[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]


 
          PUBLIC ACCESS TO THE NATIONAL PRACTITIONER DATA BANK

=======================================================================

                                HEARINGS

                               before the

                            SUBCOMMITTEE ON
                      OVERSIGHT AND INVESTIGATIONS

                                 of the

                         COMMITTEE ON COMMERCE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

     MARCH 1, 2000--WHAT CONSUMERS SHOULD KNOW ABOUT THEIR DOCTORS
 MARCH 16, 2000--ASSESSING THE OPERATION OF THE NATIONAL PRACTITIONER 
                               DATA BANK

                               __________

                           Serial No. 106-93

                               __________

            Printed for the use of the Committee on Commerce



                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
62-975                     WASHINGTON : 2000


                         COMMITTEE ON COMMERCE

                     TOM BLILEY, Virginia, Chairman

W.J. ``BILLY'' TAUZIN, Louisiana     JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio               HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida           EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas                    RALPH M. HALL, Texas
FRED UPTON, Michigan                 RICK BOUCHER, Virginia
CLIFF STEARNS, Florida               EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio                FRANK PALLONE, Jr., New Jersey
  Vice Chairman                      SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania     BART GORDON, Tennessee
CHRISTOPHER COX, California          PETER DEUTSCH, Florida
NATHAN DEAL, Georgia                 BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma              ANNA G. ESHOO, California
RICHARD BURR, North Carolina         RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California         BART STUPAK, Michigan
ED WHITFIELD, Kentucky               ELIOT L. ENGEL, New York
GREG GANSKE, Iowa                    TOM SAWYER, Ohio
CHARLIE NORWOOD, Georgia             ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma              GENE GREEN, Texas
RICK LAZIO, New York                 KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming               TED STRICKLAND, Ohio
JAMES E. ROGAN, California           DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois               THOMAS M. BARRETT, Wisconsin
HEATHER WILSON, New Mexico           BILL LUTHER, Minnesota
JOHN B. SHADEGG, Arizona             LOIS CAPPS, California
CHARLES W. ``CHIP'' PICKERING, 
Mississippi
VITO FOSSELLA, New York
ROY BLUNT, Missouri
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland

                   James E. Derderian, Chief of Staff

                   James D. Barnette, General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

              Subcommittee on Oversight and Investigations

                     FRED UPTON, Michigan, Chairman

JOE BARTON, Texas                    RON KLINK, Pennsylvania
CHRISTOPHER COX, California          HENRY A. WAXMAN, California
RICHARD BURR, North Carolina         BART STUPAK, Michigan
  Vice Chairman                      GENE GREEN, Texas
BRIAN P. BILBRAY, California         KAREN McCARTHY, Missouri
ED WHITFIELD, Kentucky               TED STRICKLAND, Ohio
GREG GANSKE, Iowa                    DIANA DeGETTE, Colorado
ROY BLUNT, Missouri                  JOHN D. DINGELL, Michigan,
ED BRYANT, Tennessee                   (Ex Officio)
TOM BLILEY, Virginia,
  (Ex Officio)

                                  (ii)


                            C O N T E N T S

                               __________
                                                                   Page

Hearings held:
    March 1, 2000................................................     1
    March 16, 2000...............................................   107
Testimony of:
    Croft, Tom, Director, Division of Quality Assurance, Health 
      Resources and Services Administration, Department of Health 
      and Human Services.........................................   111
    Gedz, Liana, accompanied by Christopher T. McGrath...........    27
    Hochman, Rodney F., Senior Vice President and Chief Medical 
      Officer, Sentara Health System, on behalf of American 
      Hospital Association.......................................    55
    Loniewski, Edward, on behalf of American Osteopathic 
      Association................................................    50
    Neuman, Barbara, President, Administrators in Medicine, Board 
      of Medical Practice, State of Vermont......................    47
    Newman, Robert G., President and CEO, Continuum Health 
      Partners, Inc., on behalf of Beth Israel Medical Center....    63
    Osten, Wayne M., Director, Division of Health Care Standards 
      and Surveillance, New York State Department of Health......    67
    Reardon, Thomas R., President, American Medical Association..    59
    Silver, Lawrence, Silver and Field...........................    70
    Smart, Anderson, accompanied by Linda Cronin.................    29
    Sullivan, Mary Anna, Chair, Board of Registration in 
      Medicine, Commonwealth of Massachusetts....................    41
    Sullivan, Nancy Achin, Executive Director, Board of 
      Registration in Medicine, Commonwealth of Massachusetts....    42
    Wyden, Hon. Ron, a United States Senator from the State of 
      Oregon.....................................................    19

                                 (iii)




             WHAT CONSUMERS SHOULD KNOW ABOUT THEIR DOCTORS

                              ----------                              


                        WEDNESDAY, MARCH 1, 2000

                  House of Representatives,
                             Committee on Commerce,
              Subcommittee on Oversight and Investigations,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:06 a.m., in 
room 2123, Rayburn House Office Building, Hon. Fred Upton 
(chairman) presiding.
    Members present: Representatives Upton, Bilbray, Ganske, 
Bryant, Bliley (ex officio), Stupak, Green, Strickland, 
DeGette, and Dingell (ex officio).
    Staff present: Charles Symington, majority counsel; Chuck 
Clapton, majority counsel; Amy Davidge, legislative clerk; 
Chris Knauer, minority investigator.
    Mr. Upton. Good morning everyone. Let me say that again. 
Good morning. Welcome to today's hearing by the Oversight and 
Investigations Subcommittee on the issue of whether or not the 
National Practitioner Data Bank should be open to the general 
public.
    I want to thank all of our witnesses for agreeing to appear 
before us today and offer their perspectives on this important 
and certainly very timely issue.
    We are going to hear from two individuals who have had 
horrific experiences with our health care system, as a 
consequence of their physicians' incompetence and/or 
misconduct. No health care system and, particularly one that is 
touted as offering the most sophisticated, finest quality of 
care in the world should ever tolerate such conduct or permit 
such incompetence.
    We need to ask some very hard questions this morning. How 
did our system fail to weed out these doctors? Did the States 
that licensed them thoroughly investigate them when they 
applied for licenses? Did the hospitals where they practiced 
have effective, stringent peer review programs in place and 
query the Data Bank as required by the law? Do we have all the 
tools necessary at the State and Federal level to protect 
patients from incompetent and even criminal doctors?
    As these patients' experiences reveal, the question before 
us this morning should be a much broader one than whether or 
not we should open up the Data Bank. There is an old saying 
that has been heard many times before in this committee. 
Sunshine is the best disinfectant. Well, I say let the sunshine 
in. We owe it to these individuals and to every American to 
shine a hard light on our Nation's health care delivery system.
    The vast majority of the doctors in this country are able 
practitioners, dedicated to the welfare of their patients. We 
owe it to patients and to these doctors to see that the few bad 
apples are quickly discovered and appropriately disciplined or 
we will erode patient confidence in all doctors and undermine 
access to care and quality of care.
    I think we all share a common goal here this morning. We 
want to assure that every American receives high quality health 
care and that every American can have faith that the doctor who 
is delivering one's baby or operating on one's child is 
competent and committed to the patient first.
    We also want to give patients access to the information 
that they need to make informed choices of practitioners. It is 
important that we debate the implications of opening the Data 
Bank, but we must not let that debate obscure the need to 
address the problems in our credentialing and licensing system, 
which is largely State-based that resulted in the horrible 
experiences of today's witnesses.
    There are no easy answers and I do not pretend to have the 
end-all solution. This is a complex problem that requires 
examination of all the various pieces of the puzzle. In this 
process, we should heed the physicians' oath. First, do no 
harm. I think we should consider enacting common sense 
solutions, such as, providing grants to State medical boards to 
ensure that they have the resources to promptly and 
professionally review all reports that may warrant disciplinary 
action.
    To more effectively address the issue of physicians 
crossing State lines and setting up in practice when they lose 
licenses or face disciplinary action in another State, we 
should consider giving States incentives to query the National 
Practitioner Data Bank whenever a physician licensed in another 
State seeks additional licensure.
    I would also like us to look at ways to improve 
communication between the Medicare professional review 
organizations and State medical boards and to make sure that 
Medicaid agencies can and will share information with State 
medical boards. We need to make ensure that HCFA is making sure 
that its intermediaries are referring cases of apparent 
unethical practice or unprofessional conduct to State medical 
boards as well.
    I think it would be a good idea if the Drug Enforcement 
Administration released a monthly report to all State medical 
and pharmacy boards on all practitioners whose controlled 
substances have been revoked, surrendered, restricted or 
denied.
    The National Practitioner Data Bank was created by Congress 
in 1986 in response to several factors, the increasing 
occurrence of medical malpractice litigation and the need to 
improve the quality of medical care by increasing the 
willingness of physicians to participate in diligent peer 
review programs. The Data Bank Law does this by shielding 
physicians from liability from antitrust and private damage 
suits when they're engaged in peer review.
    By creating a nationwide flagging system, the Bank was 
designed to address the problem of physicians who lose their 
licenses or face other discipline in one State by simply moving 
to another State to practice. From its inception, the Data Bank 
was intended to be an additional tool for States and hospitals 
and other health care providers engaged in credentialing 
decisions, not as a tool for use by the general public in 
evaluating physician competence.
    The malpractice information in the Bank, for example, could 
be quite misleading to those not trained in its interpretation. 
The number and even the size of malpractice payments may not 
necessarily indicate a doctor's competence. Insurance companies 
often settle out of court rather than go to trial, even though 
there is compelling evidence that the physician's care was 
appropriate.
    Doctors who take on the toughest cases because they are 
highly skilled may have more malpractice suits than others in 
their field. Doctors who are in high risk fields, such as, 
obstetrics, neurology, may face more suits than their peers in 
other areas of medicines. Doctors who are engaged in cutting 
edge clinical research to develop and perfect what will be 
tomorrow's routine standard of care may also have higher rates 
of malpractice suits.
    Opening the Data Bank to the public, including trial 
lawyers, could discourage doctors from going into high risk 
fields of medicine, from delivering babies as part of a family 
practice or from engaging in clinical research. These are 
outcomes that will reduce not enhance access to care and 
quality of care, both now as well as in the future.
    In the 1999 report, the President's Quality Committee, it 
noted that current systems to improve the quality of care tend 
to focus too much on individual practitioners and not enough on 
system problems. That was brought home in a very dramatic way 
by the Institute of Medicine's report on Building a Safer 
Health Care System: To Err is Human.
    This report came to the startling conclusion that, anywhere 
from 44,000 to 98,000 folks die every year as a result of 
medical errors caused largely by failures or glitches in 
systems of care. The report notes that, more people die from 
medical errors in a given year than from motor vehicle 
accidents, AIDS or breast cancer. The report notes that, our 
systems of care are complex, decentralized and fragmented.
    One study found that, an intensive care patient may have as 
many as 178 different tasks performed on them by medical 
personnel in a single day. What would seem to be the very 
straightforward task of getting a drug to a patient actually 
involves six different activities: the doctor making a decision 
on which drug to use; the doctor ordering it; usually in the 
form of a handwritten prescription; the pharmacist dispensing 
the drug; the aide transporting it to the patient; and, 
finally, a nurse who actually administers it. An error, 
potentially fatal, could occur in the execution of any one of 
those steps.
    The report's major recommendation for correcting these 
problems in the system is reporting of errors, both serious 
errors resulting in death or serious harm as well as less 
serious errors or near misses that, if uncaught, could have 
resulted in serious harm. The report notes that, the effective 
reporting programs require the fostering of a climate that 
encourages individuals to come forward and report errors, 
rather than covering up out of fear of individual punishment or 
liability suits.
    The IOM report recommended a nationwide, mandatory system 
for reporting serious errors, with public disclosure and a 
voluntary reporting system for less serious errors that would 
be protected from public disclosure as well as litigation. 
However, the Agency for Health Care Research and Quality, in 
its review of the report, came down against any mandatory 
reporting requirement, finding that it could make matters worse 
and that, allowing disclosure of hospitals in practitioners' 
names would be counter-productive.
    I agree with the Agency for Health Care Research and 
Quality and with the White House, which has adopted the 
agency's position. This goes to the heart of my concern about 
opening up the National Practitioner Data Bank to the general 
public. When we created the Bank, we assured doctors that we 
would not open up the Bank to the general public, because the 
information requires both interpretation and because it could 
result in an explosion of malpractice suits.
    If we break this commitment, how can we expect doctors and 
other health care providers to trust us when we tell them if 
they come forward and report errors that they will not be 
singled out for punishment or be opening themselves up to 
malpractice suits? If we want to correct this serious problem 
in our health care delivery system that undermines quality of 
care for tens of thousands of Americans every year and if we 
agree that confidential, voluntary reporting systems are the 
key to fixing our health care systems, then we had better think 
very carefully about the message we will be sending if we open 
this Bank up to the public.
    I yield to my friend, Mr. Stupak.
    Mr. Stupak. Well, thank you, Mr. Chairman and thank you for 
yielding.
    This hearing will allow us to explore and raise some very 
interesting questions regarding the information available to 
patients about their doctors. I believe that patient should 
have access to reasonable and reliable information about 
physicians, collected by the government, to improve their 
abilities to choose a physician to provide quality care.
    However, Mr. Chairman, I am very concerned about press 
reports that this hearing is in retribution by members of the 
majority for the American Medical Association's support of a 
real patients' bill of rights. I certainly do not believe that 
this subcommittee should be used as an instrument of 
retaliation for political agendas. I hope this is not the case.
    Putting aside the motivation for this hearing, I believe 
this hearing will raise a number of very interesting questions. 
Members of the public have a right to accurate, relevant 
information about their health care providers. If the Federal 
Government collects accurate and relevant information about 
health care providers, we should seriously consider whether or 
not it should be made available to the public.
    Currently the National Practitioners' Data base collects 
data about physicians, medical practice liability, adverse 
disciplinary actions taken by State medical and dental boards, 
suspensions of clinical privileges by hospitals, sanctions by 
professional societies, exclusion from participating in 
Medicare and Medicaid, an action taken by the Drug Enforcement 
Agency, DEA. Access to the National Practitioner Data base is 
not available to the general public. It is restricted to health 
care entities and physicians, seeking their own information.
    Before we open up the National Practitioners' Data base to 
the general public, we should ensure that the information is 
accurate and relevant to the patient's choice of a doctor. I am 
concerned that some of the reported categories may not have the 
required level of accuracy. Any reported action should ensure 
that the due process rights of the practitioners have been 
followed. In addition, the categories should provide 
information that are reliable indicators of medical quality.
    Clearly, any action by a Federal or State agency have 
constitutional procedure requirements. Thus, the categories 
reported by the NPD that require State action, seem to meet the 
accuracy requirement. On the other hand, an adverse action by a 
hospital by a physician, may not follow procedural safeguards 
to insure the action was brought in good faith and followed a 
proper procedure.
    In addition, there is a second data base called a Health 
Care Integrity and Protection Data Bank. It is pronounced 
HIPTB. HIPTB reports only adverse final actions brought by 
State and governmental agencies against practitioners. All the 
reporting categories provide information only after a 
governmental agency has taken action against a provider. I 
would be interested to know whether the information in HIPTB 
should be made available to the public.
    I look forward to the hearing, the witnesses, their views 
on what information, if any, should be made available from the 
NPD or the HIPTB. With that, Mr. Chairman, I yield back and 
thank you for the time.
    Mr. Upton. I yield to the committee chair, the Commerce 
Committee Chair, Mr. Bliley.
    Chairman Bliley. Thank you, Chairman Upton and thank you 
for holding this hearing, so that the committee can explore an 
increasingly important issue facing health care consumers 
today, access to quality information about the doctors to whom 
they entrust their lives and those of their children.
    The United States is blessed with the best doctors and the 
finest health care in the world. However, as we have moved away 
from a health care model in which physicians were well known by 
their patients to a more complex system of managed care, HMOs 
and layers of specialists, patients now may choose a doctor 
from a list of health care providers about whom they know very 
little.
    As a result, the general public now has a greater need for 
access to quality, comparative information about doctors 
practicing in their community. As we all know, knowledge is 
power. When consumers have accurate information, they are able 
to make sound health care choices, but to date, most patients 
have not been able to gain access to important information 
about their doctors' malpractice or disciplinary histories from 
any single source, even though taxpayers have established a 
source for this information. That is unacceptable.
    Today I want to empower patients by giving them the keys to 
this locked national data base. The National Practitioner Data 
Bank, a clearing house of information concerning doctor 
malpractice and disciplinary histories, has been operating 
pursuant to congressional mandate since 1990, but for reasons 
that have not withstood the test of time, the critical 
information in this Data Bank has not been available to the 
general public for the past 10 years.
    Back then, the idea was that patients would be protected 
from bad doctors by self-reporting and self-policing among the 
health care providers. After too many tragedies over the past 
10 years, we now know that patients remain prey to certain 
highly questionable doctors. We will hear today that patients 
are suffering serious injury and sometimes even death due to a 
very small number of problem doctors, doctors who had numerous 
reports in the Data Bank, but nonetheless, continued to be 
licensed by State medical boards and hired by hospitals to care 
for patients.
    For example, there is one doctor in the Data Bank with a 
history of almost 300 malpractice payments. There's a box right 
over here that contains it. I say that his patients had a right 
to know about this history before seeking his care.
    I believe now is the time to open the Data Bank to the 
public. It is unconscionable that consumers have more 
comparative information about the used car they purchase or the 
snack foods they eat than they have about the doctor who has a 
history of malpractice sanction, even though we entrust their 
care to these doctors and enough information about a doctor's 
prior criminal convictions is not presently reported to the 
National Data Bank.
    I believe it should be available to consumers in the same 
manner.
    The arguments of those opposed to public access, such as, 
the American Medical Association, do not make sense. They argue 
that the information reported to the Data Bank is not detailed 
enough to be useful. They say that consumers will misunderstand 
it.
    I submit to you, those are reasons for improving the Data 
Bank, not keeping it under lock and key.
    They also make a valid case that, not all malpractice 
settlements reflect poor quality of care, but many other 
malpractice cases do reflect poor medical care. Certainly, an 
extreme history of malpractice is cause for concern. Can the 
AMA or other opponents of public access really look Dr. Liana 
Gedz or Anderson Smart in the eye and tell them, that the next 
time they choose a physician, they still should not be allowed 
to view the critical information about doctors that the Federal 
Government already collects in the Data Bank.
    We also know that public access to this type of information 
works and without the ill effects predicted by some. A few 
States, through physician profiles legislation, already have 
taken positive steps to provide consumers with information 
about doctors practicing within their jurisdiction. These 
efforts are impressive and I believe they can serve as a model 
for using the information currently in the National Data Bank 
and improving upon it as necessary.
    The testimony we will hear today also will raise serious 
questions about how well State licensing boards and hospitals 
screen, investigate and discipline doctors. While it is clear 
that States must do a better job in protecting patients from 
dangerous doctors, I firmly believe that State laws will not 
alone solve this problem, given the demonstrated ability of 
questionable doctors to move from State to State and slip 
through the regulatory cracks.
    With a National Data Bank, we have a unique opportunity to 
assist the States with their initiative, to offer consumers one 
central source of information and to give patients in those 
States that have not passed physician history legislation 
access to information about their doctors. We should seize this 
opportunity. It is sound public policy. Given the remarkable 
growth of and advances of Internet communication, it is very 
easy.
    We now have the ability to give the public with the click 
of a button access to critical information about their 
doctors--days, hours or even minutes before an appointment. How 
can we not do so? I reject the claim that consumers cannot be 
trusted to understand and use this information. I do not 
believe that patients should have to rely solely on State 
medical boards or hospitals to make such critical health care 
decisions for them.
    Today's hearing also reflects the committees larger focus 
this year on patient safety issues. I believe that public 
access to the National Practitioner Data Bank may be one of the 
best and quickest ways to improve patient safety. The sunshine 
of disclosure, coupled with the pressures of an efficient and 
competitive marketplace of informed consumers will help to weed 
out the few bad apples and insure a safer health care system 
for all patients.
    I would like to thank all the witnesses appearing before 
the committee today and I look forward to hearing their 
testimony.
    Thank you, Mr. Chairman.
    Mr. Upton. Thank you, Mr. Chairman.
    I now recognize a ranking member of the full committee from 
the great State of Michigan, Mr. Dingell.
    Mr. Dingell. Mr. Chairman, I thank you. Good morning to you 
and good morning to my colleagues and to the witnesses.
    I want to say that, this is a very important hearing. The 
subject of protecting consumers from sub-standard medicine and 
from dangerous doctors who do not provide the highest quality 
of care is a serious one. It needs careful, thoughtful and 
serious consideration. Giving the consumer the ability to make 
more informed choices when selecting a doctor is also extremely 
important. Seeing to it that the consumer has the tools that 
are necessary to do that well and intelligently and seeing that 
he has truthful information is, of course, a matter of the 
highest urgency and importance.
    Our goal here should be to make medicine safer and empower 
consumers further. I hope this hearing will assess the various 
approaches to accomplishing these goals and demonstrate why 
some choices are more useful or better than others. We need to 
look at all the options before us, find out what is good, find 
out what is bad, find out what protects the consumer, find out 
what empowers the consumer, but find out also what gives the 
consumer truthful and adequate information to make proper 
judgments.
    Mr. Chairman, the practice of medicine is regulated by the 
States. To that end, they decide who should and who should not 
get a license, who should continue practicing. They also decide 
who remains competent and who should be allowed to continue 
that practice. The States have established these regulatory 
systems to protect consumers, with little intervention by the 
Federal Government.
    Nevertheless, as our witnesses will demonstrate today, 
sometimes dangerous doctors who should not practice, do 
practice and often with little or no intervention by the 
State's authorities. Why? Do we know? What can and what should 
be done?
    There is also a question of then whether we grant public 
access to the National Practitioner Data Bank. To answer that 
question, we first have to address a number of other questions, 
one of which is the first and, that is, there are certain 
fields of discrete data collected by the Data Bank that, if 
released, could help the public make more informed choices when 
selecting a doctor.
    Now, I call on my colleagues and everybody else to 
remember. Patients have very important rights here. They need 
to know these things to assure they receive proper care. But so 
also do the doctors, whose reputations and good names are their 
most precious possessions. This raises then questions about the 
reliability of the input into the National Data Bank.
    Is it going to provide the necessary information the 
patient needs? Is it going to consider the rights of the doctor 
to be fairly treated and to have his or her good name properly 
protected?
    Second, are the present methods used to collect such data 
thorough enough and consistent enough to allow it to be used as 
a public tool in rejecting or selecting doctors? Doctors need 
this; patients need this. The system requires it.
    Finally, can we define precisely what problems we are 
attempting to solve by opening the Data Bank to the public? 
Again, is the Data Bank an adequate tool for a fair appraisal 
of the doctor's capability on the part of the patient and also 
a fair appraisal of the doctor's capability with regard to the 
doctor himself? Is he being properly treated here?
    Whatever decisions we make, we must improve patient safety 
and not merely make a symbolic gesture toward that goal or a 
symbolic effort to punish anyone. Remember, we may very well 
wind up, if we are careless, protecting wrongdoing and 
punishing innocent practitioners because of slovenly data base 
management and input. Let's address that then the first 
question.
    Any data released from the National Practitioner Data Bank 
should help the consumer make better choices. In other words, 
the data must be a solid predictor of doctor quality. For 
example, when a doctor has his or her license revoked or 
suspended by a particular State or when a doctor is convicted 
of a criminal offense, patients can infer some degree of doctor 
quality because the State authority has taken a specific action 
against a practitioner relating to medical competency.
    But not all data is this useful. Let's consider, for 
example, the Data Bank's collection of malpractice claims and 
settlements. Now, there are many variations on how these claims 
can be made and settled. This data cannot readily predict 
physician competency. For example, some States do not limit 
malpractice damage awards; others do. Of those that do, a range 
exists from one State to another. The obvious problem with data 
aggregated from these many sources is, that it is subject to 
significant predictive error. You are assembling a large body 
of statements which may or may not relate one to the other, or 
be interpreted fairly or properly together.
    If Dr. ``A'' settles a suit for 50,000, is he more or less 
competent than Dr. ``B,'' who settles a claim for $25,000 in 
another State? Ask yourself, does this settlement mean that the 
doctor had done something wrong. The settlement doesn't tell 
you that.
    Let's assume that Dr. ``C'' has two suits, each for 10,000. 
Is that doctor more competent or twice as incompetent as Dr. 
``B.'' Again, the question of the settlement. Does it signify, 
in fact, that this doctor is less than competent or that the 
claim was a valid one or was settled simply because it cost too 
much to fight out in court?
    Certain specialties have medical procedures prone to 
greater risks than other specialties and thus, are more likely 
to attract litigation. Should a particular doctor specializing 
in high risk procedures be judged against doctors specializing 
in lower risk procedures or in different medical disciplines?
    What about doctors who have more than one specialty? Can we 
control for such variations? If so, how? Finally, many claims 
against doctors are settled by the insurance companies, because 
as I have pointed out earlier, that is cheaper than litigation 
and insurance companies often times compel doctors to settle to 
save money for the insurance companies. In such a case, then, 
the doctor has little or no input as to whether litigation 
should be carried forward and the question of how the doctor's 
good name should be protected under these conditions.
    Such claims do not necessarily indicate physician 
incompetence, although they could, but rather, they are 
business decisions. The question is, are they business 
decisions by lawyers, insurance companies or doctors? What does 
this tell you about the particular case in question?
    The point then is this. Before we agree that any category 
of information should be released, we have to be sure that the 
data will allow the consumer to make better choices, that it is 
reliable data, that it, in fact, constitutes good information 
when properly assembled, and that the end result is, that the 
consumer makes fair and better choices.
    We also have to see to it, again, that the good name of the 
doctor is properly protected, because here is a rich 
opportunity for significantly hurting the good name of a 
professional person whose good name is really all that he has.
    There are other significant problems with the National 
Practitioner Data Bank as it currently stands. Before the 
public can use it as a valuable tool to select their doctors, 
we must improve collection consistency. There is ample evidence 
that these entities required to report to the National 
Practitioner Data Bank have not done so on a consistent or 
regular basis. There are considerable variations across States 
amongst providers, such as, hospitals regarding reporting 
frequency.
    In fact, it was reported in the 1999 National Practitioner 
Data Bank executive meeting that, as many as 60 percent of all 
hospitals, at the time of that session, had yet to file a 
single adverse action report to the Data Bank. What then does 
this mean? I don't know and I don't think anybody else does. I 
do know that it does not clearly support the argument that the 
National Practitioner Data Bank is a uniform or fully reliable 
repository of data and facts.
    Certainly, if we want the Data Bank to be improved as a 
consumer tool, these areas need significant improvement. I 
remind the subcommittee that it was always intended that the 
information contained in the repository would be considered 
together with other relevant data in evaluating a 
practitioner's credentials for this precise reason. Incomplete 
data on bad doctors could be dangerous if it led to a consumer 
falsely concluding on the basis of the information presented to 
him that a doctor was safe if he or she was, in fact, not.
    Similarly, it would be unfair to lead a consumer to falsely 
conclude that a doctor was safe if he or she were fully 
competent because we have required release of data and 
information which, again, does not correctly inform the 
consumer of the facts and, again, protect the concerns of the 
legitimate practitioners of medicine.
    Finally, patients have a right to expect State authorities 
to do their jobs properly by finding and removing dangerous and 
incompetent practitioners. This is a responsibility of the 
States, under their licensing authority and it needs to be 
exercised properly. If, indeed, that is done, much less need 
exist for other kinds of judgments that will have to be made.
    We need to determine if States are failing to do this and 
if so, why. Opening the National Practitioner Data Bank 
addresses only the symptoms of a much deeper problem and one in 
which the patient has, at best, limited ability to make a real 
wise and informed medical decision on the care that he or she 
is receiving or would receive.
    Mr. Chairman, my mind is open regarding ways in which to 
make the National Practitioner Data Bank more useful to 
consumers. Certainly, that is an important step that this 
subcommittee can take and should indeed do. Any foray into this 
matter should be done with care and should be done in close 
consultation with both the consumers and the provider community 
to make sure that our action is wise and does credit to this 
committee, to consumers, and to practitioners of medicine. A 
perfunctory approach could cause more consumer harm than good 
and probably will.
    Mr. Chairman, I have one last concern, which I express to 
you today. Just days after the House passed the Patients' Bill 
of Rights by an overwhelming bipartisan vote, with an 
enthusiastic endorsement of doctors and over the vehement 
objections of my good friends in the Republican leadership, the 
prospects of hearing an action on the National Practitioner 
Data Bank was explicitly linked to retaliation against the 
American Medical Association and other practitioner groups for 
their support of the Norwood-Dingell bill.
    I would read here something from Roll Call on October 21, 
1999. I hope that these hearings will rebut the statement that 
I read at this time.
    ``In a move that several Republicans said is pay back for 
the American Medical Association's position on HMO reform 
legislation, Commerce Chairman, Tom Bliley, (R) VA, wants to 
make public a sealed data base that holds the names of all 
doctors sued for malpractice. They teamed up with trial lawyers 
on HMO reform after all we did for them.'' This is a quote. 
``That is pretty much Bliley's beef,'' continuing the quote, 
``said a senior GOP source familiar with the situation. A GOP 
official said that Representative Fred Upton, who chairs the 
Commerce Committee on Oversight and Investigations, is uneasy 
with the idea of holding hearings on a topic that will be 
viewed as retaliation against the AMA.''
    I certainly understand that our chairman today does feel 
those sensitivities and I commend him for it. I know that as 
this matter goes forward, he will assure that this proceeding 
is conducted fairly and perhaps we are finding that my dear 
friend, the chairman, has been erroneously quoted on these 
matters and that we will look to both achieve a correct 
determination of how we should proceed and how to protect the 
patient's right to know and also how to protect in the fairest 
possible fashion the good names and the reputations of medical 
practitioners who are out there trying to serve their patients.
    I hope that this will not be seen then as an effort to 
intimidate doctors because of their support of patients' rights 
or an attempt to delay meaningful and enforceable reforms in 
managed care. These are significant issues that are worthy of 
careful and constructive attention. I hope that all my 
colleagues on the committee, patients, the other providers, and 
the Nation's doctors will be able to work together with us in a 
harmonious fashion to address these and other concerns which 
are legitimately raised in this hearing this morning.
    Thank you, Mr. Chairman.
    Mr. Upton. Thank you and the gentleman's time has expired.
    I just want to say that, this hearing, as all hearings, 
will be conducted in a very fair, thoughtful and reasonable 
way. With that, I yield to the gentleman from Iowa, Dr. Ganske.
    Mr. Ganske. Thank you, Mr. Chairman. I will be even more 
brief, otherwise Senator Wyden's finger will be healed by the 
time we get to his testimony.
    Rumors are rife on Capitol Hill that the motivating factor 
behind these hearings is to poke a stick in the eye of the 
American Medical Association for bucking the Republican 
leadership in Congress on backing a strong patient bill of 
rights. I'm not going to comment on that. The statements that 
have been read already allude to that.
    I would say this to the provider groups. This is an 
opportunity, in my opinion, to bring up some of the problems 
that we have seen in the National Practitioner Data Bank. The 
testimony by the physicians and the hospitals and the others 
that have to deal with this will point out some real inequities 
as well as inadequacies in the National Practitioner Data Bank. 
So, I welcome these hearings, whatever the motivation was 
behind those who chose to have them, because I think that this 
offers an opportunity to improve the system, both for consumers 
and for the practitioners.
    Many physicians work with patients that suffer from very 
debilitating or life-threatening conditions that require high 
risk treatments or procedures, such as, open heart surgery or 
brain surgery. Both of these high risk areas have been noted by 
Chairman Bliley and Ranking Member Dingell.
    Well, in my prior life, before being a congressman, I was a 
physician who did high risk procedures. Let me give you an 
example.
    As a reconstructive surgeon, I took care of a gentleman who 
was involved in an automobile accident. He and a friend were 
riding along in a car. His friend reached over to put a 
cassette in. The car veered and went through a barrier--and a 
steel rail came through the windshield, right through the left 
side of the head of my patient and he lost a lot of his brain 
on that side as well as almost his entire skull on the left 
side of his head. This left him with a tremendous defect there. 
He couldn't go out in public. Yet, he was amazingly functional. 
He was certainly aware of this tremendous deficit and how if he 
would go to a grocery store, people would just look at him. He 
couldn't go out in public.
    So, I did a procedure in which I took bone from other parts 
of his skull, bone from his ribs, bone from his hip, wired it 
all together, carved it, molded it and created a new skull for 
him. This was a high risk procedure. I mean, the risk of 
complication when you're operating around the residual brain, 
going in through the dura, having your reconstruction fall 
apart, cave in and ending up with a big infection, losing all 
the bone, whatever, the risk is significant when you take on 
procedures like that.
    Yet, what we have is, a Data Bank which, in my opinion, 
does not provide a fair and objective medium for public review 
of information that takes into account the inherent risks 
associated with those high risk procedures. So, as I said 
before, I am glad we are having this discussion today. I think 
we are going to have some interesting testimony that points out 
some serious, serious deficiencies in the National Practitioner 
Data Bank.
    Last year, the President's Quality Committee released its 
final report on improving and sustaining the quality of health 
care, in which it considered and rejected open access to Data 
Bank information to improve quality because, this is a quote 
from the President's Quality Committee. On opening up the Data 
Bank they said, ``evidence shows that consumers have a tendency 
to perceive risks inaccurately.''
    The information available in the Data Bank is misleading 
for a lay person, untrained in the complexities of high risk 
operations like the ones that I took care of. We need to 
address that issue.
    Finally, Mr. Chairman, I ask unanimous consent to enter 
into the record the statement by Congressman Norwood, who could 
not be here today. I want to just read a portion of his 
statement, because with characteristic reserve, Dr. Norwood 
states: Yet here we are today considering the idea that making 
the National Practitioner Data Bank public will help improve 
health care quality.
    As I said, with characteristic reserve Congressman Norwood 
continues: It is an asinine idea that just makes no sense to 
me. The problem with this approach are twofold. First, it 
attaches a level of sophistication to the National Practitioner 
Data Bank that is just not appropriate. Second, it ignores 
State-based approaches that make more sense and are already in 
place today.
    Mr. Chairman, I look forward to the hearing. I look forward 
to hearing from Senator Wyden and thank you for having this 
hearing.
    Mr. Upton. Thank you.
    Without objection, his statement will be made part of the 
record. In fact, all members of the subcommittee statements 
will be made part of the record.
    [The prepared statement of Hon. Charlie Norwood follows:]


    Prepared Statement of Hon. Charlie Norwood, a Representative in 
                   Congress from the State of Georgia
    I would like to express my debt of gratitude to the Chairman for 
allowing me to submit my statement for the record. Although I do not 
sit on the Oversight and Investigations Subcommittee, I feel it is very 
important for me to participate in this hearing. I appreciate my 
friend, Dr. Ganske, submitting this statement for the record.
    It is my view that the practice of medicine is local. I have made 
this view known in many forums over the past several years. When I was 
a practicing dentist, I was licensed by the state of Georgia, practiced 
in my local Augusta community, and was subject to the medical 
malpractice laws of Georgia. In trying to address quality of care 
issues, it has always been my preference that we consider state and 
local approaches rather than federal cookie-cutter approaches.
    Yet here we are today considering the idea that making the National 
Practitioners Data Bank (NPDB) public will help improve health-care 
quality. It is an asinine idea that just makes no sense to me. The 
problems with this approach are twofold. First, it attaches a level of 
sophistication to the NPDB that is just not appropriate. Second, it 
ignores state-based approaches that make much more sense and are 
already in place today.
    The problems with releasing the NPDB are well documented. The NPDB 
is simply gathered information. It shows no context. Information does 
not in anyway explain the conditions behind judgments made in specific 
cases. As my colleagues Dr. Coburn and Dr. Ganske will attest, simply 
saying whether a judgment was rendered hides the incredibly complex 
decisions that doctors make in every case.
    It was never the intent of Congress that the NPDB be made public. 
The Committee Reports written by this very committee in 1986 make clear 
that information in the NPDB should only be available to those who 
understand its' meaning and are charged with making decisions about 
professional conduct.
    States and their medical licensing boards are making tremendous 
strides in holding physicians accountable. Thirty states have responded 
to interest for information about physicians and other health care 
practitioners. Twelve states have enacted laws that mandate the 
provision to consumers of information about physicians who practice 
medicine within those states.
    I strongly believe that state medical licensing boards should have 
the primary role on governing the practice of medicine. In many states, 
the state legislatures and state medical boards are working together to 
proactively create a stronger role for licensing boards. They are using 
the Internet, in many cases, to put important physician information on 
the web for consumers to be able to review.
    We should also look to the Federation of State Medical Boards as 
the appropriate venue for sharing information. Though underfunded, they 
are the appropriate, private-sector mechanism to share information 
among and between states regarding physician profiling.
    If there is a doctor out there who is incompetent or unethical, we 
need a system that identifies them and makes sure the public is 
adequately protected. We need to use organizations like the Federation 
of State Medical Boards to move information across state borders. 
Simply opening up the NPDB is a bad idea that will do nothing to 
improve quality of care. I hope that we will look to the states to 
build on existing processes to address the quality of care patients 
receive.

    Mr. Upton. Mr. Green?
    Mr. Green. Thank you, Mr. Chairman. And, again, I 
appreciate your calling this hearing and look forward to the 
testimony. Hopefully, we will be able to deal with the issues 
in its entirety, instead of using it as a response to other 
legislation that this house had considered.
    Hopefully, our patients will have as much information as 
possible about their health care providers and allow them to 
make an informed and intelligent decision about their health 
care. I think, as a community and our country, we share that. 
And so I hope that this subcommittee hearing, will be able to 
expand on that. Thank you.
    Mr. Upton. Thank you, Mr. Green.
    I note that Senator Wyden has an amendment on the floor at 
some point this morning. If we could try to do a better job, 
all of us, in limiting our opening remarks, I know it will make 
him a lot more comfortable.
    Mr. Bryant?
    Mr. Green. I could not be any shorter, Mr. Chairman.
    Mr. Upton. You did a good job. You get kudos, extra credit 
at the end of the day.
    Mr. Green. Oh, okay. Thank you.
    Panel four.
    Mr. Green. I need that star.
    Mr. Bryant. Thank you, Mr. Chairman. Out of respect to the 
Senator, I know we have been asked to keep our opening 
statements short, and I know a lot has been said, but there are 
instances where people talk, and talk and talk in their opening 
statements and say things I think that have to be answered, and 
this whole issue of politics, and I realize I am in Washington, 
and I have not been up here as long as some people have been up 
here, but this is a good hearing. And there is an absolute 
necessity and need to have this type of discussion in 
Washington. And I think to attribute this to political motives 
and stick in somebody's eye I think lowers the level of this 
issue, brings this hearing down I think, and I hope that wasn't 
the intent. Because I think we have the potential in this 
hearing, based on the panels that I have seen, to really garner 
some outstanding information and some outstanding insight on 
this very important issue.
    So to try to denigrate it and call this just a political 
act of retribution I think is unfair to this subcommittee and 
to the chairman of this subcommittee, and to the interests that 
will be discussed by this very qualified group of witnesses 
today.
    This is the Information Age, not everything should be 
disclosed. There are good reasons a lot of times when you don't 
want disclosure. And I think that is what I welcome today and 
want to hear from people like the doctors. The hospital 
association, AHA, I think has made an excellent statement. I 
look forward to hearing more about their reasons that deal with 
the openness and continued validity, usefulness of peer review 
if you get into disclosing who is rating who and who is talking 
about who.
    The issue of context I think is a very important issue, 
that any information, as Dr. Norwood's statement that Dr. 
Ganske read said, the sophistication level out there of people 
to understand this is a reality. Without discrediting anybody, 
that is a reality, and there has to be a context, in a way, put 
around this information to explain that.
    I come from a background of representing doctors in 
malpractice cases, and I understand the issues of settlement, 
sometimes why you settle cases and sometimes why lawsuits are 
filed and frivolous lawsuits, together with some very 
meritorious lawsuits, I might add, that probably do need to 
have a public airing out there.
    I think I want to commend those that have offered bills in 
this area and that will, I understand our subcommittee chairman 
has a bill that he will offer, I think the more that we can 
debate this issue and get the right type of quality information 
out there for consumers to make those decisions, the better off 
we are.
    I do want to commend what the State of Tennessee has done, 
my home State. It has, with the help of doctors, and hospitals, 
and consumers, come up with a balanced approach to this. In 
fact, I have a copy of such a listing of a doctor, who I 
understand we can use this and I would like to submit it for 
the record, that goes through the doctor and lists the academic 
background, and certifications, and the appointments and staff 
privileges, the disciplinarian actions, any criminal offenses, 
any liability claims, and this was, again, done with the 
cooperation of the medical profession and those on the other 
side. So it can be done, I think, in an effective way, and I 
will submit this for the record.
    [The information referred to follows:]


    [GRAPHIC] [TIFF OMITTED] T2975.001
    
    [GRAPHIC] [TIFF OMITTED] T2975.002
    
    Mr. Green. I think one other issue I would like to hear 
some testimony on today, some explanation, because I do kind of 
like the State-by-State issue, although there is a Federal 
level, a Federal bill here that would Federalize a lot of this. 
And I am getting wound up here, so I will stop right now, in 
deference to our Senator, and yield back the balance of my 
time.
    Mr. Upton. Thank you.
    The gentleman from California, Mr. Bilbray?
    Mr. Bilbray. Mr. Chairman, I appreciate the chance to 
participate in this hearing, and I thank you for calling it. 
Let me just say that being the last speaker here, listening to 
my colleagues on both sides of the aisle, I hope we keep this 
transcript. Because I think that we are not just talking about 
the consumer right to know when it comes to the choice of 
physician. I am hearing colleagues on both sides of the aisle 
discuss this issue in a manner that I don't hear them talking 
about consumer-to-right-know issues on many other aspects.
    I think that there may be those that want to divert away 
from the substance of this by trying to bring politics into it. 
I think this is something that is an American issue. How do you 
have an informed consumer make the best decision possible? And 
we hear a lot about damages and about problems and trying to 
litigate reimbursement for damages done and by certain 
providers in many fields. And I think that, as any physician 
will tell you, is damage avoided is absolutely the best 
opportunity that we have as consumers and as providers. And if 
an informed populace out there can make the best decision of 
choosing a health care provider, then it may, in the long run, 
mean that we avoid a lot of the problems, and we don't have to 
talk about bringing in tort issues, trial lawyers and all of 
the other things that we talk about.
    Let me just say, though, sincerely, that the issue of 
informed consumer has been abused in the past, and California 
is a good example. Those of you who ever visit California, that 
when you go walk into a five-star hotel, out on the front door 
of a five-store hotel is: ``Warning. There are cancer-causing 
agents within this building,'' and that could be anything from 
the carpeting to the drapes. But the argument of give so much 
information that the more quantity somehow means that you will 
have a higher quality decision being made by the consumers not 
necessarily always pencilled out.
    But I would just like to say on this one, I think we have 
got a perfect situation now to set a standard about consumer 
information that does not only apply to the choice of 
physician, but should apply to every other service the 
consumers in America want to make. And I would just ask 
Democrats and Republicans to consider the big picture. When you 
set a standard for the choice of physician, you darn well 
better be able to stand by that when people start talking about 
choosing other services and other products in America. And I 
think this hearing is great, not just for the health care 
issue, I think it is great for the consumer issue across the 
board.
    I yield back, Mr. Chairman.
    Mr. Upton. Thank you, Mr. Bilbray.
    Mr. Wyden, we are ready. Welcome back to the committee. We 
always found you to be a friend and fair adversary, and we are 
prepared to listen to your opening statement, and then we will 
take questions.

 STATEMENT OF HON. RON WYDEN, A UNITED STATES SENATOR FROM THE 
                        STATE OF OREGON

    Senator Wyden. Mr. Chairman and colleagues, it is an honor 
to be invited to be back with so many friends. For 15 years, I 
had the privilege of working with almost all of you in this 
room on health care issues, the area in which I have 
specialized in the Congress. I believe when the members of this 
committee tackle an important issue in a bipartisan way, there 
is nobody in this country that does public policy better.
    Now, today, you are looking at the question of opening the 
National Practitioner Data Bank to the public. I commend you 
for recognizing that to debate the matter of opening the Data 
Bank to the public, you must examine the entire Health Care 
Quality Improvement Act that created it. At a minimum, you are 
going to have to look at why the law was originally enacted, 
how our health care system has changed since the law's 
enactment and how or whether a number of amendments to the act 
should be enacted so that the law better meets the needs of 
patients and families.
    I would like to touch briefly on these concerns. However, 
before I do, I want you to be aware of two concerns that are 
foremost on my mind. First, there is no logical argument for 
keeping information about proven flagrant cases of professional 
misconduct from the public. For the Federal Government not to 
disclose this important information in the Data Bank about 
physician misconduct simply doesn't pass the smell test.
    Second, because the vast majority of physicians are 
talented, dedicated individuals who have never perpetrated 
flagrant, proven cases of misconduct, great care must be taken 
to ensure that these physicians do not have their reputations 
unfairly maligned in the effort to protect the public from the 
truly incompetent. That is why it is so important, as several 
of you have noted, that your work not be part of a political 
agenda, but instead be part of a bipartisan effort to update 
the act.
    Having introduced legislation to accomplish these two 
objectives in both the House and the Senate--I did it in the 
House with our former colleague, Scott Klug, Republican from 
Wisconsin, and I have done it in the Senate with our colleague, 
Senator Olympia Snowe from Maine, I can tell you that I have 
firsthand evidence about how hard it will be to accomplish the 
two objectives that I have stated this morning.
    I would like to spend just a few minutes telling you about 
a little bit of what went into the committee's consideration 14 
years ago because I think it might make your job a little 
easier this morning. Fourteen years ago in Astoria, Oregon, 
when the physicians of a clinic reviewed a colleague's surgical 
competence, the doctor sued them. I reviewed that case in 
detail, and I decided that regardless of that Astoria doctor's 
guilt or innocence that to persuade physicians to come forward 
and prevent incompetent doctors from harming patients, there 
needs to be strong legal protection for good-faith physician 
peer review.
    With the help of a Commerce Committee bipartisan trio, the 
late Ed Madigan, Tom Tauke and Henry Waxman, I drafted and was 
able to include in the Health Care Quality Improvement Act 
unprecedented protection for good-faith peer review. My 
prepared statement outlines that four-part test. But suffice it 
to say, I don't believe that there is a profession in America 
that now has such significant legal protection for physician 
peer review. In short, what we did is say that when physicians 
are doing peer review and they meet certain procedural 
protection, the presumption shifts that they have acted in good 
faith and anyone who challenges it must prove otherwise.
    In return for those physician peer review rights that were 
part of the bill in 1986, I told our colleagues on this 
committee that it was only fair that provisions be included in 
the law to require that the medical profession assume new 
responsibilities to the public. There were rights with respect 
to peer review, and we felt it was important that there be 
responsibilities to the public in terms of National 
Practitioner Data Bank.
    My specific concern in 1986 was, and it remains to this 
day, that the small number of physicians who are truly 
incompetent have a unique, almost extraordinary ability, to 
stay one step ahead of the disciplinary authorities. These are 
the physicians who voluntarily surrender their license just 
before it is about to be taken away. They jump from State to 
State so their record of incompetence does not catch up with 
them or they plea bargain with understaffed State medical 
boards so that the true nature of their incompetence doesn't 
show up in their records.
    So because of these concerns, the committee created the 
National Practitioner Data Bank, in which various health care 
organizations were required to report to the Data Bank 
disciplinary actions taken against physicians and all 
settlements and verdicts in medical malpractice cases. 
Credentialing authorities were required to check the Data Bank 
prior to hiring a physician and regularly review the 
individual's record in the bank.
    To enforce the law, the committee determined that if a 
credentialing body didn't comply with these provisions and a 
patient was harmed by an incompetent physician and a lawsuit 
was filed, the credentialing body would have imputed to them 
the knowledge that was in the Data Bank. Now, this law was 
passed almost 15 years ago, and I believe one of the first 
issues you should examine is how much the health care world has 
changed since the law was enacted. For example, in 1986, when 
we sat in this room, we didn't know much about the Internet. 
Today, there are 10,000 websites where you can get information 
about physicians. Millions of our citizens visit these sites 
regularly and certainly a significant number of these sites 
offer information of dubious quality. When we sat in this room, 
the Government hadn't created the Health Care Integrity and 
Protection Data Bank, which seeks to track fraud and it is 
accessible to different individuals than the National 
Practitioner Data Bank information is available to.
    Since we sat in this room, several States have passed 
legislation providing the very sort of information to the 
public that would have generated enormous opposition had 
Congress included them in the Health Care Quality Improvement 
Act in 1986.
    That is a little bit of the history, a little bit of what I 
think has changed in health care since we enacted the law in 
1986. I will wrap up this morning by trying to outline what I 
think the most important issues are as you go about the effort 
to improve the act.
    First, because there now is so much information about 
physicians from so many sources, the committee needs to decide 
what information is likely to be most helpful to patients and 
their families and how the Data Bank might be retooled to 
deliver it. The public is much hungrier for information today 
about health care quality than it was in 1986. The question is 
whether they are going to get it from sources that are accurate 
and objective. I want to see an amended Data Bank law help 
deliver meaningful, reliable and relevant information that 
assists patients and families in choosing their health care 
providers.
    Second, I hope the committee will work on a bipartisan 
basis to update the law in several areas where it cries out for 
improvement. For example, the Data Bank ought to be required to 
receive reports on the denials of licensures, along with the 
revocations and suspensions of a medical license.
    The committee should look at additional ways to ensure that 
bad doctors and others can't go from State to State because 
this remains a problem today. For example, the Data Bank's 
current information does not enable the Data Bank to report how 
many physicians have lost their license in one State and have 
received licenses in another. The committee ought to look at 
due process guarantees for doctors to assure that the Data Bank 
is not used as a threat to muzzle physicians who report 
concerns about patient care to appropriate authorities.
    Third, I believe the committee needs to carefully study 
several issues that were controversial in 1986 and are just as 
controversial today. One of those areas is the use of 
malpractice information. The Data Bank does not currently 
receive a significant amount of information about malpractice 
settlements because of what is known as the corporate shield. 
Because of the corporate shield, physicians can settle suits 
under the corporation's name and not as an individual and 
escape being reported to the Data Bank. I believe that the 
corporate shield loophole ought to be closed, but I can tell 
you there will be a very vigorous debate in this committee as 
to whether a majority of our colleagues agree.
    In addition, the committee needs to consider if malpractice 
data provides predicted information that is useful to 
consumers. Some of our colleagues have stated just because you 
say a doctor has five malpractice settlements doesn't mean that 
that individual is a bad physician. We need to do more work in 
the area of looking at what really is predictive.
    Another area of study should be how to assure information 
in the Data Bank that is useful to licensing boards and 
consumers actually gets into the Data Bank. With nearly 60 
percent of the hospitals having never made a report, we all 
know that the Data Bank today is not getting all of the 
relevant information it should. Certainly, hospitals doing 
their own internal reviews of quality of care need to be 
encouraged to provide information to the Data Bank.
    Finally, a word about what sort of information should be 
made public. I was approached recently by a physician in 
Oregon, who has one report of a malpractice settlement in the 
Data Bank. He was the physician in charge of a surgery in which 
a medical resident made a mistake. Yet because the surgeon was 
the one in charge, the malpractice settlement was made in his 
name. That information isn't predictive of whether the surgeon 
is good or bad. That is not going to help patients or families. 
We want to make sure that patients and families can get 
important information, such as when a significant diagnosis 
that a physician should have been able to make is missed and 
avoid the kinds of things that harm physicians who certainly 
haven't done anything wrong.
    My last point is that I think you also have a major 
challenge in making sure that the National Practitioner Data 
Bank is coordinated with the efforts that are ongoing by the 
States and with the fraud Data Bank that Congressman Stupak was 
right to mention. Now, all of these reforms are going to 
require careful study, and it just can't be done through an 
abbreviated schedule and a slap-dash approach. I can tell you I 
personally spent many, many months negotiating with physician 
groups, patients, hospitals, licensing bodies and insurers 
before I even introduced the Health Care Quality Improvement 
Act. Then Chairman Henry Waxman spent many months, in addition, 
examining this issue at length in the subcommittee before it 
even came to the full committee. So I have got firsthand 
evidence that a rush job on issues this important can do more 
harm than good.
    Mr. Chairman, I thank you for having me. The fact that you 
would reach out and want to know some of the history of what 
went on in this room almost 15 years ago seems to me to show 
your good faith in trying to tackle this in a bipartisan way. 
That is the way this committee does its work best, and I happen 
to believe that these are just about the best precincts in 
American politics when you work together on a bipartisan basis, 
and I look forward to having the chance to do that with you 
again.
    Mr. Upton. Well, thank you very much. Your staff has been 
calling frantically. I know that you are needed on the Senate 
floor, and I know that there are a number of members that have 
some questions for you, and I will let you make the call as to 
whether you need to go now or whether you would like to come 
back, and we will put you into the right order when we come 
back.
    What is your----
    Senator Wyden. You are gracious as always. Why don't we 
take maybe a few minutes, and then I better shoot off to----
    Mr. Upton. Okay. Let me just yield to Chairman Bliley. We 
will try to do about 2 minutes per member. Is that okay?
    Senator Wyden. Yes, I think I have got 7 or 8 minutes 
maybe.
    Chairman Bliley. Thank you, Mr. Chairman. Good to see you 
again, Senator, having served with you for many years when you 
were in the House. I am sorry you saw fit to go over to the 
other body, but that is the way it goes.
    I am not sure if you have had a chance to review the data 
in the National Practitioner Data Bank, but my committee staff 
demanded and received information from HHS. And I am shocked by 
some of this information.
    I understand that approximately 200 doctors and dentists 
have 13 or more reports in the NPDB. In light of this, do you 
believe the current system of doctor discipline adequately 
protects consumers from problem doctors?
    Senator Wyden. As I indicated in my prepared remarks, 
Chairman Bliley, I think that there are a number of areas where 
this law needs to be improved. I mean, there are something like 
700,000 physicians in this country. I think there were close to 
3,500 significant disciplinary actions taken against those 
physicians in 1998. These are actions taken by colleagues 
against colleagues. I think that kind of information and what I 
call proven flagrant violations ought to be made public, and we 
need to work together in a bipartisan way so as to do it to not 
injure the many, many physicians who, obviously, haven't come 
close to committing such a violation.
    Chairman Bliley. I couldn't agree more.
    Thank you, Mr. Chairman. I don't want to abuse the time.
    Mr. Upton. Mr. Stupak?
    Mr. Stupak. Thank you, Mr. Chairman.
    Senator, good to see you again, as always. Let me just ask 
you about three questions, and if you can respond, great.
    Do we have an idea of the number of doctors we think that 
are presently practicing that, if scrutinized by competent peer 
review process, would be disallowed from practicing? Chairman 
Bliley mentioned these physicians that have 13 or more 
malpractice claims or malpractice cites against them. Where are 
the State licensing boards? Why is this being allowed to 
continue? Where is the breakdown here?
    Senator Wyden. I think you heard me mention, in response to 
Chairman Bliley's question, there are perhaps 700,000 doctors 
in this country. In 1998, there were close to 3,500 major 
disciplinary actions taken by colleagues against colleagues. 
The AMA on a regular basis cites a concern about a small 
percentage of the physicians in this country. Part of the 
problem, to respond to the additional part of your question, is 
I think a lot of these State medical boards are woefully 
understaffed. There are some that are very good. Congressman 
Bryant is proud of his in Tennessee. We are proud of ours in 
Oregon, but we have found, even in Oregon, that very often when 
you have one of these small number of incompetent people that 
they are extraordinarily slippery and evade the disciplinary 
authority.
    Mr. Stupak. But if we have this 5 percent that you claim, 
and they must be in the data base, then why isn't the data base 
being enforced and their licensing being removed or whatever 
remedy that should be delved out? Is it a lack of money? Is it 
moving from State to State, as you mentioned? What is it 
specifically? If we know the 5 percent, they are in the data 
base, how come we are not doing something about it?
    Senator Wyden. Well, I think, as I touched on and several 
of our colleagues, a number of reports aren't being filed at 
all. For example, I cited 60 percent of the hospitals haven't 
made a report at all. I think there are significant 
shortcomings with respect to reporting, No. 1. I think there 
are problems that I cited in my testimony with respect to 
matters like the corporate shield. We know that some physicians 
and medical groups seek to work out arrangements so that the 
final settlement comes in just under the terms that require 
reporting. I think most of the issues that I sought to examine 
in my testimony are the major shortcomings in the Data Bank as 
it exists today.
    Mr. Upton. Thank you.
    Dr. Ganske?
    Mr. Ganske. Senator, welcome.
    Senator Wyden. Thank you.
    Mr. Ganske. I have actually practiced medicine in the State 
of Oregon. I did my general surgery training there, and Dr. 
Reardon will be testifying and he practices in Oregon. I can 
testify that the credentialing process in the State of Oregon 
is very rigorous and that the Oregon Board of Medical 
Registration is very thorough. I think you would agree with 
that, wouldn't you?
    Senator Wyden. That is why I mentioned we are very proud, 
Greg, of our process in Oregon. What we found recently--I want 
to highlight one case in Oregon--is that we had a situation in 
our State where disciplinary action was taken and, in effect, 
the person moved a short distance away to Washington State, and 
it took a long time before their questionable conduct caught up 
with them.
    Mr. Ganske. And let me just follow up by saying that in 
Oregon, in Iowa, in all of the States that I know of, when the 
Board of Medical Registration or the Board of Licensure makes a 
decision that is adverse to a physician, it is published on the 
front page of the Des Moines Register in Iowa, for example, so 
that the public is informed of those medical licensure 
decisions in which, for instance, a physician's license is 
revoked or they are put on suspension. So it is not a case that 
under the current situation, the public does not get the 
information from the Boards of Medical Registration; in fact, 
they do, and many times with front-page coverage.
    Your point, though, was valid, and that is that the 
National Practitioner Data Bank was set up to provide help for 
other Boards of Medical Registration so that they can get the 
data. But my point would be this: The National Practitioner 
Data Bank was set up to provide a help to State boards of 
registration and licensure so that they can do their job with 
adequate information from physicians transferring from other 
States, and that was your point on that.
    But it was not set up to be an open Data Bank, it was set 
up to give help to the boards of registration, such as Oregon, 
which are already doing a very good job in publicizing the 
misadventures of, as you put it, a small number of physicians. 
And so I appreciate the original intent of the bill. What I 
have problems with is moving from the National Practitioner 
Data Bank as an adjunct to the boards of registration and 
changing it totally in concept. I think it would be detrimental 
to the way the National Data Practitioner Bank is working.
    And thank you, Mr. Chairman.
    Senator Wyden. Let me see if I can respond because I think 
Dr. Ganske raises a couple of thoughtful points.
    First, there is no question that in a significant number of 
cases, in places where there is a vigorous press, when there 
has been an action taken to revoke a license, that will get out 
to the public, and that is helpful. Hovever, I think as you are 
going to hear today and we have seen, there are a significant 
number of cases where that has not been the case, where these 
physicians who are truly incompetent have had, either through a 
voluntary surrender of a license or a plea bargain or something 
of this nature, been able to consistently stay ahead of these 
disciplinary authorities. And what it comes down to, for me, 
and I have said this to many, many physicians, I cannot think 
of one logical argument for not making public proven, flagrant 
cases of professional misconduct. I don't think you can stand 
up in a town hall meeting anywhere in this country and say that 
for proven, flagrant cases of professional misconduct, the 
public shouldn't have that information.
    The question is, and this is why I agree with part of what 
you are saying is, how do we do that so that we act in concert 
with the State licensing boards? And that is critical. Second, 
how do we do it, given the dramatic changes in the health care 
world since this law was originally enacted? I have talked to 
many people who are close to the Board of Medical Examiners, 
and they have said, ``You know the public is going to get this 
information somehow. They are going to get it off some website. 
They are going to get it from some press account.''
    I am concerned that unless we work in a bipartisan way, 
like I have tried to do with Scott Klug, and Olympia Snowe, and 
colleagues both in the House and Senate, to update this law and 
do it in a way that is fair to patients and families and to the 
vast majority of physicians who are dedicated and honorable, I 
think we are going to see the public look at a variety of other 
ways to get this information, and that will end up doing more 
harm than good.
    Mr. Upton. I know Ms. DeGette has questions, and she has 
allowed me to go ahead of her.
    A couple of things. I am going to ask my questions first 
and let you respond all at once. I know that the Data Bank, 
when it was set up, had six criteria. One of them was not 
criminal convictions. I would be interested to know the 
legislative history in terms of why that was not included.
    You talked about the Data Bank not getting all of the 
relevant information, which I think is a concern by all of us 
here. And I do not know if you saw today's New York Times, but 
on the front page, there was a story, and I quote, the headline 
is, ``Surgeon is Treated Wrong Side of Two Brains, Albany 
Says.'' And in the story it says, ``While the State 
investigation did not conclude that Dr. Arbit's surgery caused 
the death of a Staten Island patient, it said that one other 
patient of his had died after a questionable procedure and that 
others had become disabled. In several instances, the State 
said the hospital did not report any of the medical errors, as 
it is required to do, and violated several provisions of to New 
York health laws.''
    I would be interested in what we can do. That law is on the 
books already, but obviously isn't being followed through, at 
least in one State, and I would sense that there are other 
States as well.
    I, also, constructively, when a State denies a license, 
whether it is Des Moines, Oregon, Michigan, New York, I don't 
know whether that is always included in the Data Bank, and I 
believe that those State licensure boards ought to have access 
to that information. I have seen physicians in my own district 
whose licenses have been revoked in one State and only years 
later the same instances catch up with them and that license is 
pulled again, which shows that there is some misinformation. I 
would like you to comment on that in the remaining 13 seconds 
that I have.
    Senator Wyden. Starting at the end, as I noted, Mr. 
Chairman, in my testimony, these denial of licenses, generally, 
are not reported. I definitely support receiving that. I think 
that is important information, just as suspension or 
revocation, as it relates to quality issues, that information 
should be reported as well.
    With respect to why we didn't address criminal issues, this 
was a bill concerned with health care quality. And, of course, 
criminal issues are more the province of the Judiciary 
Committee. In an effort to focus on quality, we said let's look 
at rights which are protections for physicians doing good-faith 
peer review and let's look at responsibilities, which are 
requirements that you work with the Data Bank.
    Finally, with respect to State law, one of the areas that 
you have to look at to update the law and to modernize it along 
the lines of what we have been talking about, is to examine how 
to integrate it with what is going on at the State level. I 
agree with Dr. Ganske that the States have got to have a very 
significant role in this. Many of the States are putting their 
information online which, in one sense, means they are vastly 
ahead of the Federal Government at this point, and I think that 
we ought to be looking thoroughly at why States aren't 
enforcing current law, in some instances. At this point we 
don't know much more about the New York case, other than what 
we read in the paper.
    Put more broadly, we have to make sure that at the end of 
the day, we integrate this fraud Data Bank, the National 
Practitioner Data Bank, the efforts of the States, particularly 
the ones that are serving as a model, and that's why it is 
going to require some careful and bipartisan work to do the job 
right.
    Mr. Upton. Thank you.
    Ms. DeGette.
    Ms. DeGette. Thank you, Mr. Chairman. Thank you, Senator. 
Just a couple of questions.
    First of all, I have been reading some evidence that not 
all entities that are required to report to the Data Bank are 
doing so. For example, in the last National Practitioner Data 
Bank Executive Committee meeting, it was reported more than 60 
percent of all hospitals haven't ever filed an adverse action 
report to the Data Bank since 1990, and it is hard to believe 
that they wouldn't have something to report. So that would 
suggest a significant problem with underreporting. And I am 
wondering if you could comment on what the implications of 
underreporting are to the Data Bank.
    Senator Wyden. I am going to have to really zip out the 
door. Congresswoman, I touched on that 60-percent figure in my 
prepared remarks.
    Ms. DeGette. Right.
    Senator Wyden. But I share your view. I think clearly, 
without that kind of involvement by the hospitals, their 
participation in a meaningful way, that is a significant 
limitation on our ability to address this issue in a 
responsible way. So I think you are on to a matter that I feel 
very strongly about, and I am anxious to work with you on.
    Ms. DeGette. Thank you. I have got more, but I will let you 
go. Thanks, Senator.
    Senator Wyden. Mr. Chairman.
    Mr. Upton. I would just like to say we would like to keep 
the record open, and if you wouldn't mind answering written 
questions that we can make as part of the record, that would be 
terrific.
    Senator Wyden. I would be happy to. I look forward to 
working with all of you.
    Mr. Upton. Perhaps on the, we wish you good luck or bad 
luck, depending on whatever the amendment is in the Senate.
    Our next panel will include Dr. Liana Gedz and Mr. Anderson 
Smart. And if they are there, if they would take seats I guess 
for a moment.
    We have a longstanding tradition of taking testimony under 
oath. We waived that for Mr. Wyden as a former member of the 
committee. But under committee rules, do you have any objection 
to that procedure?
    Ms. Gedz. No.
    Mr. Upton. And, also, the committee rules allow you to have 
counsel, if you desire. Would you ask for counsel?
    Ms. Gedz. Yes.
    Mr. Upton. And could you state who that individual is, for 
the record.
    Mr. McGrath. Christopher T. McGrath of Sullivan, Papain, 
Block, McGrath & Cannavo, 55 Mineola Boulevard, Mineola, New 
York.
    Mr. Upton. Okay. And?
    Ms. Cronin. For Anderson Smart, Linda Cronin of Trager, 
Cronin & Byczek, 1983 Marcus Avenue, Lake Success, New York.
    Mr. Upton. That is very good.
    If you would stand, all of you, and raise your right hand.
    [Witnesses sworn.]
    Mr. Upton. You are now under oath, and we would like you 
take no more than about 5 minutes for your testimony. Your 
testimony will be made part of the record, as it was submitted, 
with unanimous consent.
    And we will start with Dr. Gedz.

TESTIMONY OF LIANA GEDZ, ACCOMPANIED BY CHRISTOPHER T. McGRATH; 
        AND ANDERSON SMART, ACCOMPANIED BY LINDA CRONIN

    Ms. Gedz. Mr. Chairman and committee members, my name is 
Liana Gedz, and I'm a Russian-born dentist, have graduated from 
New York University Dental School, and live and practice in New 
York City.
    I am pleased to have the opportunity to testify today as 
you consider issues related to making the information currently 
in the National Practitioner Data Bank available to the public. 
I believe that availability of such information would give 
patients the chance to make an intelligent choice about who 
should be their health care provider before they place their 
health and well-being into the hands of a doctor or hospital. 
In the next few minutes, I would like to summarize what 
happened to me 6 months ago from the hands of a supposedly 
prominent and experienced OBGYN, Dr. Alan Zarkin, in the 
supposedly reputable medical facility known as Beth Israel 
Medical Center.
    Six months ago, I delivered a baby girl in Beth Israel 
Hospital by Caesarian section, emergency Caesarian section. 
After the completion of surgery, Dr. Alan Zarkin carved his 
initials on my abdomen. What happened to me is traumatizing 
enough. What was more devastating is that after Dr. Zarkin was 
suspended from Beth Israel Hospital, he was able to work as an 
OBGYN physician for 5 more months, performing complicated 
surgical procedures on unsuspecting patients. In Beth Israel's 
report to the New York State Health Department, Dr. Zarkin's 
actions were described as gross misconduct, without giving any 
details.
    If the entire information would have been made available to 
the public through the National Practitioner Data Bank, I don't 
think Dr. Zarkin would be able to practice medicine any longer. 
The patients seeing Dr. Zarkin after me would have known of my 
horrific experience. Dr. Zarkin's attorney blamed his action on 
a frontal lobe disorder. As described in any medical textbook, 
frontal lobe disorder manifests itself in violent behavior. It 
is very, very dangerous to have a person like this allowed to 
hold a scalpel when you give him power over your body or your 
life on the operating table. The information in the National 
Practitioner Data Bank should be available not only to medical 
facilities, but also for every patient who needs to protect 
themselves from questionable doctors and facilities.
    Another issue is whether hospitals fully comply with their 
statutory obligation to report to the National Practitioner 
Data Bank before hiring a doctor. The failure to do that would 
seriously undermine the ability of the Data Bank to protect the 
patient. Also, I truly believe we have a ``white wall of 
silence'': hospitals protect doctors, doctors protect their 
peers, and in all of this, crucial information is getting lost.
    We, as the patient, are in a very vulnerable position not 
knowing if you are dead because God wanted to or because your 
doctor is insane. Please understand I am a doctor myself, and I 
am not attacking the medical profession. The United States has 
some of the most brilliant doctors and the most sophisticated 
medical facilities in the world. But lately, medicine has 
become more of a business with bottom lines, in detriment of 
patient care.
    Now it is the time to let the public know and choose who 
will hold their life in their hands. We shouldn't make 
decisions blindly. We should be able to question and research. 
If I knew what I know now, Dr. Zarkin would never have been 
able to rob me of the experience of my daughter's birth. He 
would not be my doctor.
    I hope that availability of information to the public will 
make sure that every man, woman and child, when they seek 
medical care, feels safe. I wish I had that information 
available to me. I should have--it should have been my right, 
as the patient, to have this information.
    Thank you.
    [The prepared statement of Liana Gedz follows:]


                    Prepared Statement of Liana Gedz
    Mr. Chairman and Committee Members: My name is Liana Gedz. I am a 
Russian born dentist, have graduated from New York University Dental 
School and live and practice in New York City.
    I am pleased to have the opportunity to testify today as you 
consider issues related to making the information currently in the 
National Practitioner Databank available to the public. I believe that 
availability of such information would give patients the chance to make 
an intelligent choice about who should be their health care provider 
before they place their health and well being into the hands of a 
doctor or a hospital. In the next few minutes I would like to summarize 
what happened to me six months ago from the hands of a supposedly 
prominent and experienced OBGYN Dr. Alan Zarkin in the supposedly 
reputable medical institution known as Beth Israel Medical Center.
    Six months ago I delivered a baby girl in Beth Israel Hospital by 
emergency caesarian. After the completion of the surgery Dr. Zarkin 
carved his initials on my abdomen. What happened to me is traumatizing 
enough, but what is more devastating is that after Dr. Zarkin was 
suspended from Beth Israel Hospital, he was able to work as an OBGYN 
physician for five (5) more months performing complicated surgical 
procedures on unsuspecting patients. In Beth Israel's report to the New 
York State Health Department, Dr. Zarkin's actions were described as 
``gross misconduct'' without giving any details.
    If the entire information would have been made available to the 
public through the National Practitioner Databank, I don't think that 
Dr. Zarkin would have been able to practice medicine any longer. The 
patients seing Dr. Zarkin after me would have known of my horrific 
experience. Dr. Zarkin's attorney blames his actions on frontal lobe 
disorder. As described in any medical textbook, frontal lobe disorder 
manifests itself as a violent behavior. It is very, very dangerous to 
have a person like that allowed to hold the scalpel when you give him 
the power over your body and your life on the operating table. The 
information in The National Practitioner Databank should be available 
not only to medical facilities but also for every patient who needs to 
protect themselves from questionable doctors and facilities.
    Another issue is whether hospitals fully comply with their 
statutory obligation to report to the National Practitioner Databank 
before hiring a doctor. The failure to do that would seriously 
undermine the ability of this Databank to protect THE PATIENT. Also, I 
truly believe that we have a ``white wall of silence'', hospitals 
protect doctors, doctors protect their peers, and in all of this, 
crucial information is getting lost. We, as patients are in a very 
vulnerable position not knowing if you are dead because God wanted to 
or because your doctor is insane. Please understand I am a doctor 
myself and I am not attacking the medical profession. The United States 
has some of the most brilliant doctors and the most sophisticated 
medical facilities in the world, but lately medicine has become more of 
a business with bottom lines in detriment of the patient care. Now it 
is the time to let the public know and choose who will hold their life 
in their hands. We shouldn't make a decision blindly, but rather be 
able to question and research. If I knew what I know now, Dr. Zarkin 
would never have been able to rob me of the experience of my daughter's 
birth, he would not be my doctor. I hope that the availability of the 
information to the public will make sure that every man, woman, and 
child will be safe when they seek medical care. I wish I had that 
information available to me. It should have been my right as a patient 
to have it.

    Mr. Upton. Thank you very much.
    Mr. Smart?

                  TESTIMONY OF ANDERSON SMART

    Mr. Smart. Mr. Chairman and members of the committee, thank 
you for inviting me to appear before you today. My name is 
Anderson Smart, and I am a detective with the New York City 
Police Department.
    Twenty-seven months ago, my wife Lisa, who was just 30 
years old, died after undergoing routine surgery to remove a 
fibroid tumor. Her death was caused by negligent doctors who 
disregarded her basic right to be informed that they would, for 
the first time, be using a new machine; for allowing nurses 
into surgery who, like themselves, had never been trained on 
the proper use of this new machine; and for allowing a salesman 
from Johnson and Johnson to actually participate in the 
surgery. Most egregious of all was the failure of these doctors 
to act upon the nurses' warnings that Lisa was literally 
drowning to death.
    I am here today to address the issue of public access to 
the National Practitioner Data Bank. I am certain that if Lisa 
knew that her doctor's partner would be participating in the 
surgery, a doctor who was already on probation for professional 
misconduct and who had been sued several times for malpractice, 
she would have made a different, more informed choice of 
physicians.
    Lisa and I knew each other since we were teenagers. We 
worked hard, had just purchased our first home and were going 
to start a family. We moved to a rural county far from our work 
so that we could enjoy nature. I was so proud of her when she 
started her career at Chase as a financial analyst. Her tragic 
death was a direct result of her doctor's negligence during 
what I--what should have been a simple, routine, outpatient 
procedure. Had Lisa been given access to the National 
Practitioner Data Bank, she would be alive today.
    Lisa's ability to succeed in her career were basic 
qualities that she used in her own life. She was a 
perfectionist who would have certainly made use of the 
information in the National Practitioner Data Bank if it had 
been available to the public. In fact, Lisa was adamant that 
she did not wish to have her surgery in our hometown, choosing 
instead a physician affiliated with a hospital with an 
outstanding reputation for quality care. She was very 
frightened about this procedure, as this was her first 
hospitalization, and she was especially concerned about the use 
of anesthesia. Lisa, an avid reader, who regularly referred to 
the Internet and Consumer Digest for information, had, in fact, 
prior to the surgery, done exhaustive research on anesthesia. 
However, Lisa had no access to any relevant data concerning her 
physician, other than that he qualified under her health plan. 
Certainly, she was entitled to make an informed decision about 
who would be performing the surgery.
    When Lisa died, I promised myself that I would do 
everything possible to make certain that Lisa did not die in 
vain and that her kind of senseless death would never happen 
again. In New York, we are supporting legislation named in 
honor of Lisa, which would provide patients access to relevant 
information about their medical providers. We are encouraged 
that the chairman of the New York State Health Committee is 
revisiting Lisa's Law and his position against the New York 
Bill.
    Requiring practitioners and hospitals alike to be held 
responsible for reporting and consulting with the National 
Practitioner Data Bank is only the first step. Consumer access 
to this information is essential. Access to data will assist 
all patients in making informed decisions about their medical 
care. While the Government cannot protect us from all 
conceivable harm, public access to the National Practitioner 
Data Bank will certainly help us to help ourselves.
    I want to thank the chairman for giving me the opportunity 
to tell my story and hope that he and the committee can find 
some way to prevent what happened to our family from ever 
happening again. I would like to thank you all.
    [The prepared statement of Anderson Smart follows:]
                  Prepared Statement of Anderson Smart
    Mr. Chairman and members of the Committee, thank you for inviting 
me to appear before you today. My name is Anderson Smart, and I am a 
Detective with the New York City Police Department.
    Twenty seven months ago my wife Lisa, who was just thirty years 
old, died after undergoing routine surgery to remove a fibroid tumor. 
Her death was caused by negligent doctors who disregarded her basic 
right to be informed that they would, for the first time, be using a 
new machine; for allowing nurses into surgery who, like themselves, had 
never been trained on the proper use of this new machine; and for 
allowing a salesman from Johnson and Johnson to actually participate in 
the surgery. Most egregious of all, was the failure of these doctors to 
act upon the nurses' warnings that Lisa was literally drowning to 
death.
    I am here today to address the issue of Public Access to the 
National Practitioner Data Bank (NPDB). I am certain that if Lisa knew 
that her doctor's partner would be participating in the surgery--a 
doctor who was already on probation for professional misconduct and who 
had been sued several times for malpractice, she would have made a 
different, more informed choice of physicians. Lisa and I knew each 
other since we were teenagers. We worked hard, had just purchased our 
first home and were going to start a family. We moved to a rural county 
far from our work so that we could enjoy nature. I was so proud of Lisa 
when she started her career at Chase as a financial analyst. Her tragic 
death was a direct result of her doctor's negligence during what should 
have been a simple, routine, outpatient procedure. Had Lisa been given 
access to the National Practitioner Data Bank, she would be alive 
today.
    Lisa's ability to succeed in her career were basic qualities that 
she used in her own life. She was a perfectionist who would have 
certainly made use of the information in the National Practitioner Data 
Bank if it had been available to the public. In fact, Lisa was adamant 
that she did not wish to have her surgery in our hometown, choosing 
instead a physician affiliated with a hospital with an outstanding 
reputation for quality care. She was very frightened about this 
procedure, as this was her first hospitalization, and she was 
especially concerned about the use of anesthesia. Lisa, an avid reader 
who regularly referred to the Internet and consumer digests for 
information had, in fact, prior to this surgery done exhaustive 
research on anesthesia. However, Lisa had no access to any relevant 
data concerning her physician, other than that he qualified under her 
health plan. Certainly, she was entitled to make an informed decision 
about who would be performing the surgery.
    When Lisa died, I promised myself that I would do everything 
possible to make certain that Lisa did not die in vain and that her 
kind of senseless death would never happen again. In New York we are 
supporting legislation named in honor of Lisa, which would provide 
patients access to relevant information about their medical providers. 
We are encouraged that the Chairman of the New York State Health 
Committee is revisiting ``Lisa's Law'' and his position against the New 
York Bill.
    Requiring practitioners and hospitals alike to be held responsible 
for reporting and consulting with the National Practitioner Data Bank 
is only the first step. Consumer access to this information is 
essential. Access to data will assist all patients in making informed 
decisions about their medical care. While the government can not 
protect us from all conceivable harm, public access to the National 
Practitioner Data Bank will certainly help us to help ourselves.
    I want to thank the Chairman for giving me the opportunity to tell 
my story and hope that he and the Committee can find some way to 
prevent what happened to our family from ever happening again.

    Mr. Upton. Thank you both very much. And, certainly, Mr. 
Smart, you kept your promise, and we hope that, just both of 
you, it is a very sad and tragic story, and I think it 
certainly tells us all that there is much needed reform. We 
need to do it on a bipartisan basis.
    It seems as though, particularly Dr. Gedz, not only did the 
system break down in terms of where it is supposed to be, in 
light of today's front-page story in the New York Times as 
well, but as you heard from Mr. Wyden's questions and the 
dialog that went back on both sides of the aisle, Republicans 
and Democrats, I think that there can be some very constructive 
reform that moves forward. And by shedding light on some of 
those reforms in this morning's hearings, perhaps we can work 
on legislation and look at a number of different proposals that 
are out there so that your cases will not ever happen again.
    And your willingness to go public through this very painful 
and certainly personally private experience is a credit to you 
both for seeking changes. I know I speak for all members here 
in appreciation for the time that you are spending with us this 
morning.
    And I just want to say, too, that I think most of us here 
will have some very tough questions later on for the panels 
that are coming later, as it pertains specifically to the 
examples that you raised this morning, and to seek a common 
bond where we can move together to make sure that it doesn't 
happen again. I think your statements speak in a very 
meaningful and full way, and I have no further questions at 
this point and would yield to my colleague from Michigan, Mr. 
Stupak.
    Mr. Stupak. Thank you, Mr. Chairman.
    Dr. Gedz, you mentioned in your testimony that you believe 
that a ``white wall of silence'' exists regarding the 
protection of doctors, hospitals and other health care 
providers. Can you elaborate a little bit more what you mean by 
that term.
    Ms. Gedz. Well, in my particular case, as Dr. Zarkin, like 
I said in my testimony, after he was suspended from Beth Israel 
Hospital, only the New York State Department of Health was 
notified as gross misconduct, without any details. So he was 
able to get a job and actually practice and perform surgeries 
for 5 months, supposedly being insane. I believe, if doctors 
and nurses who were in this operating room would report it, 
hospital would report it in a different way.
    Mr. Stupak. ``In a different way,'' what do you mean?
    Ms. Gedz. Just describe what he did to me. Just let----
    Mr. Stupak. Okay. But in this case here, it was reported to 
the New York State Medical Board?
    Ms. Gedz. Right, as gross misconduct. That doesn't give you 
any details. I mean, I don't think carving initials with a 
deadly weapon as a scalpel on the body who lays in front of you 
that's gross misconduct. That's a crime.
    Mr. Stupak. I don't disagree with you there. I guess what 
I'm trying to say is where did the system break down? If the 
New York Licensing Board found gross misconduct, was it not 
disseminated then within New York, not within the State, in the 
country? Where do you think the breakdown occurs? I guess no 
one can say what was done to you was appropriate or anything. I 
agree with you wholeheartedly there. What we're trying to find 
out where is the breakdown, in your estimation? You have 
mentioned this code of silence, you mentioned the doctor was 
disbarred by gross negligence. Then what happened? Where did it 
break down? That is what we are trying to get at.
    Ms. Gedz. Well, then everybody was quiet, and this is why 
his colleagues, who knew what happened, Dr. Saltzman is a 
chairman OBGYN, a former chairman OBGYN of Beth Israel 
Hospital, after the fact what Dr. Zarkin did to me, was trying 
to conduct business with the facility where Dr. Zarkin was 
medical director. I mean, how would you explain that?
    Mr. Stupak. I guess what I am trying to get at, and maybe I 
am missing----
    Ms. Gedz. I know what you are trying to get----
    Mr. Stupak. I am trying to say how do we correct that? How 
do you get the communication lines open? Just by throwing open 
the data base doesn't necessarily do that. There are some, I am 
sure, some physicians in there who, when cases are reviewed, we 
have heard a lot about 200 cases with 13 or more malpractices. 
How do you make sure that you are not punishing a doctor, while 
at the same time trying to protect the public? I mean----
    Ms. Gedz. Well, I think it could be two ways of doing this: 
One, if we see why doctors fail to police other doctors, maybe 
an independent organization should be established to police 
doctors. And another way is the National Practitioner Data Bank 
giving a patient the right to know this information and 
question the doctors.
    Mr. Stupak. Did you ever inquire of the New York Board as 
to why the doctor, after they found him responsible for gross 
negligence, why he was allowed to practice? Did the New York 
Licensing Board ever give you a reason?
    Ms. Gedz. No, I didn't.
    Mr. Stupak. Thank you.
    Mr. Smart, basically the same kind of questions. It is my 
understanding that at least two doctors involved in your wife's 
case had previously had actions taken against them by the New 
York State Board of Medicine.
    Mr. Smart. It was only one.
    Mr. Stupak. One?
    Mr. Smart. Yeah.
    Mr. Stupak. What should New York have done differently, in 
your estimation?
    I guess we are trying to figure out how does the system 
break down.
    Mr. Smart. Personally, my wife's death was ruled as an 
accident. I knew something was wrong. I went to attorneys and 
told them what had happened. And when they started their own 
investigation, the hospital really didn't cooperate with them 
at all. They asked for information, they asked for documents. 
They were only sent maybe a total of 10 to 15 pages' worth of 
what happened on that particular day, and we all knew that 
there was more to it than what was received.
    I think there was too much time, too much time allowed for 
these, the hospital and whoever else, to sort of get their 
story straight, and speak to their people and, you know, be 
prepared for when they interact with us.
    The New York State Department of Health informed us maybe 
about approximately a year later that something was wrong, and 
they sat us down and told us exactly what happened in that 
operating room, and that's when we found out, indeed, what went 
wrong. We knew something was wrong all along, but we didn't 
know what it was. And I think that's where the breakdown is.
    Mr. Stupak. Did you ask them about the one physician then 
who has been involved with other problems? And did you ask 
whatever happened, how can this individual continue to practice 
if there's been problems?
    Mr. Smart. They really didn't give a straightforward 
answer. They also were like, you know, ``we really don't 
know.''
    Mr. Stupak. This is the licensing board that is supposed to 
license the physicians; is that what you are telling me?
    Mr. Smart. Yes. And that was the first time that I had 
heard of a Dr. Sklar. I have never--I have never heard of him 
before. When I went my wife to have the procedure done, I met 
the other doctors. I knew nothing of a Dr. Sklar. A year later 
I found out about a Dr. Sklar, and that was very disturbing to 
me.
    Mr. Stupak. Sure.
    Mr. Smart. Knowing his background.
    Mr. Stupak. Thank you. Thank you both.
    Mr. Upton. Chairman Bliley?
    Chairman Bliley. Thank you.
    Dr. Gedz, both you and your husband, as practicing 
dentists, can be reported to the National Practitioner Data 
Bank. Does this, in any way, change your belief that the 
National Practitioner Data Bank should be open to the public?
    Ms. Gedz. No, it doesn't change our opinion because as long 
as information is accurate and as long as--the most important 
thing is would a patient have a chance of knowing about my or 
my husband's prior record and make an intelligent decision if 
they wanted to be treated by me or my husband.
    Chairman Bliley. In your testimony, you referred to the 
``white wall of silence,'' in describing the medical profession 
failing to speak out against questionable doctors. Do you think 
that solely giving more information and resources to State 
licensing boards without giving consumers access will 
adequately protect consumers from problem doctors?
    Ms. Gedz. No. I believe it should be an independent 
organization or the public should know and be able to question 
doctors if they have any questions or make a choice if I wanted 
to be treated by the doctor.
    Chairman Bliley. Some have argued, Doctor, that consumers 
cannot understand this kind of information that is in the 
National Practitioner Data Bank. Do you think patients would be 
able to understand what is in the National Practitioner Data 
Bank and especially what Dr. Zarkin did to you?
    Ms. Gedz. Well, in Dr. Zarkin's case, it's pretty self-
explanatory what he did to me. I think every person would 
understand what he did. And I don't think we should 
underestimate the intelligence of the public. But I agree that 
there should be some guidelines or in language what you put in 
the National Practitioner Data Bank. But, also, if a patient 
didn't understand something, at least they have a chance to 
question a doctor.
    Chairman Bliley. Thank you.
    Mr. Smart, you indicated that your wife Lisa was an avid 
reader who regularly referred to the Internet and, in fact, did 
extensive research on anesthesia before her operation. Do you 
believe that if comparative information about doctors, like the 
National Practitioner Data Bank were available to her, she 
would have used that information to select a doctor?
    Mr. Smart. Yes, I do.
    Chairman Bliley. Do you think that if she had known about 
Dr. Sklar's prior history in the National Practitioner Data 
Bank involving numerous malpractice payments, she would have 
ever agreed to be treated by him?
    Mr. Smart. No, she wouldn't have.
    Chairman Bliley. Thank you both. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Upton. Thank you.
    Ms. DeGette?
    Ms. DeGette. Thank you, Mr. Chairman. Thank you both for 
coming here to testify. I know it is hard, and I appreciate it 
because it helps us understand your perspective and what 
happened to you.
    I got here a little bit late, but I read the materials, and 
what I am struck by, especially hearing your testimony, is how 
complex this issue is and how very little of a tip that we can 
actually handle on the Federal level. Because even if you 
opened up the Data Bank, I am not sure every patient would be 
as diligent as Dr. Gedz would or as your wife would have been, 
Mr. Smart. So I think we need to look at the Data Bank. But 
more importantly, perhaps, we need to look at the State 
entities that are taking disciplinary actions against bad 
doctors.
    Both of these cases happened at Beth Israel; is that 
correct? I am wondering if either one of you could comment 
whether you think there is some fundamental problem with the 
way they are supervising their physicians there.
    Mr. Smart. I think it's something that can happen at any 
hospital. It just so happened that it happened two times, 
actually, at Beth Israel. And I think peo--basically, if you 
have information on the background of a doctor, I think that's 
your choice whether or not you should go to that doctor.
    What happened with this lady right here, I mean, and 
especially to hear it happening at another institution, I mean, 
that's very disturbing.
    Ms. DeGette. Uh-huh. Doctor?
    Ms. Gedz. I believe it's a fundamental problem in Beth 
Israel Hospital because I spent 2\1/2\ months there on complete 
bed rest. And I was a witness of lack of knowledge of nurses, 
negligence of residents, and I made sure, as a doctor being 
there and knowing what's going on, that I complained on every 
single day and pointed to the problems. But what did I get in 
response? I basically was told if I'm not going to stop making 
waves, I'm going to be dismissed from the hospital.
    Ms. DeGette. Mr. Smart, I have been told--and maybe I am 
wrong, let me know--that this doctor was provided by your HMO; 
is that correct? That came through your HMO?
    Mr. Smart. Yes, by the primary care physician.
    Ms. DeGette. And so is it your understanding that if the 
HMO didn't check out the qualifications of the doctor and just 
said, ``Here, go do this procedure,'' did you know you would 
not be able to sue that HMO for that negligence?
    Mr. Smart. I hold the HMO responsible as well.
    Ms. DeGette. But did you know you can't sue them for 
negligently providing that doctor to you?
    Mr. Smart. No, I didn't know that. That I didn't know.
    Ms. DeGette. That is why we are trying to do a Patient's 
Bill of Rights.
    Mr. Smart. Yeah, I didn't know that.
    Ms. DeGette. Now, let me just ask you, Dr. Gedz, in 
particular, because I do think patients should be able to get 
more information from the Data Bank, but what I'm concerned 
about is how we make sure that the information in the Data Bank 
is accurate. For example, if someone gets a--if someone doesn't 
like the root canal you did on them and so they decide to 
manufacture some kind of complaint, how do we deal with that? 
How do we make sure that patients who are going on the Internet 
to get this information are actually getting accurate 
information? I think that that is the concern people have.
    Ms. Gedz. Well, I don't believe the National Practitioner 
Data Bank is made to be court, jury and executioner of a 
doctor. I believe information which you put there should be 
evaluated and only valid information should be put in the data.
    Ms. DeGette. And who would evaluate that and make sure it 
was accurate? Let's say I have a doctor in Colorado who gets 
sued. The evidence of that lawsuit is going to go on the Data 
Bank, but who is going to evaluate that to see whether that is 
accurate or not?
    Ms. Gedz. Well, maybe we should establish an independent 
organization with a board of physicians and doctors who would 
be independent from a State to evaluate every case, and only 
cases with proven--proven would be put in the Data Bank.
    Ms. DeGette. Thank you.
    Mr. Chairman, let me just say I think we should get more 
NYU graduates here to testify in front of our committee. I am a 
graduate of NYU Law School myself.
    Ms. Gedz. Thank you.
    Ms. DeGette. Thank you for coming.
    Mr. Upton. Dr. Ganske?
    Mr. Ganske. Thank you, Mr. Chairman. I thank both of our 
guests today.
    Dr. Gedz, did you require any stitches for these initials?
    Ms. Gedz. No. Well, they shouldn't be placed because he 
went subcutaneous and now I have a healing by keloid.
    Mr. Ganske. So there was underlying fat exposed?
    Ms. Gedz. I saw the initials 2 days after. I wasn't aware 
what he did to me. I only found out 2 days after. When I saw 
it, the tissue was necrotized. So, but I know, when I asked 
people and when I saw the scar, I could tell it was 
subcutaneous.
    Mr. Ganske. So when you did see, when you saw the wound, 
was the skin completely cut through so that you could see fat 
underneath?
    Ms. Gedz. Well, what I could see, I could see necrotized 
tissue at that point. After 2 days, it was all gray and 
inflamed.
    Mr. Ganske. Now, clearly, there is litigation going on; is 
that right?
    Ms. Gedz. Yes.
    Mr. Ganske. Personal injury?
    Ms. Gedz. Litigation is concluded.
    Mr. Ganske. Yes. And will there be criminal charges?
    Ms. Gedz. He is criminally prosecuted, and I was subpoenaed 
by grand jury, and I give my testimony.
    Mr. Ganske. To the best of your knowledge, was there ever 
this type of behavior before by this physician?
    Ms. Gedz. Dr. Zarkin had, I believe, four former complaints 
against him--I don't think to the extent of what he did to me, 
but he had four former complaints.
    Mr. Ganske. Of what type, do you know?
    Ms. Gedz. I am not sure. I am not sure.
    Mr. Ganske. Well, it certainly is a bizarre thing. I was 
just amazed.
    How long after this happened did this appear in the 
newspapers?
    Ms. Gedz. Five months after. I really wasn't craving 
publicity. I think it's a very private matter, and it's not 
really pleasurable to see your stomach plastered all over 
television and the newspapers, so----
    Mr. Ganske. Will you require reconstructive surgery?
    Ms. Gedz. Yes, I would have to have reconstructive surgery.
    Mr. Ganske. Like an abdominal plasty?
    Ms. Gedz. No. That would be a full-blown tummy tuck.
    Mr. Ganske. You would need a full-blown----
    Ms. Gedz. Yes.
    Mr. Ganske. Yes.
    Ms. Gedz. I would have to replace this piece of skin 
completely.
    Mr. Ganske. So how did you choose Dr. Zarkin?
    Ms. Gedz. Dr. Zarkin was recommended to me by a friend, and 
I went to see him after the loss of my first baby.
    Mr. Ganske. Are you in an HMO?
    Ms. Gedz. Yes, I have insurance.
    Mr. Ganske. Is it a Health Maintenance Organization?
    Ms. Gedz. Yes.
    Mr. Ganske. So you had to get an authorization from your 
HMO to go to Dr. Zarkin?
    Ms. Gedz. No, he was participating with the Blue Cross/Blue 
Shield.
    Mr. Ganske. He was a participant. So I guess I will ask the 
same question that Congresswoman DeGette said. Is your 
insurance through your employer?
    Ms. Gedz. No. I believe we purchased the insurance.
    Mr. Ganske. You hold an individual policy on your own.
    Ms. Gedz. Yes.
    Mr. Ganske. So, in that situation, you could hold the HMO 
responsible for having somebody on their staff that would do 
something like Dr. Zarkin. You could, but Mr. Smart could not.
    Ms. Gedz. Mr. Ganske; is that correct?
    Mr. Ganske. Uh-huh.
    Ms. Gedz. This lawsuit, it wasn't really about the 
settlements and money. It really was about, in the beginning, 
it was very embarrassing to me, and I felt completely violated 
with what he did to me. But in the end, right now, the only 
purpose of my speaking out and doing all of this publicity and 
TV shows is because if I can go to sleep and know that it's 
never going to happen to anybody again, because this is the 
purpose.
    Mr. Ganske. I guess what----
    Ms. Gedz. I didn't want to sue my insurance company.
    Mr. Ganske. I guess what my point would be is that it may 
or may not be that you would or would not have chosen Dr. 
Zarkin if the National Practitioner Data Bank were open because 
it may or may not have given data that would have made a 
difference to you in terms of who you chose.
    Ms. Gedz. But if I saw Dr. Zarkin's name in a National 
Practitioner Data Bank with four former complaints, it doesn't 
matter how small or big they were, and if I still was--he was 
recommended to me by a friend, at least I had a chance when I 
talked to Dr. Zarkin for the first time to ask him about that 
and expect an explanation why he's reported to the National 
Practitioner Data Bank and what were his actions.
    Mr. Ganske. Most obstetrician/gynecologists, because that's 
a high-risk area, over the course of a career very well may 
have four incidents reported against them, which may or may not 
have been any negligence on their part, but simply a settlement 
by an insurance company. So how would you distinguish that?
    Ms. Gedz. Mr. Ganske, every doctor, and being a doctor 
myself I can tell you, could make a mistake under pressure. But 
as long as there are no cover-ups and these mistakes are 
attended accordingly, this is what matters to the patient. Yes, 
I can do a bad root canal and, yes, I can maybe even extract 
the wrong tooth. But you know what matters is the patient, when 
he walks in and asks you for medical care, he wants to be good 
in the end. He wants to be well.
    Mr. Ganske. I understand.
    Ms. Gedz. So if I made a mistake, but I didn't try to cover 
it up, and I tried to fix it and tried to tell the patient, 
``You know what, because I did the bad root canal, let me fix 
it. Let me do this, this and that, and in the end you would 
function as you functioned or even better before you came to my 
office.'' So----
    Mr. Ganske. What I want to get at, and I don't think it is 
information you can give us, is along the lines of what 
Congressman Stupak was getting at, and that was that after this 
behavior which, as far as I know from everything you have said 
and I have read in the newspapers, is inexcusable happened, 
what I want to find out, and I think on the next panel we are 
going to have the hospital representatives on this, is after 
that happened, it must have been reported to the operating room 
Director of Personnel, it must have then gone up the 
administrative chain to committees, and then your point on this 
is that he was able to continue--I want to find out what 
happened to his privileges at that hospital and then I want to 
find out----
    Ms. Gedz. They were suspended.
    Mr. Ganske. They were suspended?
    Ms. Gedz. Yes.
    Mr. Ganske. Immediately?
    Ms. Gedz. I believe so.
    Mr. Ganske. As soon as they found out? Then what I want to 
find out is how should that information have been shared with 
any other hospitals where he had privileges? That is what I 
want to find out. And I thank you very much for coming forward 
on this. And, Mr. Smart, I thank you also.
    Mr. Smart. Thank you.
    Mr. Upton. Thank you.
    Mr. Bryant?
    Mr. Bryant. Thank you, Mr. Chairman.
    I apologize to this panel for having to step out, and I 
apologize to the subsequent panels when I step out again. 
Because all of us are on different schedules, as you can see 
people coming and going, and that is not to say this is not 
very important, but they schedule us in advance, and we have to 
do these kind of things.
    I am going to try to get back because I still have those 
questions that I would like to ask or hear answered by the 
subsequent panels about why the current system we have is not 
working as well as it should and perhaps how we can improve it.
    In listening to these two witnesses, I want to add my 
appreciation I think that has been certainly offered by 
everyone on this panel today for you coming forward and 
testifying.
    Doctor, you certainly have, I think Dr. Ganske said, a 
bizarre situation, very unusual situation where, as I 
understand it, a doctor intentionally did something. And that, 
in my experience, that is really an unusual situation. And, Mr. 
Smart, you certainly have a case that, while not intentional, 
it appears to be some degree of negligence, a more traditional 
malpractice case, I would suppose, and certainly with tragic 
results.
    I think, as I sit here and listen to this testimony 
developing and the statements developed, I kind of see two 
problems evolving: One is that we have a small percent--1, 2, 3 
percent, maybe even 5 percent--of doctors who play the system, 
and they are able to do things and at the last minute move or 
plea bargain or whatever, and perhaps these are the ones that 
need to be completely out of the system, but because they are 
able to move, relocate, they stay in the system.
    And I think clearly what we are talking about in 
legislation, whether it is at a State level or whether it is 
Federal legislation, the current State legislation needs to do 
a better job. Again, I asked the question in my opening 
statement, how can you do all of this stuff in one State and 
then just bounce over to another State and be recertified, and 
licensed and credentialed and those things? But that is really 
a small percentage, and it needs to be addressed.
    But the bigger problem I think the legislation we are 
talking about would address is all of the other doctors and 
more the consumer learning about, Dr. Gedz, like you said, if 
you had seen the doctor and perhaps they had only had one black 
mark against them, you might not have gone to that doctor. And 
that is the bigger group out there. And how do we fairly have a 
system that does that, as I said in my statement, to put these 
black marks, if you will, or gray marks, if you will, in 
context so that the average person can understand and how do we 
do that fairly? Because I think we have to have a balanced 
system here. We certainly want informed consumers, informed 
patients. But on the other hand, we want to make sure that it 
is quality, valuable information that we are putting out there 
that people can understand and make that decision. I guess that 
is the bigger problem we are dealing with here today. As 
opposed to the doctors that just bounce around from State to 
State that need to be out of the practice altogether, we are 
talking about the rest of the doctors that are out there that 
we are trying to pick and choose from to get quality medical 
care.
    And, again, I would thank you for coming out today, both of 
you, and would yield back my time.
    Mr. Upton. Thank you.
    To both of you I just want to say we have a number of 
subcommittees that are meeting today. So members are on 
multiple subcommittees. There is a very important issue on the 
House floor as well, so that is why members are coming in and 
out. I would like to say that, for those members that are not 
here or members that are still here, we may do some follow-up 
questions. We are going to leave the record open for all 
members and for all panels today.
    But, again, we very much appreciate your openness and 
willingness to come and tell your story before us. It 
dramatically speaks for reform, to examine the facts in terms 
of why even the existing policy and law was not followed. And 
your statements today are, in fact, very, very helpful to all 
of us, and we appreciate your time, and it was well spent.
    Thank you very much. You are formally excused.
    Mr. Smart. Thank you, Mr. Chairman.
    Mr. Upton. The next panel includes the following: Ms. Nancy 
Sullivan, executive director of the Board of Registration in 
Medicine from the Commonwealth of Massachusetts; Ms. Barbara 
Neuman, president of the Administrators in Medicine, Board of 
Medical Practice, State of Vermont; Dr. Edward Loniewski, from 
Plymouth, Michigan, testifying on behalf of the American 
Osteopathic Association; Dr. Rodney Hochman, senior vice 
president and chief medical officer of Sentara Health System, 
testifying on behalf of the American Hospital Association; Dr. 
Tom Reardon, president of the American Medical Association; Dr. 
Robert Newman, president and CEO of Continuum Health Partners, 
testifying on behalf of Beth Israel Medical Center; Mr. Wayne 
Osten, director of the Division of Health Care Standards and 
Surveillance from the New York State Department of Health; and 
Mr. Larry Silver, Silver and Field, from Los Angeles, 
California.
    We are going to try and keep strict time. And as you heard 
from the earlier panel, we have a longstanding tradition of 
taking testimony under oath. Do any of you have objection to 
that?
    [No response.]
    Mr. Upton. Seeing none, we also allow folks that are 
testifying to be represented also by counsel. Do any of you 
want counsel to speak on your behalf?
    [No response.]
    Mr. Upton. Seeing none, if you would all stand. Again, 
raise your right hand.
    [Witnesses sworn.]
    Mr. Upton. You are now under oath, and we will start with 
Ms. Sullivan--Dr. Sullivan. Oh, I see. There are two Sullivans. 
That is right. We will start with Ms. Nancy Sullivan.
    Mr. Sullivan. Actually, with me.
    Mr. Upton. Oh, actually, with you. Okay.


 TESTIMONY OF MARY ANNA SULLIVAN, CHAIR; ACCOMPANIED BY NANCY 
 ACHIN SULLIVAN, EXECUTIVE DIRECTOR, BOARD OF REGISTRATION IN 
   MEDICINE, COMMONWEALTH OF MASSACHUSETTS; BARBARA NEUMAN, 
    PRESIDENT, ADMINISTRATORS IN MEDICINE, BOARD OF MEDICAL 
  PRACTICE, STATE OF VERMONT; EDWARD LONIEWSKI, ON BEHALF OF 
  AMERICAN OSTEOPATHIC ASSOCIATION; RODNEY F. HOCHMAN, SENIOR 
   VICE PRESIDENT AND CHIEF MEDICAL OFFICER, SENTARA HEALTH 
 SYSTEM, ON BEHALF OF AMERICAN HOSPITAL ASSOCIATION; THOMAS R. 
  REARDON, PRESIDENT, AMERICAN MEDICAL ASSOCIATION; ROBERT G. 
NEWMAN, PRESIDENT AND CEO, CONTINUUM HEALTH PARTNERS, INC., ON 
BEHALF OF BETH ISRAEL MEDICAL CENTER; WAYNE M. OSTEN, DIRECTOR, 
 DIVISION OF HEALTH CARE STANDARDS AND SURVEILLANCE, NEW YORK 
  STATE DEPARTMENT OF HEALTH; AND LAWRENCE SILVER, SILVER AND 
                             FIELD

    Ms. Mary Anna Sullivan. I'm Dr. Mary Anna Sullivan, chair 
of the Massachusetts Board of Registration in Medicine. On 
behalf of the members of the board, I thank you for giving us 
the opportunity to provide the subcommittee with information on 
the Massachusetts Physician Profiles Project.
    Like many practicing physicians, I had concerns about the 
impact of increased disclosure of physician information on my 
profession, and we have certainly heard those concerns this 
morning. But Massachusetts was careful to respect due process 
and includes only adjudicated or settled malpractice suits or 
final disciplinary action as information on our profiles.
    As Ms. Sullivan will describe in detail, malpractice 
information is carefully presented in context. It's not a 
perfect system, and we will continue to try to improve it, but 
our patients in Massachusetts would have had the information 
that Ms. Smart, at least, so tragically did not have. If a 
physician in Massachusetts has been disciplined by us or by his 
or her hospital or if he or she has paid on a malpractice 
claim, that information is available to our patients in 
Massachusetts.
    I can assure you that this project has been a tool for 
positive change for health care in Massachusetts. And 
interestingly, the concerns of physicians have proved largely 
groundless. I am proud of our board's leadership positions on 
many of the complex issues facing all of us who care about 
quality health care in our Nation. Our Profiles Program is one 
example of this leadership.
    Massachusetts also leads the Nation in another important 
area, error identification and prevention. Through our 
confidential and nondisciplinary Patient Care Assessment 
Program, we address the quality of the health care systems in 
which individual physicians practice.
    Through our other activities, such as disciplinary actions 
and public information programs, we ensure the competence of 
our licensees and strengthen the decisionmaking processes for 
our patients. These approaches are not exclusionary. In fact, 
they can and should be part of an integrated approach to 
attaining health care quality. Our board has asked our 
executive director, Nancy Achin Sullivan, who oversaw the 
design of the Profiles Project in 1996, to present the overview 
of the program, and we will both be happy to answer any 
questions from the committee at the end of her presentation.
    [The prepared statement of Mary Anna Sullivan follows:]


Prepared Statement of Mary Anna Sullivan, Chair, Massachusetts Board of 
                        Registation in Medicine
    I am Dr. Mary Anna Sullivan, Chair of the Massachusetts Board of 
Registration in Medicine. On behalf of the members of the Board, I 
thank you for giving us the opportunity to provide the subcommittee 
with information on the Massachusetts Physician Profiles Project. Like 
many practicing physicians, I had concerns about the impact of 
increased disclosure of physician information on my profession. I can 
assure you that this project has been a tool for positive change for 
health care in Massachusetts.
    I am proud that the Massachusetts Board of Registration in Medicine 
has taken leadership positions on many of the complex issues facing all 
of us who care about the quality of health care in our nation. The 
Physician Profiles Program is one example of this leadership. 
Massachusetts also leads the nation in another important area: error 
identification and prevention. Through our confidential and non-
disciplinary Patient Care Assessment program, we address the quality of 
the health care systems in which individual physicians practice. 
Through other activities, such as disciplinary actions and public 
information programs, we ensure the competence of our licensees and 
strengthen the decision-making processes of patients. These approaches 
are not exclusionary; in fact they can and should be part of an 
integrated approach to attaining health care quality. The Board has 
asked our Executive Director, Nancy Achin Sullivan, who oversaw the 
design and implementation of the Profiles Project in 1996, to present 
the overview of the program. We will both be happy to answer any 
questions from the Committee at the end of Ms. Achin Sullivan's 
presentation.

    Mr. Upton. Go ahead.

                TESTIMONY OF NANCY ACHIN SULLIVAN

    Ms. Nancy Achin Sullivan. Thank you, Mr. Chairman and 
members of the committee. My name is Nancy Achin Sullivan, and 
I am here to provide information to assist the subcommittee on 
its deliberations concerning public access to the National 
Practitioner Data Bank.
    Dr. Sullivan and I are not here to advocate for any 
specific outcome of the legislation at the Federal level. 
Instead, I would like to talk about the genesis of the Profiles 
Project in Massachusetts, the common concerns at the Federal 
and State level, and the outcomes of the Massachusetts project, 
now entering its fourth year of operation.
    I'm also here as a person whose personal experience with 
health care I think underscores the importance of informed 
patients. I have survived three separate battles with fairly 
advanced cancer because I had wonderful doctors who fought for 
my life. But I live, as I refer to it, under the sword of 
Damocles of not knowing how long--what my health status will be 
because my cancers were very advanced in the end because I was 
misdiagnosed. And those are the issues that face patients every 
day. And each morning I pass the cemetery near my home where I 
visit my sister, who died at age 32, leaving a 6-year-old 
orphan behind. She died of a brain tumor that went undiagnosed 
for years.
    Part of the impetus behind this program in Massachusetts, 
and I think others like it, is the recognition that families 
should not live with that lingering doubt, ``Did I do enough? 
Did I do everything? Did I get every resource, including every 
information resource?''
    My primary message about the Physician Profiles Program, 
and I hope the committee members will come away with this, is 
that it is not in Massachusetts seen as a tool to identify and 
punish bad doctors. Instead, it's an educational tool. It is 
not disciplinary in nature. The program's primary goal is to 
help patients find the right doctors for them and for their 
families. It's the responsibility of the State medical boards 
to remove bad doctors from practice. The existence of the 
public information program does not relegate that 
responsibility to the consumer. This is something different.
    In November 1996, the Massachusetts Board unveiled the 
Physician Profiles Project in partnership with its lead 
sponsor, the Massachusetts Medical Society, the State 
legislature and the Governor. The Profiles Project was the 
first of its kind in any State and has since enabled millions 
of health care consumers to learn more about the physicians to 
whom they entrust their care. And I have supplied the committee 
with a breakdown of some of that information. Our recent 
numbers show that 4.9 million profiles have been accessed 
either through our website or through other educational tools 
we have for our consumers.
    Prior to 1996, the Board collected a great deal of 
information about consumers. Some of it was available to the 
public, if requested; some was statutorily protected and was 
not disclosed. As public interest in health care has grown, the 
Board undertook a very long examination of what information was 
appropriate and how it could be presented to the public in a 
way that was organized and set in appropriate context to be 
useful.
    And finding the balance between the appropriate and useful 
information for consumers in protecting physicians from 
unwarranted adverse effects is difficult, but difficult is not 
impossible. That's why we have leadership, and that's what I 
hoped that we have achieved in Massachusetts and that that will 
be the goal for whatever your--wherever your deliberations take 
you.
    The medical community raised very reasonable issues, and we 
tried to measure for that: The fear that physicians would leave 
the State, reducing access to quality care; targeting of 
physicians who already had malpractice payments with frivolous 
lawsuits; and the possible chilling effect on peer-review 
reporting.
    In Massachusetts, these concerns did not become reality. 
Since the inception of the Profiles Program, the number of 
licensed physicians has not decreased; in fact, it is steadily 
increasing, particularly in the area of young physicians coming 
to train in our State and stay in our State.
    The decision to reveal the physician's malpractice history 
did cause the greatest concern and did really create the 
greatest challenge for us. The concerns raised included the 
issue of targeting doctors with frivolous suits. Another major 
concern was how to present the data in a context that accounted 
for differences among specialties, where we know that there 
would be different experiences expected. The malpractice data 
really very vividly demonstrates the need for context as the 
data is reported.
    We resolved the issue by reporting only the malpractice 
payments, not pending suits; by demonstrating how the 
individual record--physician's record compared to other 
physicians in the same specialty; and by categorizing the 
payments in terms of it falling at, above or below the average 
for that specific specialty. We believe in large, to a large 
degree, that does address some of the small nuisance suits, as 
I think many people consider the settlements because they do 
report as being substantially below the average.
    Based on the Massachusetts' experience, it's strongly 
recommended that any Federal disclosure law be crafted in a 
manner that allows for this type of contextual information. 
Simply throwing out raw data is not going to be helpful. The 
committee may wish to establish levels of contextual setting 
that reflect not only difference in specialty, but regional 
differences. The statistical data support the general 
impression that the Physician Profiles Project has not changed 
the nature of malpractice in Massachusetts. In fact, our rate 
for malpractice payments has decreased since the release of the 
Physician Profiles Project. And, again, that information is 
included as an attachment for the committee.
    In 1998, when the national rate was at 21.1 suits per 
thousand doctors, a decrease of 5.2 percent from the period 
before, the Massachusetts' rate had declined during the same 
period 12.4 percent. So we think that it has not had the effect 
for which we were very carefully measuring out of respect for 
our doctor community.
    Other States with physician populations similar to ours had 
different results for the same period. New York's malpractice 
rate on that same measure increased. New Jersey, Connecticut 
and Rhode Island all had increases on that measure, and they 
didn't have disclosure laws.
    And, again, the chilling effect on peer-review reporting 
has not materialized. Our Licensure and Clinical Privileges 
reports, as reported to the Data Bank, have remained constant 
in Massachusetts. They have maintained the same tight level as 
national changes in addition. And, again, that is included as 
an attachment for the committee.
    The Physician Profiles Program in Massachusetts has been a 
tremendous success. The very reasonable fears voiced by 
organized medicine did not come true. The response from the 
public has been tremendous. Since Profiles was launched, nearly 
4.9 million profiles have been given to the public through the 
website or through the call center. It has really become part 
of the culture of medicine in Massachusetts. Countless numbers 
of patients have been given the tools to have more helpful and 
rewarding discussions with their physicians because they had 
good information to stimulate that conversation. And, again, 
wherever your deliberations take you, I hope that is the 
outcome, that people have better information.
    [The prepared statement of Nancy Achin Sullivan follows:]


    Prepared Statement of Nancy Achin Sullivan, Executive Director, 
             Massachusetts Board of Registation in Medicine
    My name is Nancy Achin Sullivan. I am here today to provide 
information to assist the subcommittee on Oversight and Investigations 
deliberations concerning Public Access to the National Practitioner's 
Data Bank. Dr. Sullivan and I are not here to advocate for any specific 
outcome or legislation on the Federal level. Instead, I will share the 
genesis of the Massachusetts Physician Profiles Project; common 
concerns shared by both federal and state entities; and the outcomes of 
the Massachusetts Profiles Project, now entering its fourth year of 
operation.
    I am also here as a person whose personal experience with health 
care underscores the importance of informed patients. I have survived 
three separate battles with cancer because I had wonderful doctors who 
fought for my life. I live beneath the sword of Damocles of being in 
remission with a cancer that would not have been so advanced had I not 
been misdiagnosed . Each morning I pass the cemetery near my home where 
I visit my sister who died of cancer at age 32 from a brain tumor that 
went undiagnosed for years by her doctor. Part of the impetus behind 
programs like the Massachusetts Physician Profiles is the recognition 
that families should not live with the lingering doubt about whether or 
not they utilized all resources available, including information 
resources, in obtaining treatment for a loved one.
    I have one primary message about the Physician Profiles Program 
that I hope the Committee members will remember. The Physician Profiles 
Program is not designed to identify or to punish bad doctors. The 
Profiles Program is an educational tool; it is not disciplinary in 
nature. The Program's primary goal is to help patients find the right 
doctors for them and their families. It is the responsibility of state 
medical boards to remove bad doctors from practice. The existence of a 
public information program does not relegate a board's responsibility 
to consumers.
    In November 1996, the Massachusetts Board of Registration in 
Medicine unveiled the Physician Profiles Project in partnership with 
the Massachusetts Medical Society, the state legislature, and the 
Governor. The Profiles Project was the first of its kind in any state 
in the nation, and has since enabled millions of health care consumers 
to learn more about their physicians to whom they entrust their care. 
Prior to 1996, the Board collected a great deal of information about 
physicians. Some of this information was available to the public, if 
requested. Other information was statutorily protected from disclosure, 
leaving health care consumers unable to access most of this 
information. As public interest in health care information grew, the 
Board undertook a long examination of how to respond to the public's 
need for information. The underlying challenge to starting a 
comprehensive information system such as the Profiles Project is to 
identify how much information should be disclosed to the public and how 
the information can be organized and placed into appropriate context to 
be both beneficial to the consumer and fair to the physician. 
(Attachment 1)
    Finding the balance between appropriate and useful information for 
consumers and protecting physicians from unwarranted adverse 
information is difficult. The medical community raised reasonable 
issues of concern as the Profiles Program was being implemented. The 
concerns included :

 The fear that physicians would leave the state and reduce the 
        number of high quality health care practitioners;
 Possible targeting of physicians with reported malpractice 
        payments with frivolous lawsuits;
 A possible ``chilling effect'' on peer reporting of physicians 
        if the action would appear on Profiles.
    In Massachusetts, these concerns did not become reality. Since the 
inception of the Physician Profiles Program, the number of licensed 
physicians in Massachusetts has not decreased. In fact, the 
Commonwealth continues to attract thousands of the most talented young 
physicians in the nation through its world-renowned medical training 
programs.
    The decision to reveal a physician's malpractice history caused the 
greatest concern for many doctors. The concerns raised included 
possible targeting of physicians who had malpractice payments with 
additional, frivolous suits. Another concern was how to present the 
data in a context that accounted for differences in expected 
malpractice history among various specialties. It is the malpractice 
data that most vividly demonstrates the need for context as the data is 
reported. The Massachusetts Board of Registration in Medicine resolved 
the issue by reporting only malpractice payments, not pending suits; by 
demonstrating how the individual physician's record compared to other 
physicians in the same specialty; and by categorizing the payment in 
terms of its falling at, above, or below the average for the specific 
specialty. Based on the Massachusetts experience, it is strongly 
recommended that any Federal disclosure law be crafted in a manner that 
allows this type of contextual information. The Committee may wish to 
establish levels of contextual setting that reflect not only 
differences among practice specialty, but also regional differences.
    The statistical data support the general impression that the 
Physician Profiles Project has not changed the nature of malpractice 
payments in Massachusetts. In fact, the Massachusetts rate for 
malpractice payments has actually decreased since the release of the 
Physician Profiles Project in late 1996. The national average (payments 
per 1,000 physicians) in 1996 was 22.34. At the same time, the 
Massachusetts rate was 10.81. By 1998, the national average rate was 
21.18, a decrease of 5.2%. In Massachusetts, the rate declined from 
10.81 to 9.26%, a decrease of 12.36%. The Massachusetts decline in the 
rate of malpractice payments was 2.4 times greater than the national 
decline.
    Other states with physician populations similar to that of 
Massachusetts had very different results for the same period. For 
example, New York's malpractice rate rose from 26.94 to 28.99, an 
increase of 7.6%. New Jersey, Connecticut and Rhode Island all had 
increases in the rate of malpractice payments reported by the NPDB 
during the period, yet these states had no disclosure laws in place. 
(Attachment 2)
    The feared ``chilling effect'' on peer reporting has not 
materialized in Massachusetts. Licensure and Clinical Privileges 
reports about physicians have remained constant in Massachusetts. In 
1997 and 1998 the number of reports from physician peers and/or 
facilities remained 3.09 reports per thousand Massachusetts physicians. 
From 1996 to 1997, the national reporting rate for this measure 
decreased from 7.04 per 1,000 physicians to 6.35. This was consistent 
with the Massachusetts decline for the same period from 3.71 to 3.09. 
(Attachment 3)
    The Massachusetts Physician Profiles Project has been a tremendous 
success. The reasonable fears voiced by organized medicine did not come 
true. The response from the public has been tremendous. Since the 
Profiles Project was launched in November 1996, nearly 4.9 million 
Profiles have been given to consumers through the Board's website or 
through its call center. It has become part of the culture of 
progressive health care in Massachusetts. Countless numbers of patients 
in Massachusetts have been given the tools to have more helpful and 
rewarding discussions with their physicians because they had good 
information to stimulate that conversation.


                             Attachment 1.
Information Included on the Massachusetts Physician Profiles Program
    By logging onto www.massmedboard.org or by calling the Board's 
toll-free number, 1-800-377-0550, users can have access to timely data 
on a physician's:

 business and professional demographics;
 education and training;
 hospital affiliations;
 insurance plans that are accepted;
 paid malpractice claims;
 hospital discipline;
 Board disciplinary actions (if any);
 criminal history (if any).
    The Profile does not include:

 the number of suits filed against a physician;
 information about hospital or physician complications;
 patient mortality rates;
 malpractice dollar awards.
    The Massachusetts Physician Profiles Project has become a popular 
consumer product of the Massachusetts Board of Registration in 
Medicine. In its first year alone, web site activity indicated that 
there were over 1,6000,000 hits. Currently, the Profiles system 
operates at over 3,000,000 hits per year.


                              Attachment 2

    Rate of Malpractice Payments for Massachusetts and Selected States.
         Malpractice Payment Reports per 1,000 Physicians, by State
               (National Practitioner Data Bank, 1994-98)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  1994               1995               1996               1997               1998
                                                          ----------------------------------------------------------------------------------------------
                          State                                     Adjusted           Adjusted           Adjusted           Adjusted           Adjusted
                                                             Rate     Rate      Rate     Rate      Rate     Rate      Rate     Rate      Rate     Rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA.......................................................    24.47     24.47    19.45     19.40    22.74     22.70    23.67     22.97    19.26     18.84
CT.......................................................    12.42     12.42    14.19     14.19    11.23     11.23    12.92     12.75    13.01     12.84
FL.......................................................    26.37     26.27    26.96     26.87    32.70     32.52    34.11     32.07    31.87     30.30
ME.......................................................    14.53     14.53    12.79     12.79    12.56     12.18    15.99     15.54    12.94     12.58
MD.......................................................    11.60     11.50    11.38     11.33    12.00     12.00    12.00     11.37    13.11     12.64
MA.......................................................    11.18     11.18     9.90      9.90    10.81     10.81     9.20      8.66     9.53      9.26
MI.......................................................    53.19     53.14    50.85     50.80    32.40     32.40    31.58     30.40    35.84     34.76
NH.......................................................    32.52     32.52    21.12     20.72    27.38     27.38    19.77     18.62    22.05     21.18
NJ.......................................................    26.96     26.87    23.51     23.28    23.12     23.08    20.56     19.64    25.77     25.05
NY.......................................................    32.26     32.18    25.55     25.52    27.00     26.94    27.94     26.98    29.66     28.99
OHIO.....................................................    25.23     25.15    25.42     25.34    26.93     26.86    24.65     23.73    16.55     16.11
PA.......................................................    37.93     28.19    38.29     28.89    42.82     28.87    41.33     27.14    34.86     22.16
RI.......................................................    19.02     17.61    19.25     18.92    19.00     19.00    27.38     25.38    23.51     22.32
TX.......................................................    30.70     30.61    28.11     28.01    28.58     28.55    24.36     22.83    26.03     25.04
DC.......................................................    13.61     13.61    10.23     10.23    17.66     17.66    15.67     16.69    21.64     23.42
Total....................................................    24.80     23.91    21.87     21.06    23.42     22.34    22.85     20.90    21.83     21.18
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: NPDB

                              Attachment 3

   Malpractice Payment and Licensure and Clinical Privileges Reports per 1,000
                    Physicians, by State, Last Five Years
                 (National Practitioner Data Bank, 1994-98)
----------------------------------------------------------------------------------------------------------------
                                           MedMal   L & P    MedMal   L & P    MedMal   L & P    MedMal   L & P
----------------------------------------------------------------------------------------------------------------
CONN....................................    11.23     4.81    12.75     4.75    12.84     4.66    12.69     4.98
MASS....................................    10.81     3.71     8.66     3.09     9.26     3.09     9.96     3.60
MICHIGAN................................    32.40    10.58    30.40     8.45    34.76    10.72    40.30     9.05
NEW YORK................................    26.94     5.68    26.98     5.87    28.99     6.64    28.13    5.68O
HIO.....................................    26.86    10.81    23.73     8.11    16.11    11.63    23.46    10.29
PENN....................................    28.87     5.19    27.14     6.01    22.16     3.88    27.05     4.57
RI......................................    19.00     9.02    25.38     6.73    22.32     8.26    20.71     7.47
VERMONT.................................    17.00     6.68    20.80    12.13    28.31     6.93    21.31     9.43
  TOTAL.................................    22.34     7.04    20.90     6.35    21.18     6.53    21.90     6.56
----------------------------------------------------------------------------------------------------------------
This table includes only disclosable reports in the NPDB as of December 31, 1998. The rates for 1994 through
  1997 may differ from those shown in previous Annual Reports because of modifications and voided reports.
  Modified reports are counted in the year of modification.
Data on the number of physicians: For 1994: The number of physicians is the number of ``total physicians'' less
  the number of physicians listed as inactive or ``address unknown'' as of January 1, 1994 from Table D-7 of the
  American Medical Association's Physician Characteristics and Distribution in the U.S., 1995-96 edition. For
  1995: The number of physicians is the number of ``total physicians'' less the number of physicians listed as
  ``inactive'' or ``address unknown'' as of December 31, 1995 from Table D-7 of the American Medical
  Association's Physician Characteristics and Distribution in the U.S., 1996-1997 edition. For 1996: The number
  of physicians is the number of ``total physicians'' less the number of physicians listed as ``inactive'' or
  address unknown as of Dec. 31, 1996 from Table E-7 of the American Medical Association's Physician
  Characteristics and Distribution in the U.S., 1997-98 edition. For 1997-1998: The number of physicians is the
  number of ``total physicians'' less the number of physicians listed as ``inactive'' or ``address unknown'' as
  of Dec. 31, 1997 from Table E-7 of the American Medical Association's Physician Characteristics and
  Distribution in the U.S., 1999 edition.


    Mr. Upton. Thank you very much.
    Ms. Neuman? And we will let you get that mike close to you 
as well. There is a little warning light. I don't know, I have 
not been on that side of the table, but on this side it has a 
little--do you see it? That comes with a minute to go.

                   TESTIMONY OF BARBARA NEUMAN

    Ms. Neuman. Mr. Chairman and distinguished members of the 
subcommittee, I am Barbara Neuman, president of the 
Administrators in Medicine, the national organization for State 
Medical and Osteopathic Board Executive Directors. I want to 
thank you today for holding this hearing on this very important 
consumer access issue.
    As a founder of the Administrators in Medicine's free 
online DocFinder, I have seen firsthand the benefits of 
consumer access to physician information. DocFinder is a 
centralized website of States providing physician information 
for consumers in an easily searchable format. DocFinder has 
been extremely popular with consumers, receiving millions of 
hits since it was launched in 1996. One reason for its 
popularity is that DocFinder has helped provide basic 
information to consumers in managed care plans, many of whom 
are handed a list of doctors and told to make a decision with 
little more information than name, address and specialty.
    DocFinder information comes directly from the 18 State 
medical and osteopathic boards on the site and includes States 
with physician profile laws, such as Massachusetts. Physician 
profile laws provide medical malpractice, criminal conviction, 
hospital discipline and board disciplinary action information 
to the public. Eleven States have passed various versions of 
the profile law.
    During the past 2 years, our organization has been active 
in assisting State boards in the implementation of physician 
profile laws by holding annual meetings of the profile States, 
including those with pending legislation. The inability of the 
public to access the National Practitioner Data Bank has 
required State medical boards to ``reinvent the wheel'' in 
implementation of profile laws. Except for criminal conviction 
information, the major data components to implement a physician 
profile law are contained in the National Practitioner Data 
Bank. But since the information is not public, States are faced 
with no other choice but to collect the information all over 
again at great expense.
    I believe a strong State and Federal partnership can be 
forged to improve public information available about all 
physicians. State medical board data bases in the DocFinder 
contain information about all State licensees. The National 
Practitioner Data Bank contains reported information about 
certain physicians. In fact, the administrator of HRSA noted 
that most doctors never wind up in the National Practitioner 
Data Bank. Expanding consumer access to the National 
Practitioner Data Bank's single national clearinghouse would 
make it harder for problem physicians to move undetected from 
one State to another because both data bases, the State medical 
board data bases in the DocFinder and the National Practitioner 
Data Bank, would be working together.
    It is my opinion, based on 16 years' experience as a 
medical board executive director, that the National 
Practitioner Data Bank should be open to the public. I believe 
that consumers have a right to this information to make 
informed choices about their health care. We have now had 
experience with disclosing this kind of information to 
consumers in the profile States. The data provided in the 
testimony of the Massachusetts Board indicates that the issues 
of concerns raised by the medical community have not come to 
pass, including the issue of greatest concern--malpractice 
history. But as with profile information, the National 
Practitioner Data Bank information should be put into context 
to help consumers understand the data. Calling on the expertise 
of the profile States to assist in this process would make 
sense.
    I also believe that the National Practitioner Data Bank 
should be expanded to include records of criminal convictions 
and that information relating to these criminal convictions 
should be made available to the public. The information also 
will help State medical boards, health plans and hospitals 
currently lacking this information.
    The legislation which led to the creation of the National 
Practitioner Data Bank was enacted because Congress believed 
that the increasing occurrence of medical malpractice 
litigation and the need to improve quality of medical care had 
become nationwide problems that warranted greater efforts that 
any individual State could undertake. As we move to improve 
patient safety and reduce medical errors nationwide by 
discouraging secrecy, I believe it is time to remove the 
secrecy surrounding the National Practitioner Data Bank and to 
allow informed consumer access to the information. It has been 
my experience that secrecy protects the bad doctors, not the 
good ones.
    Thank you for this opportunity to testify, and I would be 
happy to answer any questions.
    [The prepared statement of Barbara Neuman follows:]


  Prepared Statement of Barbara Neuman, President, Administrators in 
                                Medicine

    Mr. Chairman and Distinguished Members of the Subcommittee: I am 
Barbara Neuman, President of the Administrators in Medicine, the 
National Organization for State Medical and Osteopathic Board Executive 
Directors. I want to thank you for holding this hearing on this very 
important consumer access issue.
    As a founder of the Administrators in Medicine's free online 
DocFinder, I have seen first hand the benefits of consumer access to 
physician information. DocFinder is a centralized web site of states 
providing physician information for consumers in an easily searchable 
format. DocFinder has been extremely popular with consumers receiving 
millions of hits since it was launched in 1996. One reason for its 
popularity is that DocFinder has helped provide basic information to 
patients in managed care plans, many of whom are handed a list of 
doctors and told to make a decision with little more information than 
name, address and specialty.
    DocFinder information comes directly from the 18 state medical and 
osteopathic boards on the site and includes states with physician 
profile laws such as Massachusetts. Physician profile laws provide 
medical malpractice, criminal conviction, hospital discipline and board 
disciplinary action information to the public. Eleven states have 
passed various versions of a profile law.
    During the past two years, our organization has been active in 
assisting state boards in the implementation of physician profile laws 
by holding annual meetings of the profile states including those with 
pending legislation. The inability of the public to access the National 
Practitioner Data Bank has required state medical boards to ``reinvent 
the wheel'' in the implementation of profile laws. Except for criminal 
conviction information, the major data components to implement a 
profile law are contained in the National Practitioner Data Bank but 
since the information is not public, states are faced with no other 
choice but to collect the information all over again at great expense.
    I believe a strong state and federal partnership can be forged to 
improve the public information available about all physicians. State 
medical board databases in the DocFinder contain information about all 
state licensees. The National Practitioner Data Bank contains reported 
information about certain physicians. In fact the Director of HRSA 
noted that most doctors never wind up in the National Practitioner Data 
Bank. Expanding consumer access to the National Practitioner Data 
Bank's single national clearinghouse would make it harder for problem 
physicians to move undetected from one state to another because both 
databases--the state medical board databases in the DocFinder and the 
National Practitioner Data Bank would be working together.
    It is my opinion based on sixteen years experience as a Medical 
Board Executive Director that the National Practitioner Data Bank 
should be open to the public. I believe that consumers have a right to 
this information to make an informed choice about their health care. We 
have now had experience with disclosing this kind of information to 
consumers in the profile states. The data provided in the testimony of 
Massachusetts Board indicates that the issues of concern raised by the 
medical community have not come to pass including the issue of greatest 
concern--malpractice history. But as with profile law information, the 
National Practitioner Data Bank information should be put into context 
to help consumers understand the data. Calling on the expertise of the 
profile states to assist in this process would make sense.
    I also believe that the National Practitioner Data Bank should be 
expanded to include records of criminal convictions and that 
information relating to these criminal convictions should be made 
available to the public. This information also will help state medical 
boards, health plans and hospitals currently lacking this information.
    The legislation which led to the creation of the National 
Practitioner Data Bank was enacted because Congress believed that the 
increasing occurrence of medical malpractice litigation and the need to 
improve the quality of medical care had become nationwide problems that 
warranted greater efforts than any individual state could undertake. As 
we move to improve patient safety and reduce medical errors nationwide 
by discouraging secrecy, I believe it is time to remove the secrecy 
surrounding the National Practitioner Data Bank and to allow informed 
consumer access to the information. It has been my experience that 
secrecy protects the bad doctors, not the good ones.
    Thank you for this opportunity to testify. I would be happy to 
answer any questions.

    Mr. Upton. Extra credit for not using the full 5 minutes.
    Ms. Neuman. Thank you.
    Mr. Upton. Dr. Loniewski, you are going to have to say it 
for me.
    Mr. Loniewski. Loniewski.
    Mr. Upton. Loniewski, got it. Thank you.

                  TESTIMONY OF EDWARD LONIEWSKI

    Mr. Loniewski. Chairman Upton and members of the committee, 
my name is Edward A. Loniewski, D.O. I am a retired orthopedic 
surgeon, which by the way is also a high-risk specialty, from 
the State of Michigan and a past president of the American 
Osteopathic Association. I am also a board member of the 
National Practitioner Data Bank Executive Committee. On behalf 
of the 44,000 osteopathic physicians represented by the 
American Osteopathic Association nationwide, I appreciate the 
opportunity to testify on the issue of the National 
Practitioner Data Bank.
    A full discussion of the AOA's positions is found in my 
prepared remarks, but I will just highlight a few for you 
today.
    The AOA opposes the National Practitioner Data Bank and any 
attempt to make the information in that bank public in its 
current form because the information included within it 
regarding malpractice settlements and adverse actions can be 
misleading. The use of such misleading information by hospitals 
and insurers is damaging physicians' careers. While the intent 
is to track the negligent practitioner, the information that is 
currently housed in the Data Bank is often not appropriate for 
that purpose. Although the AOA opposes the current National 
Practitioner Data Bank, the Association does not oppose a 
Federal Data Bank that is open to the public if the information 
accurately reflects the negligence of the practitioner. As I 
will state later in my testimony, these practitioners can be 
identified through true peer review.
    The NPDB places much emphasis on medical malpractice. When 
a medical malpractice payment is made on behalf of a 
practitioner, payment information must be reported to the Data 
Bank. In many cases, a malpractice settlement or judgment 
simply is not a good barometer for quality of care. Recent 
studies have shown that among malpractice claims, the severity 
of the patient's disability, not the occurrence of the adverse 
event or an adverse event due to negligence, was predictive of 
payment to the plaintiff.
    In addition, malpractice claims studies show that between a 
half and two-thirds of the claims were brought with no apparent 
indication of negligence. Oftentimes a physician's malpractice 
insurer will settle the case, not because the practitioner is 
guilty of malpractice, but to avoid the even greater expenses 
of taking a suit to court.
    The harm created by the misleading entry concerning your 
malpractice settlement is very real. Whenever a doctor applies 
for a position or clinical privileges on a hospital medical 
staff at any hospital staff in the United States, that hospital 
is legally required to request information concerning the 
physician from the Data Bank and thus will learn of the 
settlement and consider it in connection with his or her 
application. As such, a physician's ability to secure positions 
at other hospitals in the United States is severely damaged.
    State medical and dental boards, hospitals, professional 
societies and other health care entities must report certain 
adverse actions related to the practitioner's professional 
competence or conduct. While a physician has a right to rebut 
the information in the Data Bank, it is not sufficient to 
correct the damage that it causes. A small- town New Mexico 
physician White House was reported to the Data Bank after her 
obstetrical privileges were revoked reported that she could not 
relocate because of the Data Bank report. The physician sued 
those responsible for making the Data Bank report and won a 
favorable verdict. The court found that the physician suffered 
impairment of reputation and standing in the community when she 
applied for privileges at a new hospital and had to explain why 
her privileges had been revoked by the hospital which reported 
her to the Data Bank. The court also noted, ``An opportunity 
for rebuttal seldom suffices to undo harm of defamatory 
falsehoods.''
    In conclusion, to summarize, the AOA opposes the National 
Practitioner Data Bank as it currently functions because the 
information included within it regarding malpractice 
settlements and adverse actions can be misleading and is 
damaging to careers of good, competent physicians. However, the 
AOA is not opposed to having a Federal Data Bank that is open 
to the public if, and I repeat, only if the information 
accurately reflects the negligence of the practitioner. These 
practitioners can be identified through true peer review. To 
wit, when a professional organization, licensing board or true 
peer review organization comprised of physicians of the same 
specialty have ruled that a practitioner has been negligent in 
his or her performance of patient care, the public has a right 
to know. But I emphasize that before any information is made 
public, it must pass the true test of true peer review.
    Thank you for this opportunity to testify before this 
committee.
    [The prepared statement of Edward Loniewski follows:]


  Prepared Statement of Edward A. Loniewski on Behalf of the American 
                        Osteopathic Association

Introduction
    Chairman Upton and Members of the Committee, my name is Edward A. 
Loniewski, D.O. I am a retired orthopedic surgeon from the State of 
Michigan and the past president of the American Osteopathic 
Association. I am also a board member of the National Practitioner Data 
Bank Executive Committee. On behalf of the 44,000 osteopathic 
physicians represented by the American Osteopathic Association (AOA) 
nationwide, I appreciate the opportunity to testify on the issue of the 
National Practitioner Data Bank.
    The AOA is the national professional organization for osteopathic 
physicians who number over 44,000 in the United States. In addition, 
the AOA is the recognized accrediting authority for colleges of 
osteopathic medicine, osteopathic postdoctoral training programs and 
osteopathic continuing medical education.
    Osteopathic medicine is one of two distinct branches of medical 
practice in the United States. While allopathic physicians (MD) 
comprise the majority of the nation's physician workforce, osteopathic 
physicians (DO) comprise more than five percent of the physicians 
practicing in the United States. Significantly, D.O.s represent more 
than 15 percent of the physicians practicing in communities of less 
than 10,000 and 18 percent of physicians serving communities of 2,500 
or less.
AOA's Position
    The AOA opposes the National Practitioner Data Bank and any attempt 
to make the information in that data bank public in its current form 
because the information included within it regarding malpractice 
settlements and adverse actions can be misleading. The use of such 
misleading information by hospitals and insurers is damaging 
physicians' careers. While the intent is to track the negligent 
practitioners, the information that is currently housed in the data 
bank is often not appropriate for that purpose. The problems I will 
highlight today include:

 Medical Malpractice and Adverse Action Data
 Practitioner's Right to Recourse
 Corporate Shield
    Although the AOA opposes the current National Practitioner Data 
Bank, the Association does not oppose a federal data bank that is open 
to the public if the information accurately reflects the negligence of 
the practitioner. As I will state later in my testimony, these 
practitioners can be best identified through true peer review.
Background of National Practitioner Data Bank
    The National Practitioner Data Bank (NPDB) was established through 
Title IV of the Health Care Quality Improvement Act of 1986, as 
amended. The intent of the law was to improve the quality of health 
care. The purpose was to encourage hospitals, state licensing boards 
and other health care entities including professional societies to 
identify and discipline those who engage in unprofessional behavior and 
then restrict the ability of incompetent physicians, dentists and other 
health care practitioners to move from state to state without 
disclosure or discovery of previous damaging or incompetent 
performance.
    The NPDB is supposed to act as a clearinghouse of information. Its 
records include data relating to medical malpractice settlements and 
judgements as well as adverse actions taken against the licenses, 
clinical privileges and professional society memberships of physicians, 
dentists, and other licensed practitioners. The Data Bank also contains 
information regarding practitioners who have been declared ineligible 
to participate in Medicare and/or certain other state health care plans 
under the Social Security Act.
    Practitioners may not submit changes to reports. The practitioner 
must contact the reporting entity to request corrections if there are 
any inaccuracies. A practitioner may add a statement to the report and/
or dispute either the factual accuracy or whether the report was 
submitted in accordance with NPDB reporting requirements. The 
practitioner may also request that the Secretary of Health and Human 
Services review the issues, if the practitioner and reporting entity 
cannot resolve the issues in dispute.
    The NPDB is a resource for state licensing boards, hospitals and 
other health care entities in conducting investigations into the 
qualifications of practitioners they seek to license or hire or to whom 
they wish to grant membership or clinical privileges. The Data Bank 
information should be considered with other relevant information in 
evaluating a practitioner's credentials.
Flaws Within NPDB
    The NPDB places much emphasis on medical malpractice. When a 
medical malpractice payment is made on behalf of a practitioner, 
payment information must be reported to the Data Bank. However, 
settlement of a medical malpractice claim may occur for a variety of 
reasons that do not reflect negatively on the competence or conduct of 
the practitioner. In many cases, a physician's malpractice insurer will 
settle the case--not because the practitioner is guilty of 
malpractice--but to avoid the even greater expenses of taking the suit 
to court. Sometimes this is even done without the consent of or notice 
to the physician.
    For example, the AOA and Kansas Association of Osteopathic Medicine 
recently filed a brief of Amici Curiae in the Kansas Court of Appeals 
on behalf of an osteopathic physician licensed to practice in the State 
of Kansas (Miller v. Sloan, Listrom, et al, District Case # 95-CV-328). 
This lawsuit concerned the settlement of a medical malpractice claim by 
an insurer without the physician's knowledge or consent. In accordance 
with federal laws and regulations, the settlement then was reported to 
the National Practitioner Data Bank, where the report now stands as a 
permanent part of the physician's record.
    Because a malpractice settlement was made without the physician's 
knowledge or consent, he had no opportunity to contest the settlement, 
deny his liability or explain to the NPDB his belief that he did 
nothing wrong when treating the patient. In fact, the doctor only 
learned of the settlement through the National Practitioner Data Bank, 
where the report has become a permanent scar on the doctor's record.
    The harm created by the misleading entry concerning a malpractice 
settlement is very real. Now, whenever this doctor applies for a 
position or clinical privileges on a hospital's medical staff--at any 
hospital staff in the United States--that hospital is legally required 
to request information concerning the physician from the Data Bank and, 
thus, will learn of the settlement and consider it in connection with 
his application. As such, the physician's ability to secure positions 
at other hospitals in Kansas and elsewhere in the United States has 
been severely damaged.
    In many cases, a malpractice settlement or judgement simply is not 
a good barometer for quality of care. A study published in The New 
England Journal of Medicine (December 26, 1996--Vol. 335, No. 26) 
showed that among the malpractice claims, ``the severity of the 
patient's disability, not the occurrence of an adverse event or an 
adverse event due to negligence, was predictive of payment to the 
plaintiff.''
    The Rand Health Law Issue Paper of July 1999 (A Flood of 
Litigation? Predicting the Consequences of Changing Legal Remedies 
Available to ERISA Beneficiaries; Carole Roan Gresenz, Deborah R. 
Hensler, David M. Studdert, Bonnie Dombey-Moore, Nicholas M. Pace, A 
Rand Health Law Issue Paper, July 1999) stated that several studies 
have reviewed medical malpractice claims files to determine the 
relative frequency of appropriate and inappropriate suits (Harvard, 
1990; Cheney et al., 1989; Farber and White, 1991; McNulty, 1989) and 
found that between half and two-thirds of claims are brought with no 
apparent indication of negligence.
Adverse Actions
    State medical and dental boards must report certain disciplinary 
actions, related to professional competence or conduct taken against 
the licenses of physicians or dentists, including revocation, 
suspension, censure, reprimand, probation and surrender.
    Hospitals and other eligible health care entities must report 
professional review actions that may restrict or revoke a 
practitioner's clinical privileges due to issues related to conduct or 
competence. Professional societies are also required to report specific 
information when any professional review action due to professional 
competence or conduct adversely affects the membership of the 
practitioner.
    One small-town New Mexico physician who was reported to the Data 
Bank after her obstetrical privileges were revoked reported that she 
could not relocate because of the Data Bank report. Notably, that 
physician sued those responsible for making the Data Bank report on a 
number of theories, including defamation, and obtained a favorable jury 
verdict. On appeal, the court found that sufficient evidence was 
presented for a jury to have concluded the physician suffered 
impairment of reputation and standing in the community, when she 
applied for privileges at a new hospital and had to explain why her 
privileges had been revoked by the hospital which reported her to the 
Data Bank. Significantly, though the physician was ultimately granted 
privileges at the new hospital, the Court did not feel that the 
physician's damage claim was undermined since: "an opportunity for 
rebuttal seldom suffices to undo harm [sic] of defamatory falsehood."
Corporate Shield
    Another problem that has arisen is what is termed the ``corporate 
shield.'' This refers to those instances where an individual health 
care practitioner's name is removed from a case, usually during the 
settlement process, and replaced with some corporate entity. When this 
occurs, even though a settlement was made, no report is filed to the 
NPDB. Removing a person's name for the sole purpose of hiding that 
individual is illegal under the original statute under which the NPDB 
was created (the Health Quality Improvement Act of 1986).
    To address this issue, the Health Resources and Services 
Administration (HRSA) published a proposed rule on Christmas Eve, 
December 24, 1998. HRSA defines the goal of the proposed change to be 
``to prevent the evasion of Data Bank medical malpractice reporting 
requirements.'' The proposed rule describes instances ``in which a 
plaintiff in a malpractice action has agreed to dismiss a defendant 
health care practitioner from a proceeding, leaving or substituting a 
hospital or other corporate entity as defendant, at least in part for 
the purpose of allowing the practitioner to avoid having to report on a 
malpractice payment made on his or her behalf submitted to the Data 
Bank.'' In this circumstance, this ``corporate shield'' allows for no 
report to be filed with NPDB.
    The AOA does not disagree with HRSA that this ``evasion of the 
reporting requirement'' is wrong. However, the remedy that HRSA 
proposes is equally wrong. It contains numerous factual, legal, and 
practical shortcomings. Among the problems are:

1. Failure to make any effort to create a factual record to document 
        the existence and scope, if any, of the so-called ``corporate 
        shield'' problem.
    According to HRSA, the Department of Health and Human Services 
(DHHS) is aware of efforts to evade the reporting requirements, 
especially with respect to self-insured entities. However, no effort 
was made to document this assertion. As a member of the NPDB Executive 
Committee, I participate regularly in the Committee meetings. Audit 
results, studies, or other evidence of the existence or extent of the 
``corporate shield'' problem were not reported during any of the 
meetings I attended.
2. Lack of statutory authority to expand the reporting requirements 
        beyond those set forth in the Health Care Quality Improvement 
        Act.
    HRSA's plan would expand the reporting requirement beyond the name 
of ``any physician or licensed health care practitioner for whose 
benefit the payment was made,'' which is provided for by Congress in 
the Health Care Quality Improvement Act. In place of this narrow 
mandate, the proposed rule would make it the ``responsibility of the 
payer, during the course of its review of the merits of the claim, to 
identify any practitioner whose professional conduct was at issue in 
that malpractice action or claim that resulted in a payment, and report 
that practitioner to the Data Bank.'' [emphasis added] This rule far 
exceeds the statutory authority delegated by Congress.
3. Imposition of substantial administrative burdens and costs on health 
        care providers and their insurers which will ultimately be 
        passed on to health care consumers.
    The requirement that the payer identify any practitioners whose 
conduct was at issue would impose investigative and claim costs far 
beyond those currently incurred by insurers in processing medical 
malpractice claims. The proposal would require the payer to identify 
each health care entity with which the practitioner is affiliated. This 
would include any managed care organization, group practice, clinic, 
medical society or other group that provides health care services and 
engages in a peer review process. In addition the payor would also have 
to identify all practitioners who might be involved in the claim.
    If this requirement were imposed, a significant administrative 
burden would be added to those already in existence for the payer. Cost 
of health care and medical liability insurance would undoubtedly 
increase, and ultimately be passed onto the consumer.
4. Lack of fairness and due process involved in reporting 
        practitioners.
    Serious fairness and due process concerns are raised by the 
requirement that payers report any practitioner whose conduct was at 
issue, regardless of whether or not that practitioner was actually 
named in the claim. Attention must be given to the adverse impact a 
report to the Data Bank may have on a health care provider's career and 
reputation.
    The American Osteopathic Association, along with a large number of 
other organizations, brought this issue to the attention of the DHHS 
General Counsel, Harriet S. Rabb, and HRSA Administrator, Claude E. 
Fox, M.D., M.P.H. at a September 29, 1999 meeting, Dr. Fox said that 
HRSA would withdraw the Dec. 24, 1998 NPDB proposal. However, to date 
no withdrawal notice has been published in the Federal Register, so the 
proposal has yet to be formally withdrawn.
Conclusion
    To summarize, the AOA opposes the National Practitioner Data Bank 
as it currently functions because the information included within it 
regarding malpractice settlements and adverse actions can be 
misleading. The use of such misleading information by hospitals and 
insurers is damaging physicians' careers. However, the AOA is not 
opposed to having a federal Data Bank that is open to the public if the 
information accurately reflects the negligence of the practitioner. 
These practitioners can be identified through true peer review, to-wit: 
when a professional organization, licensing board or true peer review 
organization (comprised of physicians of same specialty) has ruled that 
a practitioner has been negligent in his/her performance of patient 
care, the public has a right to know. But I emphasize that before any 
information is made public, it must pass the true test of peer review.
    The National Practitioner Data Bank has serious flaws, which make 
it inadequate for the purpose it is meant to fulfill. I encourage each 
of you to carefully consider the issues presented today.
    Americans have a right to the best medical care possible and 
physicians have a right to be treated fairly when under review by 
government agencies, review boards, hospitals and their peers.
    Thank you for the opportunity to testify today. The AOA stands 
ready to participate in a bipartisan effort to develop a data bank that 
will truly protect the quality of patient care.

    Mr. Upton. Thank you very much.
    Is it pronounced Dr. Hochman?
    Mr. Hochman. Hochman.
    Mr. Upton. Hochman. Great. Terrific.

                 TESTIMONY OF RODNEY F. HOCHMAN

    Mr. Hochman. Thank you, Mr. Chairman. I think you have a 
complete text of our comments, and I will try to keep my 
remarks in the 5-minute timeframe.
    Mr. Chairman, I am Dr. Rodney Hochman, chief medical 
officer and senior vice president of Sentara Health Care in 
Norfolk, Virginia, and a board-certified internist and 
rheumatologist. I am here, today, on behalf of the American 
Hospital Association's nearly 5,000 hospitals, health systems, 
networks and other health care providers. We are pleased to 
have the opportunity to testify on the issue of public access 
to the National Practitioner Data Bank.
    Sentara Health Care is not-for-profit health system which 
serves more than 2 million residents in Southeastern Virginia 
and Northeastern North Carolina. We operate more than 70 care-
giving sites, including six hospitals, with more than 1,800 
beds. More than 2,000 physicians are members of our hospital 
medical staffs.
    As Sentara's chief medical officer, one of my roles is to 
ensure our staff provides high-quality services and that our 
credentialing and peer-review processes are effective. Nothing 
is more important than the safety of our patients. At Sentara, 
like most hospitals and health systems across the United 
States, we conduct an exhaustive background check on our 
medical staff before a physician is allowed to treat a patient 
in our facility. We inquire about a physician's educational, 
personal, professional background, malpractice history and any 
career gaps. We conduct primary source verification. We inquire 
about past performance and quality issues at each hospital at 
which the physician has had privileges, and we also query the 
National Practitioner Data Bank, an essential step in our 
credentialing process. The book which our physicians need to 
complete before they can be members of our staff is here, and 
we conduct that exhaustive review.
    Hospitals take seriously their legal obligation to query 
the Data Bank. At Sentara, we use the information to supplement 
our credentialing activities and as a possible indication if 
there is a problem. Let me say we firmly believe that consumers 
deserve to have useful information that will assist them in 
selecting a practitioner.
    Congress specifically created the Data Bank as a tool for 
health care professionals. Its primary purpose is to alert 
health care facilities, licensing boards and professional 
societies to the possibility of incompetent or dangerous 
performance by a health care practitioner. The Data Bank, as 
currently configured by Congress, was not designed as a 
resource for consumers. However, consumers have a legitimate 
interest in knowing that the people who provide their care are 
competent. In fact, the AHA agrees that some information in the 
Data Bank could be useful to consumers. For example, the public 
disclosure regarding licensure actions and criminal 
convictions, which are not currently included in the Data Bank, 
would be valuable to consumers.
    At the same time, malpractice information must be put in 
the proper context before it's released to the public. As 
presently configured, the Data Bank does not differentiate 
between payments made in situations involving substandard care 
and payments made for a variety of other reasons, such as to 
eliminate the defense of a frivolous or nonmeritorious claim or 
to minimize the cost of litigation.
    In many cases, settlement payments are made by the insurer 
without the consent of the physician being sued. In fact, the 
statute that created the Data Bank argues against making 
malpractice reports public, cautioning that a settlement does 
not necessarily indicate that malpractice occurred. In today's 
litigious society, numerous malpractice settlements result from 
frivolous claims. While we're willing to discuss the concept of 
public disclosure of large malpractice awards clearly related 
to quality, we must ensure that only claims that reflect clear 
quality of care concerns are publicly available.
    Congress promised confidentiality when it created the 
National Practitioner Data Bank. Complete disclosure of the 
Data Bank's contents to the public could cause caregivers to be 
less forthcoming about their own mistakes and less likely to 
express concerns about the competence of their peers. The 
confidentiality of the peer review process allows practitioners 
to candidly discuss the qualifications of their peers. 
Hospitals depend on the peer review process to ensure that 
practitioners are capable. We must do nothing that would be 
detrimental to the peer review process. Peer review is one of 
the most important tools, but not the only tool, for the 
assurance of quality care, and confidentiality of peer review 
and activities is essential.
    Mr. Chairman, the AHA looks forward to working with 
Congress to develop the appropriate approach for determining 
the future use of the National Practitioner Data Bank, 
including which information can be useful to consumers.
    Thank you.
    [The prepared statement of Rodney F. Hochman follows:]


Prepared Statement of Rodney Hochman, Chief Medical Officer and Senior 
Vice President, Sentara Healthcare, on Behalf of the American Hospital 
                              Association

    Mr. Chairman, I am Rodney Hochman, M.D., chief medical officer and 
senior vice president of Sentara Healthcare in Norfolk, Virginia. I am 
here today on behalf of the American Hospital Association's (AHA) 
nearly 5,000 hospital, health system, network, and other health care 
provider members. We are pleased to have the opportunity to testify on 
the issue of public access to the National Practitioner Data Bank.
    Sentara Healthcare is a not-for-profit health system, which serves 
more than 2 million residents in southeastern Virginia and northeastern 
North Carolina. We operate more than 70 caregiving sites, including six 
hospitals with a total of more than 1,800 beds. Sentara Healthcare 
employs more than 180 physicians representing 20 medical specialties 
and subspecialties. Our hospitals provided care for more than 250,000 
outpatient and emergency department visits and close to 65,000 hospital 
admissions in 1999. More than 2,000 physicians are members of our 
hospitals' medical staffs.
    I am a board-certified internist and rheumatologist. As Sentara's 
chief medical officer, I am responsible for the clinical effectiveness 
programs, physician integration efforts, and medical management issues 
for its six-hospital system and 300,000 member HMO. One of my roles is 
to work with our hospitals' medical staffs to ensure their 
credentialing and peer review processes are effective. Twelve employed 
physicians, functioning as medical directors under my direction, 
facilitate and monitor these processes across Sentara. I also 
participate as an ex-officio member of our board's Medical Affairs 
Committee, which is responsible for the quality of care provided in our 
hospitals.
    The AHA supports the goals of the Health Care Quality Improvement 
Act, under which the National Practitioner Data Bank was created. The 
act recognizes the importance of encouraging and supporting effective 
professional peer review to help protect consumers from incompetent or 
dangerous performance by practitioners. The AHA and its members engage 
in a range of activities that help hospitals and health systems deliver 
the highest quality care. One of the most important of these being the 
peer review and quality assurance activities that occur every day in 
hospitals across the country.


                         peer review activities
    At Sentara, like most hospitals and health systems across the 
United States, we conduct exhaustive background checks on our medical 
staff before a physician is allowed to treat patients at our 
facilities.
    Initially, physicians applying for hospital privileges are subject 
to an intense screening process. The credentialing application inquires 
about a physician's educational, personal, and professional background, 
malpractice history and any career gaps. We then conduct primary source 
verification. For example, we verify with the physician's medical 
school that he did indeed graduate; we check with the Board of Medical 
Specialties that he is a board-certified physician, and we confirm with 
the state licensing board that he is in fact licensed by the 
Commonwealth of Virginia to practice medicine. We inquire about past 
performance on quality issues at each hospital at which the physician 
has had privileges, and we also query the National Practitioner Data 
Bank.
    The National Practitioner Data Bank contains information on medical 
malpractice payments, adverse licensure actions, adverse actions taken 
by physician professional societies, and suspension of hospital 
privileges for more than 30 days. Hospitals by law are mandated to 
query the data bank. At Sentara, we use the information to supplement 
our other credentialing activities, and as a possible indication that 
there is a problem.
    Sentara uses a three-tier screening process. First, our 
Credentialing Committee, which consists of 12 physicians from many 
different specialties, reviews a physician's complete credentialing 
application. Next, the Credentialing Committee's recommendation is 
forwarded to the Medical Executive Committee, which consists of 15 
physicians including the officers of the medical staffs and the chiefs 
of each clinical department. Final approval or denial is made by our 
board's Medical Affairs Committee.
    Physicians are subject to re-credentialing every two years. At that 
time, physicians formally attest to whether anything has changed since 
the initial credentialing process. The department's quality improvement 
chairman assesses this information along with the physician's quality 
assurance profile for the previous two years and makes a recommendation 
to the department chairman. We also query the National Practitioner 
Data Bank and state licensing board for reports of any adverse actions. 
The department chair makes a recommendation to the Credentials 
Committee. The Credentialing Committee reviews all information and 
makes a recommendation to the Medical Executive Committee, and the 
Medical Affairs Committee makes a final decision.
    Besides this aspect of the formal peer review process, we have 
ongoing quality improvement (QI) activities designed to flag possible 
quality of care problems. For example, at Sentara the following 
situations automatically initiate a QI review: a death; a return to the 
OR within 48 hours; a return to ICU; and re-admissions for certain 
diseases. In addition, patient complaints and incident reports, which 
can be initiated by any staff member, are reviewed. As part of the QI 
review process, a QI nurse investigates the incident/complaint and 
files a report with the department's QI Committee, and the physician 
has an opportunity to present his case. The department QI Committee 
reviews these cases and forwards appropriate ones to the hospital QI 
Committee. If the hospital QI Committee identifies a quality concern, 
the case is sent to the Medical Executive Committee for review and 
possible corrective action. Records for such cases are kept in the 
physician's QI file and reviewed at the time of re-credentialing.
    Hospitals actively monitor the quality of patient care and 
services. Every health care organization must ensure that its 
workforce, including all clinical staff affiliated with the 
organization, is competent, adequately credentialed and trained. As you 
can see, querying the National Practitioner Data Bank is an essential 
step in the credentialing and QI process. However, it is only one part 
of the equation.


                         opening the data bank
    Consumers have a legitimate interest in knowing that the people who 
provide their care are competent. But completely opening up the data 
bank to public scrutiny would do much more harm than good for two 
reasons. First, public disclosure of the data bank's contents, as 
presently configured, would undermine the confidentiality of the peer 
review process in hospitals across America--thus impeding the data 
bank's goal of promoting quality care.
    Congress promised confidentiality when it created the National 
Practitioner Data Bank. The normal tensions created by peer review 
would be significantly heightened if reports were available to the 
public. And complete disclosure of the data bank's contents to the 
public could cause caregivers to be less forthcoming about their own 
mistakes and less likely to report errors made by their peers.
    The threat of public access to adverse credentialing decisions in 
the data bank will force mistakes underground, and hospitals and 
practitioners would lose the opportunity to analyze what went wrong and 
make the necessary changes to ensure that the mistakes do not happen 
again. Of course, the real losers are the public who would benefit the 
most from improved quality of care that comes from quality assurance 
activities.
    Second, the data bank, as it is currently configured, is not 
designed to a be a tool for consumers. Congress created the National 
Practitioner Data Bank to be a resource for health care professionals. 
One fear is that consumers would misinterpret settlement reports. In 
fact, the statute that created the data bank argues against making its 
reports public. The statute cautions that a settlement does not 
necessarily indicate that malpractice occurred. For a consumer trying 
to evaluate a potential caregiver, knowing only that a settlement 
occurred could be misleading. It could cause serious consequences for a 
practitioner and unnecessarily undermine public confidence in the 
hospital.
    As presently structured, the data bank does not differentiate 
between payments made in situations involving substandard care and 
payments made for a variety of other reasons, such as to eliminate 
defense of a frivolous or nonmeritorious claim, or to minimize the cost 
of litigation. There is no minimum threshold for reporting amounts paid 
in relation to malpractice claims or litigation.


                 reporting physicians to the data bank
    Hospitals take seriously their legal reporting obligations to the 
data bank. The AHA is not aware of any data which documents that 
hospitals are not meeting these obligations. Questions about potential 
noncompliance appear to be based on anecdotal information and studies 
that use the level of hospital reporting to suggest that NPDB 
requirements are not being met. A recent study by the Journal of the 
American Medical Association (JAMA) raised concerns about the rate of 
reporting. However, the JAMA study measures current reporting against 
what appears to have been, at best, projections of future reporting at 
the time the National Practitioner Data Bank was created. While a few 
hospitals have been noted as not reporting to the data bank, that does 
not mean they are not effectively overseeing health care practitioners.
    Restriction and loss of a physician's hospital privileges is a 
serious action. Hospitals usually suspend a doctor's clinical 
privileges only as a last resort, after they've tried alternative 
interventions, such as the use of supervision, requiring medical 
education, and short-term limitations on privileges.


                               conclusion
    Hospitals are accountable for the care within their facility and 
bear legal responsibility. We are committed to the delivery of high 
quality care to the communities we serve. Peer review is an important 
tool for the assurance of quality care, and confidentiality of peer 
review activities is essential.
    The data bank's primary purpose is to serve as a ``flagging'' 
system for health care facilities, licensing boards, and professional 
societies. The purpose is to alert these agencies to the possibility of 
incompetent/dangerous performance by a health care practitioner. The 
data bank was not designed as a public tool.
    The public deserves to have information that is meaningful and 
could help them make better decisions about their health care.
    Opening the National Practitioner Data Bank, as presently 
configured, to the public would not only breach the promise of 
confidentiality under which the data bank was created and reports are 
submitted, but public disclosure, as the data is currently configured, 
would not provide the consumer with valid or practical information.
    Consumers would be better served by reforms that foster an 
environment promoting candor. Candor is absolutely critical if we are 
to be truly successful in identifying and learning what makes the 
health care system safer. We need to create a non-punitive culture that 
will encourage people to participate in peer review--the frontline 
protection for health care quality.

    Mr. Upton. Thank you very much.
    Dr. Reardon, welcome back.

                 TESTIMONY OF THOMAS R. REARDON

    Mr. Reardon. Good morning, Mr. Chairman and members of the 
committee. My name is Thomas R. Reardon, M.D. I am a general 
practice physician from Portland, Oregon, and currently serve 
as the president of the American Medical Association. On behalf 
of our 300,000 physician and medical student members, I 
appreciate the opportunity to testify today on the National 
Practitioner Data Bank.
    Safeguarding the millions of patients in our expansive 
American health care system is one of the AMA's highest 
priorities. We need to ensure that patients have access to 
accurate and relevant information to help them choose among 
health insurance plans, physicians and other health care 
providers. We believe that the best approach to meet patients' 
needs is to enhance the State-based systems already in place.
    State agencies and some private-sector organizations are at 
the forefront of providing consumers with relevant information 
on health care providers and are taking appropriate steps to 
rid the health care system of negligent and incompetent 
providers. Congress can assist by supporting these efforts.
    Prominent commissions, institutes and other health care 
leaders that have studied ways to improve the quality and 
safety of health care have concluded that simply opening the 
National Practitioner Data Bank and disseminating raw, 
unsynthesized legal data would not improve the quality and 
safety of health care for patients. For example, the recent IOM 
report on health system errors discussed, but did not 
recommend, opening up the NPDB.
    And in 1998, the President's Health Care Quality 
Commission, on which I had the privilege of serving, released 
its report on consumer protection and health care quality. The 
commission considered and then rejected a recommendation to 
open the Data Bank as a method to improve patient quality and 
safety.
    We agree the NPDB was designed for a specific and limited 
purpose and does not contain information about the overall 
qualifications of physicians and other health care providers. 
The licensing and regulation of physicians and other health 
care providers has always been in the purview of States, and 
the AMA strongly agrees that this should remain the case.
    State medical boards are in the best position to assess 
accurate data on physicians and revoke or suspend medical 
licenses to protect patients. They are uniquely positioned, 
both historically and practically, as the primary source of 
information about the physicians that they regulate. In fact, 
with the advent of the Internet, States have taken the lead in 
developing physician profiling systems. For example, over 30 
States have recently initiated action to provide consumers with 
information about physicians and other health care providers. 
Further, consumers in 25 States now have Internet access to key 
information about physicians licensed in those States, and in 
another nine States plan to have the programs in place by the 
end of the 2000 legislative session.
    The Federation of State Licensing Boards, a private-sector 
entity, has recognized the advances at the State level and is 
providing important assistance to the development of State-
based profiling systems. In April 1999, the FSMB established 
the Special Committee on Physician Profiling. This committee is 
reviewing the current physician profiling information available 
to the public and determining what information is most helpful. 
We understand that the FSMB will release the Special 
Committee's report within the next month. To our knowledge, 
this report will include the most comprehensive and up-to-date 
information on physician profiling available. Thus, we strongly 
recommend that Congress consult with the FSMB on their findings 
and recommendations.
    The well-balanced and complete information that States and 
the FSMB are working to give to patients stands in stark 
contrast to the National Practitioner Data Bank. Roughly, 
three-quarters of the reports in the NPDB pertain to medical 
malpractice settlements. Unfortunately, this NPDB system for 
collecting medical liability settlements is fundamentally 
flawed and an exceedingly inaccurate measure of the competence 
of a physician or other health care provider. Some of our 
Nation's best physicians are involved in settlements, yet the 
NPDB data does not reflect their high level of competence.
    Further, it has found that malpractice claims infrequently 
correlate with findings of negligent care. A New England 
Journal study--of Medicine--study indicates that only about one 
in five settlements resulted from negligent medical care. Thus, 
reports to the National Practitioner Data Bank on malpractice 
claims provide an incomplete and misleading indicator of a 
physician's competence or quality.
    In conclusion, opening the Data Bank would not solve the 
problem of weeding out negligent or incompetent physicians and 
other health care providers. We recommend that Congress consult 
the Federation of State Medical Boards on its forthcoming 
report and support State medical boards in their efforts to 
provide the most relevant information to consumers.
    I thank you for the opportunity to testify.
    [The prepared statement of Thomas R. Reardon follows:]


   Prepared Statement Thomas R. Reardon, President, American Medical 
                              Association
    Good morning, Mr. Chairman and members of the Committee, my name is 
Thomas R. Reardon, MD. I am a general practice physician from Portland, 
Oregon, and currently serve as President of the American Medical 
Association (AMA). On behalf of our 300,000 physician and medical 
student members, I appreciate having the opportunity to testify on the 
National Practitioner Data Bank (NPDB).
    The AMA commends the Committee for addressing issues surrounding 
the safeguarding of the millions of patients in our expansive American 
healthcare system. As you know, this system continues to undergo 
dramatic change, and with this change there is a pressing need to 
ensure that patients have the best information available to help them 
choose among the many competing physicians and other health care 
professionals seeking the privilege to treat.
    The AMA is strongly committed to the objective of improving patient 
safety and protecting patients from preventable harm caused by 
incompetent or unethical practitioners. In fact, beyond the initiatives 
that we outlined for this committee in our February 9, 2000, statement 
for the Record on the Institute of Medicine (IOM) Report, the AMA 
regularly reviews its membership master file and reports to the NPDB 
those physicians we expel for reasons relating to peer reviewed 
breaches of quality of care and patient safety.
    As we search together for ways to best safeguard patients, we must 
continue to question whether disseminating to the public raw, 
unsynthesized data from existing Federal repositories would improve the 
quality of health care for patients. Or, instead, do we need to 
advocate for other private sector or State-based mechanisms that would 
provide the public with relevant, reliable, verified, accurate, and 
contextual information? In our opinion, we need to perfect mechanisms 
already in place that hold the best chance of meeting patients needs. 
This is the view of opinion leaders in health care and finds its firm 
basis in the Congressional intent and history surrounding the NPDB.
    On February 9, 2000, the House Commerce Subcommittee on Health and 
Environment, the Subcommittee on Oversight & Investigations, and the 
Committee on Veterans' Affairs Subcommittee on Health held a joint 
hearing on the IOM Report on health system errors. At this hearing a 
Majority member of this Subcommittee posed the question to the entire 
third panel of witnesses of whether the NPDB should be expanded beyond 
its intended purpose. The entire panel responded in the negative. The 
panel was comprised of such health care experts as Dennis O'Leary, MD, 
Joint Commission on Accreditation of Healthcare Organizations; William 
Golden, MD, American Health Quality Association; Michael Langberg, MD, 
Cedars-Sinai Health System; Daniel Perry, Alliance for Aging Research; 
and Mary Foley, RN, American Nurses Association.
    These views echo what Congress intended when it designed the NPDB: 
Congress did not design the NPDB to disseminate information at large. 
In fact, the House Committee on Energy and Commerce (now the Commerce 
Committee) emphasized this view in its Committee Report on the Health 
Care Quality Improvement Act of 1986 (HCQIA) (Rept. 99-903), which 
created the NPDB. For example, in discussing malpractice settlement 
data the Committee Report stated that the Committee was ``confident 
that those authorized under the bill to gain access to this information 
will have the awareness and sensitivity to use it responsibly'' (p.14). 
Further, the Committee stated that ``it is essential to collect and 
disseminate these data to those in the health care community who make 
judgments about the competence and professional conduct of health care 
practitioners'' (p. 13). These statements are as true today as they 
were then.
    The NPDB was established as a flagging mechanism to improve the 
quality of health care by encouraging state licensing boards, 
hospitals, and professional societies to identify and discipline 
physicians who lacked the requisite competency and high ethical 
standards required for patient care. At the time there was concern that 
States did not have the resources to advance quality of care 
initiatives. The NPDB was also intended to prevent physicians who lost 
their license in one State from moving to another State without 
disclosing disciplinary actions taken against them.
    The AMA supports the goal of preventing physicians from moving 
State to State or hospital to hospital without disclosure of adverse 
peer reviewed actions taken against them. We respectfully disagree, 
however, that the NPDB is the appropriate mechanism by which 
information on physicians and other health care providers should be 
disseminated beyond its intended purpose. Opening the NPDB would not 
solve the problem of weeding out bad physicians and other health care 
providers from the health care system.
    Since the establishment of the NPDB, Congress has consistently 
recognized that only medical credentialing and licensing entities have 
the resources and expertise needed to evaluate NPDB reports and analyze 
how the reports reflect the competency of health care professionals. In 
addition, public disclosure of the NPDB data was discussed at length in 
the 1986 and subsequent debates on the NPDB, including the 1995 debate 
during the Senate Labor & Human Resources Committee's mark-up of the 
Health Care Liability Reform and Quality Assurance Act of 1995 (S. 
454). After extensive deliberation in each debate, greater 
dissemination of the NPDB's data was rejected.
    There are other influential commissions and institutes that have 
studied ways to improve the quality and safety of health care and have 
come to the same conclusion. It was a personal honor and privilege for 
me to serve on the President's Advisory Commission on Consumer 
Protection and Quality in the Health Care Industry that in 1998 
considered, then rejected a recommendation to open the NPDB. I can 
assure you that this matter was thoroughly discussed by the Commission, 
with the Commission's 1998 report stating that the ``current systems to 
reduce or prevent errors in the provision of health care services tend 
to focus too much on individual practitioners and not enough on system 
problems'' (p. 155). Additionally, the Commission recommended that 
steps be taken to improve error reporting and focus on determining the 
causes of error. Similarly, the recent IOM Report on health system 
errors discussed but did not recommend opening the NPDB.
    The AMA agrees with the above cited opinion leaders, Congressional 
drafters of the NPDB legislation, the President's Quality Commission, 
and the IOM Report that the NPDB was designed for a limited purpose and 
is not the mechanism upon which to provide patients with the 
information about the overall qualifications of physicians. The 
licensing of physicians and other health care providers has always been 
within the purview of the States, and the AMA strongly agrees that this 
should remain the case. We see no value in Federal programs outside the 
context of State-based licensing and state medical boards.
    In fact, a Federal response is probably unnecessary because the 
States are far ahead of Washington in addressing these concerns and 
have made tremendous advances in the last few years in developing 
profiling systems. For example, over 30 States have recently responded 
to public interest for information about physicians and other health 
care practitioners. In the last two legislative sessions, 12 States 
have enacted laws that mandate the provision to consumers of 
information about physicians who practice medicine within those States.
    Supplementing these actions by State legislatures, state medical 
licensing boards are recognizing profiles as a significant resource for 
consumers and have elected to address the profiling issue voluntarily. 
To date, 16 state medical boards have put in place physician profile 
mechanisms that are accessible directly by consumers. These efforts 
address local needs and are established by the regulatory body that 
controls medical practices. With the advent of the Internet, consumers 
in 25 States now have Internet access to key information about 
physicians licensed in those States, and another 9 States plan to have 
their programs in place by the end of the 2000 legislative session.
    Historically, States tracked physician information related to 
education, training, licensure status, disciplinary actions by state 
medical boards and hospitals, and criminal offenses. Recently, however, 
State-based physician profile programs have begun expanding to include 
no-contest pleas, pending complaints, medical malpractice data, 
malpractice comparison, instances of ``derogatory information,'' and 
``findings of unprofessional conduct.''
    State medical boards are an important gateway to this provider 
profiling information. At the State level, medical boards are able to 
access accurate data and can take affirmative action through the 
control of medical licenses and have authority to enforce disciplinary 
actions on medical practitioners. They are uniquely positioned--both 
historically and practically--as the primary source of information 
about the physicians they regulate.
    We are encouraged by the recent activities of the Federation of 
State Medical Boards (FSMB) to assist in the development of State-based 
profiling systems. It is our understanding that the FSMB will soon 
release a report on the findings and recommendations of its Special 
Committee on Physician Profiling. This Committee was established in 
April 1999 to review the current physician profiling information 
available to the public and determine what information is most helpful. 
To our knowledge, the Special Committee's report will include the most 
comprehensive and up-to-date information on physician profiling 
available. Thus, we strongly recommend that Congress consult with the 
FSMB on their findings and recommendations.
    The well balanced and complete information that States and the FSMB 
are working to give to patients stands in stark contrast to the NPDB, 
which is administered by the Health Resources and Services 
Administration. In its Operations Summary of November 1999, HRSA showed 
that roughly three-quarters of the reports in the NPDB pertained to so-
called ``Medical Malpractice'' settlements.
    Unfortunately, this NPDB system for collecting medical liability 
settlements and verdicts is fatally flawed and an exceedingly 
inaccurate measure of the competence of a physician. Inclusion of 
malpractice settlement data in the NPDB does not indicate that a 
physician has provided substandard care. Even some of our nation's 
finest physicians who specialize in high-risk cases are involved in 
settlements.
    Malpractice claims seldom correlate with findings of negligent care 
in the medical record. Thus, reports made to the NPDB on paid 
malpractice claims provide, at best, an incomplete and haphazard 
indicator of a practitioner's competence or quality. The HCQIA 
acknowledges that malpractice payments do not indicate that malpractice 
has occurred. Section 427(d) states:
        Interpretation of Information.--In interpreting information 
        reported under this part, a payment in settlement of a medical 
        malpractice action or claim shall not be construed as creating 
        a presumption that medical malpractice has occurred.
    The Department of Defense and the Department of Veterans Affairs 
recognize the serious problems with correlating lawsuits with 
physicians' competence or negligence. Under the DOD and VA health 
systems, physicians are not reported to the NPDB when a claim is 
settled on their behalf unless a panel of peers found negligence or 
incompetence. Representatives of the DOD and VA told the AMA that the 
correlation of settled claims and actual negligence is about 30%. This 
is somewhat similar to a study published in the New England Journal of 
Medicine indicating that only 23.8% of claims closed with an indemnity 
payment resulted from negligent medical care. (see, 335 New Eng. J. 
Med. 1963 (1996)).
    In addition, the NPDB makes no adjustment for high-risk patients or 
cutting-edge medical procedures. Each day many people would die or 
become severely incapacitated if it were not for the high-risk medical 
procedures of dedicated and very capable physicians. High-risk 
obstetrics, open-heart surgery, and neurological surgery to relieve the 
effects of Parkinson's Disease are just a few examples of commonly used 
high-risk procedures. Only the most highly qualified and competent 
physicians are willing to perform such high-risk procedures that offer 
the only hope for relief of debilitating symptoms or life-threatening 
conditions. The NPDB information is flawed and misleading because it 
does not adjust for the risks involved in these procedures. 
Unrestricted public access would lead to unfair scrutiny of some of our 
nation's most talented physicians.
    Also, advances in medicine are made only by utilizing new 
procedures and drugs. Someday these ``cutting-edge'' procedures will be 
as common as yesterday's new innovations. But, for the same reasons as 
above, these pioneering physicians could be unfairly evaluated by a 
systematic release of gross settlement results.
    Further obscuring the relevance of malpractice claims data in the 
NPDB is the fact that many cases are settled without the consent of the 
physician. Many insurers disallow ``consent to settle'' clauses in 
their contracts with physicians. In fact, some States actually prohibit 
``consent to settle'' clauses. Without this clause, the insurer can 
disregard the physician's right to defend him or herself on the merits. 
Such decisions are purely economic and do not take into consideration 
the quality of medical care. Nevertheless, the settlement and physician 
are reported to the NPDB.


Conclusion
    Improving patient safety and protecting patients from preventable 
harm caused by incompetent or unethical health care practitioners are 
issues strongly supported by the AMA. We are encouraged that many 
states and the FSMB are developing systems to provide relevant 
information on their licensed health care providers. We respectfully 
disagree, however, that the NPDB is a mechanism by which information on 
physicians and other health care providers should be disseminated 
beyond its intended purpose. Other state-based systems are currently 
being developed and deserve deferential consideration. We believe that 
Congress should consult with the FSMB regarding its forthcoming report 
on state-based profiling systems.
    We appreciate the opportunity to discuss this matter before the 
Subcommittee and would be pleased to answer any questions.

    Mr. Upton. Thank you very much, as well.
    Dr. Newman?

                  TESTIMONY OF ROBERT G. NEWMAN

    Mr. Newman. Thank you very much, Chairman Upton. I do have 
two somewhat embarrassing acknowledgements to make at the very 
outset. First, for reasons that I really can't explain, the 
resume which I submitted along with my testimony failed to 
mention that I am a graduate of New York University.
    I hope you will convey to the Congresswoman my apologies 
for that.
    Mr. Upton. She will be back, sir.
    Mr. Newman. Second, after having spent endless hours trying 
to squeeze into four or five pages a clear, concise summary of 
my views on this very important subject, I see, in today's New 
York Times, a letter to the editor by a Ms. Wittkin of Yonkers, 
which in one brief sentence really says it all. Ms. Wittkin, in 
this letter to the editor in today's newspaper says, ``All 
patients should have access to the taxpayer-financed National 
Practitioner Data Bank and any other doctor-specific 
information that can be culled from State medical board 
records.'' That, in essence, Chairman Upton, members of the 
committee, summarizes my view on the issue before you today.
    The law that currently demands that every single hospital 
query the Data Bank to get information which will obviously be 
considered of great help in making a decision who should have 
staff appointment, that that same data is not available to the 
consuming public for making decisions in terms of the provider 
to take care of their own health care needs and the health care 
needs of their family members seems paradoxical and probably 
also patronizing.
    Furthermore, I believe that there is no dichotomy of 
interest here between the consuming public and the providers. 
Certainly, in New York there is a very, almost universally 
known commercial which goes, ``An educated consumer is our best 
customer.'' What applies to suits and other haberdashery items 
I think very definitely also applies to the health care field. 
I think the patient that has the most possible access to 
information about his or her illness, about the medical 
treatment that is contemplated and about the provider is the 
patient that the providers are going to be able to most be in a 
position to help.
    At the same time, I think it would be wrong not to 
acknowledge the limitations that will continue to exist no 
matter how much data is made available, no matter how freely, 
to the consuming public. And one of the limitations is that 
there simply is no way to protect ourselves against totally 
unanticipated, random, unpredictable, erratic actions. And this 
is a truism in our society, whether we are talking about the 
workplace, whether we are talking about, and there's tragic 
evidence of this almost every day, whether we're talking about 
the schools of our country, and it's true when we're talking 
about health care institutions.
    I do have a couple of very specific recommendations that I 
would urge you to consider with regard to the Data Bank and its 
increased usefulness. Currently, there is no requirement, no 
requirement, that any health care provider organization, other 
than hospitals, to query the Data Bank prior to hiring or 
giving an appointment to a physician. There is no requirement 
that ambulatory surgery centers or community neighborhood 
health centers or any other type of health care provider entity 
query the Data Bank. And, again, that seems paradoxical.
    Second, and this goes to the heart of a question that was 
repeatedly heard this morning, there is no requirement imposed 
on State licensure agencies that they query the Data Bank 
before making the decision whether to grant a license to 
practice or whether to renew a license to practice. That is a 
type of paradox that, to me, makes absolutely no sense 
whatsoever, and certainly should be correctable very, very 
easily, and I truly can't imagine how anybody would take 
exception to that kind of a change.
    The final suggestion, in terms of considering how to 
improve access to the public, making access to the public a 
reality, is that you and your congressional colleagues not 
allow the best to become the enemy of the good. I think if we 
discuss how to address every conceivable, conceivable concern 
with regard to data release, I think we will be debating this 
point for the next 50 years. I think we have some very 
excellent models--Massachusetts being one. I think we should 
implement it on a national scale and then we should all work 
together to perfect it in the future.
    Finally, I do want to express in this very public forum, on 
my own behalf and on behalf of the entire Beth Israel Medical 
Center, which I represent, the very sincere condolences to Mr. 
Smart and our very great regrets for the experience of Dr. 
Gedz.
    I also want to come back to a comment, and this will be my 
last comment, that Congressman Dingell made regarding the good 
name and the reputations of practitioners. I'm sure the 
Congressman will agree with me that those who do not earn that 
reputation and good name that we need feel no sympathy for them 
whatsoever. But I think I would be remiss if I didn't point out 
that at Beth Israel Medical Center, and I believe the same 
thing is true at other institutions, the overwhelming majority 
of practitioners are of the highest quality, the most 
competent, the most dedicated. And speaking for Beth Israel 
Medical Center, I truly believe that their good name and their 
reputation is very richly deserved and places them among the 
very best medical staffs at any hospital anywhere in the United 
States.
    Thank you.
    [The prepared statement of Robert G. Newman follows:]


 Prepared Statement of Robert G. Newman, President and Chief Executive 
                Officer, Continuum Health Partners, Inc.
    It is a privilege to testify before this Committee on the subject 
of Public Access to the National Practitioner Data Bank: What Consumers 
Should Know About Their Doctors. My own views can be summarized very 
simply: although there are valid concerns about specific procedural 
aspects. I strongly support the right of all individuals to obtain any 
and all information contained in the National Practitioner Data Bank 
(NPDB).
    The law demands that hospitals and other health care entities query 
the NPDB when screening applicants for a medical staff appointment or 
when granting, adding to or expanding clinical privileges, and 
biennially for existing staff members. Obviously, this legal mandate 
reflects the premise that NPDB data are of great importance in 
determining whom an institution should authorize to provide services in 
its facilities. And yet, paradoxically, members of the public are 
expressly forbidden from receiving that same information to help decide 
on the health care providers to whom they will entrust their very 
lives.
    This prohibition seems to be a vestige of an earlier era, when 
patients were not expected to play an active role in all aspects of 
their health care. It was rare for patients to challenge the medical 
care regimen that was contemplated, let alone the credentials and the 
disciplinary and malpractice records of their providers. Even in the 
eleven years since the final regulations governing the NPDB were 
promulgated, access to data via the Internet and other communications 
breakthroughs has risen dramatically, along with the assumption that 
this is a right and not a privilege. Our society has undergone a 
veritable transformation in its demand for detailed information 
regarding those who seek to serve be they aspirants for political 
office or health care professionals. This is not a demand that is to be 
denied! Nor, I believe, should it be.
    I am convinced that open access to the files of the NPDB is good 
for all concerned. The utility of universal access to NPDB records, 
however, will be directly proportional to the accuracy, 
comprehensiveness and currency of the data. There is a need for close 
and ongoing communication among all concerned parties, who must share a 
common commitment to perfecting the system of data collection and 
dissemination despite (indeed, because of) the reality that perfection 
can never be achieved. The point to be stressed is that the essential 
characteristics of a meaningful and useful data bank are equally 
relevant to all: practitioners, health care organizations, professional 
societies, State agencies and other currently authorized recipients of 
NPDB information, as well as the general public. In other words, there 
is no dichotomy of interests!
    To those concerned about possible adverse effects of making 
practitioner information readily available to the public, reassurance 
can be derived from the experience in those areas where these data 
already are accessible. Massachusetts, for example, provides 
unrestricted, free, on-line information via the Internet with regard to 
every licensed physician in the State, including:\1\
---------------------------------------------------------------------------
    \1\ Massachusetts Board of Registration in Medicine, 
www.massmedboard.org

 Education and training, specialty certification, honors and 
        awards
 Malpractice history--number of payments made in the past ten 
        years, whether the dollar amount of each was above average, 
        average or below average compared to all payments by 
        specialists in the field, and the number and percent of these 
        specialists who made one or more malpractice payments in this 
        time period.
 Disciplinary actions--criminal convictions, hospital 
        disciplinary actions and/or final disciplinary actions by the 
        State Board of Registration in the past ten years.
    To my knowledge, there is nothing to suggest that unfettered public 
access to the Massachusetts practitioner data base has had any negative 
impact on physicians or patients with respect to satisfaction, 
malpractice experience, or quality of care.
    A final, critical caveat: Any advocate of open access to NPDB 
records must acknowledge that there are limits to the benefits to be 
derived from such access; it would be disingenuous to imply otherwise. 
Specifically, it will not be possible in the future, just as it has not 
been possible in the past, to provide protection against random, 
irrational acts. This truism applies to society in general, in every 
setting, private as well as public, in schools, the workplace and, of 
course, in health care settings--hospitals, nursing homes, private 
practitioner offices, etc.
    A recent, widely publicized occurrence at my own hospital, Beth 
Israel Medical Center, is illustrative. An obstetrician, Dr. Allan 
Zarkin, carved his initials in the abdomen of a patient following a 
Cesarean section. The NPDB file on this physician, queried as a 
required part of the biennial reappointment process in 1999, confirmed 
that he had never been reported for disciplinary action by any hospital 
or state agency; his malpractice history consisted of one settlement, 
in 1994, with respect to a case that occurred in 1987. Also as part of 
the reappointment process, a medical and mental assessment of Dr. 
Zarkin was received from an internist, not associated with Beth Israel, 
which had no positive findings. Earlier, in November, 1998, an episode 
of verbal abuse by Dr. Zarkin was the subject of a meeting with Beth 
Israel's Medical Director, the Chairman of Obstetrics and Gynecology 
and the Chief of the Division of Obstetrics. While no disciplinary 
action was considered warranted, he was required to receive both a 
medical and a psychiatric assessment. The former was provided by the 
Director of Employee Health Services and was negative. As for the 
psychiatric evaluation, it was carried out by a psychiatrist with no 
connection to Beth Israel, and the file contains two written 
assessments. These reports are dated December 31, 1998, and February 4, 
1999, and each states that Dr. Zarkin was ``fully fit for duty'' and 
``poses no threat to patients.''
    The egregious act of Dr. Zarkin is a sobering reminder that public 
access to NPDB data is not a panacea that will provide 100% protection 
either to patients or the institution in which they seek care. 
Nevertheless, just as the ability to query the NPDB data base is an 
important element for hospitals in their consideration of appointment 
and reappointments of medical staff, so too will it be helpful to 
patients in selecting their personal care-givers.
    Thank you for the opportunity to testify. I shall be pleased to try 
to respond to questions the Committee may have.

    Mr. Upton. Thank you.
    Mr. Osten?

                   TESTIMONY OF WAYNE M. OSTEN

    Mr. Osten. Thank you. Good afternoon. My name is Wayne 
Osten. I'm the director of the Office of Health Systems 
Management for the New York State Health Department. Chairman 
Upton, Chairman Bliley, Congressman Dingell, thank you for 
inviting me to speak with you today.
    I am speaking to you on behalf of the New York State 
Commissioner of Health, Antonia Novello. My responsibilities in 
the New York State Health Department include oversight of the 
physician medical conduct program, as well as activities 
related to the regulatory oversight and quality improvement of 
all hospitals, clinics, dialysis programs and ambulance 
services in New York State.
    Governor Pataki, Commissioner Novello and the New York 
State Health Department are committed to providing information 
to consumers that they can use to make decisions about their 
health care. New York, in fact, is a leader in the Nation and 
its efforts to reduce medical errors and to provide information 
to consumers on quality of care provided by physicians, 
hospitals and managed care plans.
    New York State was the first State in the Nation to have a 
mandatory incident reporting system. This system known as 
NYPORTS has been improved since Governor Pataki took office by 
providing clear criteria about what kinds of adverse incidents 
health care facilities need to report to our Department.
    In addition, New York is currently collecting incident 
reports online, reducing paperwork. Currently, New York's 
incident reporting system receives over 20,000 incident reports 
a year from hospitals, clinics and ambulatory surgery centers. 
We work with these facilities to make sure that corrective 
action is taken to prevent these incidents from occurring in 
the future.
    Last week, at the direction of Governor Pataki, 
Commissioner Novello sent a letter to every administrator in 
New York State in which she reminded them of the importance of 
prompt reporting of adverse event incidents to New York's 
incident reporting system. Dr. Novello warned hospital 
administrators that the Department will publicly sanction those 
facilities that fail to promptly and accurately report 
incidents that result in patient death, injury or potential 
injury. I believe, Congressmen, the New York Times report of 
our investigation at Staten Island Hospital gives ample 
testimony to our commitment to that promise.
    New York's Professional Medical Conduct Program is also 
recognized as a national leader in taking action to protect 
patients from physicians who commit misconduct, fraud, abuse 
and incompetence. During 1999, the Office of Professional 
Medical Conduct of the State Health Department took 356 
disciplinary actions against physicians, including nearly 200 
actions that involve revocation or surrender of a physician's 
license to practice medicine.
    Information on disciplinary actions involving physicians 
has been published on the Department's website since 1995. The 
site, the website located at www.health.state.ny.us receives, 
on average, two hits every minute of every day of the year.
    Just last week, the New York State Health Department 
released its fifth annual report on the performance of managed 
care plans. Our nationally recognized QARR Reports, which 
stands for Quality Assurance Reporting Requirements, provides 
information on the performance of both commercial and Medicaid 
managed care plans in a variety of performance areas.
    And New York led the Nation in providing consumers with 
critical information on the quality of care provided by cardiac 
surgeons and cardiac centers across New York State. This 
information is updated annually so that consumers can make 
better health care decisions.
    We believe that consumers have the right to information 
about credentials, track record, experience of health care 
providers that is complete, accurate and easy to use. With 
comprehensive improvement, the National Practitioner Data Bank 
could be a useful source of information for consumers. In its 
current state, however, this Data Bank could provide consumers 
with a false sense of security and could actually cause patient 
harm.
    There, from our perspective, are three major problems with 
the National Practitioner Data Bank. First, the data is not 
complete, and therefore it is not accurate; second, the data is 
not made available in a timely manner; and, third, the Data 
Bank system is difficult to use.
    As you know, the Federal law requires that hospitals report 
to the Data Bank disciplinary actions involving the suspension 
of hospital privileges of a physician for 30 days or longer. 
The data in the National Practitioner Data Bank is not complete 
because, simply said, the reporting requirement is not being 
enforced.
    The U.S. Department of Health and Human Services which 
oversees the Data Bank recently reported, as you have already 
heard, that approximately 66 percent of all hospitals in the 
Nation have never reported a physician disciplinary action to 
the Data Bank. It's highly unlikely that since the 
implementation of the Data Bank in 1990, that 66 percent of the 
hospitals in this Nation have never suspended a physician's 
hospital privileges. Under these circumstances, a consumer 
using the system might see no disciplinary action listed for a 
certain physician when, in reality, the physician may have been 
involved in one or more disciplinary actions.
    The information in the National Practitioner Data Bank also 
lacks completeness because there are loopholes that hospitals 
use to circumvent the reporting requirement. As I mentioned, 
the law requires hospitals to report suspensions of a 
physician's privileges when the suspension is 30 days or 
longer. Rather than report a suspension to the Data Bank and 
expose the hospital and physician to bad publicity, hospitals 
frequently suspend a physician's hospital privileges for less 
than 30 days.
    I see my time is up. Let me just conclude, in my report, my 
written comments, I talk about the other concerns with the Data 
Bank. Let me conclude by saying we want to emphasize that 
consumers deserve complete and accurate information that they 
can use to make informed decisions about their health care. 
With substantial improvements, the National Practitioner Data 
Bank can be one tool that consumers can use to ensure they 
receive high-quality care. Perhaps the Department of Health and 
Human Services should look to States like New York that are 
leading the way in making physician discipline information 
available to customers.
    We, in New York, stand ready to work with the Federal 
Government in making the data base--the Data Bank the best it 
can be. And with that, I will conclude my remarks.
    [The prepared statement of Wayne M. Osten follows:]


   Prepared Statement of Wayne M. Osten, Director, Office of Health 
        Systems Management, New York State Department of Health

    Good afternoon. I am Wayne Osten, director of the Office of Health 
Systems Management for the New York State Department of Health. 
Chairman Upton, Chairman Bliley, and Congressman Dingell, thank you for 
inviting me to speak with you today.
    I am speaking to you today on behalf of New York State Commissioner 
of Health Antonia Novello. My responsibilities in the New York State 
Health Department include oversight of the physician medical conduct 
program as well as activities related to regulatory oversight and 
quality improvement at all hospitals, clinics, dialysis programs, and 
ambulance services in New York State.
    Governor Pataki, Commissioner Novello, and the New York State 
Health Department are committed to providing information to consumers 
that they can use to make decisions about their health care. New York, 
in fact, is the nation's leader in efforts to reduce medical errors and 
to provide information to consumers on the quality of care provided by 
physicians, hospitals, and managed care plans.
    New York State was the first state in the nation to have a 
mandatory incident reporting system. This system, known as NYPORTS, has 
been improved since Governor Pataki took office by providing clearer 
criteria about what kinds of adverse incidents health care facilities 
need to report to our Department. In addition, New York is currently 
collecting incident reports online--reducing paperwork.
    Currently, New York's incident reporting system receives over 
20,000 incident reports a year from hospitals, clinics, and ambulatory 
surgery centers. We work with these facilities to make sure that 
corrective action is taken to prevent these incidents from occurring in 
the future.
    Last week, at the direction of Governor Pataki, Commissioner 
Novello sent a letter to every hospital administrator in New York State 
in which she reminded them of the importance of prompt reporting of 
adverse incidents to New York's incident reporting system. Dr. Novello 
warned hospital administrators that the Department will publicly 
sanction those facilities that fail to promptly and accurately report 
incidents that result in patient death, injury, or potential injury.
    New York's Professional Medical Conduct Program is also recognized 
as a national leader in taking action to protect patients from 
physicians who commit misconduct, fraud, abuse, and incompetence. 
During 1999, the Office of Professional Medical Conduct of the New York 
State Health Department took 356 disciplinary actions against 
physicians, including nearly 200 actions that involved the revocation 
or surrender of a physician's license to practice.
    Information on disciplinary actions involving physicians has been 
published on the Department's web site since 1995. This web site--
located at www.health.state.ny.us--receives an average of two hits a 
minute every minute of every day.
    Just last week, the New York State Health Department released its 
fifth annual report on the performance of managed care plans. Our 
nationally recognized QARR Reports--which stand for Quality Assurance 
Reporting Requirements--provide information on the performance of both 
commercial and Medicaid managed care plans in a variety of performance 
areas.
    And New York led the nation in providing consumers with critical 
information on the quality of care provided by cardiac surgeons and 
cardiac centers across the state. This information is updated annually 
so that consumers can make better health care decisions.
    We believe that consumers have the right to information about the 
credentials, track record, and experience of health care providers that 
is complete, accurate, and easy to use. With comprehensive improvement, 
the National Practitioner Data Bank could be a useful source of 
information for consumers. In its current state, however, this data 
bank could provide consumers with a false sense of security and could 
actually cause patient harm.
    There are three major problems with the National Practitioner Data 
Bank. First, the data is not complete, and therefore is not accurate. 
Second, the data is not made available in a timely manner. Third, the 
data bank system is difficult to use.
Lack of Completeness
    As you know, federal law requires that hospitals report to the data 
bank disciplinary actions involving the suspension of hospital 
privileges of a physician for 30 days or longer. The data in the 
National Practitioner Data Bank is not complete because this reporting 
requirement is not being enforced. The U.S. Department of Health and 
Human Services, which oversees the Data Bank, reported recently that 
approximately 66 percent of all hospitals in the nation have never 
reported a physician disciplinary action to the data bank. It is highly 
unlikely, that since the implementation of this data bank in 1990, 66 
percent of the hospitals in this nation have never suspended a 
physician's hospital privileges. Under these circumstances, a consumer 
using the system might see no disciplinary actions listed for a certain 
physician when, in reality, the physician may have been involved in a 
disciplinary action.
    The information in the National Practitioner Data Bank also lacks 
completeness because there are loopholes that hospitals use to 
circumvent the reporting requirement. As I mentioned, the law currently 
requires hospitals to report the suspension of a physician's hospital 
privileges when the suspension is 30 days or longer. Rather than report 
a suspension to the Data Bank and expose the hospital and physician to 
potential bad publicity, hospitals frequently suspend a physician's 
hospital privileges for less than 30 days or impose a lesser 
disciplinary action.
    In New York, we have seen cases in which a hospital suspended a 
physician's privileges for four weeks--or 28 days--in cases in which 
the physician caused serious patient harm. Such a suspension is not 
reportable to the National Practitioner Data Bank. While this avoids 
the federal reporting, New York State reporting is still mandated and 
would result in both hospital and physician investigations and 
appropriate disciplinary actions. Hospitals also may take lower level 
disciplinary actions against physicians, such as fining them or 
requiring them to perform community service, and these actions are not 
required to be reported in the Data Bank.
    In contrast, New York State requires that all disciplinary actions 
taken by hospitals against physicians are reportable to the New York 
State Board for Professional Medical Conduct.
Lack of Timeliness
    Another problem with the National Practitioner Data Bank is that 
information about physicians doesn't get on the system in a timely 
manner. New York's medical conduct program immediately reports to the 
Data Bank all physician disciplinary actions it takes in New York 
State, and this information is posted immediately. But we know 
anecdotally that some hospitals have had difficulty getting information 
into the system at the time they report it because of alleged system 
break-downs.

Not Consumer-Friendly
    Based on our experience in using the system, the National 
Practitioner Data Bank in its current form would be difficult for 
consumers to use. To extract information from the system, the user must 
input very precise language and be fluent in using and understanding 
the technical language and terms used by the system. At the New York 
State Health Department, we have had to provide extensive training to 
our staff who use the system and interpret the information in the Data 
Bank.
    Again, we want to emphasize that consumers deserve complete and 
accurate information that they can use to make informed decisions about 
their health care. With substantial improvements, the National 
Practitioner Data Bank can be one tool that consumers can use to ensure 
that they receive high quality care.
    Perhaps the Department of Health and Human Services should look to 
states like New York that are leading the way in making physician 
discipline information available to consumers. We in New York stand 
ready to assist the federal government in making the Data Bank the best 
it can be. It will take resources, however, to improve the data bank. 
In New York, Governor Pataki has committed both additional manpower and 
money to make our information available. The federal government will 
have to do this as well.
    Thank you for allowing me to speak with you today on this very 
important issue, and I will be happy to answer your questions.

    Mr. Upton. Thank you very much.
    Mr. Silver?

                  TESTIMONY OF LAWRENCE SILVER

    Mr. Silver. Thank you, Chairman Upton, and thank you for 
inviting me to appear here today. I have presented, and I 
understand it is going to be included in the record, 34 pages 
of documents with legal citations. And with your leave, I will 
not repeat those portions. But I would like to try to, in my 
formal remarks, answer questions both you and Mr. Stupak, as 
well as Dr. Ganske, have asked other witnesses, since I do have 
some views on that.
    To that end, I have had a varied career in the last 30 
years. As a lawyer, I have prosecuted physicians, as part of 
the Pennsylvania Department of Justice, in connection with 
their licensure matters; I have represented hospitals and 
advised hospitals about how to conduct peer reviews against 
physicians; and for a period of time, represented physicians 
who were subject to peer review proceedings. It is accurate 
that this lawyer has been on all sides of those issues, and so 
that you are aware, I represent no physician involved in any 
litigation at current. I've been busy with others of my 
clients.
    Frankly, the issue is an interesting one. In California, we 
find it of some concern, accusations brought against physicians 
by the licensing agency are made public in the front page of 
the paper, not the Des Moines paper, but certainly in the L.A. 
Times. The conclusion of a licensure proceeding is made public, 
peer-review proceedings are not made public, and I'd like to 
get to those. But that information is already available to the 
public and certainly available on any website.
    The problem that you face, the problem that Congressman 
Dingell and others have raised, is the problem with peer review 
proceedings. And peer review started out, as you know, as a 
collegial educatory experience with no due process procedures, 
ways to help other physicians improve their medical care. 
That's no longer the case. That is not what it's about. That's 
not how it is practiced in the field. The problem that you have 
is that peer review proceedings, starting out with this 
historical collegial educatory function, have ended up being 
utilized sometimes properly to get rid of bad docs, but other 
times for highly competitive reasons, colleague against 
colleague. There's no difference in the economics and sometimes 
in the political area where colleagues against colleagues have 
different and sometimes very hostile views.
    I have reported in my remarks representing a physician who 
was called into an administrator's office and said, an OBGYN, 
``You either bring your good insurance patients to this 
hospital and take your Medicaid patients to the hospital down 
the street or we'll commence a peer review proceeding,'' and 
had a document in the hand which showed that the doctor, over 
20 years of practice, hadn't dotted every ``T'' or crossed 
every--done the other way around.
    I have represented physicians in various States who have 
had similar types of economic matters raised in a peer review 
proceeding where the violation of peer review conduct was 
trivial, but nevertheless in violation of hospital codes. 
Indeed, in Tennessee, I have represented Dr. Reid. Dr. Reid was 
a physician, an oncologist employed by the hospital in Oak 
Ridge----
    Mr. Upton. Keep going. You will hear a couple buzzers.
    Mr. Silver. [continuing] the hospital in Oak Ridge. He 
found virulent cancers, cancers of unusual nature, cancers that 
had substantial amount of difficulty and unusual natures. He 
tried to investigate where the cause of these cancers were, and 
as a result, offended the political outrage and created the 
outrage of the local business community which supported the 
hospital, which commenced peer review proceedings against him--
peer review proceedings which had no semblance of due process. 
He lost, I lost, that peer review proceeding. The judicial 
review in Tennessee, although certainly better than other 
States, was not sufficient to overturn that decision. And as a 
result, Dr. Reid has suffered perhaps because of his own 
intense feelings about the cancers that he observed in this 
community which, as you know, produces high qualities of 
radiation--high levels of radiation, has suffered economically 
for years as a consequence. And his name is not only on there 
once, but on there twice on the National Data Bank because we 
lost these cases.
    What you need to be very concerned about is the 
iconoclastic physician, the physician who has something new or 
different to say, the physician who condemns the community for 
not taking sufficient action to protect cancer patients, 
reminding us always of the case in which a physician was 
excoriated, kicked out of the medical society, removed from the 
staff, and had he been in the United States rather than 
Austria, he would be on the National Data Bank. His name was 
Dr. Semmelweis, and he came up with the outrageous proposal, 
100 years ago, that physicians before they do surgery, wash 
their hands. He would be on your Data Bank because he was 
subject to peer review proceedings, and he was actually drummed 
out of the medical society.
    I represented, unfortunately, Mr. Upton and Mr. Stupak, 
physicians in Michigan, not in Iowa, but I have the same to say 
for Iowa, Dr. Ganske. Michigan joins ten other States as being 
the worst States in terms of representing a physician. I have 
no basis to challenge what the hospital does. I can't call 
witnesses, I can't cross-examine witnesses, I can't subpoena 
witnesses, and at times I've been excluded from the 
proceedings. At times, the panel has gotten evidence that I was 
not permitted to share. I was not allowed to see the evidence 
against my own client. And do you know what judicial relief the 
States of Alabama, Arkansas, Iowa, Michigan, Nevada, Oklahoma, 
South Carolina, Virginia, Washington and Wisconsin--my alma 
mater--provide? None. Indeed, the last lawyer that I know who 
brought an action in Michigan seeking either damages or 
judicial review of the actions of the peer review panel was 
sanctioned for bringing a frivolous lawsuit because Michigan 
law is clear--Iowa is clear, Wisconsin law is clear--you cannot 
bring such a proceeding.
    Consequently, my physician, who in Michigan had what I will 
call, and if you want more elaboration, I will certainly be 
able to answer the questions, had what I considered to be a 
trivial problem, is now in the National Bank and I could do 
nothing. My critical witness promised to come, but later 
declined to come because that witness was told, I was told, 
that had she come, she would have been subject to peer review 
proceedings herself.
    So in terms of the panoply and, frankly, there are many 
more cases and individual cases, which I'd be happy to discuss 
with you or with staff, which indicates that the peer review 
process can and sometimes is used for improper purposes. And 
the immunity which you have provided to encourage this area 
precludes lawyers from vindicating those. I have set forth in 
the formal remarks the deficiencies in peer review.
    Do I believe, frankly, that you ought to be able to report 
and to publicize the existence of health care providers who 
provide deficient care? Clearly, but only after you assure that 
you're doing your job and providing that information fairly, 
honorably and after full and complete due process that we all 
know and at least have a belief that is correct.
    I quote from an opinion, and very briefly, from an opinion 
of Judge Cook of Oklahoma in a peer review case which he 
dismissed, by the way, because of certain immunities, ``This 
litigation was the Court's first exposure to hospital peer 
review process. The Court was shocked to discover the 
physician's career can be, and in this instance has been, 
destroyed by patent--through patently improper proceedings. 
Peer review, as it is presently practiced----''
    Mr. Silver. Somebody doesn't like what I'm saying.
    Mr. Upton. Mr. Silver, I regret to say you're over your 5 
minutes by 3 minutes.
    Mr. Silver. Let me finish this sentence.
    Mr. Upton. Go ahead and finish, and then we are going to 
need to department because those buzzers means we have votes on 
the floor. So go ahead.
    Mr. Silver. [continuing] ``is presently practiced is 
fundamentally flawed,'' and the judge continues.
    In terms, I would like, just if I may, answer two 
questions. One, I tell you in California, in the Beth Israel 
cases, at least certainly the first case, 6 weeks would not 
have elapsed. The district attorney or the attorney general 
would have been in court, perfectly properly, with a temporary 
restraining order to enjoy our initialing doctor's practice.
    And in terms of the other proceeding, which is I think, and 
I think it's proper to say that it is bizarre, and I'm not 
entirely sure, by the way, you ought to enact national 
legislation in terms of response to a singular bizarre and 
almost insane incident. But the other proceeding would be a--a 
more difficult proceeding in terms of a prompt response, but 
certainly would have been done, and certainly the information 
about prior activities would have been available.
    I do have some additional comments and would wait, I guess, 
until you return, if you are going to do that, to ask questions 
of this panel.
    [The prepared statement of Lawrence Silver follows:]


         Prepared Statement of Lawrence Silver, Attorney at Law
    Mr. Chairman, Mr. Upton and Ranking Minority Member, Mr. Klink: I 
want to thank the Committee for the opportunity to discuss possible 
amendments to certain provisions of the Health Care Quality 
Improvements Act of 1986 (AHCQIA''). As I understand it, these 
amendments would provide for posting of information regarding 
physicians whose names are kept in National Practitioner Databank.
    I have been an attorney for over 30 years. During the early 70's I 
was the head of the civil litigation section for the Pennsylvania 
Department of Justice, in which capacity I supervised actions brought 
against the licenses of physicians for improper conduct and practice. 
After moving to California in 1976, I spent several years representing 
hospitals in ``peer review'' proceedings against physicians. Since 
then, I have represented numerous physicians in peer review proceedings 
and in actions brought by the California Medical Board against 
physician's licenses. I argued one of the few peer review cases taken 
for review before the Supreme Court of the United States, Summit Health 
v. Pinhas, 500 U.S. 322, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991).
    The proposal to provide to the general public the information 
contained in the national database, previously limited to hospitals and 
others involved in the delivery of health care, presents troublesome 
issues of basic fairness. There are both practical and legal reasons 
why this is true.
    There is a crucial assumption which underlies this proposal to 
publish the names of physicians: that the result of the peer review was 
fair and accurate. I would like to suggest to you that this assumption 
is not valid; that there are inadequate protections in place to assure 
fair and just results; and that the Secretary has no means of 
confirming the fairness of the result even though posting the results 
suggests to the contrary. This Congress must be very careful not to 
permit the creation of a ``black list'' unless it can be certain that 
results were achieved based upon a factual and legal determination by 
an independent finder of fact after a hearing where full due process 
protection has been granted to any physician charged.1
---------------------------------------------------------------------------
    \1\ There is no assurance that the physicians who are already in 
the Databank are properly there. Any decision to post the names should 
be prospective only, based upon the criteria which I have set forth 
below.
---------------------------------------------------------------------------
    Many of the protections I will suggest are based upon my experience 
in handling peer review cases. To make the suggestions concrete, I will 
discuss some individual cases which I believe will be informative to 
the Committee. I have handled cases from a number of states, but I will 
discuss cases from Tennessee, Michigan, and California.
    First, however, I want to discuss a case which you may not have 
heard anything about. It involves an unusual physician. This physician 
was, as many physicians are, an independent person concerned about the 
care of his patients. He proposed a new procedure at his local 
hospital. His proposed procedure was a departure from the then existing 
standard of care. He proposed the procedure hopeful that it might save 
lives. His colleagues disagreed; they thought he was deranged and 
incompetent. They excluded him from the local medical societies. His 
colleagues commenced, in effect, a peer review proceeding and he was 
barred from hospitals.
    Had there been a Databank in the 1800's, Dr. Ignaz Semmelweis would 
have been in it. His reputation would have been further besmirched by 
the posting of this information on the internet. Dr. Semmelweis's 
suggestion, for which he was effectively hounded out of the practice of 
medicine, was that before physicians engage in surgery, in order to 
avoid infections in their patients, they should wash their hands.
    The story of Dr. Semmelweis exemplifies one major problem with peer 
review, one at the heart of the Pinhas case which I argued: 
iconoclastic physicians with good, but different, ideas frequently 
don't get along with their fellow practitioners. Peer review has been 
and is being used to silence those who are different.
    You are undoubtedly aware that the Norman Rockwell image of the 
physician making a house call no longer represents medicine as it is 
practiced in the United States today. The practice of medicine has 
become a business, a big business. That business is controlled by 
hospitals which are concerned about the ``bottom line'', including 
length of stay issues; it is controlled by insurance companies which 
may veto proposed treatment of patients; it is controlled by HMO's, big 
business which may resist expensive treatments recommended by 
iconoclasts--imagine how much time and money could be saved if surgeons 
didn't need to scrub! 2
---------------------------------------------------------------------------
    \2\ During preliminary discussions with members of this Committee's 
staff, I was asked why a physician wrongfully excluded from the 
hospital cannot sue for wrongful discharge, or make a complaint before 
the National Labor Relations Board. I agreed that a physician employee 
of an HMO who has a significant disagreement with the HMO may very well 
have a breach or contract or some other claim against an HMO which 
wrongfully discharges him. However, the HMO, realizing that, may cause 
a peer review proceeding against the physician, causing his removal 
from the hospital, and making him ineligible to practice with the HMO. 
This effectuates a discharge without, in fact, discharging or causing 
the discharge. Since physicians are not ``employees'' of a hospital, 
they have no claim against the hospital for ``wrongful discharge'', nor 
any complaint which they may file with the National Labor Relations 
Board. In addition, because of the immunities provided by HCQIA, such 
physicians may not have any claim against anybody who participated in 
the peer review proceedings.
---------------------------------------------------------------------------
    I have represented a highly competent obstetrician who was called 
into the administrator's office in one of the two hospitals in which he 
primarily practiced. He was told, ``Either you stop putting your 
Medicaid patients in this hospital--take them down the street to the 
other hospital and just bring us your `good insurance' patients--or I 
will commence peer review proceedings against you.'' The administrator 
held up a draft of charges for peer review proceedings--a list of 2 or 
3 cases in which, over approximately 20 years of the practice, this 
obstetrician may have not have dotted all the i's or crossed all the 
t's. Fortunately, this case arose before HCQIA and was ``resolved'' 
when the hospital recognized that such peer review proceedings would 
violate federal and state law and would result in a civil suit--an 
action which would not be possible today because of the immunity which 
HCQIA provides.
    You may have heard of the peer review case involving Dr. William 
Reid, an oncologist, who blew the whistle in Oak Ridge, Tennessee 
regarding cancers that he found in greater frequency, and of greater 
virulence, than in the normal population. Dr. Reid had the courage, 
although perhaps foolish courage and disregard for his own career, to 
bring these cancer problems to public attention, after efforts at 
private focus had failed.
    The hospital in Oak Ridge, and its peer reviewers, brought numerous 
charges against Dr. Reid. Although Dr. Reid's diagnosis, care, and 
treatment were fully supported by experts and, indeed, the only other 
oncologist on the staff of the hospital, Dr. Reid lost that peer review 
and had his name sent to the Databank. This report necessarily implied 
poor quality care by Dr. Reid, yet the Medical Board in Tennessee never 
moved against Dr. Reid's license and had no basis to do so. It is now 
abundantly clear that those peer review proceedings were designed to 
silence Dr. Reid.
    A hospital staff is a very small place. Think of a hospital as a 
marketplace--it is where physicians go to perform their services. Each 
physician in a department is in direct competition with the others. If 
one physician can get another excluded, that can have a direct economic 
benefit. Surgeons--or oncologists--without staff privileges are 
effectively barred from practicing their profession. Let me give you an 
example of how the lack of due process protections can contribute to 
abuse of the system for economic motives.
    Another doctor who is in the Databank resides in Michigan. He is an 
ophthalmologist. He was one of the innovators of cataract surgery in 
Michigan many years ago. As he grew older, he secured a fellowship to 
become more familiar with and proficient in newer techniques of 
cataract surgery. His economic competitors jumped on this and accused 
him of being outdated and incompetent. They did not succeed. So far so 
good; but then they brought another charge against him based upon a 
technicality.
    He was subject to a peer review proceeding and lost and was removed 
from the hospital staff. The hearing was a star chamber proceeding. I 
asked the chief of the department to come and testify; I could not 
subpoena witnesses or their documents. The Chief assured us of an 
appearance. I listed the Chief as a witness. The Chief did not appear. 
Later we learned that the Hospital threatened that if the Chief 
appeared, peer review proceedings would be commenced against the Chief 
also.
    At this point I can hear you insisting that there must be a civil 
remedy for this. Wrong. Michigan law, like that of 9 other states, 
allows no judicial review whatsoever of peer review. This 
ophthalmologist thus had no remedy available under state law to 
challenge the lack of due process. Could he have sued under Federal 
law? I can tell you from personal experience that an antitrust claim is 
enormously difficult to prove, even without the procedural hurdle that 
HCQIA imposes by forcing the physician to prove that he did not receive 
due process.
    This case would be tragic enough if it stopped here, but it didn't. 
This doctor applied to other hospitals. The other hospitals said that 
they would need the record of the original peer review. However, when I 
produced the record and certified that it was full, accurate and 
complete, they refused to consider it and said that the record--the 
transcripts, exhibits, motions and rulings--had to come from the first 
hospital. The first hospital absolutely refused to provide it because 
``peer review'' proceedings were confidential and it would be a 
violation of the confidentially requirements to send on the 
``official'' record. Michigan courts refused even to enforce the 
production of this record. As a result, this physician was effectively 
precluded from practicing ophthalmology at any hospital and has been 
forced into economic retirement. In a nation that does not have enough 
physicians of experience and competence this is not only a tragedy for 
him but for all of us.
    Judicial supervision of peer review proceedings throughout the 
United States is very uneven. There are, as I said, 10 states that 
permit no judicial review of hospital activities. As far as state law 
is concerned, the hospital need not provide the physician with any due 
process whatsoever, any notice of charges, any hearing, or any power to 
defend himself. A physician's only hope in those states is that the 
peer review violate some substantive federal law. She can then hope to 
sustain her burden of proving that HCQIA's immunity provisions do not 
apply, such that she can actually litigate her substantive case.
    Fifteen other states provide for judicial review only to determine 
whether the hospital complied with its own bylaws. If those bylaws do 
not provide for a hearing in which evidence can be compelled, if those 
bylaws do not provide for an impartial hearing officer, if those bylaws 
do not permit attorneys to appear on even the cross-examination of 
witnesses, it is of no interest to those courts.
    The National Databank depends for its accuracy upon the vagaries of 
the laws of 50 different states. The Secretary lacks the authority and 
the resources to assure due process in the reported cases. If state law 
does not protect due process, and if the Secretary cannot, then 
Congress will have created a system ripe for injustice.
    It is essential, if you are going to provide information to the 
public, that the following fundamentals of due process be available for 
every reported physician:
    1. The hearing officer(s) should be impartial. I can tell you, as a 
former hospital lawyer, that it was the custom in California to select 
as a hearing officer another attorney who regularly represented 
hospitals and was ``reliable'' in his or her rulings. The physician had 
no say in the selection of the hearing officer. Also, we advised the 
hospital's administrator to ``select'' hospital friendly physicians to 
sit on peer review panels.
    You must insure against ``hometown justice'' by ensuring that the 
hearing officer be as completely impartial as an arbitrator. It is 
essential that the affected physician have a role in the selection of 
the hearing officer; if the parties cannot agree, the court of local 
jurisdiction can select the hearing officer. There are enough retired 
judges and lawyers with considerable experience who can perform this 
role, as they do every day.
    2. The medical members of the peer review panel must also be 
independent. They should not be staff members at the hospital or even 
practice in the same market area if they have the same speciality as 
the accused.
    3. It is essential that the physician be able to subpoena both 
testimony and documentary evidence to the hearing. The hospital 
effectively has subpoena power because it already has all the records 
and because it can tell physicians that failure to participate in peer 
review proceedings at the hospital's request would be a violation of 
the hospital bylaws, subjecting them to peer review proceedings. The 
playing field is now unequal--the physicians have no power to compel 
testimony which they otherwise need, as in the case of the Michigan 
doctor which I described above.
    4. The physician should have the right of discovery, that is, the 
right to obtain evidence reasonably in advance of the hearing.
    5. The physician needs the right to have counsel present the case 
and cross-examine witnesses. It is ridiculous, in this day and age, for 
a physician to have to do this herself.
    6. There should be reasonable statute of limitations for charges.
    7. The physician should have the right, for his/her own benefit, to 
waive any confidentiality protection.
    8. Lastly, the physician should have a right of judicial review. 
The state that accepts the benefits of HCQIA should provide judicial 
review, preferably de novo, but certainly no less than a substantial 
evidence review. This means that a full record must be available both 
in court and in subsequent peer review proceedings. Obviously no report 
should be made to the Databank, or posted, until all proceedings are 
final.
    I have presented these protections as essential for practical 
economic reasons, but they are also necessary in order to meet legal 
standards of due process.
    Congress enacted HCQIA in an effort to prevent ``bad doctors'' from 
moving from hospital to hospital, state to state. 42 U.S.C. 
Sec. 11101(2); House Report 99-903, Energy & Commerce Comm., 1986 U.S. 
Code Cong. & Admin. News, pp. 6384-5. The statute consists of two 
parts. In the first part, Congress provided an incentive for hospitals 
to grant certain due process protections to physicians who become 
subject to hospital peer review proceedings. The incentive is a blanket 
immunity against all actions, state or federal, arising out of the peer 
review action. 42 U.S.C. Sec. 11111(a)(1). Neither HCQIA nor any other 
federal statute requires hospitals to provide such due process 
protections; the only incentive is the reward of immunity if the 
hospital provides the ``adequate notice and hearing'' defined in 42 
U.S.C. Sec. 11112.
    The second half of HCQIA establishes a national system for 
reporting actions against physicians. Malpractice insurers, state 
licensing boards, hospitals, and professional medical societies are all 
required to report to the Secretary any adverse action against a 
physician. 42 U.S.C. Sec. Sec. 11131-34.
    Professional societies and state licensing boards may request 
information from the Data Bank. Hospitals alone have the obligation to 
obtain such information, an obligation which arises (1) whenever they 
screen applicants for medical staff appointments or grant clinical 
privileges, and (2) every two years for those physicians already on the 
medical staff. 42 U.S.C. Sec. 11135(a); 1986 U.S. Code Cong. & Admin. 
News, supra, at 6393-5. Hospitals which fail to obtain the information 
as required are presumed to have knowledge of that information for 
purposes of medical malpractice actions. 42 U.S.C. 
Sec. 11135(b).3
---------------------------------------------------------------------------
    \3\ Hospitals may become liable for negligent failure to screen 
medical staff members. Darling v. Charleston Community Memorial 
Hospital, 211 N.E.2d 253 (Ill. 1965), cert. denied, 383 U.S. 946 
(1966).
---------------------------------------------------------------------------
    The Secretary's regulations give physicians a very limited ability 
to challenge hospital's report to the Data Bank. The Secretary does 
hold the report for 30 days before entering the information into the 
Data Bank, thereby providing an opportunity for corrections. However, 
there are significant substantive limitations on the ability to correct 
any report:
          ``A practitioner may dispute (1) the factual accuracy of 
        reported information or (2) whether a report was filed in 
        accordance with the Data Bank's reporting requirements, 
        including the eligibility of an entity to report to the Data 
        Bank. The dispute process is not an avenue to protest a 
        decision by an insurer to settle a claim or to appeal the 
        underlying reasons of an adverse action affecting a 
        practitioner's clinical privileges, license, or professional 
        society membership. Disputes of this nature will be rejected if 
        a practitioner requests review by the Secretary of HHS.
          Neither the merits of a medical malpractice claim nor the 
        appropriateness of or basis for an adverse action may be 
        disputed.''
    Four aspects of this system affect the due process issues. First, 
the Secretary does not provide any procedural or substantive due 
process protections to any physician prior to any adverse action. HCQIA 
makes no provision for such a hearing by the Secretary; that function, 
traditionally, rests with the local medical board, hospital, or 
professional society. The entire system assumes that the only hearing 
will take place there. Second, the Secretary does not know if any 
particular physician received any procedural due process protections 
during the course of the hearing which led to the adverse action. 
Third, the Secretary does not know what, if any, standards were applied 
by the hospital in taking adverse action against the physician, so does 
not know if the decision was arbitrary or capricious.4 
Fourth, the Secretary provides no mechanism for the affected physician 
to challenge the propriety of the report for reasons such as the 
failure to receive procedural due process or the arbitrary or 
capricious nature of the decision.
---------------------------------------------------------------------------
    \4\ The ``substantive'' aspect of the due process clause protects 
against arbitrary or capricious actions. Gutzwiller v. Fenik, 860 F.2d 
1317, 1328 (6th Cir. 1988).
---------------------------------------------------------------------------
    These failures of due process affect a fundamental right. In Meyer 
v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626 (1923), the Supreme 
Court defined ``liberty'' to include ``the right of the individual . . 
. to engage in any of the common occupations of life.'' Numerous other 
cases have reinforced this fundamental principle. See, e.g., Greene v. 
McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411 (``[T]he right to hold 
specific private employment and to follow a chosen profession free from 
unreasonable governmental interference comes within the `liberty' and 
`property' concepts of the Fifth Amendment . . .'') and Truax v. Raich, 
239 U.S. 33, 41, 36 S.Ct. 7, 10 (1915) (``It requires no argument to 
show that the right to work for a living in the common occupations of 
the community is of the very essence of the personal freedom and 
opportunity that it was the purpose of the [14th] Amendment to 
secure.'')
    These protected interests include the right to practice such 
professions as law or medicine. ``A state cannot exclude a person from 
the practice of law or from any other occupation in a manner . . . that 
contravenes the Due Process . . . Clause . . .'' Schware v. Board of 
Bar Examiners, 353 U.S. 232, 238-9, 77 S.Ct. 752, 756 (1957). See also 
State Board of Medical Examiners v. Friedman, 150 Tenn. 152, 263 S.W.2d 
75 (1924); Margaret S. v. Treen, 597 F.Supp. 636, 674 (E.D. La. 1984) 
(physician-liberty interest); Poe v. Charlotte Memorial Hosp., Inc., 
374 F.Supp. 1302, 1312 (W.D.N.C. 1974) (physician-property right); 
Yashon v. Hunt, 825 F.2d 1016, 1022 n. 2 (6th Cir. 1987). The Data Bank 
is intended to and does infringe on these protected interests.
    The Supreme Court's decision in Wisconsin v. Constantineau, 400 
U.S. 433, 91 S.Ct. 507 (1971), examined a state regulation similar to 
the HCQIA data bank. Wisconsin passed a statute which provided that 
certain designated persons could forbid the sale or gift of 
intoxicating liquors to individuals who exposed themselves or their 
families to ``want'' or became dangerous to the peace of the community. 
The police chief in one city ``posted'' a notice in all retail liquor 
outlets in that city forbidding the sale of liquor to Grace 
Constantineau for one year. Although the Supreme Court had no doubt 
that states had the power to deal with the evils described in the 
Wisconsin statute, and noted that the police power of states over 
liquors was extremely broad, it did not hesitate to rule that statute 
unconstitutional:
          ``Where a person's good name, reputation, honor, or integrity 
        is at stake because of what the government is doing to him, 
        notice and an opportunity to be heard are essential. `Posting' 
        under the Wisconsin Act may to some be merely the mark of 
        illness, to others it is a stigma, an official branding of a 
        person. The label is a degrading one. Under the Wisconsin Act, 
        a resident of Hartford is given no process at all. This 
        appellee was not afforded a chance to defend herself. She may 
        have been the victim of an official's caprice. Only when the 
        whole proceedings leading to the pinning of an unsavory label 
        on a person are aired can oppressive results be prevented.'' 
        400 U.S. at 437, 91 S.Ct. at 510.
    Government conduct becomes actionable whenever it denies ``a person 
collateral credentials or privileges practically necessary for pursuing 
an occupation . . .'' Phillips v. Vandygriff, 711 F.2d 1217, 1223 (5th 
Cir. 1983), pet. for reh., 724 F.2d 490 (1984). Although denial of 
staff privileges at one hospital may alone suffice to raise this 
protected interest, Id., the denial of staff privileges at one hospital 
forecloses an entire range of employment opportunities for physicians.
    The Data Bank affects not just one physician but physicians 
generally. Its impact derives from the importance of hospital staff 
privileges to the practice of certain medical specialties. Surgeons and 
other specialists must have access to the equipment and trained support 
staff of a hospital. Those with staff privileges can practice their 
specialty, those without them cannot. Dolan & Ralston, Hospital 
Admitting Privileges And The Sherman Act, 18 Houston L.Rev. 707, 713 
(May 1981). Congress was well aware of this when it passed HCQIA: ``For 
most physicians . . ., perhaps the most severe disciplinary action next 
to the loss of their license is the loss of clinical privileges at a 
hospital.'' 1986 U.S. Code Cong. & Admin. News, supra, at 6401.
    Physician's know this fact of life as well as anyone. Most 
physicians--surgeons, ophthalmologists, anesthesiologists, oncologists, 
obstetricians, gynecologists, and others--simply must have access to 
hospital facilities to practice medicine. For physicians and many 
others, a hospital is the marketplace in which they provide medical 
services. Peer review controls their access to that marketplace.
    Before the passage of HCQIA, a physician denied access to one 
hospital might find another marketplace (hospital) in which to provide 
services. Congress established the Data Bank specifically to control 
this: ``The reporting system in this legislation would virtually end 
the ability of incompetent doctors to skip from one jurisdiction to 
another.'' 1986 U.S. Code Cong. & Admin. News, supra, at 6384-5; 42 
U.S.C. Sec. 11101(2).
    HCQIA accomplishes this goal by (1) requiring peer review for all 
physicians at all hospitals, 42 U.S.C. Sec. 11135(a), (2) keeping track 
of any adverse action in the Data Bank, (3) passing along the adverse 
information to other hospitals, and (4) penalizing those hospitals 
which fail to obtain information. The unspoken but obvious implication 
is that hospitals should remove such physicians from their staffs or 
deny them access in the first place.
    As Congress no doubt knew, the law already provides a substantial 
incentive for hospitals to do just that. The decision in Darling v. 
Charleston Memorial Community Hospital, supra, imposed liability on a 
hospital for negligence in screening its staff physicians. ``[I]mposing 
the duty of care upon a hospital should have the `prophylactic' effect 
of supplying the hospital with a greater incentive to assure the 
competence of its medical staff and the quality of medical care 
rendered within its walls.'' Elam v. College Park Hospital, 132 
Cal.App.3d 332, 345, 183 Cal.Rptr. 156, 164 (1982); 42 U.S.C. 
Sec. 11135(b). The widespread adoption of this principle, Id. at 346, 
183 Cal.Rptr. at 164-5, means that the Data Bank sows its tares on a 
field already fertile.
    Even before HCQIA, the harmful impact of an adverse peer review was 
well known:
          ``Although there may be more than one hospital in the 
        relevant geographic market, excluding a physician from one 
        hospital often leads to exclusion from other hospitals. 
        Moreover, exclusion by one hospital may lead to disciplinary 
        investigation by local medical boards and thus further impede 
        an excluded physician's ability to practice medicine.'' Drexel, 
        The Antitrust Implications of the Denial of Hospital Staff 
        Privileges, 36 U. Miami L. Rev. 207, 231 (Jan. 1982) (footnotes 
        omitted).
          ``The consequences of an adverse finding in the medical peer 
        review process may be very significant to the physician who is 
        censured. The curtailment or denial of clinical privileges can 
        destroy the physician's ability to practice and earn a 
        living.'' Darricades, Medical Peer Review: How is it Protected 
        by the Health Care Quality Improvement Act of 1986, 18 J. 
        Contemp. L. 263, 271 (1992), footnote omitted.
          ``For physicians, the staff privileges granted or confirmed 
        by review committees are crucial to their professional 
        survival: `A physician without privileges is a physician 
        without patients.' . . . This denial is particularly 
        catastrophic for surgeons who rely extensively on hospitals for 
        operating facilities and support personnel.
          . . . A privilege denial or revocation may have an even 
        greater impact on a physicians' efforts to practice in the 
        future. Not only is his reputation damaged, but subsequent 
        privilege applications invariably force the physician to detail 
        previous privilege denials or revocations, resulting in further 
        denials.'' Comment, Patrick v. Burget: Has The Death Knell 
        Sounded For State Action Immunity In Peer Review Antitrust 
        Suits?, 51 U. Pitt. L. Rev. 463, 468 (1990), footnotes omitted.
    In 1991, before the Data Bank went into operation, Howard L. Lang, 
then President-elect of the California Medical Association, pointed out 
that the Data Bank ``raised the stakes'' for physicians:
          ``It is clear, therefore, that the courts have understood 
        that membership on a medical staff is essential to almost every 
        physician and that without hospital privileges, a physician 
        loses the opportunity to practice the medical profession to the 
        fullest extent.
          Indeed, the stigma of revocation or denial of privileges can 
        ruin a physician's career. With the implementation of the 
        National Practitioner Data Bank, the stakes are raised even 
        higher, as every physician's record will follow him or her to 
        other communities. If the privilege denial is unjustified or 
        unrelated to the physician's competence, therefore, that 
        individual will be unfairly labeled. With dissemination of this 
        information to health maintenance organizations, preferred 
        provider organizations, state licensing agencies, and medical 
        staffs, the physician may be unable to practice medicine 
        anywhere. Besides destroying the physician's reputation and 
        livelihood, an unfair privilege decision may deprive the 
        community of a qualified physician.'' Lang, Economic 
        Credentialing--Why It Must Be Stopped, 5 The Medical Staff 
        Counselor 19, 22-23 (No. 2, Spring 1991), footnote omitted.
    Since the practice of medicine is a protected liberty or property 
interest, and since the Data Bank imposes a stigma which seriously 
infringes on those rights, it remains only to ask: Did the physicians 
who were reported to the Data Bank have an opportunity to refute the 
allegations made against them that was consistent with due process? The 
answer to this inquiry requires consideration of several possibilities.
    One possibility is that HCQIA requires that accused physicians 
receive a certain minimum level of due process prior to reporting. 
HCQIA does, in fact, specify certain due process protections for peer 
review hearings. If hospitals do provide such protections, then they 
receive immunity from liability for their conduct of the peer review 
proceeding. 42 U.S.C. Section 11111. However, those protections are not 
mandatory; HCQIA provides a carrot but no stick. No portion of the 
statute actually requires hospitals to provide these or any other 
elements of a fair hearing.
    It is equally clear that the Department of Health and Human 
Services does not itself provide any hearing to the accused physician. 
This implies no criticism of the Department--the statute never intended 
for HHS to undertake this obligation. Instead, the Department serves 
only as a repository and distributor of information obtained from the 
local medical board, hospital, or professional society.
    Nor does the Secretary provide the affected physician with any 
right to challenge a data bank entry on the basis that the peer review 
hearing lacked due process fundamentals. As is clear from the challenge 
procedure described above, the Secretary reports only the fact of a 
professional review action and does not judge the validity of the 
accusation or the fairness of the hearing.
    Because the Department does not itself provide a fair hearing and 
makes no judgment regarding the adequacy of the procedures followed, it 
has no way of knowing whether or not the physician actually did receive 
the rudiments of due process. The Secretary simply records the 
information without knowing either the basis for the professional 
review action or the procedures which led to it.5
---------------------------------------------------------------------------
    \5\ I have limited my discussion to peer review cases, but the Data 
Bank also ``posts'' physicians for settlements of malpractice cases. 42 
U.S.C. Sec. 11131. As Congress recognized, ``any number of 
considerations other than the merits of a claim can affect the size and 
frequency of malpractice payments. The sympathy generated by the 
severity of an injury, the attractiveness of a claimant, the skill of a 
claimant's attorney, the demands of a busy medical practice and the 
unpredictability of juries can all lead health care practitioners to 
settle cases . . . with respect to medical services that meet or exceed 
accepted standards of medical care.'' 1986 U.S. Code Cong. & Admin. 
News, supra, at 6396. The insurance company may even make a business 
decision to settle over the protests of the physician. In all these 
cases the physician receives no process at all, yet ``posted'' she will 
be.
---------------------------------------------------------------------------
    Though all 50 states differ in the specifics of their treatment of 
private hospital peer review, they tend to fall into several general 
categories. By examining these categories this Committee will see that 
state laws do not protect physicians in private hospital peer review 
hearings, so the Secretary cannot rely on them to justify the Data 
Bank.
    (1) States which refuse to protect the physician. Ten states--
Alabama, Arkansas, Iowa, Michigan, Nevada, Oklahoma, South Carolina, 
Virginia, Washington, and Wisconsin--refuse to permit their courts to 
review a hospital's actions.

    Mr. Upton. I might just say, for those members, and we will 
pass the word on the floor, those buzzers meant we have a 
number of recorded votes on the floor. So at this point, we 
will recess and come back for questions from us at 1:45.
    [Brief recess.]
    Mr. Upton. Well, I appreciate everybody coming back 
promptly. I am told, as I left the House floor, that we are 
expecting one more vote about 3 o'clock. So we will see how 
things go. And at this point, again, I want to reiterate my 
thanks for all of you coming to Washington, most of you, I 
think, for submitting your testimony on time so we were able to 
review it last night and prepare some questions.
    And I am going to be pretty tight on this gavel, including 
on me, as we start this round of 5-minute questions. We will 
probably go maybe two rounds at least, maybe a third, depending 
on how many members come back.
    For me, I have a lot of questions, and it was a delight to 
talk to a number of you during the little break and almost wish 
that we could all sit at that table and just raise our hand and 
ask a lot of questions.
    First of all, Ms. Neuman, I would like to have a little 
dialog of walking through the procedure of what a physician 
does to get licensed, and I want to raise a couple of points. 
One, as you walk me through this, what do you do with multiple 
licenses and folks that may, in fact, get disbarred, I guess 
you would say, in one State, while they have another license in 
another, which would then allow them to continue?
    And I use a little bit of some anecdotal evidence on my 
part. But I knew a physician in my district, no longer my 
district. It is not in Bart's either. But he, in fact, was 
disbarred by the State of Michigan a couple of years ago. And 
lo and behold, I found evidence to show that he had practiced 
in Virginia for a number of years before that and had been 
disbarred there. And somehow, and I would like to ask my own 
Michigan people, and I intend to do that, how does this 
individual, how did he get through the clearing process to 
allow that to happen? That is No. 1.
    No. 2, when they lose their license, does that get into the 
Data Bank at all? And what tools do you have to check other 
States and to make sure they are appropriate? And what do you 
do, as we heard with the awful example a little bit earlier 
this morning, of a hospital that doesn't report really what 
happened? The term ``gross misconduct'' bad enough term on its 
own for sure, but the carving of one's initials into somebody 
is more than that. And without that detail, what red flags 
would a State have in terms of really checking into the 
information that was submitted? In other words, the information 
that is there is only as good as those that submit it. And when 
you read about that particular physician who still went on and 
began to practice, when you see today's story allegedly--what 
do you do when you find providers or hospitals that don't, in 
fact, report individuals and they continue? How does that all 
fit together? Go ahead.
    Ms. Neuman. Okay. I'll start out with the first question 
that you asked me about the licensure process and how we 
prevent a doctor from getting licensed in another State after 
he's been disciplined in the earlier State. What we do is that 
we, as the application comes in, we do our own verifications of 
licensure on that individual. We also query the Data Bank, we 
query our own Data Bank of the Federation of State Medical 
Boards to make sure that the doctor has not been disciplined. 
We ask a number of questions on the application form, and those 
all go, in a State like mine, to something called the Licensing 
Committee of the Board, and in some States they are called 
Credentialing Committees or whatever of the board.
    But one of the most important things that we do as boards 
is to check the Data Bank to make sure that the doctor has not 
been disciplined when that application is coming in. So at that 
point, what the board's option is is to deny license. And what 
we see in those cases is the doctor will bring his lawyer in, 
and we will start the process up again of just reviewing all of 
the material, and they will submit all of their material from 
that other State where they were licensed and were disciplined, 
and the board reviews that.
    In most cases, you have a better option of stopping that 
doctor from practicing in your State at the licensure level 
than--and being able to take action, rather than having to do a 
piggyback on an existing licensee. So we do review the 
material, we do look at it. And hopefully in a case like that, 
where a doctor has been revoked or suspended in another State, 
as it has been in my State, we deny the license of that doctor 
so that he cannot continue to move.
    Now, the bigger problem is when you have a doctor who has 
been disciplined in one State who takes off and moves to 
another State. There are due process, even in the licensure 
denial process, there are due process--there's due process 
afforded the physician during that process. You can, as we 
recommended to--and I've done in my State, which is to pass a 
law that would allow the boards to automatically piggyback on 
serious disciplinary actions, and we would encourage other 
State boards to do that. The process is long if you don't have 
that power to automatically piggyback on a disciplinary action 
on another State, by another State, and so it's very important 
that State boards look at passing laws that provide for this 
automatic suspension or automatic piggyback of a suspension or 
revocation in another State. That's another way that you can 
address dealing with physicians who are moving.
    And I agree with many of the comments made here today, that 
doctors in trouble very often move very quickly. And if they 
have multiple licenses, which many of them do, each State has 
to take the action. And that's what you're facing. The time 
period, and one of the reasons why we want--that I feel that 
the Data Bank should be open is that that information would be 
instantly available to all consumers. Even with the individual 
data bases, they are only data bases for those States. By 
having this national clearinghouse open with this information, 
consumers could then get that information immediately.
    Mr. Upton. And the Data Bank today doesn't list, isn't 
required to list, if they actually lost their license; is that 
not correct?
    Ms. Neuman. Oh, absolutely, they are required to, if 
they've revoked----
    Mr. Upton. They are.
    Ms. Neuman. Yes. So that's what's so important about having 
this information available because, just because of the due 
process that's afforded the doctor, it takes a while for a 
State board to take action and piggyback on that action unless 
they have, like they have in my State, this automatic piggyback 
provision of their statute.
    Mr. Upton. Do you want to ask 5 minutes and then come back?
    We are going to recess. I know, actually, that Dr. Ganske 
went over to vote. So when he comes back, so stay tuned, he can 
start, and then we will go to Mr. Stupak.
    [Brief recess.]
    Mr. Upton. I apologize for the delay. I thought Dr. Ganske 
was on the way back so I allowed myself to get grabbed by a 
couple of people who wanted to chat about a variety of 
different things and I also finally got something to eat today. 
So, a quick sandwich.
    Mr. Stupak?
    Mr. Stupak. Thank you, Mr. Chairman.
    You know, throughout the testimony today we have heard 
about peer panel review and how that should be the determining 
factor of what is made available to the public. But after 
listening to Mr. Silver I guess I see a different aspect here 
where you see political, economic and procedural safeguards not 
being part of peer review panels and actually that could 
actually be abused and maybe people who should not then go into 
the national data base would be in the national data base.
    Mr. Silver, I would like to ask you a little bit more, give 
us a little bit more specific example. You had mentioned--and I 
remember you being before this committee before on the 
investigative work of Dr. Reid, I believe it was--he was 
looking into the nuclear workers who were possibly exposed or 
showing unusual patterns of disease in connection with the work 
at Oakridge facility in Tennessee. Can you briefly summarize 
what took place in that case and how the national data base was 
used as a punitive tool against that doctor?
    Mr. Silver. Yes. Dr. Reid is an oncologist and treats 
people who have, among other things, cancer. And he observed 
having been a member of the staff of the hospital and he having 
a separate position of being employed through a subsidiary of 
the hospital a variety of things that in his experience and in 
his private practice, in his residencies had not observed. He 
observed cancers occurring with greater frequency than occurred 
in the general population. He observed cancers in people--
prostate cancers is one that sticks in my mind--in men much 
younger than we ordinarily experience those types of cancers. 
He had four cases of a bizarre and unusual kind of cancer that 
in his entire career up to that point had only seen one. He had 
four active cases.
    And as a result he has tried to find out what is causing 
these cancers? And because when he used traditional, by-the-
book medications or chemo or radiation, the cancers were much 
more virulent. So, he was not treating by the book. Now, that 
is really important. I will come back to that in a second.
    As a result, he frankly is a very idealistic kind of person 
and may not be as politically astute as others, tried privately 
to find out what was going on and then when that failed, tried 
publicly. That may have been a fatal mistake for his career and 
probably was.
    The public accusation against the company town and against 
the factory led to a peer review proceeding against three 
physicians who were part of that hospital group, selected by 
the hospital. And as a result, it was determined by that panel 
after we had had the 10 days of hearings that his practice, 
even though supported by experts and even though supported by 
the only other oncologist on staff, that he engaged in practice 
which was different than the standard of care. And he said, you 
bet you I engage in practice different than the standard of 
care because I had like a lady down our road here who has had 
four different types of virulent cancers, you need to save her, 
you need to do what you have to do.
    They found that that practice violated the standard of care 
in Oakridge and he was on the national data base. As a result, 
by the way the record in that case is at least 4-to-5 feet 
thick. The record in that case is a few sentences in the 
national data base and as a result, as far as I know, he has 
been unable to get on the staff of any other hospital because 
he has been determined to have practiced in disagreement to the 
ordinary standard of care.
    Mr. Stupak. Well, if this doctor did not get back on to 
practice, then how could those doctors that were from our other 
witnesses we heard just before your panel, how do they continue 
practicing after they do gross negligence and things like that?
    Mr. Silver. Well, first of all, there is the National Data 
Bank and as I was speaking to Congressman Upton during the 
break my experience is, for example, the piggyback is--I had a 
doctor who did suffer a licensure action. There was some action 
taken against his license in California. Within 30 days, New 
York suspended him like that, revoked his license like that 
because he had violated the standard of New York and that is he 
was eliminated from another licensure.
    California requires, Jersey requires, New York requires 
that when you apply and in your reapplication that you list all 
the States in which you are licensed and if any action against 
that license is taken, at least, California notifies all the 
other licensure States.
    Mr. Stupak. Well, then is it fair to ask--do the different 
States do it differently? I mean in New York here there is--
when Dr. Getz there, Dr. Zarkin, who went on to go into, I 
think, two other businesses after that, just like that hospital 
went on to two others with Mr. Smart. He had no idea that this 
doctor was Dr. Sklar, or Sklar was even going to operate on his 
wife.
    I mean even though there is patterns of gross negligence, 
every State doing it differently? Is there a need then for the 
Federal Government to step in and say, if the States aren't 
doing it properly we have to do it? And then after we come to 
some final disposition then we end up putting that open to the 
public?
    Mr. Silver. Well, if we were to establish a national rule 
you would, in effect, have the Congress tell the States how to 
operate their own systems. I do not think there is anything bad 
necessarily with piggybacking. The doctor in my case got 
substantially due process in California and was then reported 
to New York and terminated in New York. That later gets changed 
by the way after an appeal.
    But at least in my practice, in the States in which I have 
practiced, I have not found that to be a problem. And even if 
you listen carefully to the testimony, they have a piggyback 
statute, which is what it is called, and down in one, down in 
all.
    And as I said, in my opening remarks, at least in 
California, had this doctor who carved his initials in the 
patient, there would have been a temporary restraining order 
and proceeding very promptly in California.
    Mr. Stupak. Well, but in New York he went onto another 
business and I guess I asked the question earlier, what is 
breaking down here?
    Mr. Silver. Right.
    Mr. Stupak. I guess I am still without an answer. I am sure 
the Chairman can find other witnesses who would have just as 
grievous stories as the other two people we heard here today.
    Mr. Silver. Well, I don't know what broke down. I can tell 
you in California, and I think in New York as well, that you 
could stop the other doctor--you said other businesses, I think 
he went to another hospital where he was already a member of 
the staff. No. I disagree, and I must say that the white wall 
of silence I think is flipped. I have had a doctor who has been 
encouraged to resign from one hospital and collegially the 
other doctors on staff let that information get out to the 
other hospitals in the community and usually there is a domino 
effect without due process in which he is asked to resign.
    And, in fact, I find that the informal method is much more 
brutal than sometimes the formal method.
    Mr. Upton. Thank you.
    Dr. Ganske.
    Mr. Ganske. It is hard to keep your train of thought when 
you get called back and forth like we have. And I thank you all 
for your patience because it is getting a little later in the 
afternoon.
    My understanding is that denials of licensure are not 
reported to the Data Bank. So, Dr. Reardon, what do you think 
about that?
    Mr. Reardon. Thank you, Dr. Ganske.
    No. We would support the denials of licensure should be 
reported to the Data Bank. It is my understanding at the 
present time, though, that a denial of licensure or a removal 
of a license is shared through the Federation of State Medical 
Boards with all the other Medical Boards. They send out a 
monthly newsletter so that the information is available at that 
level.
    Mr. Upton. If I might just freeze the time and just--this 
was a question that I asked Ms. Neuman before, at least that is 
the question I had thought that I had asked. And you indicated 
that they are reported on the Data Bank; is that not correct?
    Ms. Neuman. The denials of licensure are not reported in 
the Data Bank but they are reported to the Federation of State 
Medical Boards' Data Bank. That was just recent though because 
within the last, oh, I will say within the last 5 years, 
because our board had to put a resolution into the Federation 
to encourage State Boards to report denials of licensure 
because our State had been burned by an applicant who applied 
to our State and in our investigation we found out that he had 
been denied in other jurisdictions and there was not a place to 
get that information.
    I would certainly support that the National Practitioner 
Data Bank be collecting that information. It is very important 
information for the States to have.
    Mr. Upton. I am going to yield back my time here to Mr. 
Ganske.
    Mr. Ganske. All right. What about denials of privileges? 
Should that be reported to the National Data Bank, Dr. Reardon?
    Mr. Reardon. Here, again, I think Dr. Ganske, it depends on 
what the denial of privileges is for. If the denial of 
privilege is a denial over substandard care, certainly. If the 
denial of privilege is over an administrative issue, for 
example, probably one of the most common reasons I have seen 
physicians lose their privileges at my hospital is they don't 
sign their charts on time and that has nothing to do with the 
quality of care they are providing to a patient. It is an 
administrative issue within the hospital. But we would 
certainly support if a physician is practicing substandard 
care, poor quality of care, then, yes, that should be reported.
    Mr. Ganske. Is there anyone on the panel that would 
disagree with that?
    Mr. Newman. No, sir. If I might though, there is a 
distinction between denial of privileges and rescinding 
privileges.
    Mr. Ganske. Right.
    Mr. Newman. Rescinding generally is for cause of some kind. 
Denial could simply be a determination that there isn't 
sufficient experience, training, what have you. So, there is a 
real distinction there. But rescinding privileges, I am in full 
agreement, that they should be reported.
    Mr. Ganske. Okay. Dr. Hochman, you are testifying on behalf 
of the American Hospital Association. One of the criticisms 
that we heard earlier was that our hospitals are not reporting 
reportable events to the National Practitioner Data Bank, which 
is a problem not in terms of opening it up but just in terms of 
whether current law is working properly.
    Can you comment on that? Is that true? What is being done 
to remedy that?
    Mr. Hochman. Well, let me take it in three issues. One, 
there are a whole bunch of activities that go on in the 
hospitals today that fall before something is reported. 
Hospitals will take actions against physicians revealing cases, 
monitoring their performance, that will not make it to a Data 
Bank but will occur inside the processes that occur in a 
hospital, since there are a lot of activities as it relates to 
the quality performance that go on.
    The second, the 30-day rule is kind of an arbitrary rule 
that was set up, and I guess there is some question whether 
someone has passed the 30-day suspension, that gets reported; 
less than 30 days doesn't get reported; that, to me, raises 
some question whether that criteria was appropriate or not. And 
then the third that has to be looked at and one of the things 
that we want to look at, is there a greater incidence of less 
than 30-day suspensions that are out there; is that being used?
    From personal experience, it isn't. And generally in the 
institutions where I have worked when we decide to suspend 
someone it is not like in the NHL where we take someone out for 
a week or 2; it is either we decide to suspend someone or not. 
So, to me it may be that when the criteria were established the 
whole concept of something 30 days or not that may be flawed 
and that may need to be looked at.
    We also need to look at whether, indeed, when we look 
across the country at hospitals, whether shorter revocations or 
suspensions of licensure or credentialing are being used by 
hospitals. We think not in what we have seen but we need to 
look at that.
    Mr. Ganske. Okay. Dr. Newman, your representing Beth Israel 
and I apologize if I am asking a question that has been asked 
before when I was not here. But we had a prior testifier today 
talk about an incident that occurred at Beth Israel. And she 
said that this doctor was immediately suspended. Now, then what 
happened? Did Beth Israel then report that immediately to 
somebody? What was the mechanism for that?
    Mr. Newman. Sir, the suspension did occur as Dr. Gedz 
testified. A report was submitted to the State Office of 
Professional Medical Conduct and also to the National Data 
Bank. I think that the fact that this physician was able 
subsequently to apparently continue working in some capacity in 
what I understand is an ambulatory facility reflects two 
problems. One is a problem clearly at Beth Israel Medical 
Center. We had believed unequivocally--it was a wrong belief in 
retrospect--that gross misconduct--and I believe the chairman 
asked this earlier--that gross misconduct was a sufficient red 
flag. It clearly was not in retrospect and I can only assure 
you that that is a term that we will never again use in 
reporting anything at Beth Israel. We will be explicit in 
excruciating details spelling out exactly what the nature of 
the misconduct was.
    The other aspect of the problem and I think this, again was 
in part a response to the member from Tennessee's question 
earlier on and that is that not being a hospital and this 
facility was not a hospital, there is----
    Mr. Ganske. That he was subsequently practicing in?
    Mr. Newman. That he was subsequently, as I understand it, 
employed by, there is no requirement--and again it seems 
paradoxical and inexplicable to me--there is no requirement 
that that facility would query the National Data Bank. They 
may, and if they do they will get the access, but there is no 
requirement. So, I think two things to learn from this very, 
very regrettable experience is No. 1, that institutions should 
be explicit; and No. 2, that there should be a requirement that 
any health care entity query the Data Bank for the information 
that is there. It just seems silly not to utilize it.
    Mr. Ganske. Well, let me if I may have unanimous consent 
for 1 additional minute?
    Mr. Upton. Hearing none, go ahead.
    Mr. Ganske. Okay. So, this gentleman loses his privileges 
at your hospital and you report it to the National Data Bank 
and you also reported it to the State Board of licensure?
    Mr. Newman. Yes. There was an oversight on our part. We 
reported it to the State Health Department. We viewed this 
egregious incident as being an incident of medical misconduct, 
so, we reported it to the Office of Professional Medical 
Conduct. It was subsequently pointed out to us as criticism, 
which we fully accept, that we should also have reported that 
incident to the Office of Health Systems Management of the 
State. But we did, in fact, report to both, but I didn't want 
you to think that we were fully in compliance, because we were 
not.
    Mr. Ganske. If you had done that was it then that State 
Department's responsibility? How would anyone know where this 
physician would have multiple privileges so that those 
institutions could get the knowledge that this incident 
happened? Who is responsible for that?
    Mr. Newman. First of all, my understanding is and I might 
be wrong, but my understanding is that he did not at that time, 
at the time of his suspension, have privileges anywhere else. 
We have instituted within Beth Israel a standard practice now--
--
    Mr. Ganske. But how would you know that? Do you know where 
all your physicians have privileges?
    Mr. Newman. We know because there is a requirement. Again, 
we can't protect ourselves against out-and-out falsehoods, but 
there is a requirement at reappointment time and at initial 
application time that every applicant or member of the staff 
indicate every other facility and we have adopted, in response 
to this issue, a practice which is routine that we will 
immediately, at our initiative without being asked, let 
everybody know.
    But if there were a requirement that the other entities, 
nonhospital entities, query the National Data Bank, again, 
maybe gross misconduct wouldn't have been a sufficient flag, 
but they would have seen this is somebody who was terminated 
from the staff and it would have given them a clue that this is 
a problem physician.
    Mr. Ganske. If that physician is applying for new 
privileges?
    Mr. Newman. That's right, that's right.
    Mr. Ganske. And, Dr. Hochman, would it be generalized 
hospital procedures similar to those around the country such as 
Beth Israel, for hospitals to be required to have an idea of 
all the other facilities that a physician would have privileges 
at so that if a physician goes off the deep end and you have 
taken away his privileges you can then notify these other 
facilities?
    Mr. Hochman. A couple of things. We do keep a listing of 
where all physicians have their privileges. We also require 
that every 2 years they have to get recredentialed so that the 
issue of whether it is new or not is there. And then when an 
action is taken that is immediately reported.
    Now, where some of the things, where some of the gaps that 
I think some of you have been highlighting is some physicians 
are very adept at moving around, having multiple privileges and 
there are issues of what our reporting procedures are. So, if 
we report to the State, we report to the National Data Bank 
there are potentially holes that the other places where a 
physician has privileges may not know. That there is a 
potential there.
    The other thing is that not every system has an exhaustive 
way of reviewing all the records and kind of going through in 
detail and that's another potential where, if the institutions 
like health clinics don't do that, there are really potentials 
for a physician to slip in there under that.
    Mr. Ganske. Thank you.
    Mr. Upton. The gentleman's time has expired but we are 
going to have another round.
    Mr. Dingell.
    Mr. Dingell. Mr. Chairman, I thank you.
    I would like to welcome Dr. Loniewski and an old friend, 
Dr. Reardon.
    I have several questions, first, for Dr. Reardon, two in 
number. Doctor, you mentioned that lawsuits are frequently 
settled by an insurer without the physician's consent. Again, a 
similar question: What are the implications of this fact on the 
discussion of whether we should open the Data Bank to the 
public on that kind of matter?
    Mr. Reardon. Thank you, Congressman Dingell. And I think 
the issue is oftentimes suits are filed. There sometimes is an 
agreement with the insurance company in the contract that they 
can settle a suit which they consider a nuisance suit rather 
than go through the court process and defend that. It is a very 
low settlement. That then becomes a matter of record on the 
physician, the physician has no choice. The physician may want 
to defend that and, so, he can then maintain his integrity. So, 
that is one of our concerns about the accuracy and the 
reliability and the validity of the information on the Data 
Bank.
    Mr. Dingell. Dr. Reardon, one of the sections in your 
testimony mentions that the NPDB does not make any adjustment 
for high-risk procedures. Tell us about the implications of 
this fact as to whether it relates to our opening or not 
opening the Data Bank to the public on this matter?
    Mr. Reardon. Well, Congressman Dingell, I think our concern 
is that there are many high--there are high-risk practices, 
neurosurgery, orthopedic surgery, obstetrics. There are also 
many high-risk procedures which are not often done, maybe not 
done frequently or done by a few physicians that we need those 
physicians there to do those procedures, to have them available 
so when a patient is critically ill that someone will take that 
risk. There is not always the best outcome on some of these 
high-risk procedures or high-risk practices.
    The physicians do their best job, provide high-quality care 
and, yet, the outcome may not be optimum. And, so, there is a 
lawsuit. If you have these continually released by the Data 
Bank which does not reflect on the quality of care, the concern 
is will physicians continue to make themselves available to do 
the high-risk type of practice and the high-risk procedures.
    Mr. Dingell. Thank you, Doctor.
    Now, ladies and gentlemen of the panel, I am going to have 
to ask you to respond as quickly as you can because I have two 
questions for each of you. And we will start at your left and 
my right, with Mr. Silver, and what are the primary weaknesses 
regarding data in the National Practitioner Data Bank? Are 
there other weaknesses and, if so, how do these matters affect 
the usefulness of the Data Bank? Starting with you, Mr. Silver.
    Mr. Silver. The States under which the information is 
achieved in peer review proceedings, in my judgment as my 
prepared remarks I think prove, do not conform to even the most 
basic due process; and, as a result, you are having a 
determination made without the adequacy of protections that we 
all, as Americans, grow to love. And, as a result, good 
doctors, high-risk doctors, doctors who may do things a bit 
differently end up in the Data Bank unnecessarily.
    That's not to say that there aren't docs who ought not be 
there because I think there are. But you end up with doctors 
like Dr. Reid and others who do these kinds of things who will 
be discouraged from doing them in the future.
    Mr. Dingell. Next panel member, please?
    Mr. Osten. Basically it's in my testimony. I think the 
biggest weaknesses are that the system is not accurate, it is 
not complete. If you have two-thirds of the hospitals in this 
country not reporting, you really don't have a Data Bank.
    Mr. Dingell. Dr. Hochman?
    Mr. Hochman. I certainly agree completely with what Mr. 
Osten said by way of a weakness. I think the other weaknesses I 
have already alluded to. One is that there is no mandate that 
nonhospital health care entities query the data registry and I 
think that that absolutely should be done. And I think that 
there is no--and I know there is no mandate that State 
licensure agencies query the National Data Bank before issuing 
or renewing licenses.
    And those are presumably problems that could be corrected 
immediately.
    Mr. Dingell. Thank you. Dr. Reardon?
    Mr. Reardon. Thank you. I was--I have two comments. One is 
the lack of access in the Data Bank by say licensing boards. I 
think that is critical. And, second, one of our greatest 
concerns is the malpractice settlements which do not reflect 
quality of care or competency. As I pointed out in my testimony 
when peer reviewed only 1-in-5 settlements were really true 
negligence.
    Mr. Dingell. Thank you, doctor.
    Next panel member?
    Mr. Hochman. I would echo some of those comments. Just the 
information that is there is information without knowledge and 
it doesn't have information that really relates to quality of 
care, particularly around the medical malpractice issue.
    Mr. Dingell. Thank you.
    Dr. Loniewski?
    Mr. Loniewski. Yes. Rather than repeating everything that 
has been said, there are too little other areas that I come up 
sitting at the--on an executive committee as well--that seem to 
be disturbing to me. And one is the permanency of the record, 
itself. Once a physician is in the record, he stays there 
forever.
    No. 2, we also, I think, which is unfair and nobody has 
brought this up, and that is that we do have at hospitals, 
interns and residents, that many times are mentioned through 
a--in a malpractice suit and then included in the Bank. 
Unfortunately, many times because they are acting as a delegate 
of the attending it is not their actions there but for some 
reason they--the hospital will end up settling that case and to 
get them out they will just settle it and keep them involved 
with it. The resident doesn't even know about it until later on 
when he applies for privileges, finds out, hey, you've been 
mentioned in three cases, while you were a resident and really 
when they were not really directly responsible for the care of 
that patient.
    Mr. Dingell. Thank you, doctor.
    Dr. Sullivan?
    Ms. Neuman. I am Ms. Neuman, but I can tell you that----
    Mr. Dingell. I am sorry.
    Ms. Neuman. That is all right.
    Mr. Dingell. I see the name Sullivan there. You have my 
apologies.
    Ms. Neuman. I think there are two areas, criminal 
convictions and license denial actions, that should be included 
in the Data Bank to encourage the State Boards to query the 
Data Bank. I met with some HRSA officials a couple of--a few 
years ago about making it free for State Boards to query since 
their staffs, we all in our States spend our staff time 
compiling the information to go into the Data Bank. We should 
be able to query it for free and that would help our Boards 
considerably.
    Mr. Dingell. Thank you.
    Ms. Sullivan, if you, please?
    Ms. Sullivan. Thank you.
    I will save time and say that I believe that Ms. Neuman has 
expressed the same concerns that the Massachusetts Board has.
    Mr. Dingell. Thank you all.
    Mr. Chairman, I have one more question to ask the entire 
panel and I would ask unanimous consent that they be permitted 
to respond, if you please?
    Mr. Upton. Go ahead.
    Mr. Dingell. Ladies and gentlemen of the panel, we have now 
discussed what we feel in a quick way are the concerns we have 
with regard to the usefulness of the Data Bank and how it is 
affected by the weaknesses which have been identified.
    Let us now address what you would suggest to make this 
National Practitioner Data Bank a useful public tool to inform 
the public of problems that might exist with regard to 
particular physicians, which would impair the kind of care or 
put the patient at higher risk or--and what should be done to 
assure that the system is fair, not only to the patient who 
does need the information but also to the physician so that the 
physician is not hurt.
    So, ladies and gentlemen, if you would, please, tell us 
what changes you think need to be made with considerable 
specificity and in a short time because of our time limit, 
starting with you, Mr. Silver, if you please?
    Mr. Silver. Well, thank you, again, Congressman.
    I have set forth specific amendments, lines and words, that 
I think ought to be contained in the National Data Bank to make 
the changes necessary to make it fair but it seems to me that 
if you are going to provide the public with information about 
physicians and malpractice actions, you might also include 
about other health care providers, including hospitals as well, 
and to make sure that the public is adequately and fully aware. 
But, last, I think all of the people who may be listed on the 
Data Bank ought to have a chance before the Secretary, who now 
has no discretion, the Secretary must report as it is reported 
to her, whatever it is. It seems to me that if the hospital--I 
have had one case where the hospital reported a different 
result, different grounds than were actually determined--there 
be some basis upon which you can, as against the Secretary, get 
a hearing to have a modification of the report if it is false 
or inaccurate.
    Mr. Dingell. Mr. Osten, if you please?
    Mr. Osten. I think the key is in enforcing the requirements 
to assure that you are getting accurate reporting and whether 
that you charge HRSA or HCFA as a condition of Medicare 
participation, that hospitals are surveyed and if they are 
found not to be complying with the reporting conditions that 
sanctions be imposed to assure that reporting is carried out. 
And I think that should be part of the standard Medicare survey 
process.
    Mr. Dingell. Thank you.
    Dr. Newman?
    Mr. Newman. Congressman, the question is of such 
fundamental importance and so complex that my suggestion would 
be that all of the various parties some now have the 
opportunity to address that specific issue and I'm not just 
talking about providers--hospitals, medical associations, State 
agencies--I am also talking about patient advocacy groups, 
consumer advocacy groups, because Heaven knows, they are a 
very, very interested party. I think the only way to come up 
with a maximally optimally useful Data Bank is to get the input 
of all of these parties.
    Mr. Dingell. Thank you.
    Dr. Reardon?
    Mr. Reardon. Thank you.
    I think that some of these things have already been 
mentioned and I think they enforce the requirements of the Data 
Bank, I think the State Boards ought to have to inquire in the 
Data Bank before they relicense, reporting of criminal actions 
would certainly be there, but I think that one of the important 
things to do would be do a peer review of malpractice actions. 
For example, the Department of Defense and the VA do not report 
malpractice actions before peer reviewing and they have found 
like the ``New England Journal'' article that very few 
malpractice actions are true negligence. And I just finally, 
our concern is that I think the States are way ahead of the 
Data Bank in developing their Internet access and their 
profiling and we ultimately would rather see it go in that 
direction.
    Mr. Dingell. Thank you.
    Dr. Hochman?
    Mr. Hochman. I would take the opinion that the NPDB, the 
way it was constructed, is really there for a different reason 
and I would advocate that we look at a different format for 
consumer reporting for patients. Looking at what some of the 
States have done and looking at more of that format as a more 
adequate way to provide information to the consumer.
    Mr. Dingell. Thank you.
    Dr. Loniewski?
    Mr. Loniewski. Yes. As I mentioned in my testimony, I think 
the best way to have the public access to a bank of this nature 
would be to get true peer review, and I still stand with that 
and I agree with what Dr. Reardon has been saying as well.
    Mr. Dingell. Nothing goes in that without appropriate peer 
review?
    Mr. Loniewski. That is correct. Appropriate true peer 
review by specialist against specialist and physician against 
physician rather than having a general practitioner trying to 
review my orthopedic cases. It would have to be an orthopod 
looking at another orthopod.
    Mr. Dingell. Would you suggest that the proceeding be 
formal and that there be opportunity to cross-examine and 
things of that nature?
    Mr. Loniewski. Oh, yes, I believe so. Physician should have 
due process as well. And I mean be well represented and be able 
to present his case or her case to that peer review panel and 
then they can make a decision from there whether it was within 
a normal standard of care and that good quality care was 
afforded or not. And if not, I think that patient should be--
that physician should be reported.
    Mr. Dingell. Thank you, Doctor.
    Ms. Neuman?
    Ms. Neuman. Yes. I think that the information that is 
provided to consumers from the National Practitioner Data Bank 
should be put into context as our State Boards have done or our 
profile laws and I think that that will go a long way to 
helping the consumer understand the information. We certainly 
have had good experience in the profile States in releasing 
this information to the public without a problem. And the good 
thing about opening the National Practitioner Data Bank is that 
it would cover all States, it would be a national clearinghouse 
and that's why I think the States should work with the Federal 
Government in order for that to happen.
    Mr. Dingell. Ms. Sullivan, if you please?
    Ms. Sullivan. Yes. I, once again, echo the importance of 
context. But one fact that we found in developing profiles may 
be helpful to you as you think about this. We actually used a 
consumer research company to test different versions of the 
product to see what was meaningful for consumers. When we 
presented the malpractice information without the contextual 
data setting and the disclaimer information, the consumer 
focused on that to the exclusion of other information. When we 
then adjusted the product to have the information of 
malpractice placed in context, it became far less important in 
the weighted view of the consumer of it. So, I think that--but 
the one very consistent finding with every consumer focus group 
was that the exclusion of the information invalidated the 
entire process for the consumer. That they felt very strongly 
information needed to be there in order to have a sense that 
the product was truthful and full.
    Mr. Dingell. Thank you.
    Mr. Chairman, thank you for the patient and fair way in 
which you have conducted these hearings. I have concluded with 
my questions.
    Mr. Upton. Thank you. Mr. Bryant?
    Mr. Bryant. Thank you, Mr. Chairman.
    Ms. Sullivan, you may have touched on the answer to this 
question but you might want to expand. I would like you to 
answer the question from your experience in Massachusetts and 
Mr. Osten, maybe you can answer it, too, from your experience 
in New York and then after both of you answer, my 5 minutes 
will be winding up, but I would like to have Dr. Hochman speak 
on behalf of the Hospital Association in response or comment, 
and also Dr. Reardon, on behalf of the AMA, in response to the 
question.
    The question is in essence, do you think that the 
information in the Data Bank should be placed in context to 
provide consumers nationwide with the same kinds of useful 
information that I assume both of you have used in your State 
systems?
    And, again, if you can elaborate on the context. I think 
you mentioned a disclaimer and a couple of other things. But 
that is a real concern I have in that whatever we put out there 
to the general public that undue influence and so forth might 
not be put on one thing or the other and how can you put it in 
a proper context?
    Ms. Sullivan. I think that the issue is very valid and what 
the research that we did with a third party firm that does this 
for a living that even the consumer understood that it was not 
only not fair but not helpful when it was not presented in a 
way that was in context.
    That the consumer is very educated and understood that 
there were frivolous, nuisance cases and when something was 
reported at being substantially at the low average that they 
really to some degree dismissed that in their considerations. I 
am never--I am always pleasantly surprised by the brilliance of 
the American people and as people become more and more attuned 
to using complex information through the Internet, I think that 
the educated consumer does use the information well.
    So, I think that we--you can craft a piece of legislation 
that addresses those concerns in a meaningful way. We think it 
is important to look at specialty to show what other doctors in 
that specialty have in terms of overall history, what percent 
of them have any malpractice payments and to look at the 
payments in terms of each suit, whether it is above-average, an 
outlier statistically, either above or below the average.
    Mr. Bryant. So comparisons with other doctors?
    Ms. Sullivan. Within that specialty, yes.
    Mr. Bryant. Explanation of high-risk, those kind of issues?
    Ms. Sullivan. Right. And the other issue that I would say 
with that and I think to some degree there is a sense that I 
have heard today that there is no review process for the mid-
mal payments. On our report we do not in any way make reference 
to open investigations of discipline, we do not make any 
reference to pending malpractice cases. We only look at 
payments.
    And I think that we have to respect that there is a process 
that is called a malpractice jury. I think to disrespect the 
jury process and say that that is not a vetted review of the 
case, I think may fly in the face of some common sense with 
what goes on with the constituents.
    Mr. Osten. I guess we have some concerns about the 
malpractice information for the concerns you have heard today 
about the information in there. But I think the ultimate litmus 
test is if you were the patient, would you want that 
information? And I know applying that litmus test for myself, 
yeah, I would want that information, including knowing their 
concerns with the malpractice part of that.
    If the information is complete and accurate I would want 
that information if I was a patient and if it is a system that 
is maintained by the Federal Government then people should have 
a right to that and make their own judgment as to their use of 
the information.
    Mr. Hochman. You know, I think from our standpoint, what we 
would like to see--the context issue is incredibly important to 
us. We have reviewed quality data that is out there on the Net 
and it is amazing what you see. It is all over the board. And 
what I had hoped we would do here would be to take a rational 
approach at looking at really reviewing what information is 
being put out there, how helpful is it to the consumer, 
particularly as it relates to the medical malpractice issue.
    A lot of the frivolous suits that are out there that get 
reported really could hurt a physician unnecessarily. If I look 
at our own experience, when we credential a physician in the 
process, when we get the Data Bank information and we look at 
it, I got to tell you the synthesis of that, we automatically 
can exclude or include based on our previous knowledge.
    And it took us, on the hospital side, a long time to get 
used to the Data Bank information and understand how to use it. 
So, that is something that we haven't talked about but it has 
taken us a while, when we look at that data to really 
interpret, oh, this is an OBGYN physician, I may expect a 
different profile on this specialist with this suit. So, as we 
move toward the consumer reporting, I would hope that we try to 
exercise some of that and take care with that not to throw out 
a lot of information that then doesn't inform or educate the 
consumer any more than they are today.
    Mr. Reardon. Thank you, Congressman.
    I wouldn't disagree with, I think, with anything that has 
been said. I think the information should be placed in context. 
Now, how we do that through a peer review process, I think, is 
the right way to do it. I guess I am struck at the moment that 
we are struggling to try and correct a system that is just not 
a good system and is not working. And I will come back to my 
testimony and say I think the States are way ahead of 
Rockville, Maryland, and HRSA, in the Data Bank. They already, 
30 States are putting the information out, good information, a 
wide-range of information, education, board certification, 
where they practice, also information on malpractice in some 
States, as well as disciplinary actions.
    So, I think as we wrestle with this, I think what we need 
to look at is how do we get the best, most accurate, 
meaningful, valid information to the patients? And at the 
moment, I would say that I look at this as the States are doing 
this and they are far ahead of us. And I would hope that as you 
look at this as a committee, and as Congress looks at this that 
you would look to strengthen what is already going on in the 
States and that we work very well with that.
    I think that is the best way to get the information to the 
patient.
    Mr. Upton. Thank you, Mr. Bryant.
    We are going to start a second round of questions and I am 
going to apologize in a few minutes as I have a meeting that I 
need to be at and I intend to return. I will return I just 
don't know whether you will be here or not.
    And Dr. Ganske is going to take the gavel after I finish my 
questions but before I yield to Mr. Stupak, who I know has 
another round as well. But I want to say a couple of things. I 
have learned a lot, not only in this hearing, but in preparing 
for it. Particularly, I want to thank our staff, who for a 
number of weeks we have done a lot of good things and though we 
have some conflicts of opinion I know that we are all on the 
same page: We want the system to work better and sadly, not 
only us but, others, have exposed what I think are a number of 
major flaws in the system as it works or maybe doesn't work 
today.
    None of us ever want to see the nightmare that our first 
two witnesses on panel two experienced in any State. And I 
guess as I have sat down with my chief medical officers in my 
district and looked at what they see, look at the review that 
they undertake, though I have not sat down with my State 
licensing board--Ms. Neuman, you are sort of in that catbird 
seat speaking for all the States--but my hospitals, my 
providers look at it every 2 years, they have to. And I have 
two large hospitals in the center part of my district and they, 
in fact, have over 600 physicians and they review them by 
pediatrics, they look at different divisions.
    Do the State licensing boards do any type of periodic 
review or is it once you get your license you are there until 
it is taken away?
    Ms. Neuman. Review of the Data Bank?
    Mr. Upton. Correct.
    Ms. Neuman. Yes. The State boards look at the Data Bank 
when they open a case, like in our case----
    Mr. Upton. But is there an automatic review as my hospitals 
do? It is like you are up for pediatrics this week and next 
week it is the OBGYNs? I mean is there----
    Ms. Neuman. No.
    Mr. Upton. So, unless something is flagged or a case is 
presented it is just autopilot?
    Ms. Neuman. We do it in the initial licensure process and 
then when an investigation is opened. But it is not done 
routinely on renewal and that would be comparable to what the 
hospital does. Now, as I said earlier, one of the reasons why I 
went to meet with HRSA is that we need to encourage that these 
inquiries can be done at no charge. Right now we----
    Mr. Upton. I understand.
    Ms. Neuman. [continuing] pay $4 to do that and for a State 
of like Nancy's with 27,000 physicians times $4, you would have 
to put a chunk of your budget, which in many of the States they 
are struggling with under-funding to begin with, to, to do 
that. So, I think that if the States are putting their staff 
time into reporting to the Data Bank there should be some 
consideration of the----
    Mr. Upton. And I know that the reviews of my providers it 
is usually about a $250-or-so charge that they pass along to 
the physician to undertake that every 2 years as well.
    Mr. Osten, I am concerned about under-reporting and I want 
to go more than just New York, whether it is the ``New York 
Times'' today or the case that we saw with Beth Israel, too, 
just grossly inadequate versus the real details of it. I mean 
this is, again, as I looked at the field that someone can type 
in, it is unlimited. It is on the computer. You know, it is not 
limited to 20 characters. You know, it can be pages long. And I 
just--has the State of New York learned something from what 
happened in the widely publicized cases?
    Mr. Osten. Yes.
    Mr. Upton. I mean including this one today? I mean you have 
fined the hospital but, you know, one of the things that this 
particular--and I don't know if you are aware of this 
particular case, but----
    Mr. Osten. I am quite aware of it.
    Mr. Upton. [continuing] apparently this doctor had been 
fired from Sloan Kettering, and the State gave him a 1-year 
probation but he quickly found work at Staten Island University 
Hospital. I know that is a relative term; I don't know if it is 
1 month or 13 months, but it doesn't sound good.
    Mr. Osten. What had happened--and let me give you some 
background. We did the initial investigation at Sloan Kettering 
and it was a combination of issues, both the physician as well 
as system failures on the hospital part. We sanctioned the 
hospital, the physician was put on probation for a year, 
sanction for that. That was on the department's Website and it 
was widely publicized at the time.
    Staten Island Hospital fully was aware of the background, 
did their appropriate credentials check, checked with us, 
checked with Sloan Kettering, and made the decision to award 
him privileges.
    Mr. Upton. Was it post--was it within that year cycle that 
he was suspended?
    Mr. Osten. After the----
    Mr. Upton. Or was it after----
    Mr. Osten. It was after the Sloan Kettering event, which 
happened in 1995. We took action at that point so he was during 
that 1 year suspended. Staten Island knew that and it was on 
our Website for the public to see and still is on our Website. 
They chose to grant him privileges despite that background.
    Mr. Upton. Yes. Thank you. I need to move to my 3 o'clock 
meeting. I could stay on this for a long time but I am going to 
yield to Mr. Stupak.
    Mr. Stupak. Thank you, Mr. Chairman.
    Mr. Osten, does the State of New York, does it maintain a 
State Data Bank that the public can access?
    Mr. Osten. Yes. Every physician action that we have taken 
during, for the past 10 years, is on the Department's Website. 
And people, as I have said, we are getting a hit on the 
Website----
    Mr. Stupak. Do you have a way to know if the public 
accesses this Website?
    Mr. Osten. As I said, we get a hit, two hits every minute 
of every day. So, the public is using the Website. And using 
it, we think, frequently and appropriately.
    Mr. Stupak. So, would the prior--you know, we had those 
cases earlier today from Beth Israel--would those incidents 
have been on that Website about those physicians?
    Mr. Osten. In the first Beth Israel case, the case 
involving Lisa Smart, the one physician, her primary surgeon 
had never had any disciplinary actions taken. His record as far 
as we were concerned was clean. So, if they had checked----
    Mr. Stupak. Right. But there was another physician.
    Mr. Osten. There was another physician who was on the 
Website, Dr. Sklar, for a previous enforcement action that we 
had taken against him. I think the problem in that case is that 
Ms. Smart didn't know that he was going to be assisting in the 
surgery so they never, you know, used the Website to check on 
his background.
    Mr. Stupak. Right.
    Mr. Osten. But the information was on the Website regarding 
Dr. Sklar.
    Mr. Stupak. So, the primary physician----
    Mr. Osten. Had a clean record at that point.
    Mr. Stupak. But did he perform the surgery? I mean he was 
assisted by another----
    Mr. Osten. He performed the surgery, the bulk of the 
surgery. Dr. Sklar assisted but it was Dr. Klinger who was her 
primary surgeon.
    Mr. Stupak. Hmm. All right. You know, Mr. Smart indicated 
it took him over a year to find out that information. Wouldn't 
that be available?
    Mr. Osten. I mean I just in terms of background, that was 
an extremely complex case. The hospital did report it. We, as, 
you know, we did an initial investigation looking at the 
records and the complete story about what happened with Lisa 
Smart only came about after the New York City Medical Examiner 
identified some discrepancies in the medical record. That then 
caused us to do an intensive investigation where we interviewed 
dozens of people, reinterviewed them several times until we 
could get to the bottom line. When we found that bottom line we 
issued a very detailed report of our findings.
    Mr. Stupak. Could you and, maybe Dr. Newman, could you 
since we have those two cases here and there has been a lot of 
interest in it today, could you give us a full accounting of 
what broke down and what lessons were learned from those two 
cases?
    Mr. Newman. Well, I think with regard----
    Mr. Stupak. I mean in writing. I don't mean for you to do 
it today?
    Mr. Newman. Oh, yes, sure.
    Mr. Stupak. If you would just provide to us in writing. 
Other members have asked questions, we talked about it on the 
floor and we can get it all to the other members then.
    Mr. Newman. Absolutely.
    Mr. Stupak. Because I think we need to learn what broke 
down. I know I have asked that question a number of times 
today; I am still trying to figure out what went wrong.
    Mr. Osten. I would be happy to do that.
    Mr. Newman. And I might just say that with regard to the 
Zarkin case, my written testimony does address that but I will 
be happy to go into more detail and I shall.
    [The following was received for the record:]

                    Continuum Health Partners, Inc.
                                         New York, NY 10019
                                                     March 14, 2000
The Honorable Bart Stupak
Congressional Subcommittee on Oversight and Investigations
U.S. House of Representatives
2348 Rayburn House Office Building
Washington, D.C. 20515
    Dear Congressman Stupak: I wish to thank you, Chairman Upton and 
the other members of the Subcommittee on Oversight and Investigations, 
for the opportunity to testify in support of public access to the 
National Practitioner Data Bank (NPDB).
    As I stated in my written testimony, an effective NPDB is important 
to hospitals in appointing and re-appointing medical staff, and it 
would be extremely helpful to healthcare organizations, as well as to 
patients. In addition, I also strongly support pending New York State 
legislation that would provide all New Yorkers access to information on 
licensed practitioners in the State, similar to the successful program 
in effect in Massachusetts. Mr. Anderson Smart, who gave such 
compelling testimony at the hearing, is a leading advocate for this 
legislation; at the hearing, I expressed to him my support for his 
efforts.
    In response to your request, I wish to share with you and the other 
members of the Subcommittee some of the steps Beth Israel Medical 
Center has taken recently to enhance further the safe and effective 
care of all its patients.
    With regard to the tragic death of Ms. Smart, Beth Israel has 
accepted its responsibility for failing to ensure compliance with its 
longstanding policies. (Ms. Smart died from excessive fluid intake, 
resulting in cardiac arrest, during a hysteroscopic procedure with a 
piece of equipment that had not been fully approved.) The physicians 
involved in the case were dismissed from the medical staff and reported 
to the New York State Department of Health and the NPDB. Beth Israel's 
plan of correction, submitted to and approved by the New York State 
Department of Health, included the following steps:

 New procedures were implemented to monitor more effectively 
        intrauterine fluid during hysteroscopic procedures.
 Documentation on the approval of new equipment, and staff 
        training in the use of new equipment, was strengthened. In 
        addition, a new policy was implemented to advise patients when 
        new equipment is intended for use for the first time during a 
        surgical procedure.
 More stringent documentation of patient approval on 
        professional and non-professional visitors to the operating 
        room suite was implemented.
    In the other case, involving Dr. Liana Gedz, upon learning of Dr. 
Allan Zarkin's outrageous act (carving his initials into the patient's 
abdomen), we promptly suspended his privileges. We reported the 
incident to the New York State Department of Health (DOH)-Office of 
Professional Medical Conduct, and to the NPDB. We cooperated fully in 
the DOH's investigation, as well as in an investigation by the 
Manhattan District Attorney's Office, which is ongoing.
    Several weeks ago, we submitted our plan of correction to the State 
Department of Health. It includes the following policy and procedure 
changes and enhancements:

 Explicit language will be used in all communications to the 
        Department of Health and other governing agencies regarding 
        reportable incidents, and more stringent follow-up procedures 
        were implemented with regard to submitted reports/letters 
        (e.g., to ensure the reports have been received and to seek 
        assurances that they are being investigated).
 The process for reporting and investigating any complaint of 
        inappropriate physician actions and behavior was strengthened.
 Proactive notification by the Medical Center to other 
        facilities where physicians/providers are known to practice, of 
        any significant privilege adjustments/terminations, was 
        enacted.
    As I testified, there was nothing in Dr. Zarkin's files at the 
Medical Center, at the National Practitioner Data Bank or, as far as I 
know, in the files of the State Health Department that gave the 
slightest hint that he would pose a risk to any patient. This was an 
irrational, random, egregious and unpredictable act.
    I hope this additional information is helpful. If there is any 
further information that you require, please do not hesitate to contact 
me. In the meantime, I look forward to working with you and your 
colleagues to provide every citizen in this country with the 
opportunity to learn as much as possible about their healthcare 
providers.
            Sincerely,
                                               Robert G. Newman, MD

    Mr. Stupak. Thanks.
    I mentioned in my opening statement the HIPTB reporting 
that we do and it hasn't come up much. We talked about the 
Federal data base but the HIPTB; is that something we could 
look at as a model to set up a system for reporting that the 
public could have access to? There are some safeguards. You 
have to have State and Federal determinations and nothing is 
reported until there is a final determination. Is that 
something we should look at, Dr. Loniewski or Dr. Hochman or 
Dr. Reardon or any other doctors?
    Mr. Loniewski. Well, HIPTB, my understanding is really that 
they are looking at other areas as well and that the access is 
a little different. The original rules that were written which 
have been held up because of they became really inappropriate 
to try to work with in any way, so, really we don't know where 
they are going with it. At this time for me to say that it is 
good to look at or something, I just think it is just too broad 
the way it was originally written to be an effective type or 
bank.
    Mr. Stupak. Well, it has a data base of final adverse 
actions taken against health care providers, suppliers, and 
practitioners. Final adverse actions include: One, civil 
judgments against the health care providers, supplier or 
practitioner in a State or Federal court. Two, Federal or State 
criminal convictions against a health care provider, supplier 
or practitioner. Three, actions by State or Federal agencies 
responsible for the licensing and certification of the health 
care providers, practitioners. Four, exclusion of health care 
provider, supplier or practitioner from participation in 
Federal health care programs, and last but not least, any other 
adjudication, actions or decisions that the Secretary 
establishes by regulation. I know the last one is sort of a 
catchall.
    But it seems like in each one of these four areas there is 
a final action, there is some final conclusion, not just an 
accusation or a peer review based upon political or whatever 
other reasons. That is what you are looking before the public 
would have access, isn't it? Some final action which would be 
termination?
    Mr. Loniewski. The final action but worthwhile final 
action. They didn't identify things like civil actions. One of 
the questions they asked at the NPDB was, well, are you talking 
about if my dog bit my neighbor am I going to be placed in that 
Data Bank because there was a civil suit against me? And that 
is the broadness that I felt had to be further refined.
    Mr. Stupak. Yes. Each one needs to indicate as their health 
care provider, supplier, practitioner related to the delivery 
of health care.
    Mr. Loniewski. Okay. Well, if it is with health care then 
we can go for it.
    Mr. Stupak. Anyone else care to comment on that?
    Ms. Sullivan?
    Ms. Sullivan. Thank you. That is what we do in 
Massachusetts and we actually have under the criminal 
conviction component of ours language that says felony and 
serious misdemeanors and we also have a list of what we 
consider to be serious. So, that people know what the apples 
and oranges issues are. So, I think it is a good model to look 
at.
    Mr. Stupak. But you wouldn't post it until after, like the 
final appeal is done and things like that?
    Ms. Sullivan. That is correct. It is only final actions 
that we post.
    Mr. Stupak. Okay. Dr. Newman?
    Mr. Newman. Yes. I certainly am all for fairness in terms 
of wanting to wait until the process is totally exhausted. But 
in contrast to some of the amazing, to me, amazing stories that 
Mr. Silver described from other States, New York State, to its 
great credit, has a very, very elaborate but also very time-
consuming due process afforded to anybody whose privileges in a 
hospital are curtailed or terminated. That process, which 
involves not only an internal procedure within the hospital, 
but then goes to the Public Health Council of New York and then 
goes to the judiciary, if I am not mistaken, that can take 
many, many months or even years. So, I think when, if you are 
fortunate--well, for New Yorkers, who are fortunate enough to 
have such a very, very fine system of due process, the consumer 
should not pay the price of having to wait two or three or 
whatever, however many years before a Dr. Zarkin, let us say, 
has exhausted the remedies.
    Mr. Stupak. How does Massachusetts get around that then so 
they didn't have to wait 2 or 3 years?
    Ms. Sullivan. In terms of a hospital disciplinary action?
    Mr. Stupak. Sure.
    Ms. Sullivan. We do wait for the final report from the 
hospital. We, of course, encourage quick action. It has not 
been a big issue with us and we certainly think that the 
hospitals have acted in good faith at all times. We do have 
substantial due process rights also. But I think the fairness 
issue for the doctor does rise within the institution to 
resolve the issue quickly and fairly.
    Mr. Newman. Could I just add just so I didn't mislead 
anybody.
    Mr. Stupak. Sure.
    Mr. Newman. Certainly despite that lag that can exist 
before final adjudication, Beth Israel Medical Center, in these 
cases and just as a matter of routine, notifies the State and 
notifies the Data Bank when the decision is made to take action 
rather than waiting. I didn't want anybody to think that we 
waited 2 years before we----
    Mr. Stupak. Well, thanks, Dr. Newman.
    And thanks again for agreeing to get that stuff to me in 
writing on the Smart case and the other Doctor Gedz case.
    Mr. Ganske [presiding]. The Chair will recognize Mr. 
Strickland from Ohio for 5 minutes.
    Mr. Strickland. Thank you, Mr. Chairman.
    Mr. Chairman, I will not take my 5 minutes. I apologize for 
not being here more today. I have been tied up with other 
matters. But this is an incredibly important issue. I thank you 
all for your testimony and I promise you that I will consider 
it very, very carefully and I yield back the balance of my 
time.
    Mr. Ganske. Well, then the Chair will recognize himself.
    We are coming to the end unless Mr. Stupak wants some 
additional time.
    The sense that I am getting from this panel is that the 
data that is in the Data Bank that is given to, for instance, 
hospitals, boards of medical registration, et cetera, is useful 
but it requires some interpretation. That the raw data is not 
that easy sometimes to understand. For instance, I think there 
has been a reference to, as I made earlier, on the specialty 
specific profiles. Because you may have physicians, for 
instance, doing high-risk procedures or there may be a higher 
incidence of complications, higher incidence of queries, et 
cetera, and, so, after a while when you are looking at that 
data you begin to get a feel for what is out of bounds and what 
is way beyond the norm. But a norm for an OBGYN may be 
significantly different than a norm for a dermatologist. Is the 
panel in unanimous agreement on that? And let it be recorded 
as, yeses, across-the-board.
    Dr. Newman?
    Mr. Newman. Yes. I would just point out, first of all, I am 
not only a fan of New York, I am also a fan of Massachusetts. 
And Massachusetts has currently available to anybody who wants 
access through the Internet, a listing of every single licensed 
practitioner. It lists not only the number of malpractice 
settlements, but it also categorizes the payments as being 
above-average, average or below-average. It also gives--and, 
you know, I just found all this out in the last few weeks in 
preparing for this testimony--but it also gives to that 
specialty the proportion of all doctors who have had one or 
more settlements. So, I think it doesn't take a tremendous 
amount of background and knowledge to be able to derive some 
general conclusions from those data. And, so, I think we have a 
very excellent model to build upon and that is the 
Massachusetts model.
    And maybe there are others, I just happened to be very 
familiar with that.
    Mr. Ganske. All right. And the general sense that I have 
had from this panel on another area is that there are some 
inequities and possibly inaccuracies in the data, in the raw 
data that don't place some of that data into context. And, Mr. 
Silver, you have been quite eloquent on describing how, for 
instance, there is a need for better due process in terms of 
the data as it is in the Data Bank.
    Is that a fair statement? Does the Board agree with that?
    Ms. Sullivan. Again, my--and I don't mean this in any 
critical way from the previous testimony--but sort of 
anecdotally when I keep hearing that the issue is that there is 
not enough reporting and, thus, the--without full information 
what there is there maybe skewed, as I have said to one of your 
staff members, I am somehow remembered of the old story of the 
man--the person who has killed both his parents and then goes 
before the judge begging for leniency, because he is an orphan. 
I think that there is a partnership between the medical boards 
and the hospitals and practitioners to fully report. Because 
not only is it the right thing to do for the practice of 
medicine, not only is it the right thing to do for the law, it 
gives the fuller, more robust data base that gives the context 
even more meaning. So, there is a good reason for it.
    Mr. Ganske. Okay. So, we are in agreement that the data in 
there is useful; we are in agreement that there needs to be 
corrections in how that data is valid and how it is reported.
    I have another question. It is this: A week or so ago this 
committee held hearings on medical errors. And we had a similar 
panel before us and there was unanimous agreement on that 
panel, all across-the-board, from people representing all sorts 
of different organizations, that if you are going to get 
reporting of data that there needs to be protections in terms 
of confidentiality or you could see the reverse happen--you 
would have less reporting.
    And I am concerned that if we were to open up the Data Bank 
as it is now, when there are in my opinion flaws in the way it 
is reported, would you then exacerbate rather than improve the 
problem of getting the information that you need to the medical 
licensing boards and others that need it?
    Dr. Reardon, do you have any comment on that?
    Mr. Reardon. Thank you, Congressman Ganske.
    I do, yes. I have been sitting there thinking as you have 
been outlining some of the, I think, testimony and I put down a 
comment here and maybe it is not correct, but I said, I almost 
think this system is broken. And we have a system that was set 
up initially for the profession to use as they did the 
recredentialing and they did their licensing but not a system 
that was initially set up to provide information to the public. 
I think what we are struggling with today is how are we going 
to correct the system, repair the system so that it becomes 
information that will be usable for public consumption or it 
would be good, reliable, valid data so the public could have 
this to make good decisions?
    And I will come back. In some ways I think the Data Bank is 
redundant. And I am going to come back to what I have said 
earlier, I think the States are doing a great job. They are 
innovative. We have the Federation of State Medical Boards, 
that has a committee who will report soon with some 
recommendations for all States. You have 30 States already 
doing this. They have Websites up, I think in 23 States and 7-
to-10 more coming up.
    I would hope, as you look at this, again, you would look at 
how do you support what is going on out there in the private 
sector which in my view are the States, and how can we build on 
that? Massachusetts has been complemented for what they have 
done, Tennessee has a good program, Oregon is getting a 
program, Texas has something that is working well and helping 
the public. But I think as you wrestle with this, Congressman, 
as you look at this and say, is the Data Bank fixable? Is it 
repairable? Can we make it over so it will provide the valid 
that that people need or is there another mechanism which in my 
view would be working with the State Boards?
    Mr. Ganske. All right, well, let's talk about another 
mechanism. We've got Ms. Sullivan, who is Executive Director of 
the Board of Medical Registration in Massachusetts; and Ms. 
Neuman, who is a Director of the Board of Medical Practice in 
Vermont. Tell me about what the executive directors of the 
Boards of Medical Registration are doing across the country in 
terms of their Executive Directors Association, to make sure 
that when a deficient practitioner moves to another State that 
the State gets the information to make sure that we just don't 
have people hop-skipping around?
    Ms. Neuman. Well, one of the things that our organization 
has is we have established a committee called the Golden Rule 
Committee, which is to look at to make sure as the Golden Rule 
is, do unto others as you would like them unto you, and to make 
sure that States are communicating with each other, improving 
our State statutes so that we can exchange investigative 
information. A lot of the times that, for example, in a State 
like ours, there will be a situation where the doctor will be 
investigating the doctor and the Stateswill take off to another 
State.
    And right now, in most States, some States can share 
investigative information and some can't, but we need to be 
able to start that process early in the process when there is a 
problem physician.
    We have had physicians in my State, where on a license 
denial situation, they have fought us all the way up to the 
Supreme Court because they wanted to withdraw their license so 
it wouldn't be reported anywhere and we fought that. In a lot 
of States the energy it takes and the staff resources it takes 
when a doctor tells you, well, I'm leaving, don't worry, I 
won't practice here, is--there are a lot of--it takes a lot of 
effort.
    And in our State, we fought that up to the Supreme Court 
and we won the case, but it is very--I think some of the 
stories you heard today and the reason why I feel so strongly 
about the Data Bank being opened is that having that 
information in one central source--and I agree with Dr. Reardon 
that we need to have the States work also together--but having 
all of that information and having the States work with that 
and having that available, once that doctor starts moving, the 
consumer, as it was portrayed in these cases, would have that 
information immediately. We could put it in context and they 
would know that. Because as Nancy pointed out, the due process 
that is afforded doctors in this process absolutely causes time 
delays in the Board's taking actions.
    I encourage Boards to look at using the summary suspension 
process. That is an immediate suspension. Nancy has started 
doing it more. In the early 1980's I got criticized by the 
Medical Society for taking too many summary suspensions and 
what I did is I provided them a list and summary of those 
cases. I said, you think we're taking too many? Why don't I 
summarize those cases for you. And I did and I didn't hear 
anything back after I--well, oftentimes what I will tell people 
when they criticize us is that take a look at the actual 
action, take a look at the facts, take a look at the 
conclusions of law that the Board came up with in order to 
issue that disciplinary action.
    Mr. Ganske. But let me just interrupt for a minute. There 
have been some--this is not exactly along the lines of what 
this hearing is about--but there have been some who have 
suggested that we move to a national registration, a national 
licensing board. I personally don't feel that that is the best 
way to move.
    Would you give us your opinion on that?
    Ms. Neuman. I do not believe that there should be national 
licensure.
    Mr. Ganske. And why?
    Ms. Neuman. I believe that the States, that is in the 
States' purview to license their doctors to issue set standards 
for who they should license and by having a national standard 
there would--I really believe that it would not protect the 
public.
    How would you handle disciplinary actions on a national 
level? We, even though the States get criticized for how 
quickly they act on a doctor's license, there is no way that I 
would have confidence that a Federal licensure system would be 
able to act any quicker than the State Boards are considering 
the due process that is afforded the doctor.
    Mr. Ganske. I can imagine if that were the situation, Mr. 
Silver, that you would have quite a problem in determining how 
to resolve disputes where you have variations in care 
regionally.
    Mr. Silver. Well, I'm not necessarily sure that a national 
licensing system shouldn't be considered. Clearly, standards of 
practice ought to be in the local community and not necessarily 
national.
    I just comment that you don't want to throw out--we have 
been using a lot of sort of afternoon expressions--the baby 
with the bathwater. Summary suspension is just brutal. And a 
physician can have a patient in the hospital and needing care 
and summary suspension comes down, he can't even discharge the 
patient, he can't do anything. And it is just a brutal thing. 
And to suggest that in our system of Government that we would 
prefer that than to yield to due process, I think does not give 
our tested institutions a great deal of respect.
    There are ways in which you can effectuate a prompt 
disposition but to use that as a substitute for due process I 
think is incorrect. But leaving that aside, you will have, you 
do have even currently issues of what is the proper scope of 
review and what is the proper standard to meet? And I think 
frankly what I will consider, if I may be so bold, is your 
seminar approach that we have just used for the last several 
minutes that we really do come back to Dr. Reardon's suggestion 
and that is that the National Data Bank is flawed and I think 
you ought to do something about correcting it for the purposes 
which it was to achieve.
    Mr. Ganske. Hmm-hmm.
    Mr. Silver. But I really think that what we have evolved 
here is that it is not transmutable to accomplish the other 
goal of public information and consequently don't release 
information in a flawed Data Bank. Create, if you wish, a 
national system, modeled on the Massachusetts or other basis, 
and that rather than tinker with the system, see if there is a 
real need, in light of the States' individual choices, but if 
you have a system that is clunking because of deficiencies that 
it has don't ask it to do more than it can't do already.
    Mr. Ganske. I appreciate your comment.
    And I recognize Mr. Stupak.
    Mr. Stupak. If I may just for all our panelists, those who 
testified before and those who are with us now, the reason why 
it may appear like we are tinkering, we are the Oversight 
Investigation Committee. We don't have legislative authority. 
When the Chairman said that he wanted this investigated for 
whatever reason, whether it was because of patient bill of 
rights or whatever reason, this is the only vehicle that we 
had.
    I think most of us up here if we were going to design a 
system or the public right to know--and we believe they have a 
right to know of the quality of the health care professionals 
they are dealing with--it would be different than this national 
data base. But that is the only thing that we have before us 
because we are Oversight and Investigation so we are 
oversighting that.
    That is the reason why and the Chairman said we will do 
this and that's the reason why we are doing this hearing all 
day. But we would do a much different, I think, system, I think 
that would be fair to say, Greg.
    Mr. Ganske. And reclaiming my time, I think it would be an 
appropriate topic of a discussion for the Health and 
Environment Subcommittee, to which I am also a member, to look 
at a way to improve consumer education and to seriously look at 
some of the methods that the various States have already 
started in doing.
    And, so, that will conclude our hearing today. I thank you 
all very much for coming.
    [Whereupon, at 3:27 p.m., the subcommittee was adjourned.]


     ASSESSING THE OPERATION OF THE NATIONAL PRACTITIONER DATA BANK

                              ----------                              


                        THURSDAY, MARCH 16, 2000

                  House of Representatives,
                             Committee on Commerce,
              Subcommittee on Oversight and Investigations,
                                                    Washington, DC.
    The subommittee met, pursuant to notice, at 10:08 a.m., in 
room 2322, Rayburn House Office Building, Hon. Fred Upton, 
(chairman) presiding.
    Members present: Representatives Upton, Bilbray, Ganske, 
Bryant, Bliley (ex officio), Stupak, and Green.
    Staff present: Charles Symington, majority counsel; Amy 
Davidge, legislative clerk; and Chris Knauer, minority 
investigator.
    Mr. Upton. Good morning everyone. I know as usual there are 
a number of subcommittees meeting this morning. The House just 
went into session. I don't think we expect a vote for a little 
while. I know that Chairman Bliley is expected to be here, my 
colleagues Mr. Ganske, Mr. Whitfield, Mr. Bryant are on the 
way, and I know that Mr. Stupak from the great State of 
Michigan is also on his way, but I thought that we would start 
in any regard and would make, if no one would object, just a 
unanimous consent request that all members of the subcommittee 
will be able to put into the record their full statement, if in 
fact they don't get here by the time that I am finished with 
mine.
    So with that, welcome to today's Oversight and 
Investigations Subcommittee hearing on assessing the operation 
of the National Practitioner Data Bank.
    We are going to hear from Mr. Tom Croft, Director of the 
Division of Quality Assurance of the Health Resources and 
Services Administration. He oversees the administration of the 
National Practitioner Data Bank, and I am looking forward to 
discussing ways in which we can make the Data Bank a more 
effective tool in the improvement of health care quality across 
the country.
    The National Practitioner Data Bank was created by Congress 
in 1986 in response to several factors--the increasing 
occurrence of medical malpractice litigation and the need to 
improve the quality of medical care by increasing the 
willingness of physicians to participate in the diligent peer 
review programs. The Data Bank law does this by shielding 
physicians from liability from antitrust and private damage 
suits when they are engaged in peer review. By creating a 
nationwide flagging system, the Bank was designed to address 
the problem of physicians who lose their licenses or face other 
discipline in one State simply moving to another State to 
practice.
    This hearing is particularly timely and important in light 
of the recent release of the Institute of Medicine's report, 
``To Err is Human.'' This report came to the startling 
conclusion that anywhere from 44,000 to 98,000 people die every 
year as a result of medical errors caused largely by failures 
or glitches in systems of care. The report notes that more 
people die from medical errors in a given year than from motor 
vehicle accidents, AIDS, or breast cancer. Clearly we need to 
strengthen all of the resources at our disposal to improve 
health care quality, and the Data Bank is one of the most 
important of these resources.
    Several months ago in preparation for our hearings on the 
National Practitioner Data Bank I asked several hospitals in my 
district to arrange a demonstration of just how they use the 
Data Bank in their credentialing process, and after the 
demonstration, which was most informative, I had the 
opportunity to talk in some depth with the credentialing staff 
and the chief medical officers of the hospitals about their 
front-line experiences with this Bank.
    It was certainly an interesting day for me and my staff and 
I look forward to discussing the issues that they raised with 
Mr. Croft.
    I will get into specific issues in our question period, but 
let me just raise one general concern that the credentialing 
staff had, the fact that the Data Bank was not entirely online 
yet and the time that it took to receive the response to a 
query. My staff followed up yesterday to see how things were 
going now, and we received an excellent report.
    In the words of the lead credentialing staffer, Bronson 
Hospital in Kalamazoo, Michigan, ``The Bank has come a long 
way. It is now online and the response times are between 4 and 
6 hours.'' She noted that it is quite user friendly and that 
the Bank is working on a system to allow hospitals to send in 
batch requests rather than having to query for each doctor 
individually, and I would note that they usually have about 600 
that they do over--each of my two hospitals there--over a 2-
year span.
    In the words of the Chief Medical Officer at Borgess 
Hospital in Kalamazoo, the credentialing process has been 
greatly improved by the creation of the Data Bank and ``Borgess 
has profited''--in his words.
    So I want to commend you, Mr. Croft, for the progress that 
you have made in honing this important tool for improving the 
quality of care and I also want to thank you for the courtesy 
that you extended to Jane Williams on my staff when she was 
arranging for the demonstration.
    With that, I will yield to my colleague from Iowa, Dr. 
Ganske.
    Mr. Ganske. I thank you, Mr. Chairman. I appreciate your 
being here, Mr. Croft.
    I have looked over your testimony and I know that you are 
going to be talking about this, but I think there is one 
paragraph that is particularly significant and that is that you 
say, ``Nothing in the Data Bank's information is intended to 
produce an independent determination about the competency of an 
individual practitioner. It is rather intended to supplement a 
comprehensive and careful professional peer review. It is 
noteworthy,'' you continue to say, ``that the vast majority of 
practitioners who have reports listed in the Data Bank have 
only one, and that is almost always a malpractice payment 
report. It is impossible and unfair to conclude from a single 
malpractice payment report alone or even in some cases from 
numerous malpractice payment reports anything substantive about 
the competence of that practitioner. To do so would be a 
disservice to all parties involved.''
    Mr. Croft, I will be asking you to expand upon this 
statement because I think it is crucial when we look at the 
attempts by some to open up the Practitioner Bank for uses for 
which it was just not intended. I appreciate your being here 
today and I look forward to your further testimony.
    I yield back, Mr. Chairman.
    Mr. Upton. Thank you. Mr. Stupak.
    Mr. Stupak. Mr. Chairman, I will be brief. You know this is 
our second hearing we have had on this and the question has 
been whether we should or should not open up the National Data 
Bank for public review of information that really has not been 
designed for public scrutiny but rather to help out health 
professionals in the way they license and review credentials of 
physicians and others.
    Last time we brought up issues of under-reporting, the 
technicalities of the Data Bank, what may or may not be 
appropriate, and of course there is always the concern that 
maybe this whole issue has come up because many of the health 
care professionals supported a real Patient Bill of Rights that 
passed earlier.
    Whatever the reasons are, I think we have to proceed 
cautiously. I think you have to have a National Practitioner 
Data Bank that hospitals and other health care professionals 
can access in a technology and a terminology that they use for 
their licensing requirements. If you want to put forth some 
kind of a national bank to profile all physicians and health 
care facilities and rate them, that should be completely 
different from this National Data Bank, the Practitioner Data 
Bank, so I would look forward to this hearing here today, and 
see what HHS and others have to say today, but I think if we 
are really serious about having more public awareness of health 
care professionals, then I think it is incumbent upon us, the 
U.S. Congress, to put forth a system that is designed for 
public input, easy public access, and not to rely upon 
something called the National Practitioner Data Bank, which was 
not intended for the purpose in which it is being looked at as 
maybe to provide information to the public because it was set 
up for a different purpose.
    If we are going to set one up for public knowledge, then 
let's set one up for public knowledge and not use this National 
Data Bank.
    Mr. Upton. Thank you. Mr. Bilbray.
    Mr. Bilbray. I have no comments.
    [Additional statements submitted for the record follow:]
 Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
    Chairman Upton, thank you for holding this hearing which continues 
the Committee's examination of the National Practitioner Data Bank. I 
believe consumers need greater access to quality information about 
their doctors. So this hearing is important. I would also like to 
welcome Tom Croft, the Director of the Division of Quality Assurance at 
the Health Resources and Services Administration, and express my regret 
that Administrator Fox was unavailable to attend today's hearing on 
this very important topic.
    The purpose of today's hearing is to examine the operation of the 
NPDB and determine whether this closed system, which denies consumers 
access to important information about doctors, is doing an adequate job 
of protecting these same consumers. Congress, when it established the 
NPDB, intended to protect patients from incompetent doctors. Based on 
the testimony that we heard at the hearing before this Subcommittee two 
weeks ago from Dr. Liana Gedz and Anderson Smart, I have serious 
questions about whether this goal is being met.
    I am also troubled by the information the Committee has reviewed 
relating to hospitals. Approximately sixty two percent of hospitals 
registered with the NPDB have never reported a disciplinary action 
against a doctor. In fact, the Health Resources and Services 
Administration has estimated that approximately 4,000 hospitals have 
never made a single such report. Also disturbing is the fact that over 
the decade that HHS has operated the Data Bank, only two hospitals have 
ever even been warned about their failures to report clinical privilege 
actions to the NPDB. I have serious concerns with hospitals reporting 
of valuable information to the NPDB and HHS enforcement of those 
requirements.
    Following our first hearing, there have been several accounts in 
the press, detailing other serious allegations involving problem 
doctors. I have here a stack of articles and editorials from around the 
country, all expressing their support for the idea of increasing the 
public's access to comparative information about their doctors. 
According to a recent poll, ninety six percent of the Americans polled 
want more comparative information about their doctors and hospitals, 
and most believe that currently they do not have access to such 
information. I think this should change.
    Despite public support for empowering patients, the American 
Medical Association and others continue to fight to keep this 
information from the public. In fact, the AMA's official position on 
this issue continues to be that the NPDB should be abolished and that 
no one should have access to the important information in the NPDB.
    All Americans deserve to have basic, accurate information about 
their doctor and hospital. I believe that now is the time for the 
Washington-based special interest groups to stop treating this 
information as ``restricted.'' As patients learn more about information 
that the Federal government already collects in the NPDB, their demand 
for such comparative information about their health care providers will 
only increase.
    Today's hearing will evaluate how the Data Bank is currently 
administered, and will identify improvements to the system. Questions 
relating to the validity and accuracy of the data in the NPDB were 
raised at our last hearing, which have been used to justify continuing 
to prevent the public from obtaining this information. Today's hearing 
will hopefully explain what HHS is doing to insure that the data in the 
NPDB is accurate and reliable. I firmly believe that problems with the 
Data Bank, if they exist at all, can be corrected, rather than keeping 
this information locked away from the public.
    I would like to again thank Chairman Upton for holding today's 
important hearing and I look forward to Mr. Croft's testimony.
                                 ______
                                 
  Prepared Statement of Hon. Gene Green, a Representative in Congress 
                        from the State of Texas


    Thank you, Mr. Chairman. I would like to welcome our witness to 
this hearing today. I appreciate the fact that he has come to help 
clarify some of the many questions that we have about the National 
Practitioner Data Bank.
    We would all like patients to have as much information about 
doctors as possible, so that they might be able to make informed and 
intelligent decisions about their health care.
    However, we must ensure that such information is provided in a fair 
and accurate manner. Simply dumping raw, sometimes inaccurate data on 
patients will not improve their quality of care. We must focus on how 
to improve reporting and accuracy to the existing data bank before we 
go releasing information that could mislead the public or give false 
impressions about the competency or incompetency of doctors.
    Again, thank you for holding this hearing and I look forward to the 
testimony of the witness.

    Mr. Upton. Okay. Mr. Croft, as you may know, we have a 
longstanding tradition of taking testimony under oath. Do you 
have any problem with that?
    Mr. Croft. No, sir.
    Mr. Upton. And committee rules also allow you to have 
counsel if you so desire. Do you have a desire to have counsel?
    Mr. Croft. Not at the moment, sir.
    Mr. Upton. Okay. If you do, please come to me. If you would 
stand and raise your right hand.
    [Witness sworn.]
    Mr. Upton. You are now under oath. We appreciate your 
sending up your statement in advance so that we could review 
that. It is part of the record in its entirety and if you could 
limit your remarks to about 5 minutes, that would be terrific, 
and the time is now yours. Welcome.

     TESTIMONY OF TOM CROFT, DIRECTOR, DIVISION OF QUALITY 
   ASSURANCE, HEALTH RESOURCES AND SERVICES ADMINISTRATION, 
            DEPARTMENT OF HEALTH AND HUMAN SERVICES

    Mr. Croft. Thank you, Mr. Chairman. I want to begin by 
thanking you for your kind remarks. I am glad to hear that 
things are going well and it validates what my staff and the 
staff of our contractors have been telling us as well. I also 
want to thank you for the opportunity to come here today and 
talk to you about these important issues.
    The National Practitioner Data Bank as you mentioned was 
created in response to the requirements of the Health Care 
Quality Improvement Act of 1986 and began operation in 
September 1990 under the most difficult of circumstances. 
Funding and staffing issues, opposition from many practitioner 
organizations and frankly an operating system in need of 
updating were major obstacles to its success. We believe we 
have overcome these problems now, at least most of them, and 
primarily by moving away from a paper-driven system which often 
could not respond in 30 days to a request for information and 
now a typical response is 2 to 3 hours.
    Today, because of our commitment to customer service and 
continuous quality improvement, the National Practitioner Data 
Bank plays a vital role in the important process of 
practitioner credentialing. It provides verification of 
sensitive adverse information about practitioners in an 
efficient and reliable manner, while, at the same time, 
maintaining the security and confidentiality required by law.
    At the beginning of the year the National Practitioner Data 
Bank held nearly 228,000 disclosable records concerning more 
than 146,000 practitioners of which more than 100,000 are 
physicians. In 1999 the Data Bank responded to nearly 3.5 
million requests for searches of the data base, more than four 
times the number in 1991, the first full year of operation. 
Those requests resulted in actual disclosures, or ``hits,`` at 
the rate of about 3.5 per minute during a normal business day. 
The Data Bank's ability to respond quickly and accurately, and 
for a relatively modest fee, and I might add here, Mr. 
Chairman, contrary to what you heard at the other hearing, this 
is not a taxpayer funded system. This is entirely funded by 
fees including my salaries and those of my staff.
    In any event, it has not only fueled the Data Bank's 
success but has made it a model for other government data 
collection and disclosure efforts.
    It is fair to say that the significant growth and success 
of the Data Bank can be attributed in large part to our efforts 
to improve the systems which support the Data Bank. However, 
there is room for improvement in other areas as well. We are 
refocusing our efforts on improving the practical usefulness of 
the information in the Data Bank, particularly our efforts to 
collect information on all actions and malpractice payments 
which should be reported.
    For example, certain industry sources told us in 1990 that 
we should expect hospitals to report more than 1,000 
disciplinary actions every month, yet fewer than 1,000 are 
reported in a year. After almost 10 years, more than half of 
all hospitals have never reported a disciplinary action to the 
Data Bank.
    In a 1995 report on this subject the Inspector General of 
the Department of Health and Human Services cited several 
reasons which might explain this underreporting, but because of 
the confidentiality accorded peer review records in hospitals, 
none could be substantiated conclusively. As a result of that 
OIG report, a forum of industry leaders was held in Chicago in 
1996, at which there was general agreement that underreporting 
is an unfortunate reality. However, the continuing absence of 
wholly reliable data makes it more difficult to assess the 
extent of the problem so that useful solutions can be 
formulated.
    Accordingly, the Health Resources and Services 
Administration (HRSA) will soon contract with an accounting 
firm to help us devise, and execute, a plan for auditing 
hospital records so that required data can be efficiently 
collected and analyzed.
    The Department is also considering a recommendation by the 
Inspector General to seek a legislative change which would 
provide for monetary penalties in instances where hospitals had 
demonstrably failed to report reportable actions.
    Another important issue that has been raised by Congressman 
Bliley concerns disclosing Data Bank information to the public. 
As you know, the Secretary, in her response to Mr. Bliley on 
this subject said, and I quote, ``The issue of disclosing to 
the public information contained in the NPDB is complex. On one 
hand, I agree with your assertion that consumers need more 
information in order to make educated decisions regarding the 
medical professionals whose treatment they may wish to seek. On 
the other hand . . . there are privacy concerns regarding broad 
public disclosure of potentially incomplete negative 
information.''
    In fact, Mr. Chairman, the statute and the regulations 
under which NPDB operates are very clear. In the nearly 10 
years of our management diligence has been exercised to ensure 
the confidentiality mandated by the law. You have previously 
heard testimony on various sides of this multi-faceted issue 
from earlier witnesses. HRSA would only caution that any 
changes in the law be carefully considered and further debated, 
with due attention to what may be significant privacy 
implications, before being enacted.
    Without a doubt, there are legitimate arguments on both 
sides of opening up NPDB which ought to be considered. However, 
it is my opinion as the Data Bank manager that the key is not 
in the data itself, but in how it is used.
    Currently, for example, when a practitioner applies for 
employment or for admitting privileges, the hospital asks the 
practitioner for a complete practice history including any 
malpractice payments or adverse actions. A query of the Data 
Bank then verifies the information about malpractice payments 
and adverse actions for the hospital, or it discloses 
information to the hospital which the practitioner may have 
failed to include in the application.
    In either case it ensures that the practitioner cannot move 
from place to place in the hope of escaping a checkered past. 
That is precisely the purpose of the Act.
    Nothing in the Data Bank's information, on the other hand, 
is intended to produce an independent determination about the 
competency of an individual practitioner.
    Since Dr. Ganske has already read this for me, I think I 
will skip that part of my statement down the point--and I think 
this is important for me to say--that at the same time, it is 
easy to understand the public's frustration with the lack of 
entirely accurate and unbiased information, particularly when 
some licensing authorities are slow to act in the face of 
practitioners' histories of poor and occasional shoddy medical 
practices. I will be glad to expand on that as we get into the 
questions and answers.
    In conclusion, Mr. Chairman, I believe that by almost any 
account the National Practitioner Data Bank has been a success. 
However, there is room for improvement, to which we remain 
committed. To a great degree, the Data Bank's successful 
beginning is due to the Congress. We welcome your suggestions 
for better service and will work closely with you on these.
    Mr. Chairman, this concludes my remarks. I will be glad to 
address your questions.
    [The prepared statement of Tom Croft follows:]


   Prepared Statement of Thomas Croft, Director, Division of Quality 
Assurance, Bureau of Health Professions, Health Resources and Services 
                             Administration
    Mr. Chairman, I am Thomas Croft, Director of the Division of 
Quality Assurance in the Bureau of Health Professions, Health Resources 
and Services Administration. The Division oversees the operation of the 
National Practitioner Data Bank. I appreciate the opportunity to speak 
with you today about the Data Bank and the important issues you have 
raised.
    The National Practitioner Data Bank was created in response to the 
requirements of the Health Care Quality Improvement Act of 1986 and 
began operation in September 1990 under the most difficult of 
circumstances. Funding and staffing issues, opposition from many 
practitioner organizations and an operating system in need of updating 
were major obstacles to its success. We believe we have overcome these 
problems, moving from a paper-driven system which often could not 
respond in 30 days, to a fully electronic system which typically 
responds in 2 hours.
    Today, because of our commitment to customer service and continuous 
quality improvement, the National Practitioner Data Bank plays a vital 
role in the important process of practitioner credentialing. It 
provides verification of sensitive adverse information about 
practitioners in an efficient and reliable manner, while, at the same 
time, maintaining the security and confidentiality required by law.
    At the beginning of the year the National Practitioner Data Bank 
held nearly 228,000 disclosable records concerning more than 146,000 
practitioners of which more than 100,000 are physicians. In 1999 the 
Data Bank responded to nearly 3.5 million requests for searches of the 
data base, more than four times the number in 1991. Those requests 
resulted in actual disclosures, or ``hits,'' at the rate of about 3.5 
per minute during a normal business day. The Data Bank's ability to 
respond quickly and accurately, and for a relatively modest fee, has 
not only fueled its success but has made it a model for other 
government data collection and disclosure efforts.
    It is fair to say that the significant growth and success of the 
Data Bank can be attributed in large part to our efforts to improve the 
systems which support the Data Bank. However, there is room for 
improvement in other areas as well. We are refocusing our efforts on 
improving the practical usefulness of the information in the Data Bank, 
particularly our efforts to collect information on all actions and 
malpractice payments which should be reported. For example, certain 
industry sources told us in 1990 that we should expect hospitals to 
report more than 1,000 disciplinary actions every month, yet fewer than 
1,000 are reported in a year. After almost ten years, more than half of 
all hospitals have never reported a disciplinary action.
    In a 1995 report on this subject the Inspector General of the 
Department of Health and Human Services cited several reasons which 
might explain this underreporting, but because of the confidentiality 
accorded peer review records in hospitals, none could be substantiated 
conclusively. As a result of that OIG report, a forum of industry 
leaders was held in Chicago in 1996, at which there was general 
agreement that underreporting is an unfortunate reality. However, the 
continuing absence of wholly reliable data makes it more difficult to 
assess the extent of the problem so that useful solutions can be 
formulated.
    Accordingly, the Health Resources and Services Administration 
(HRSA) will soon contract with an accounting firm to help us devise, 
and execute, a plan for auditing hospital records so that required data 
can be efficiently collected and analyzed. The Department is also 
considering a recommendation by the Inspector General to seek a 
legislative change which would provide for monetary penalties in 
instances where hospitals had demonstrably failed to report reportable 
actions.
    Another important issue raised by Congressman Bliley concerns 
disclosing Data Bank information to the public. As you know, the 
Secretary, in her response to Mr. Bliley on this subject said: ``The 
issue of disclosing to the public information contained in the NPDB is 
complex. On one hand, I agree with your assertion that consumers need 
more information in order to make educated decisions regarding the 
medical professionals whose treatment they may wish to seek. On the 
other hand, . . . there are privacy concerns regarding broad public 
disclosure of potentially incomplete negative information.''
    In fact, Mr. Chairman, the statute and the regulations under which 
NPDB operates are very clear. In the nearly ten years of HRSA 
management diligence has been exercised to ensure the confidentiality 
mandated by the the law . You have previously heard testimony on 
various sides of this multi-faceted issue from earlier witnesses. HRSA 
would only caution that any changes in the law be carefully considered 
and further debated, with due attention to what may be significant 
privacy implications, before being enacted. Without a doubt, there are 
legitimate arguments on both sides of opening up NPDB which ought to be 
considered. However, it is the data bank managers' opinion that the key 
is not in the data itself, but in how it is used. Currently, for 
example, when a practitioner applies for employment or for admitting 
privileges, the hospital asks the practitioner for a complete practice 
history including any malpractice payments or adverse actions. A query 
of the Data Bank then verifies the information about malpractice 
payments and adverse actions for the hospital, or it discloses 
information to the hospital which the practitioner may have failed to 
include in the application.
    In either case it ensures that the practitioner can not move from 
place to place in the hope of escaping a checkered past. That is 
precisely the purpose of the Act.
    Nothing in the Data Bank's information, on the other hand, is 
intended to produce an independent determination about the competency 
of an individual practitioner. It rather is intended to supplement a 
comprehensive and careful professional peer review. It is noteworthy 
that the vast majority of practitioners who have reports listed in the 
Data Bank have only one and that is almost always a malpractice payment 
report. It is impossible and unfair to conclude from a single 
malpractice payment report alone, or even in some cases from numerous 
malpractice payment reports, anything substantive about the competence 
of a practitioner. To do so would be a disservice to all parties 
involved. At the same time, it is easy to understand the public's 
frustration with the lack of entirely accurate and unbiased 
information, particularly when some licensing authorities are slow to 
act in the face of practitioners' histories of poor and occasionally 
shoddy medical practices.
    In conclusion, Mr. Chairman, I believe that by almost any account 
the National Practitioner Data Bank has been a success. However, there 
is room for improvement, to which we remain committed. To a great 
degree, the Data Bank's successful beginning is due to the Congress. We 
welcome your suggestions for better service and will work closely with 
you on these. Mr. Chairman, this concludes my remarks. I am happy to 
address your questions.

    Mr. Upton. Well, thank you very much.
    The regular order is that we now proceed to the questions 
and we will limit members' questions and answers to 5 minutes 
and we may go a round or two to get those questions in.
    We will start off with the chairman of the full committee, 
Mr. Bliley.
    Chairman Bliley. Thank you, Mr. Chairman.
    Mr. Croft, in 1993 in the Clinton health care bill, the 
administration proposed opening the National Practitioner Data 
Bank to the public. Why has the administration changed its view 
and it has now taken a neutral position on the same issue?
    Mr. Croft. Mr. Chairman, that proposal as I recall was a 
part of a much larger proposal to make some significant changes 
in the way we deal with malpractice and malpractice complaints 
and I am certainly not an expert on that, but I----
    Chairman Bliley. Well, I understand that, but what has 
changed since 1993 to cause the administration to change its 
position?
    Mr. Croft. Well, the administration as far as I know is no 
longer proposing that comprehensive approach.
    Chairman Bliley. I understand that, but this was a small 
part of that comprehensive thing and so, you know, I was just 
curious as to why they would change.
    Are you aware of any inaccurate or any invalid data in the 
NPDB?
    Mr. Croft. I am aware that occasionally there will be some 
errors in the presentation of the data by the reporter. When 
those come to our attention we make every effort to get those 
corrected.
    Chairman Bliley. It is my understanding, Mr. Croft, that 
approximately 4,000 hospitals in the United States have not 
filed a single clinical privileges report to the Data Bank 
since its inception a decade ago. What are you doing to address 
this issue?
    Mr. Croft. I mentioned a couple of things in my statement, 
Mr. Chairman, and I think the most important part of that is 
that we are preparing to make an effort to look at those 
hospital records that will be made and can be made available to 
us to start to document where we see the problems.
    Chairman Bliley. My committee staff has discovered that 
only two, two hospitals have ever been warned by HHS for 
failing to comply with the NPDB reporting requirements.
    Shouldn't--I mean this is pretty shocking--I mean shouldn't 
HHS be doing more to investigate and discipline hospitals that 
fail to report?
    Mr. Croft. Our policy has been to respond, Mr. Chairman, to 
any allegations or any charges that are brought to our 
attention, but as I said in my statement we are now at a point 
where we think we can be more proactive in trying to discover--
--
    Chairman Bliley. I hope so. Mr. Croft, in spite of your 
statements to the contrary, doctors are escaping their 
checkered past by moving from place to place, in this hearing 
before the subcommittee 2 weeks ago we heard testimony of this. 
Why is it that the NPDB is failing to prevent this?
    Mr. Croft. The National Practitioner Data Bank, Mr. 
Chairman, collects information from various sources and we 
depend on those sources of course to provide us with the 
information on the actions they take. If there are no actions 
or if malpractice claims don't end in payments being made, then 
under the law those actions don't get reported.
    Chairman Bliley. Well, you know, we have found that doctors 
with more than 20 reports to the NPDB continue to practice in 
communities like Atlanta, Houston, Phoenix, and New York City. 
How does this come about? I mean----
    Mr. Croft. Well, as you know, Mr. Chairman, our job really 
here is to carry out the law. It is to collect information and 
provide it to the licensing boards and to the hospital who 
conduct peer review. It is not our role nor do we have a 
mandate really to begin making findings or decisions about the 
competency of practitioners in taking action. We simply don't 
have that role.
    Chairman Bliley. Well, thank you, Mr. Chairman, and Mr. 
Croft, would you be willing to respond in writing to additional 
questions, should I have any?
    Mr. Croft. Yes, sir.
    Chairman Bliley. Thank you very much. Thank you, Mr. 
Chairman.
    Mr. Upton. Thank you, Mr. Chairman. I would just have 
another unanimous consent request that all members of the 
subcommittee may have an opportunity to respond or further 
query Mr. Croft with questions in writing when the hearing is 
completed.
    Mr. Stupak.
    Mr. Stupak. Thank you. Mr. Croft, based upon the last 
questions you had, why would you want a data base open to the 
public if 60 percent of the hospitals are not reporting or are 
underreporting? That would not be a very reliable factor then, 
would it?
    Mr. Croft. Mr. Stupak, as I mentioned before, we have got a 
law here that we are trying to administer, and the law really 
doesn't allow for that kind of release of information. In fact, 
the information is crafted specifically to be a part of a 
comprehensive peer review----
    Mr. Stupak. Sure, but the reason why we are here is some 
people propose that we should open a national data base, but in 
theory if 60 percent of the hospitals are not reporting it 
would not be a very accurate indication then of the skills of 
the physician.
    Mr. Croft. Well, it may simply be a reflection that those 
hospitals are not disciplining practitioners----
    Mr. Stupak. True, but in theory then the National Data Bank 
would not be a good source of information for the quality of 
information and actually could possibly produce some false 
negatives, would it not?
    Mr. Croft. If I understand your question, sir, there are 
responses to queries, positive responses to queries about 12 or 
13 percent of the time, so if there is no information in the 
Data Bank on a particular practitioner, obviously there would 
be a negative response.
    Mr. Stupak. You said that the money comes from fees, user 
fees, right?
    Mr. Croft. That is correct.
    Mr. Stupak. At our last hearing some witnesses said that 
they thought it would be helpful if the States had free access 
to the Data Base. What are your thoughts on this? I know that 
the National Practitioner Data Base is a user fee system, but 
if we really want to encourage States to query, do you think 
that waiving these user fees for States would be a good idea? 
What are your thoughts on this?
    Mr. Croft. Mr. Stupak, my own personal view is that the 
cost ought to follow the demand, and I think we have done a 
very good job of doing that including recently starting to 
charge practitioners for their own self-queries. I certainly 
would not be opposed to trying that idea to see if it worked.
    I do know, on the other hand, that many State boards 
already get the information by having the practitioners self-
query and that seems to work well for them.
    Mr. Stupak. The Practitioner Data Base is a reporting 
system that is used, correct? You don't have an enforcement 
powers on a physician's license, do you?
    Mr. Croft. No. No, we do not.
    Mr. Stupak. That is left to the States, is it not?
    Mr. Croft. That is correct.
    Mr. Stupak. So if a person really wanted to know about a 
physician, a place or a hospital they could actually look to 
the State boards, could they not, who do the licensing and 
enforcing of the medical practice in their States?
    Mr. Croft. They should be able to.
    Mr. Stupak. Okay. And your board, your National 
Practitioner Data Bank doesn't do enforcement of licensing or 
sanctions against doctors who may have had difficulty?
    Mr. Croft. That is correct.
    Mr. Stupak. Okay. The chairman asked you about the 1993 
Clinton health care, and your response was while the National 
Data Base was mentioned in there it was part of a more 
comprehensive approach. That comprehensive approach included 
certain criteria to evaluate a provider and health care. It did 
not say, if you know, did it say just open up the National Data 
Base and that could be our evaluation of health care and health 
care centers and providers as to their qualifications and that? 
There was a much more comprehensive approach to it in the 
Clinton health care plan, was there not?
    Mr. Croft. That is my recollection, yes, sir.
    Mr. Stupak. In this proposal that is current--I should not 
say proposal but the idea before this committee, why we are 
doing oversight and investigation, is there anything else--I 
mean what we are looking at is whether or not we should use the 
National Practitioner Data Base and open it up to the public. 
Is there any other comprehensive support mechanism before we 
open it up in this proposal?
    Mr. Croft. I am not sure I understand the question, sir.
    Mr. Stupak. Well, in national health care, with the 
President's plan we at least had a comprehensive approach. What 
we have before us is just the stark proposal to open up this 
National Practitioner Data Base, correct?
    Mr. Croft. That is correct.
    Mr. Stupak. There is nothing there to support it. There is 
no evaluation. There is no criteria on the National Data Base 
what should or should not be given to the public--just throw 
the whole thing open and let the public make up their own mind.
    Mr. Croft. I am not aware of anything.
    Mr. Stupak. Okay, thank you.
    Mr. Upton. Thank you. It is my understanding that under 
current law the hospital is obligated to report the doctor's 
conduct to the Data Bank. Correct?
    Mr. Croft. When they take an adverse----
    Mr. Upton. An adverse action, and at our hearing 2 weeks 
ago we had, you are familiar with the case of Dr. Zarkin in New 
York carved his initials into the abdomen of his patient and 
under questioning the hospital, all that they reported to the 
Data Bank was gross misconduct as I recall----
    Mr. Croft. To the State authorities.
    Mr. Upton. [continuing] or to the State authorities was 
gross misconduct. They didn't actually indicate the details of 
that case.
    Did they play by the rules in that situation? Should they 
not have reported the full disclosure of what happened?
    Mr. Croft. If I recall correctly, Mr. Chairman, that was a 
report to the State and, frankly, I don't know what the State 
requirements are specifically for that explanation.
    Mr. Upton. See, what happened was he resigned and then sort 
of skirted the reporting of that to the Data Bank. Is that not 
a problem that maybe should be dealt with?
    Mr. Croft. Generally speaking, resignations when the 
practitioner is being investigated or being threatened with 
some sort of disciplinary action, that surrender is supposed to 
be reported.
    Mr. Upton. When someone loses a license, it is my 
understanding that under current laws State medical boards are 
required to report revocations and suspensions of licenses but 
not when they deny someone a license.
    Would it not strengthen the Data Bank if that was an added 
requirement?
    Mr. Croft. You are speaking of denial of initial licensure 
applications. Denials of renewals are reportable and yes, I 
believe it would strengthen the Data Bank.
    Mr. Upton. We had a situation in my State. A physician lost 
his license. I do not believe that he was authorized to 
practice under a hospital setting, but in fact we found out 
later on, after he lost his Michigan license, and it was for, 
as I recall, for dealing drugs, that he had lost his license in 
the State of Virginia for exactly the same reason.
    In my view, if that had been reported, though I do not know 
again the details of whether he actually practiced at a 
hospital in Virginia, but it seems to me that there ought to be 
a system where the State of Michigan or any State ought to be 
able to have some record that they could query as to whether an 
individual lost their license under a situation like that.
    Mr. Croft. They can now, sir, query the National 
Practitioner Data Bank. That information should be there.
    Mr. Upton. So the States when they revoke a license, they--
regardless of whether they practice in a hospital setting or 
not, they enter that into the Data Bank?
    Mr. Croft. Yes, that is correct, Mr. Chairman.
    Mr. Upton. Okay. The Health Insurance Portability and 
Accountability Act provided for the creation of a second 
Federal Data Bank, the Health Care Integrity and Protection 
Data Bank, which provides a repository of information about 
health care practitioners who have been convicted of certain 
crimes.
    I understand that you are responsible for administering 
that Data Bank as well.
    What types of crimes must be reported to that Data Bank?
    Mr. Croft. The crimes must be health care related. In other 
words, if the practitioner were convicted of let's say drunken 
driving, that would not necessarily be reported unless the 
particular jurisdiction believed that it was somehow related to 
the provision of health care.
    Mr. Upton. What about something like sexual assault, rape, 
murder? Are those crimes included?
    Mr. Croft. If they are related to patient care.
    Mr. Upton. Well, okay. Do you think that perhaps that ought 
to be expanded, a serious crime of that nature, if it is not 
related to patient care ought to be reported as well?
    Mr. Croft. As I understand it, Mr. Chairman, this Data Bank 
attempted to focus its attention on health care related 
matters. We certainly haven't studied the issue of what impact 
other kinds of actions like this might have on the usefulness 
of the data, but I would say generally speaking for 
investigators I suppose more information is always better.
    Mr. Upton. Mr. Green.
    Mr. Green. Thank you, Mr. Chairman, and I ask unanimous 
consent to place a statement into the record.
    Mr. Croft, since 1993 has there been any statutory changes 
in the National Practitioner Data Bank?
    Mr. Croft. No, sir.
    Mr. Green. Outside of the expansion, as the chairman 
mentioned, to other data you are supposed to correct. This is 
not a question, but this committee considered the President's 
health care plan in 1993 and 1994 and I don't remember it ever 
coming up for a vote. I don't remember if opening the Data Bank 
was going to be that positive a thing in 1993 or 1994 to my 
colleagues. I was not on this committee but I know it was 
considered, but I guess if it was great in 1993 and 1994 it is 
good for 1999 and 2000.
    Some of the primary weaknesses I see after our hearing last 
week of NPDB is that the reporting criteria oftentimes--in 
fact, I think looking at the minutes from the last National 
Practitioner Data Bank Executive Committee meeting, a range of 
concerns regarding the Data Bank were evident and could I get 
your reaction?
    For example, it was reported that more than 60 percent of 
all hospitals had never filed an adverse action report to the 
Data Bank since 1990, is that correct?
    Mr. Croft. That is correct.
    Mr. Green. And it suggests there is a significant problem 
of underreporting, is that correct?
    Mr. Croft. That is correct. Yes, sir.
    Mr. Green. What are the implications if 60 percent of all 
the hospitals never filed a single report, either that or in 
those hospitals there are a lot of great things happening--why 
is it happening at those hospitals who are not filing those 
reports?
    Mr. Croft. The Inspector General in her report in 1995 
suggested there were three reasons--one, simply that they are 
not taking disciplinary actions; a second one being that 
perhaps many or all the actions they are taking do not approach 
the threshold for reporting to the National Practitioner Data 
Bank; or possibly they are taking actions that ought to be 
reported and they are not, for whatever reason.
    Mr. Green. What do you think we need to do on a statutory 
basis to increase that reporting?
    Mr. Croft. I think there are a couple of things that could 
be done.
    One might be to provide stronger sanctions.
    Mr. Green. Could you do that or could the board do that 
now?
    Mr. Croft. No, it could not. There is a sanction in the 
statute for failure to report and it is loss of immunity. Of 
course, any time an action is not reported there is no immunity 
anyway, but that and making it possible, more possible for us 
to work with the hospitals in terms of how they are carrying 
out their peer review and professional review responsibilities 
might make it easier to get those actions reported.
    Mr. Green. Okay, so it would take action by Congress to be 
able to give you that authority?
    Mr. Croft. I believe it would, yes.
    Mr. Green. What are your thoughts about the corporate 
shield problem relating to the NPDB? How pervasive is that 
problem--and again, does it take Congressional action to 
correct it?
    Mr. Croft. Well, as you know, Mr. Green, we have attempted 
to correct it through regulation, through changing our 
regulations. That has had a bumpy road, to say the least.
    I do believe that there is underreporting of malpractice 
because of the so-called corporate shield. Data is obviously 
hard to come by to support that, but certainly in the 
discussions we have had with many folks in the industry and 
responses we have had from letters to insurers who tell us that 
they insure the organization rather than the individual 
practitioner and therefore do not believe that they need to 
report those things at least buttress the perception that there 
are malpractice payments that are not being reported.
    I think we in our efforts to help the insurers identify the 
payments that should be reported probably produced or created 
an opportunity for the so-called corporate shield to apply as 
well, but--well, I will stop with that.
    Mr. Green. Thank you.
    Mr. Upton. Thank you. Dr. Ganske.
    Mr. Ganske. Thank you, Mr. Chairman. It's no secret that I 
oppose opening the National Practitioner Data Bank.
    I think it should be disclosed that I practiced medicine 
for 18 years. I have never been sued, I have never settled. I 
have never had any legal proceedings at all.
    But, you know what? I don't know what's in my Data Bank. 
And, so, Mr. Croft, I need to get the address of where I should 
write.
    How much does it cost, by the way, for an inquiry?
    Mr. Croft. The cost of a query of the National Practitioner 
Data Bank is $10, sir.
    Mr. Ganske. Okay, I'll get that information, just to see if 
I'm listed on anything or not.
    In your statement you say it is impossible and unfair to 
conclude from a single malpractice payment report alone, or 
even in some cases, from numerous malpractice payment reports, 
anything substantive about the competence of the practitioner. 
Can you expand on that for us?
    Mr. Croft. Yes, sir, I can. First of all, more than 70 
percent of the practitioners who have reports in the Data Bank 
have only one.
    And, generally speaking, that is a medical malpractice 
payment, and it deals with one incident in the life of, or in 
the practice history of the particular practitioner.
    Mr. Ganske. Is that a settlement?
    Mr. Croft. Most often, it is.
    Mr. Ganske. What percent, do you think?
    Mr. Croft. Ninety-seven percent of the time, it is.
    Mr. Ganske. Ninety-seven percent of the time, it's a 
settlement?
    Mr. Croft. It's a settlement, and I might add, with no 
admission of liability.
    Mr. Ganske. Okay, and so you say that doesn't indicate 
anything about the competence of the practitioner?
    Mr. Croft. I was going to also add that, generally, that is 
a matter which took place at least 4 or 5 years earlier, if not 
longer.
    And so, yes, I would say that one incident doesn't make a 
practitioner incompetent.
    Mr. Ganske. So if 70 percent of the people that are listed 
have one incident, and 97 percent of those incidents are 
settlements, can you speak to the committee about what a 
settlement means?
    Mr. Croft. Let me answer it this way, sir, by starting--I'm 
certainly no--I'm not an attorney and I'm not an expert in the 
matters of settlement.
    Mr. Ganske. You run the thing, so what does it mean to you?
    Mr. Croft. But as I read the reports that are made to the 
Data Bank, there's a whole range of possibilities, everything 
from settling a case that perhaps the practitioner knew that he 
or she would lose if it went to court, to those that are 
settled because the amounts of money are so small that it's not 
worth litigating.
    Mr. Ganske. Do they list the amounts in the Data Bank?
    Mr. Croft. Yes.
    Mr. Ganske. So, of those settlements, can you give us some 
idea of what the average settlement amount is for, or what the 
mean amount is for?
    Mr. Croft. I think we have that, and if not, I'll certainly 
provide it for the record. I don't know it off the top of my 
head.
    Mr. Ganske. What percent of the settlements involve the 
doctor and what percent involve health plans only, or do you 
have that?
    Mr. Croft. We don't collect payment information against the 
entity, or the health plan, only where there's a practitioner 
that's named.
    Mr. Ganske. But it is fair to say that a sizable percent of 
those settlements were decisions that were made by the 
insurance company, simply because for cost-effectiveness 
purposes, they just didn't want to pay for litigation? Do you 
agree with that?
    Mr. Croft. I apologize, but----
    Mr. Ganske. Is it fair to say that a sizable percentage of 
those settlements were because the insurance company decided to 
settle, rather than just simply expend more money on 
litigation, and as a matter of cost/benefit analysis, they 
decided it would be cheaper for them to settle, rather than to 
fight a spurious case?
    Mr. Croft. On the--generally, speaking, the reporter 
doesn't tell us that. Sometimes they do, but it's rare. 
Generally they rely on the claim filed by the patient for the 
information that goes into the narrative description.
    Mr. Ganske. Isn't it true, though, that, generally 
speaking, if it's a really egregious case of malpractice, that 
the settlement sum is going to be a larger sum, rather than one 
of these smaller, $5,000, $10,000, $20,000 settlements?
    Mr. Croft. It's probably true that that's the general bias, 
however, I can tell you that I have seen reports of incidents 
that look pretty egregious, where the amounts are fairly small, 
and vice versa.
    I have seen some big settlements where at least from the 
description, it doesn't necessarily seem all that egregious.
    Mr. Ganske. How much data do you get on those settlements? 
I mean, is it like a paragraph or a page? Or is it a full legal 
brief?
    Mr. Croft. It's certainly not the latter. It generally is 
about a paragraph description.
    Mr. Ganske. A paragraph?
    Mr. Croft. Yes.
    Mr. Ganske. To sometimes describe some very complicated 
circumstances.
    Mr. Croft. I suppose you could say that, yes.
    Mr. Ganske. Which would make your point then that this data 
ought to be taken and looked at more thoroughly by the peer 
review panels that are making the determination on 
credentialing?
    In other words, that you're providing the function that 
they get information, say a hospital credentialing board, that 
they get information that, in fact, the physician that applied 
for credentials, actually told them that they had a settlement. 
Then they look into the details of what that means; is that 
correct?
    Mr. Croft. That was certainly the intention, we believe.
    Mr. Ganske. How good a job do you think you're doing in 
getting that information to hospitals that are in the process 
of credentialing?
    Mr. Croft. As I mentioned in my statement----
    Mr. Ganske. Do you think you're covering 100 percent of 
physicians seeking credentialing? Ninety percent? Do you have a 
way of knowing that?
    Mr. Croft. Let me answer it this way: I believe that 
hospitals are following the law, and they querying their 
practitioners when they should be querying.
    We've had virtually no allegations to the contrary. And 
particularly, for instance, the use of the plaintiff's attorney 
query, I think we've maybe had half a dozen in 10 years use 
that, and as yet, it's turned up nothing.
    So, I think that, yes, hospitals are querying.
    Mr. Ganske. If a physician writes in and gets his report 
from you, and sees that there is a mistake or an error, what is 
the procedure for getting that corrected?
    Mr. Croft. First of all, the Data Bank sends a copy of the 
report to the practitioner at the time it's filed with the Data 
Bank. That notification document includes all of the 
instructions and information about how the practitioner can 
dispute that report.
    The information that comes in a self-query, in response to 
self-query, does not include that kind of information, and if 
that's the first time the practitioner has heard about it, then 
the practitioner should call our help line and get all the 
necessary paperwork.
    Mr. Ganske. Is it true that a practitioner, if he sees an 
egregious mistake, cannot get you to remove it, but has to go 
to the reporting agency that has reported to you, to get them 
to retract it, but that they are under no obligation to do 
that?
    Mr. Croft. That's the first step in the process, Doctor, 
and the statute does require that the reporting entity correct 
information when it is wrong. And, in fact, even those cases 
that come to the Secretary, many times when we find there is an 
error, we will instruct the entity to correct it.
    Mr. Ganske. Do they always comply? Is there any enforcement 
that they comply?
    Mr. Croft. I don't recall any incidents when they haven't.
    Mr. Ganske. Thank you. Thank you, Mr. Chairman.
    Mr. Upton. Mr. Stupak.
    Mr. Stupak. Thank you, Mr. Chairman. During our last 
hearing, Dr. Harkman remarked in his testimony that the 
National Practitioner Data Bank was never intended to be used 
as a consumer tool. Do you believe this to be true?
    Mr. Croft. Yes.
    Mr. Stupak. Why do you say that?
    Mr. Croft. Well, because the statute is very clear about 
the purpose and about who has access.
    Mr. Stupak. Well, if we wanted to make the National 
Practitioner Data Bank useful as a public tool, what specific 
changes would be needed to be made in order to make this into a 
public tool that the public could use with some degree of 
confidence to get accurate information about a doctor or a 
medical care facility?
    Would the data base need to be totally retooled, redone, or 
could we just make some adjustments to achieve these 
objectives?
    Mr. Croft. Well, Mr. Stupak, I think there are several ways 
you could go about that. For one, you could--we could talk 
about perhaps joining forces with States and other 
jurisdictions that already have other data.
    Certainly I would strongly suggest that having this data 
out there by itself is risky because that wasn't the purpose 
for it. Frankly, anytime you try to use something for a 
different reason than it was originally intended, you're always 
running some kind of risk.
    But I would say it has to be taken in context with other 
information that may be available about the practitioner.
    Mr. Stupak. In your testimony you state, and I won't quote, 
but in your testimony you state that you have previously heard 
testimony on various sides of this multifaceted issue from 
earlier witnesses. HRSA would only caution that any changes in 
the law be carefully considered and further debated with due 
attention to what may be significant privacy implications 
before being enacted.
    Would you elaborate further on specific issues that should 
be taken into account when considering opening the Data Bank 
and what the pitfalls might be?
    Mr. Croft. I think what we were specifically referring to 
there is that there are certain data elements in these reports 
which are subject to the Privacy Act, the Social Security 
Number, for instance, and that if any of this information is 
going to be revealed, there ought to be close attention paid to 
that data, and perhaps purging it from the record.
    Mr. Stupak. At the last hearing, the chairman mentioned, 
Chairman Bliley mentioned that an individual had around 300, 
give or take, reports in the National Practitioner Data Bank, 
and I believe that was a doctor.
    Mr. Croft. A dentist.
    Mr. Stupak. A dentist. Could you elaborate on that? Does 
that mean this was a bad dentist? What, exactly--how do you put 
that in context? Wasn't this really he gave them something that 
made the kids' teeth turn color, so everyone wrote into it?
    Mr. Croft. Not in this case. There was a physician or is a 
physician with many, many reports where that is the case. 
Tetracycline was prescribed and turned teeth brown.
    In the case of the dentist, my review of the records 
suggest many, many claims for different reasons. A lot of them 
were about faulty crowns and that sort of thing.
    But this was certainly not a case where there was 
essentially one problem that may have caused some minor harm.
    Mr. Stupak. So that's 300 of them, though, in this one 
dentist here with the bad crowns or something like that, you 
said?
    Mr. Croft. Well, 290-some were malpractice for the faulty 
crowns and other work that the dentist had done. There are some 
licensure actions.
    Mr. Stupak. So in this case, on the 297, it's not the 
responsibility of the National Practitioner Data Bank to take 
away this person's license. Would the State be responsible for 
doing that?
    Mr. Croft. That's correct.
    Mr. Stupak. Did they ever remove that license?
    Mr. Croft. Yes, they did.
    Mr. Stupak. Okay, was that it your urging or the urging of 
others?
    Mr. Croft. It was probably at the urging of others.
    Mr. Stupak. I didn't mean you, specifically.
    Mr. Croft. Hopefully they checked with us about this 
information.
    Mr. Stupak. Right. Thanks.
    Mr. Upton. Thank you. When I sat down with my Chief Medical 
Officer and had a demonstration of how the Data Bank works and 
we had the consent of a physician that was there with us as we 
looked into his own file, we had a long discussion that morning 
in terms of pluses and minuses, constructive changes.
    One of the things that I heard was that hospitals are 
always required to report when they deny privileges, but, in 
fact, they have had a number of cases when physician has 
applied for a staff position, and the physician has voluntarily 
withdrawn their name or their application.
    They sort of flag it, you know, that you may not want to 
see this done to fruition, and the physician says, okay, get 
the message.
    Sometimes they go to another town, another State, who knows 
where, but my CMO suggested that we require hospitals, in fact, 
to report voluntary withdrawals. Do you think that's a good 
idea?
    Mr. Croft. I believe it would be, yes.
    Mr. Upton. Now, we've talked about some good ideas that are 
out there on the table, whether it's reporting of sexual abuse 
cases or whatever, 30 days, corporate shields, referenced here. 
You're not--as I understand it, you're not able to do any of 
that.
    You know, here's a good idea, we're going to proceed on 
this. You need legislation to do that; is that correct?
    Mr. Croft. That's correct, Mr. Chairman, they are all very 
specific.
    Mr. Upton. Well, something that this committee, I'll bet, 
would appreciate, is, as you think about this at night in the 
next couple of weeks, we're raising, I think, some pretty good 
questions.
    But if you'd like to share specifically some other things 
in addition to your testimony that we might proceed in a 
constructive route, we sure might appreciate that.
    I know that I have had some discussions with the chairman. 
I'm not prepared at this point to drop a bill or anything like 
that. I want to work with the chairman, but I do think there 
are some constructive changes that I have picked up from my 
local medical community, and work in closer harmony with our 
State licensing boards. I have some meetings and maybe my 
colleague from Michigan, Mr. Stupak, would like probably that 
it will happen back in Michigan.
    But I really want to walk through some of the conversations 
that I've had and see what might help them as we look for 
continued quality care physicians in our home State.
    And to make this system work in a stronger fashion, that, 
in fact, the few bad docs that are out there, in fact, don't 
continue to practice in areas where they really shouldn't 
participate. I mean, I know, as I have sat down with my 
physician community, 99.99, probably a couple more 9s are there 
for the right reason. They have the quality personnel to help 
them, and they want to do the job right.
    But we're going to find every now and then, some others 
that should have been weeded out a long time before, and, in 
fact, because of some of the lurches that are in the system, 
are able to avoid having their license removed.
    I think that we can come up with a little better system, 
and your thoughts in that degree, participation, as we perhaps 
move forward on a legislative process, I know would be 
appreciated by all members of the committee.
    Mr. Croft. We would be pleased to.
    Mr. Upton. Terrific. Mr. Green?
    Mr. Green. Thank you, Mr. Chairman, and if the subcommittee 
jurisdiction on the legislation moves forward I would hope we 
would have some statutory changes before we do anything and see 
how that works.
    Mr. Croft, some witnesses have suggested that some of the 
data in the NPDB cannot readily be used to determine doctor 
quality. Do you have any thoughts on that matter?
    Mr. Croft. Mr. Green, as we discussed earlier, certainly 
taking one malpractice payment report in isolation is probably 
not a reliable way to make a determination about a 
practitioner's competence.
    I do believe that taking all the information together that 
a peer review committee has at its disposal probably is usually 
sufficient to make a reasonable determination.
    Mr. Green. Do you think whether it is the agency or the 
Bank or this Congress that enough study has been done on 
exactly should be done with regard to giving the public access 
to the Data Bank or do you think we should spend more time 
studying it?
    Mr. Croft. I think we ought to be very deliberate.
    Mr. Green. One of the concerns I have, and I know it has 
been asked in different ways, is because of the lack of 
reporting, for example, take a fictitious ``Dr. Green'' or 
``Hospital Green'' and if this was available and I contacted 
the Data Bank and it showed there was no information on it, 
today would I be able to rely on that as a patient or as an 
employer that is looking at a list of physicians that may be on 
the list that my insurance carrier gives me? Could I rely that 
there is no reports in the Data Bank if it was public?
    Mr. Croft. I am not sure I understand your question, sir.
    Mr. Green. Okay. I guess the concern about the false 
negatives----
    Mr. Croft. Right.
    Mr. Green. [continuing] if I was an employer who has a 
contract with XYZ Company and I want to check the physicians or 
the providers, the hospitals that are on my list, and if this 
bill was passed that our chairman has, could I in good 
confidence----
    Mr. Upton. I just want to note I don't have a bill yet.
    Mr. Green. No, the chairman of the full committee has the 
bill--and I contacted you if that bill passed, would I have a 
comfort level under current information to say that since no 
one is listed there that I should have that physician or that 
hospital or that facility on that list?
    Mr. Croft. Well, the information there certainly does not 
attempt to make any sort of determination about the competency 
of the practitioner or any facility or entity that he or she 
may work for, and if there is no information there, that 
equally is not a determination about the competency of the 
practitioner.
    Mr. Green. Particularly in light that 60 percent of all 
hospitals have never filed an adverse report.
    Mr. Croft, at our last meeting Dr. Hotchman at American 
Hospital Association mentioned in his testimony that one of the 
reasons that we should not completely open the NPDB is because 
it ultimately would lead to further reduction of data 
reporting.
    In his testimony he says, ``Public disclosure of Data Bank 
contents as presently configured would undermine the 
confidentiality of the peer review process in hospitals across 
America, thus impeding the Data Bank's goal of promoting health 
care.
    Congress promised confidentiality when it created a 
National Practitioner Data Bank and the normal tensions created 
by peer review would be significantly heightened if reports 
were available to the public and complete disclosure of the 
Data Bank's contents to the public could cause caregivers to be 
less forthcoming about their mistakes and less likely to report 
errors made by their peers.''
    Now what are your reactions to that statement and do you 
think Dr. Hotchman reports that opening the Data Bank to the 
public could actually lead to a further reduction in data 
reported?
    Mr. Croft. Mr. Green, I do not know whether that is true or 
not. We certainly have not studied the issue to find out, but 
that is a big concern.
    Let me answer the question more directly this way, and I 
use this very often when I am speaking to groups about the Data 
Bank. Practically every question that I get about reporting is 
how can I avoid it, and practically every question I get about 
querying is how can I get more information. Very often they 
come from the same place.
    Mr. Green. Thank you, Mr. Chairman.
    Mr. Upton. Thank you. Dr. Ganske.
    Mr. Ganske. I will try to be brief, Mr. Chairman. I know we 
have a vote on.
    At the previous hearing I mentioned a concern about the 
reporting for physicians who practice high risk procedures. I 
was one of those physicians, a plastic and reconstructive 
surgeon. I did major cranial faces cases, some of them lasting 
10-12 hours, free flaps, all sorts of complicated procedures 
where, you know, if one little blood vessel doesn't stay open 
the whole thing fails.
    As I said, I was fortunate that I have never had a lawsuit, 
but Mr. Bliley mentioned that there are some practitioners in 
the Data Bank who have had around 20 reports. I can easily 
envision that some of the best physicians in this country, 
particularly those at academic centers, over a 20-, 30-, 40-
year course of practice could have 20 settlements.
    Would you care to comment and amplify your comment in your 
testimony that goes back to that question, to an uninformed 
observer, what does simply the mere reporting of those 
procedures mean? Can they have any context?
    I think, quite frankly, there are probably a lot of this 
Nation's best physicians that probably have some multiple 
entries into this Data Bank that could be misinterpreted. Would 
you care to comment on that, Mr. Croft?
    Mr. Croft. What I was referring to, doctor, was--and I 
think we talked about one already, the pediatrician who 
prescribed tetracycline to infants back in the 1960's only to 
learn that that caused staining of the permanent teeth of the 
children later.
    Mr. Ganske. Ex post facto.
    Mr. Croft. Yes.
    Mr. Ganske. Yes.
    Mr. Croft. And because, I assume because there haven't been 
any other payments or incidents lately that have been recorded 
that that pediatrician now knows better and otherwise is 
probably a competent practitioner, but I should be clear about 
that.
    That is not a determination that I am expected to make, nor 
am I planning to do that.
    There is another practitioner with multiple reports of 
malpractice because he failed to send employees home from a 
factor that had a chemical explosion problem. I cannot tell 
from the Data Bank report frankly whether the practitioner did 
anything wrong at all, but the fact is that there are 177 or 
whatever the number is reports that came from this one 
incident----
    Mr. Ganske. And your point being that that would be 
terribly unfair to those practitioners to open that up to 
public consumption when there is no context for them to make in 
terms of determining whether this was truly a poor practice or 
not?
    Mr. Croft. As I said, I think it would be unfair to judge 
that this practitioner was incompetent because of that one 
incident.
    Mr. Ganske. I thank you very much. Thank you, Mr. Chairman.
    Mr. Upton. Well, Mr. Croft, we appreciate your testimony. 
As you have heard from these buzzers, we have a vote that 
doesn't have a lot of time left, so we are going to adjourn 
this hearing.
    We look forward to hearing from you in the future in terms 
of your thoughts and ideas and appreciate very much your time 
this morning.
    Thank you.
    Mr. Croft. Thank you, Mr. Chairman.
    [Whereupon, at 11:16 a.m., the subcommittee was adjourned.]
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