be papered over after the fact. In many institutions, the Medical Executive Committee is the group empowered to initiate an investigation.
Here is the dropdown list a hospital can use to make a NPDB report about privileges. They’ve thought of everything.
Table 2 – Clinical Privileges – Actions
|
Code |
Description |
|
1610 |
Revocation of Clinical Privileges |
|
1615 |
Termination of Panel Membership or Employment (Professional Review Action) |
|
1630 |
|
|
1632 |
Summary or Emergency Suspension of Clinical Privileges |
|
1634 |
Voluntary Limitation, Restriction, or Reduction of Clinical Privilege(s) While Under, or to Avoid, Investigation Relating to Professional Competence or Conduct |
|
1635 |
Voluntary Surrender of Clinical Privilege(s), While Under, or to Avoid, Investigation Relating to Professional Competence or Conduct |
|
1637 |
Involuntary Resignation |
|
1638 |
Voluntary Leave of Absence, While Under, or to Avoid, Investigation |
|
1639 |
Summary or Emergency Limitation, Restriction, or Reduction of Clinical Privileges |
|
1640 |
Reduction of Clinical Privileges |
|
1642 |
Limitation or Restriction on Certain Procedure(s) or Practice Area(s) |
|
1643 |
Limitation or Restriction: Mandatory Concurring Consultation Prior to Procedures |
|
1644 |
Limitation or Restriction: Mandatory Proctoring or Monitoring During Procedures |
|
1645 |
Other Restriction/Limitation of Clinical Privileges, Specify, _________________ |
|
1650 |
Denial of Clinical Privileges |
|
1655 |
Failure to Apply for Renewal or Withdrawal of Renewal Application While Under Investigation |
|
1656 |
Practitioner Allowed Privileges to Expire While Under Investigation |
Once you resign while under investigation, it’s hard to unring that bell. The investigation ends without any formal action.
In some situations, while an investigation is pending (before you resign), it’s worthwhile to fight the fight at a fair hearing – assuming your privileges are curtailed. At the very least, any Data Bank report will identify the specific issue and the fact that you did not run – you defended yourself. This generally is perceived differently – and less unfavorably – than “resigned while under investigation.”
And it’s possible that an investigation yields no action – a good outcome.
The take-home points:
If you have any doubts as to whether there’s a possible investigation looking at professional competence and/or professional conduct and potentially the precursor to a professional review action, get confirmation before you resign. You can ask the credentialing or staff membership office and see how they respond. They may not provide an answer. But it’s unlikely they’d provide a false answer.
Do a self-query to see if your Data Bank report has any surprises. It costs almost nothing. You can access a report at: https://www.npdb.hrsa.gov/ext/selfquery/SQHome.jsp
What do you think?
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
These issues can come up when you least expect it. Many years ago, after I had just retired, I gave supportive testimony at a Board hearing for one of my colleagues.
Opposing attorney asked me if I had retired “under any cloud” of a Board action against me?
No action was pending against me and I had no such history so I answered in the negative.
I was frankly surprised by this question. But I should not have been.
Practitioner Data Bank has now become the “tool” of hospitals and group practices to get rid of doctors they want to neuter and destroy.
It was not originally intended for this by the Democrats who started it, but has since devolved.
Be careful who you vote for. They may originate regulations that have extended effects beyond anything you can imagine.
Michael M. Rosenblatt, DPM
This is such important information, and completely unknown to most physicians. The take home message is this: BEFORE you resign from hospital membership or relinquish privileges or decide not to apply for renewal for any reason whatsoever, you first 1) query the NPDB for your own report, and 2)ask the Credentials Department by registered letter or registered email to confirm by return registered letter or email by a date certain that you are NOT under any type of investigation or clinical privilege review that could require reporting to the NPDB. (Smacks of guilty until proven innocent, but there you have it!)
The Organized Medical Staff Section of the AMA is well aware of this issue, and it is a good place to learn more about such issues. As of course is Medical Justice!
First- the NPDB never even looks at whether the reporting entity is “investigating” , they assume the hospital has turned in a report because the hospital determines it is investigating. There might be a hidden motive behind this report from the reporting entity.
Second- during a tenure as credentials committee chairman, I have counselled many docs to not resign but let their privileges lapse at the next renewal. This requires no resignation of privileges and can therefore not be used as an excuse to report the action as you well note, an investigation can come in a moment.
Third- there really is no smell test- guess that depends on which side is doing the sniffing
Fourth- get it in writing about an investigation- do not trust the quality committees chairman who assures you that no investigation is ongoing.
Fifth-it is very unlikely to prevail in a secretarial review when you ask for NPDB to intervene
Sixth- this has a longer half -life than plutonium
Seventh- thankfully there are so many miniscule reports to the board I am not sure too many accepting institutions put much faith in the report, unless you explain it poorly
This situation clearly underscores the inherent “fragility” of medical licensure for surgeons. There is always a possibility that your career will be cut short, in some cases without even your knowledge. This can apply to non-surgeons, but there is less exposure.
This is a fact of modem medical licensure. It suggests a possible strategy: Early financial preparation for retirement.
This means bringing your family on-board for significant personal savings and investment, toward forward planning on not being dependent upon a previous very high salary.
Fortunately, most surgeons are presented with a large enough income to change their focus from profligate spending to early and significant retirement planning.
Then, if you are faced with the ultimate threat of dissolution of your professional income, you will also have the opportunity to say: “Good bye, I will not submit.”
Michael M. Rosenblatt, DPM
It is clear that the NPDB has become a weapon that hospitals can use against physicians. But the question we should really be asking is whether the NPDB is still relevant? Does it really save patients from harm? It seems that the physicians that might be harmful to patients fly under the radar of the NPDB. Usually loss of hospital privileges, multiple malpractice cases, or loss of licensure takes care of miscreant physicians. Since all medical licensure boards report to each other and know about each others board actions against particular physicians, why is there is still a need for a national practitioner data bank? It has outlived its usefulness for protecting patients, from when it was enshrined in law in 1986. Now it is more a political tool for hospitals to damage physicians.
The AMA does not have any political will to remove the NPDB. This leaves surgeons with the very real possibility of a sham peer review and being reported. Once it happens, the individual doctor has few options.
But options always exist for those who plan in advance: Given the median yearly (American) income of $424,608, it is possible to construct a 5–8-year plan of segregating 4-6 million dollars for potential “emergency retirement.” The key to this goal is bringing spouses on-board. (“My God, I did not marry you to penny-pinch).”
It is possible to construct investment and life-planning consultants who explain the issues to suspicious spouses who are understandably angry. This also impacts the ability to fund college for children. But even if you embark on such a plan, it does not automatically follow that your professional career will end early. But you will be prepared if it happens. (At this seminar, setting up alternative income, say through a non-surgical family practice in a small town, can also be discussed).
Perhaps it is time for Medical Justice to start putting together a faculty and make it available to those who wish to plan in advance. Given the income of surgeons, I think this goal is easily achievable without destroying marriages. It just takes the WILL of both parties and a written budgetary/investment plan. Your best exhibition of power is through non-compliance.
If the US is left without one more experienced surgeon, that is not your personal responsibility.
Michael M. Rosenblatt, DPM