System Failure;

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Most U.S. hospitals have never filed a report with the databank that records doctor suspensions; critics say it’s time for a new method

Modern Healthcare

When it debuted in 1990, the National Practitioner Data Bank was billed as the nation’s central repository for hospital-based disciplinary actions against U.S. physicians-the most complete, authoritative collection of its kind. At the time, even cautious members of the medical community predicted that the database would receive as many as 10,000 reports each year on disciplinary actions against doctors by the nation’s hospitals.

As it turns out, the confidential databank has received just about that number of such reports in its 15 years of existence, about 10,800 in all through 2004, or roughly 720 or so a year. During much of the 1990s, reports dropped consistently. What’s more, most U.S. hospitals have never filed a report even though they are required to do so when a doctor loses privileges or is suspended for more than 30 days.

Four years ago, the Government Accountability Office issued a blistering report that slammed the databank for doing little or nothing to address longtime concerns about underreporting by hospitals. The Health Resources and Services Administration, an HHS division that runs the databank, acknowledged the problems and vowed to make changes. Yet little has been done, and the total numbers of reports has not increased measurably.

Consumer advocates, meanwhile, say it’s not plausible that only about 0.75% of all the nation’s physicians were subject to disciplinary actions by hospitals last year, or that only three of every 10 U.S. hospitals ever disciplined one of their affiliated doctors severely enough to justify a report to the databank.

“There are obvious reasons for this problem of underreporting,” said Joan Claybrook, president of Public Citizen, a consumer-advocacy group. “They tend to try to settle matters internally. They don’t want to have it on any record that might affect insurance or lawsuits. They want to protect the doctors. And that’s just not consistent with the intent of the law.”

Databank critics have suspected widespread underreporting from the start. The number of reports hasn’t changed appreciably despite the national furor triggered six years ago by the groundbreaking Institute of Medicine study suggesting that nearly 100,000 patients die each year from medical errors at hospitals.

In its first full year of operation, 1991, a time when there were nearly 5,400 general hospitals in the nation, the databank tallied 915 clinical-privilege reports resulting in serious disciplinary action against doctors. That number dropped to 853 the following year, then hit an all-time low of 645 in 1998. In 2004, 817 reports were received, up 4.6% over the previous year, officials said.

Yet Mark Pincus, the databank’s administrator, discounts reports that hospitals routinely ignore federal guidelines or underreport disciplinary measures. While he acknowledges that the databank has come under intense criticism in recent years, he said officials have improved monitoring of hospitals to ensure compliance. Despite some skepticism, he says, hospitals appear to be following the letter of the law.

“It’s still an issue,” he conceded about concerns in some quarters about underreporting. “But my belief is that hospitals report the actions they take. What I’m saying is that hospitals that take reportable clinical-privilege actions report them to us.”

Interestingly, a study released last week found that hospitals’ reporting of clinical data can lead to improvements in care (See story, p. 9).

Pincus said he recognizes that there is a widely held belief that hospitals avoid the reporting requirements by suspending a doctor’s privileges for a period that falls just below the threshold of “more than 30 days.”

“It happens,” Pincus said. “But I can only address the law, which requires that actions over 30 days be reported to the databank.”

For years, consumer groups and some lawmakers have worked without success to open the databank to public scrutiny. Powerful interest groups, including the medical establishment and hospitals, have thwarted numerous legislative efforts targeting the databank’s secrecy. More recently, Rep. Peter DeFazio (D-Ore.), tried again, introducing a bill in mid-May that would make it easier for the public to view disciplinary reports and malpractice settlements. No action has been taken on that legislation.

One consumer advocate, Charles Inlander, president of the People’s Medical Society and a longtime proponent of opening the databank to the public, isn’t optimistic that any action will be taken in the face of such powerful lobbying interes”People aren’t marching in the street, so it’s easy for Congress to ignore the issue.”

Claybrook and Inlander agree that one big part of the problem with the databank is that citizens have no way of knowing what’s in it. “Unfortunately, there’s no way for consumers to monitor it-it’s so secret there’s no way to see it,” Claybrook said. “We very much want to open it up to the public. The AMA has always opposed opening up the databank. And I think a lot of members of Congress were influenced by that, and by the claim by the AMA that it would ruin the reputation of doctors.”

Calls for a replacement

Is the databank working? Absolutely not, according to Dennis O’Leary, president of the Joint Commission on Accreditation of Healthcare Organizations, which issued a report in February with a call for the wholesale revamping-or replacement-of the databank. For his part, O’Leary said he believes it’s clear that hospitals routinely avoid reporting requirements for the databank. How widespread is this practice among the nation’s nearly 4,900 commun-ity hospitals? It’s almost impossible to gauge, O’Leary said. “That’s like asking, ‘How many medical errors are there?’ ” he said.

Federal officials, he said, have failed to adequately address many of the key criticisms raised in the GAO’s November 2000 report, Major Improvements Are Needed to Enhance Data Bank’s Reliability. The report concluded that the HSRA had made “little progress in addressing suspected underreporting.”

Along with state medical boards, the databank, which operates on an annual budget of about $15.8 million in user fees and employs about 20 people, is one of two national methods of measuring physician disciplinary actions.

In mid-April, the Federation of State Medical Boards released its annual report of disciplinary measures taken against doctors by its members and found that strict sanctions were up in 2004 by almost 20% from the previous year. The federation, which compiles reports from medical boards in the U.S. and its territories, also reported that 2,116 of those actions involved the loss of a physician’s license, up 19% from 2003.

O’Leary said state medical boards are more effective in identifying bad doctors, even though some critics say the number of tough disciplinary actions by state agencies remains low. Still, total board actions against doctors have jumped nearly 40% in the past five years, another indication that hospitals’ oversight may have lagged by comparison to the numbers reported to the databank.

The American Medical Association believes state medical boards are more effective at regulating and disciplining doctors than the databank, which compiles details of settlements even in cases when the practitioner is opposed to a settlement or had little involvement in the circumstances leading to a lawsuit.

“The information it (the databank) collects is riddled with duplicative entries, inaccurate data and incomplete or inappropriate information,” said Donald Palmisano, a New Orleans surgeon and former AMA president. “We’ve always strongly supported patients having access to reliable information about physicians. We believe that the authority vested in state regulators make them best-suited to provide the state medical boards with this kind of information.

“We think the databank, as it’s now established, should be abolished,” he added.

A heavy emphasis on malpractice settlements has triggered the ire of the AMA, which has always objected to the databank’s collecting information on all settlements, including those resolved without a physician’s consent. This practice, AMA officials say, gives an inaccurate picture of physicians in a society where litigation is increasingly routine. Even the best doctors, they say, are sued, but that doesn’t mean the doctor is incompetent. “The payment of money in a medical-liability case is a poor indicator,” Palmisano said. “There’s no correlation between negligence and money paid.”

Despite the chorus of criticism in recent years, the databank has its defenders. The American Hospital Association, for one, considers it an effective tool in helping its members judge the qualifications of physicians.

“The objective was to create a central repository,” said Maureen Mudron, the trade group’s Washington counsel. “Hospitals take their responsibilities seriously.” She questioned the basis behind early estimates that the databank would receive thousands and thousands of reports a year. “I don’t hear anyone today saying that’s a number we should be expecting or anticipating,” she said.

The nation’s hospitals are working more closely than ever to identify problems before they escalate to the point where drastic action must be taken against physicians, which is one possible reason why the number of reports has fallen so far below early estimates, Mudron said.

Physicians and hospital officials argue that U.S. healthcare facilities do a good job of policing doctors through a confidential peer-review process, which is designed to correct “systemic” problems and help foster methods to avoid repeating those same mistakes in the future.

Drawing fire from the feds

Concerns about hospitals’ adherence to these reporting standards for the databank date to 1995, when the HHS’ inspector general’s office released a scathing report on the topic. In that report, which leveled the blame on the hospital industry, investigators found that about 76% of all hospitals had never reported a single disciplinary action in the program’s first three years.

While officials had estimated about 5,000 adverse-action reports per year, only about 3,100 were cited through 1993. The AHA’s response at that time was similar to its most recent reaction. In a letter sent a decade ago to the inspector general, the trade group questioned the reliability of any “best guess” estimates of the number of adverse reports and suggested that lower figures were attributable largely to “improvements in credentialing and quality improvement programs.”

In a 1999 letter to then-House Commerce Committee Chairman Thomas Bliley (R-Virginia), AHA President Richard Davidson appeared to acknowledge that hospitals occasionally use “alternative interventions,” including staff supervision or short-term limitations on privileges, as a way to avoid reporting these incidents to the databank. Top officials later backtracked, saying the organization was unaware of any hospitals
“using alternate methods” to sidestep reporting dictates.

For their part, AMA officials say they have worked aggressively in recent years to improve clinical quality, patient safety and error-reporting measures as a way to help reduce adverse-event reports to the databank. The nation’s largest doctors’ group supports legislation that would create confidential, voluntary reporting systems, in which physicians and other healthcare professionals identify medical errors to patient-safety organizations. The AMA is also working on clinical performance measures for treating major diseases.

The renewed focus on the apparent shortcomings of the databank comes as the politically powerful medical establishment is lobbying for additional legal protection in malpractice lawsuits. Consumer advocates suggest that organizations such as the AMA, the nation’s most visible and influential doctors’ group, seem to be more interested in protecting doctors’ own financial interests than safeguarding the health and well-being of patients.

It seems like the doctors’ entire legislative and lobbying focus is to cap jury awards,” said Joanne Doroshow, president and executive director of the Center for Justice and Democracy, a consumer group that believes such limits deprive patients of their legal rights. “And that is seriously misdirected. Doctors should really be focusing almost all of their attention on patient safety and reducing incidents of malpractice-that’s one sure way to decrease lawsuits.”

In February, the JCAHO called for more aggressive patient-safety measures to go along with the medical establishment’s long and costly efforts to place caps on damages in lawsuits. O’Leary, the commission’s president, said it was time to focus on patients instead of the war between doctors and trial lawyers.

“In addition to problems with malpractice settlements that often lack “validation,” O’Leary said, the law creating the databank doesn’t necessarily distinguish between the individual performance of a practitioner and the kinds of adverse, “system-related events” that so often lead to errors and bad outcomes.

In testimony before Congress in early June, O’Leary again called into question the “reliability, validity and completeness” of information in the databank, and suggested that the “only reliable alternative is to create an alternative resource to house this information in the private sector,” which presumably could include his own organization. In an interview, he also said tougher sanctions will be required if hospitals are ever going to report all adverse outcomes.”This is not rocket science,” O’Leary said. “Tie it to
Medicare certification, or payment, and you’ll get the hospitals’ attention.”

Pincus, who has been the administrator of the databank for almost a year, said federal officials have made a concerted effort to boost enforcement and monitoring of clinical-privilege reports since the GAO’s report.

Created by the Health Care Quality Improvement Act of 1986 and put into place four years later, the databank was designed to collect information about adverse state-licensing actions, clinical-privileges actions and professional-society membership actions against physicians and dentists. It also collects reports of medical malpractice payments made on behalf of doctors.

Last year, the databank received about 25,300 reports-and 70% of them, or about 17,700, involved malpractice payments. Those reports remain in the databank permanently under most circumstances, but can be voided by the reporting entity or through a review process.

Officials describe the databank as a “national flagging system” meant to supplement-but not to replace-traditional forms of creden- tial review as well as to prevent incompetent physicians from moving across state lines to escape the disclosure of disciplinary actions. Under federal law, hospitals must query the databank whenever a doctor applies for privileges and every two years thereafter.

Some critics say the existing method of identifying and disciplining doctors is woefully inadequate, fraught with issues like conflicts of interest, built-in prejudices and a buddy system that discourages tough actions against members of the medical fraternity. In other words, they say, the databank’s shortcomings are only part of a much larger problem.

“Medical boards are run by doctors, controlled by state medical associations,” said Jamie Court, president of the Foundation for Taxpayer and Consumer Rights. “There has never been aggressive policing of doctors. The databank isn’t effective. The whole system, nationally, of doctors policing other doctors, does not work.”

What do you think?

Write us with your comments. Via e-mail, it’s [email protected]; by fax, 312-280-3183.

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