HHS trying to shield federal docs from malpractice scrutiny, former officials allege

Two former high-ranking federal officials are alleging that HHS is trying to gain authority that would allow it to hide information on malpractice cases against some of its doctors—information that would be publicly reported if the incidents happened at community hospitals and clinics.

All payments for malpractice settlements are, in theory, reported to the public in the National Practitioner Data Bank. But the proposed policy would protect federally employed doctors, nurses and dentists with malpractice settlements when government officials independently decide that the clinicians met the appropriate standard of care. The HHS’ Office of Inspector General concluded several years ago that hundreds of federal malpractice claims appeared to have been omitted (PDF) from the databank already.

HHS officials won't talk about the change publicly, except to acknowledge in a statement, “HHS is working on a resolution to this issue.”

Critics say the policy would give federal officials too much power to conceal questionable conduct by their own doctors, especially since all community hospitals are still required to disclose malpractice payments regardless of the circumstances.

“They're saying to everyone in the private sector, 'Do as I say, not as I do,'” said Robert Oshel, a retired associate director for the HHS' division of practitioner databanks, which runs the NPDB. “It harms the utility of the databank. People rely on the databank's information as being compklete and accurate.”

Oshel joined with Alan Levine, a retired senior program analyst in the OIG, to write a detailed letter to outgoing HHS Secretary Kathleen Sebelius last week urging her to reject attempts to get her to sign off on the new policy before she leaves office.

Their letter noted that Sebelius' signing such a controversial policy change just before leaving office would stand as “a blotch on your legacy of public service.”

The NPDB was created in 1986 to crack down on practitioners who were moving across state lines to hide shady backgrounds. The database is supposed to receive reports of official actions taken against doctors' clinical privileges, licenses and professional society memberships, as well as any malpractice payments and exclusions from Medicare and Medicaid. The database includes about 800,000 reports on licensing, official discipline and malpractice payments.

Hospitals are required to research anyone who applies for clinical privileges or medical staff membership, and state licensing boards and insurers can use the data as well.

The version of the databank that can be downloaded by the public does not contain doctors' or hospitals' names.

HHS employs thousands of doctors in the National Institutes of Health, the Indian Health Service, and community clinics and offices run by the Health Resources and Services Administration.

Any malpractice payments made on their behalf are supposed to be reported to the databank, though Oshel and others say they believe HHS has already been withholding information without seeking the policy change now in the works. A Freedom of Information Act request filed last year by advocacy group Public Citizen returned only scant information on federal malpractice payments.

The U.S. Defense and the Veterans Affairs departments have long had the authority to withhold malpractice reports if they decide that a doctor, dentist or nurse on their payrolls didn't do anything wrong. Oshel and Levin said HHS agencies don't have the authority.

“HHS said, 'We are going to hold ourselves to a higher standard,' and it is the same standard that applies in the private sector,” Oshel said.

Although federal officials may be trying to protect clinicians targeted by junk med-mal claims, Oshel noted that the databank already has a mechanism for wrongly accused doctors, which is the narrative section included on each payment. Employers are free to write in the narrative of any individual case that they felt the doctor followed the standard of care despite the malpractice payout.

Almost any doctor is susceptible to having a single malpractice claim filed against him or her, but many experts say a pattern of such cases is often more meaningful than isolated incidents, which is why detailed reporting of all cases is key.

“The intention of the databank is that any final action by a medical board or a payout, just those suits where there has been a payout, the data should be there,” said Dr. Sidney Wolfe, co-founder and senior adviser to Public Citizen.

Follow Joe Carlson on Twitter: @MHJCarlson