Medical Justice provides free 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 free consultation – or use the tool shared below.

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. 

Most doctors fear the destructive effect of a report to the National Practitioner Data Bank (NPDB). 

Given the expanded scope of the NPDB and the reliance that state licensing boards,  privilege committees at hospitals, and payors place on it, that concern is well-placed. 

A physician involved in a situation that may trigger or has triggered a report should seek expert counsel AND be an informed client who gets the most out of that representation. 

Let’s have a look at what you need your lawyer to do for you to either prevent a report entirely or to blunt its impact. 

1. Medical malpractice litigation

The law that established the NPDB states that payment in settlement of a medical malpractice claim does not create a presumption that medical malpractice in fact occurred. It merely notes that money changed hands.  But, states still give considerable attention to NPDB reports in setting their own disciplinary standards and may institute proceedings based on a single large award or an aggregate of smaller ones. 

You therefore want the lawyer defending you in a malpractice action to first be realistic with you about your case. You want to avoid pushing for litigation to verdict in a case that you will likely lose big-time rather than settling for a smaller sum or being too eager to settle for a low value without taking into account other awards on your record. 

If your attorney opines you will likely lose, there are some alternatives he can pursue which may limit its NPDB effect. 

Ask your attorney to see if he can craft a settlement low enough for you to cover it personally.  That is not reportable to the NPDB because it would not be a payment by a third party on your behalf. This makes sense if the sum is less than $10,000. This makes little sense if the amount is $100,000. 

If that is not feasible, an alternative is to have your hospital or group, if they are your co-defendants, cover your share of an award.  Once the hospital or group pays, you’d be dismissed. This is because a payment made solely for a facility or corporation is not reportable. If you are of sufficient value to them, they may well agree to do so. 

Conversely, if you are the little fish in the big case, your attorney should seek to have you dismissed as a provision of a settlement.  Sometimes the plaintiff just want to keep you in the case until you testify. Once you are dismissed there is no reporting requirement because only the completed negative results of actions, not just your being named in one, are the reportable events. A plaintiff who can still achieve an acceptable overall settlement and who also has no reason to feel significantly wronged by you personally will not be adverse to this option. 

However, be alert for a common mistake that some lawyers make: believing that a high-low agreement is entirely outside the reporting system. Only one of the two results of a high-low agreement is not reportable. 

A high-low agreement is a pre-verdict agreement between the sides that if the defendant loses he will not pay more than a maximum (the “high”) but if he wins they will still have to pay a minimum (the “low”).  The high-low agreement sets reasonable bookends for how much money will change hands. Without such an agreement, and without these “bookends”, the outcomes may be plaintiff wins nothing -or – the sky’s the limit. The exception to the NPDB reporting requirement only applies if the jury returns a verdict in favor of the defendant. There, the plaintiff will still collect something – but in that case-  since there was no liability assessed- the “low” payment is viewed not as the settlement of a claim but as arising from a separate contract and so it is not reportable.  However, payment of the “high” value is fully reportable because it is a payment on your behalf to settle a claim, albeit one that was pre-capped. 

2. State medical board disciplinary actions

No matter how baseless you and your lawyer may believe a matter to be, there is actually no such thing as a “routine” investigation or a “benign” complaint. Once a negative result is reported to the NPDB, the domino effect into your professional associations with hospitals, managed care companies and payors begins. 

There are therefore only two possible goals: To make the report never occur by doing an end-run or by winning the matter, or to reduce what is reported even if you lose. 

You therefore want a lawyer who will honestly look at the facts of your situation and tell you if you should bail before it is too late to do so. That is because voluntary surrender of your license is often not reportable unless you do so while you are already under investigation or to avoid an investigation beginning. If you are licensed in multiple states but only at risk in one, this is something to consider. 

However, if you fight the allegations, then you want the right lawyer. 

Your lawyer must be experienced specifically in representing physicians at disciplinary hearings. 

These are not conducted like trials under conventional rules of due process and in front of a jury, the defendant has a hand in choosing.  They far more resemble a binding arbitration – but one in which all the arbitrators are chosen by your adversary.  

However, unlike even arbitration, which itself adopts rules of evidence, there are no such analogues in a disciplinary hearing. In many states there is not even an obligation for lawyers from the Board to reveal exculpatory information to the physician as prosecutors in criminal trials are required to do for defendants.  

Given what is at stake, you do not want a trial lawyer who is “learning on the job” in this very different venue. 

You want your lawyer to advise you properly as to whether you should take the option, if offered, to be interviewed by the board.  

Typically, you will chomping at the bit to tell your story but it is the job of your attorney to hold you back IF you will likely only hurt yourself because you actually do have deficits in personality or communication skills or the matter is just too complicated to explain without being caught up in potentially damaging statements.  In those situations it is your attorney’s obligation to keep you back and to proceed by written formal submissions that he drafts (with your help). 

Your lawyer must also be aware of collateral proceedings that may occur and be prepared to counteract them.  Many states will bring disciplinary charges of their own based on a report received through the NPDB that a physician was disciplined in another state. This literally puts the physician in the position of facing multiple charges and multiple NPDB reports for the same misconduct ruling. Ouch. 

You want your lawyer to be alert for this possibility if you are licensed in multiple states and to make sure that only the law of the appropriate state is being enforced against you.   

For example, a physician who was disciplined for having lied to a police officer in Texas was then brought in front of the disciplinary committee in New York based on its receipt of a NPDB notification that there had been misconduct finding against him in Texas.  However, the lawyer in New York researched the law and found that lying to a cop was not a basis for professional misconduct by a physician in New York and had the New York proceeding dismissed, preventing a second report to the NPDB. 

This concludes the first part of this piece. Part 2 will be released in the near future. Don’t miss it.

In closing, a brief reminder – Medical Justice provides free 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 the NPDB. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Learn how Medical Justice can protect you from medico-legal mayhem… 

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 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of 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.