[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\
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\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
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\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.
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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
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\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.
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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
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\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).
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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.
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\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
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\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.
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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.]