18 November 2015

Court Provides Rare Guidance on NPDB Report Requirements

Hospitals are often caught between a rock and a hard place when deciding whether or not to report a physician to the National Practitioner Databank (NPDB). If a hospital files a report with the NPDB, it faces a potential costly lawsuit from the physician.  If a hospital fails to file a report, it may lose immunity under the Health Care Quality Improvement Act (HCQIA). A lack of clear statutory or regulatory guidance only makes the decision more difficult. A recently unsealed opinion gives hospitals additional insight into what the NPDB considers an investigation and under what circumstances a hospital should report a physician’s voluntary resignation.

In Doe v. Rogers, 2015 U.S. Dist. LEXIS 138225 (DCDC 2015), a physician voluntarily resigned his surgical privileges at a hospital shortly after he inadvertently removed a portion of a 14 year-old patient’s fallopian tube during an appendectomy.  He sued the Department of Health and Human Services (“HHS”) and the NPDB, among others, after the hospital filed an Adverse Action Report with the NPDB.  Doe claimed his resignation should not have been reported because he was not under investigation at the time he resigned.

The Court first grappled with lack of a statutory or regulatory definition of investigation.  After acknowledging that the NPDB Guidebook’s definition likely warranted some judicial deference, the Court turned to the dictionary and held that an investigation was “a systemic examination.” The Court then looked at the hospital’s internal documents and determined that a systemic examination was underway at the time of Doe’s resignation. The Court also rejected Doe’s argument that the NPDB report was improper because he was unaware of the investigation noting that the NPDB Guidebook specifically states that a report should be made even if the physician is unware of the investigation.

Practical Takeaways

  • For purposes of reports to the NPDB, an investigation is defined as a systemic examination.
  • Whether an investigation is underway is determined by examining the hospital’s internal records and meeting minutes.
  • A report to the NPDB is appropriate even if the physician was not aware of the investigation.
  • Hospitals should clearly document when an investigation begins and what steps were taken in order to support the determination that an investigation had begun.

Miller Johnson will continue to monitor legal developments. For more information, please contact the author or any member of Miller Johnson’s Employment-Health Care or Heath Care Provider practice groups.