Government Restricts Public Access to Malpractice Data

On September 1, the Health Resources and Services Administration (HRSA) removed the public use file from the National Practitioner Data Bank, a repository of reports and responses on physician discipline and malpractice actions. Journalism groups and patient advocates are protesting the move as one that restricts access to data that is, by law, supposed to be publicly available, and as a step backwards for patient safety.

The NPDB was originally set up under the Health Care Quality Improvement Act of 1986, Title IV of Public Law 99-660. The general gist is that the increases in medical malpractice were signaling a need to improve medical care. The data bank became an alert system, a way to collect information about medical malpractice payments and disciplinary actions so that problematic physicians could be identified and prevented from harming patients further if need be. The stated purpose of Title IV was to improve the quality of health care by making such events subject to professional awareness and review.

Public Access
The data collected at NPDB are also, by law, supposed to be available to the public. Identifying factors are removed from the spreadsheets of disciplinary actions and malpractice information. For example, no names are included with the data, and ages of individuals are presented as ranges, not as a specific number. But despite the fact that the data were not tied to individuals, it could still be used to connect gaps in attention; for example, hospital settings where malpractice suits were mounting but no disciplinary action had been taken.

As the presidents of three professional journalism societies wrote in their letter (PDF) to HRSA requesting that the NPDB’s Public Use File be restored online, “The Public Use File, while it didn’t identify doctors by name or address, provided invaluable information about the functioning of state medical boards and hospital disciplinary systems.”

Removal of the Public Use File
The removal of the Public Use File from online access was triggered by research being done by Alan Bavley, a health reporter at the Kansas City Star. As he described in the Kansas City Star on September 13, Bavley was preparing a story about doctors with long histories of alleged malpractice but who have not been disciplined by the Kansas or Missouri medical boards. Through his research, Bavley had identified physicians with this history by linking data from the NPDB with court records, which are also available to the public. That kind of research, connecting those particular dots, has been done many times. The fact that this trace can be made has raised concerns at HRSA about how to keep the NPDB data anonymous, and the agency is now trying to figure that out, saying that the Public Use File will be changed somehow and possibly back online with yet-to-be-determined alterations to make identifying the physicians behind the malpractice suits impossible. (Though, you know, where there’s a will, there’s a way.)

When Robert Tenny, MD, a neurosurgeon practicing in Johnson County, KS, found out that he had been identified in Bavley’s research, he complained to HRSA, which then sent a letter to Bavley warning him against “republication of information obtained from the National Practitioner Data Bank.” The full letter is available here (same PDF as above). HRSA’s Division of Practice Data Banks Director, Cynthia Grubbs, told Bavley that violating NPDB regulations could result in a fine of $11,000. On September 3, the Kansas City Star ran Bavley’s article as planned. The report says that the newspaper’s review of the NPDB found “21 doctors with 10 or more malpractice payments made on their behalf, including at least one payment in Kansas or Missouri, but no disciplinary action in that state.”

As the New York Times reports, HRSA was concerned that Bavley was using data from the full data bank, not solely from the public use file. Bavley explained that this was not the case, but the agency decided to conduct a full review of the public use file anyway.

Many of the advocacy groups protesting HRSA’s removal of the public data say that the decision runs counter to the Obama administration’s commitment to promote transparency of government data and to patient safety.

Medical Liability and Patient Safety
Aside from the issues about public access, this event raises questions about the connection between medical liability and quality of care. Are they related? The American Medical Association says that medical liability claims data “is a poor indicator of quality.” Of course, the AMA is an organization that advocates for physicians, so there is a bias there, but still, it’s a fair question: what is the connection between liability claims and physician ability?

A 2010 report (see page 93) found a significant correlation between the frequency of adverse events and malpractice claims. That report looked at data from four of the largest medical liability carriers in California, collecting about 27,000 claims on alleged events from 2001 to 2005. The authors concluded that patient safety was strongly linked to malpractice claims.

Another study, from 2009, found that the level of satisfaction that patients had with their care predicted malpractice risk.

It’s also fair to ask whether malpractice suits improve patient safety or satisfaction. As the authors of that 2009 study note, “the costs associated with malpractice litigation draw substantial resources away from patient care…” But that assertion pits the welfare of a single patient against the welfare of all patients. If one patient was wronged and wants to submit a malpractice claim, should that patient consider that the claim will divert funds that could otherwise be used to improve the safety of future patients? That seems like a stretch.

And yet the threat or fear of liability claims and malpractice suits has led to defensive medicine; that is, doctors ordering tests and procedures just in case. (Here are two views on that issue: one and two) That means that healthcare costs continue to rise without really improving patient safety. Medical liability reform has had an unbalanced focus on reducing physician’s insurance cost. As then-Senator Hillary Clinton and then-Senator Barack Obama wrote in the New England Journal of Medicine in 2006, “The current tort system … jeopardizes patient safety by creating an intimidating liability environment.” And: “Studies consistently show that health care providers are understandably reticent about discussing errors, because they believe that they have no appropriate assurance of legal protection. This reticence, in turn, impedes systemic and programmatic efforts to prevent medical errors.” That article was a platform for explaining the MEDiC (Medical Error Disclosure and Compensation) Bill (it did not became a law).

The NPDB and Patient Safety
As the letter from the presidents of the Association of Health Care Journalists (AHCJ), Investigative Reporters & Editors, and the Society of Professional Journalists notes, past reports in the press using NPDB data have identified flaws in state regulatory systems that have led to patient harm. “As a result of these stories,” the letter says, “states have enacted new legislation and medical boards have taken steps to investigate problem doctors.” The AHCJ website has the letter online, along with a long list of links to articles using NPDB data. Reading that list, the idea of not having access to the data used in the articles is cringe-inducing. At the same time, reporters can still request the information from the NPDB—the information is public by law and must be made available to those who request it—but the individual, piecemeal requests that are now necessary will make obtaining relevant data more difficult and more time consuming, and will be more work for everyone involved.

So – as a health care consumer, do you want the Public Use File to be restored online? If you were a physician (or if you are one now), do you think the data should be online as before? Should the law be amended to include identifying factors, eliminating the concern about misuse entirely? Or should the file be altered to make it more difficult to identify individuals?

The main issue here is whether Public Use File should be restored. The law says the data should be publicly available, and making it impossible or exceedingly difficult for reporters to access the information doesn’t really seem in keeping with the spirit of the law.

There is also the food-for-thought opportunity about the link between medical liability claims and quality of care. Are they related? If so, how closely? If not, as the AMA asserts, then why not? (A question I’ll try to get to in another post.) The problem is that a mistake can end up costing a physician his/her career. But the problem is also that unreported or un-acted-upon errors can endanger patients.

Obviously this brief discussion barely scratches the surface, but the situation and its spinoff considerations are a great example of how so many contentious issues in health care lead back to fundamental questions about ethics and humanity. Of course, that is, in part, why they are so hard to resolve, especially because money and politics tends to eclipse the heart of the matter.

(Disclosure: I am a member of AHJC, though until yesterday I had not heard of the National Practitioner Data Bank and have never used the data therein.)

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