Doctors have been under the watchful eyes of health plans, Medicare and state licensing boards for years. Now Congress plans to look into the possibility of allowing the public to peer into the federal records of doctors with strikes against them.
Rep. Tom Bliley (R-Va.), chairman of the House Committee on Commerce, plans to hold hearings March 1 on opening up the National Practitioner Data Bank to all Americans, says Pete Sheffield, a spokesman for the congressman.
"The chairman feels, at least in some form, that the information that exists (in the data bank) should be made available to the public," Sheffield says.
"Patients, in order to make wise decisions about their healthcare, should have this information, especially at a time in an age when information is so readily accessible."
Sheffield says the impetus for the hearings is the Institute of Medicine's recent report on medical errors, which suggested that mistakes kill as many as 98,000 Americans each year. "Patient safety has started to resonate with the American people," he says. Bliley believes that if "you want patients to make informed decisions, you need to give them the tools to do that."
The data bank is an electronic repository of all payments made on behalf of physicians in connection with medical malpractice settlements or judgments, as well as adverse peer review actions against licenses, clinical privileges and professional society memberships of physicians and other healthcare practitioners. The data bank was established by Congress as part of the Health Care Quality Improvement Act of 1986 and is funded by user fees of $4 per query.
State licensing authorities have their own processes for reporting adverse actions, which vary widely across the country. In an effort to improve reporting and make reporting uniform, HHS awarded a contract to the Citizen Advocacy Center, a Boston-based not-for-profit training organization, to create model legislation for states to implement.
By law, information on all medical malpractice payments and on certain adverse actions must be reported to the federal data bank. In turn, the data bank is required to make this information available to hospitals, state licensure boards and other healthcare entities under certain circumstances.
The information is considered confidential and is released only to the eligible entities or to doctors who want to check their own records for accuracy.
Disciplinary reports may be available upon written request through the state licensing boards.
Hospitals are required to request information from the data bank about every physician and dentist who applies for appointment and to check every two years on every practitioner who is on their medical staff or who has privileges.
While requests for information have been rising sharply--there were about 3.5 million requests in 1999, up from 2.5 million requests in 1995--reporting by hospitals of adverse actions has remained lackluster. A 1995 study by HHS' inspector general's office found that about 75 percent of all hospitals never reported an adverse action from the data bank's opening on Sept. 1, 1990, to Dec. 31, 1995.
The study failed to explain why so many hospitals didn't report. Even when they did, the study found, "Hospitals seldom made different privileging decisions than they would have without the data bank reports." Hospitals are not required to make different privileging decisions, although failure to file reports with the data bank puts hospitals at risk of losing the immunity protection for their peer review processes under the Health Care Quality Improvement Act.
A 1999 report published in the Journal of the American Medical Association found that more than 65 percent of all study hospitals, including more than 250 hospitals with 300 or more beds, reported no privileges actions during the five years of the study. The researchers suggested that hospitals fear increased liability by making reports to the data bank and that personal and professional ties between peer reviewers and their colleagues under investigation may inhibit reporting.
Underreporting remains a concern, says Tom Croft, director of the Division of Quality Assurance within the Health Resources and Services Administration.
"We've taken the position that if a hospital is brought to our attention that has failed to report, we certainly are going to investigate, and if there is sufficient evidence we'll bring it to the inspector general," he says. Croft says that a few such cases have been brought to the inspector general's attention in the past few years. But Croft admits that the data bank is extremely limited in its investigative role: "We aren't able to get an individual hospital's in-house records."
Doctors generally oppose increased disclosure. For example, the American Medical Association is opposed to opening the data bank because it believes that malpractice claims data are a poor indicator of quality, arguing instead that only when physicians have been disciplined by their state licensing agency should their names appear in the data bank.
The AMA House of Delegates took this stance in 1993 and has reaffirmed it every year since.
Sheffield says that Bliley, who asked HHS Secretary Donna Shalala in November for her views on the issue, plans to hold one day of hearings to hear from victims, the AMA, the American Hospital Association and the Clinton administration.
The hearing could pave the way for legislation, but Sheffield says "the first step is listening to the concerns of those who oppose (disclosure or believe) that the information needs to be changed from its current form."
While Bliley is moving forward with the hearings, Rep. Charlie Norwood (R-Ga.), a dentist, has "severe concerns" about them, says spokesman John Stone. While Norwood favors giving the public meaningful information about incompetent doctors, malpractice suit information in the data bank would unfairly tar many highly competent doctors, he says.
Stone says Norwood fears that legislation that may come out of the hearings may be attached to the Norwood-Dingell patient bill of rights legislation currently under consideration by a House-Senate conference committee, which would scuttle or delay its passage. Stone points out that Bliley is a conferee and voted against the Norwood-Dingell bill.
Sheffield says that if any legislation comes out of the hearings, it would not necessarily be attached to the patient bill of rights. He points out that the hearings are for considering to what extent Americans should get more information on their doctors and how to get hospitals to improve their reporting. For example, the hearing will consider whether criminal convictions should be added to the data bank.
At this point, no hearings or legislation is planned in the Senate, says Joe Karpinski, a spokesman for the Senate Health, Education, Labor and Pensions Committee. Sen. James Jeffords (R-Vt.), the committee chairman, plans to work with those in the House who may introduce a bill.
Jeffords "wants to make sure information is cleaned up before it's released. He wants to make sure it's useful to the public and consumers and make sure it really reflects incompetent practitioners rather than the mildly incompetent," Karpinski says.