• Getting Out of the National Practitioner Data Bank - Part II
  • December 13, 2009
  • Law Firm: Holland & Hart LLP - Denver Office
  • Getting out of the NPDB is perhaps equivalent to escaping from Alcatraz – a near impossible feat. Yet there are those who have accomplished it. The easiest way of course is to convince the hospital or other reporting entity that the report was improvidently submitted and that it should be retracted and withdrawn as they are able to do. The other option is to convince the Secretary of HHS that based on the administrative record, the submission was in error and not reportable under the criteria for reporting set out in the NPDB Guidebook. If the Secretary persists in affirming the appropriateness of the report, the only remaining recourse is the filing of a judicial review action in a federal court under the federal Administrative Procedure Act, 5 U.S.C. §701 et seq., where you must establish that the decision by the Secretary was "arbitrary and capricious." One of the most contentions areas of data bank reporting is the obligation to report a physician who resigns or withdraws an application for privileges in order to avoid a peer review "investigation" or discipline. Two successful judicial review cases in which doctors have "escaped" from the NPDB are instructive.

    In Simpkins v. Shalala, 999 F. Supp. 106, (D.C.C. 1998) the federal district court ordered that Dr. Simkins name removed from the NPDB where he was identified as having resigned his clinical privileges while under investigation. The court held that because the investigation conducted by the hospital did not qualify as an investigation to trigger the reporting requirements under the Health Care Quality Improvement Act of 1986 ("HCQIA"), in that the hospital did not follow its bylaws.

    The "review" of Dr. Simpkins did not follow this D.C. General procedure. D.C. General provided no documentation to HHS that a complaint of any kind was ever submitted to the Medical Director of D.C. General. As a result, the specified investigatory procedures mandated by D.C. General’s Bylaws were never initiated. No complaint was delivered to the accused staff member, Dr. Simpkins, nor was "an investigating committee" appointed as required by the Bylaws. These deviations from the By-laws were not minor but rather fundamental in nature and indicate that these actions cannot be reasonably found to constitute an investigation by D.C. General.

    Similarly in Costa, M.D. v. Leavitt, 2006 U.S. Dist. Lexis 51675, a doctor successfully pried open the lid on the data bank by establishing that the record did not reflect that he was "under investigation" when he resigned his privileges. Dr.Costa had had a long and hostile relationship with the hospital administrator and the hospital board and appeared to be somewhat of gadfly around Gothenburg Memorial Hospital. He challenged the competency of the hospital administrator, who he described as a "tin horn." He derided the board for failing to properly supervise the administrator and expressed general distain for both. The record reflected that the hospital’s denial of Dr. Costa’s request for renewal of his privileges just before he resigned was a result of his distain and not part of a professional review action.

    The hospital administrator first reported Dr. Costa to the data bank suggesting that he was under investigation by the State of Nebraska, which was a false statement. He later recanted that statement but then suggested that there was an ongoing review related to Dr. Costa’s obstetric cases and his alleged inadequate supervision of a physician’s assistant. Although there was mention of those issues in meetings, there was no apparent contemporary documentation of a formal investigation commenced under the bylaws of the hospital. The court went on to find that the narrative description required in the report to the data bank was inadequate in that it only generally reported that the resignation occurred while under investigation related to professional competence and did not provide specifics. While noting that a great deal of specificity is not required,

    It does, however, require sufficient specificity to enable a knowledgeable observer to determine clearly the circumstances of the action or surrender. NPDB Guidebook F-7.

    Escape is difficult, but not impossible, if the facts are right.