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.

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

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 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.

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 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.