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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.

This is the second part of our discussion regarding the National Practitioner Data Bank. To read Part 1, click the following link: https://medicaljustice.com/how-to-avoid-a-report-to-the-data-bank-part-1/

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. Disqualification from governmental payors

Let’s first look at Medicare.

Disqualification from the program also prohibits the physician from working – in any capacity – at any facility that receives any federal funds.

That means that he could be foreclosed from practicing medicine at any hospital. It also means he cannot be a janitor in any hospital or a stock clerk in a pharmacy, a bedpan orderly in a nursing home, a cashier in an optical store, or a secretary at a surgical supply company. You get the picture.

The NPDB is the disseminating arm for information on a physician’s lost status with Medicare, so the only option is to avoid disqualification.

Conviction of a crime that is “program-related” (related to the billings or administration of the Medicare program), other healthcare fraud, patient abuse, and conviction for the misuse of a controlled substance will all result in an automatic disqualification. However, lesser offenses, such as a finding of professional misconduct or conviction of a minor crime unrelated to the practice of medicine, can come under “permissive disqualification”, which allows the physician to continue to practice.

You want your lawyer to fight for this for you, proving that the questioned act was an aberration, marshaling character references and testimonials, and emphasizing the harm that patients will suffer if you are removed as their physician.

Let’s now move onto Medicaid.

Medicaid is state-administered and each state sets its own regulations for disqualification. For example, in New York that can be any “unacceptable practice”, a term which includes, as would be expected, involvement in false claims but is also widely defined as being any conduct that is “contrary to” the rules and rates of the department and HSS.

The state has the option – one that New York uses – to simply disqualify any physician who is disciplined from participation in Medicaid even if they are not even participating in it at that time.

This can also have serious collateral effects for physicians with multiple state licenses.

For example, a Florida disciplinary action disqualifies a physician from Medicaid in New York, and that Medicaid disqualification then boomerangs back to Florida through the intermediacy of the NPDB and Florida, under its separate law, then disqualifies the physician from its Medicaid program and also refuses to renew his or her license when it expires. If that physician primarily practices in Florida they are now ruined more extensively in Florida than Florida would have ruined them independently.

This Draconian approach takes us back to the necessity to have your attorney zealously defend you initially in a disciplinary proceeding, but if you are that Florida physician who only incidentally has a New York license you also want more than that from your lawyer. You want them to get in quickly and meet with the Medicaid IG in Florida to push back against the automatic process that the NPDB notification initiated, to show that it would be unjust to prohibit you from practicing in what is truly your home state – a state that did not, in its own action against you, refuse to keep you licensed – because of administrative action in another state where you actually committed no offense.

For your part, you need to assist your attorney by giving them full information on your licensure and its status in all states. In this regard, bear in mind that a license that is inactive only because you did not keep up on your fees as, for example, if you left the state after finishing fellowship, is still an active license and can be the basis for an NPDB-mediated boomerang effect as discussed above.

2. Adverse actions by a hospital that affect clinical privileges

Hospitals are required to report the following to the NPDB:

– Professional review actions that affect clinical privileges for more than 30 days

– The voluntary surrender or limitation of privileges while a physician is under an investigation

– Resignation to avoid investigation or discipline

As in the case of a state disciplinary proceeding, you want your lawyer to make a very early assessment of whether this matter will be something that you fight or concede.

You certainly want your lawyer to be alert for loopholes in this, such as your privileges being set to expire anyway in 28 days so that simple non-renewal keeps the matter out of the NPDB.

However, since such fortuitous events are unlikely, what you most want from your lawyer is to wring every iota of due process out of the proceedings, which begins with them examining the by-laws of the hospital.

If the notice was inadequate or steps were skipped or you were subjected to a “kangaroo court” that disregarded the by-laws, the limitation on your privileges can be annulled. However, that will require separate litigation and will face a high bar because courts have adopted a stance of judicial non-review as to peer reviews and have even supported sham reviews by holding that even actual animosity to the physician did not matter.

Your lawyer’s goal as far as keeping you out of the NPDB altogether is therefore to instead stand on the fact that the regulations of the NPDB itself require that you have been afforded due process, including any appeals before the report is sent in by the hospital.

If the review is legitimate and if it is not going your way, what you want from your lawyer is to work with the committee to get you a softer landing.

Ideally, you want your lawyer to work to craft a corrective solution that falls below reporting levels. This should have very specific steps and assessment points that you will meet and should specify a fair evaluator.

If the situation cannot be reduced below a reportable level then the agreement should require the hospital to withdraw or amend the report – which only they are empowered to do – from the NPDB if you complete the corrective process successfully.

You also want your lawyer to work with the hospital on drafting the report that goes to the NPDB to mitigate the harm that it will do you.

For example, if you are a surgeon and are facing a restriction of your privileges as to bariatric procedures your attorney may be able to get the hospital to state that it was unable to assess your skills based on the volume of the cases done and that you therefore voluntarily withdrew from doing those procedures. This gives the hospital what it wants – you not doing these procedures on their premises – but the report is not damaging to you.

Before we continue, a brief reminder: Medical Justice is equipped to help doctors address a bevy of medico-legal threats – including problems specific to the NPDB. Schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD by visiting our consultation page (fast and easy). 

3. Dealing with a report that is already in the NPDB

If you were denied due process under the hospital by-laws or a report was made while an appeal was still pending, you want your lawyer to immediately notify the NPDB because these are violations by the reporter that are themselves offenses.

If the process was correctly carried out but you still hope to have the report removed you want your lawyer to address that with the reporter. All disputes regarding reports must be handled with the reporting entity, not with the NPDB.

Perhaps most importantly, you want to get your own version of the facts into the NPDB as soon as possible and so you want assistance from your lawyer in drafting your statement.

You have the right to dispute the report and to append your own “subject statement” (up to 4,000 characters) about the reported events. This statement will then go out to all those who already received your report and will be sent along with any future requests.

This is not an opportunity to be squandered.  It is your chance to explain any lack of merit behind a malpractice case or the mitigating issues behind a disciplinary action or the sham nature of a peer review. You can dispute the factual accuracy of the report and can also cite if it was submitted without compliance with due process requirements.

What you want from your lawyer is to ensure that you get the maximum effect of telling your side of the story in a brief statement, that you avoid being personal or emotional, and that you do not inadvertently make statements that will be troublesome for you in and of themselves.

In summary: Avoiding entry into the NPDB or minimizing the destructive effects that an entry may have on a physician’s career requires expert legal assistance and the active involvement of the physician as an informed client.

[Medical Justice notes: Many doctors believe there is some type of reporting threshold to the NPDB, perhaps $10k; or $30k. There is no reporting threshold. A settlement of $1 – made by your carrier – is reportable.

There are a number of ways to structure specific medical malpractice settlements that follow the rules of the NPDB but are not reportable. These should be discussed with your attorney.

Regarding complaints by patients to the Board, statistically, most go nowhere. That is, you tell your side of the story, and that is the last you hear of it. But, a complaint to the Board can be a very serious matter. If you hire counsel to assist you, hire an attorney who is familiar with defending such cases. Most attorneys have no experience in this domain. We have an evolving list of attorneys who are comfortable addressing Board complaints. Some actually served previously as general counsel for the Boards of Medicine before heading out into private practice.

Finally, most malpractice policies provide stipends to pay an attorney to defend you against Board complaints. If you make use of this provision, make sure the attorney understands Board defense- and has defended such cases many times in the past.]

Before we conclude, a brief reminder: Medical Justice is equipped to help doctors address a bevy of medico-legal threats – including problems specific to the NPDB. Schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD by visiting our consultation page (fast and easy).

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.