medical boards pursuing cases of al- leged wrongdoing. “The good news with the data bank
is that it’s still not open to the public,” he said. “The bad news is, with it still not being open to the public, I don’t have a good sense of how much weight hospitals, insurance companies, any- one else puts on what’s entered in there. And I also don’t have a good idea of how seriously they take the doctor’s rebuttal or response to a data bank entry.” A report to the data bank can take a physician by surprise. One of Mr. An- derson’s recent clients had a hospital approach him about voluntarily sur- rendering privileges to perform cer- tain surgical procedures. The hospital was critical of the doctor’s handling of a particular case. “Because of where he was in life
and where we were at, with dealing with a different thing at the hospital, he signed that deal with the hospital thinking he was doing the right thing
— ‘OK, let’s table that issue until we sort out these other issues.’ It never dawned on him that that could be re- portable,” Mr. Anderson said. “That did become reportable against the doctor, and the hospital did report it.” Any time a physician surrenders
“It makes it bloody clear: It does not matter if the physician doesn’t know about the investigation.”
or fails to renew clinical privileges at a hospital while under investiga- tion, that event is reportable to NPDB. Either of those individual events, a surrender or an open investigation, is not reportable. In fact, the guidebook explicitly says in both its previous and current versions that health care enti- ties shouldn’t report investigations or voluntary relinquishment of a physi- cian’s license for personal reasons. Put them together, though, and
you have a reportable event. And now, health care attorneys are worried about the scope of what’s reportable because of the newest guidebook’s language on investigations.
+ 50 TEXAS MEDICINE March 2017
The 2015 guidebook says NPDB
“interprets the word ‘investigation’ ex- pansively,” phrasing that didn’t appear in the old version. While NPDB may consult a health care organization’s bylaws or documentation for help to determine whether an investigation has begun or is ongoing, NPDB “re- tains the ultimate authority to deter- mine whether an investigation exists,” the guidebook says. “The NPDB considers an investi-
gation to run from the start of an in- quiry until a final decision on a clini- cal privileges action is reached. In other words, an investigation is not limited to a health care entity’s gath- ering of facts or limited to the man- ner in which the term ‘investigation’ is defined in a hospital’s by-laws,” the guidebook says. “An investigation be- gins as soon as the health care entity begins an inquiry and does not end until the health care entity’s [decision- making] authority takes a final action or makes a decision to not further pur- sue the matter.” One particular feature of NPDB
that has always irked attorneys is the lack of a requirement that physicians know they’re under investigation. That’s consistent with law and with regulatory language, says Minnesota- based medical staff attorney Elizabeth Snelson, but it doesn’t “square with any due-process concept,” and she says the 2015 version of the guidebook drives the point home repeatedly. “I should go through and count how
many times, but it makes it bloody clear — they don’t want to hide this at all. It does not matter if the physician doesn’t know about the investigation,” Ms. Snelson said. “The fact that she’s under investigation is enough.”
CIRCUMSTANCES TO WORRY ABOUT Ms. Snelson says the changes to the NPDB’s guidebook broaden the scope of an “investigation” such that a sim-
2015 NPDB Guidebook: tma.tips/NPDBGuidebook
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