By Richard B Willner
The Center for Peer Review Justice
The National Practitioner Data Bank (NPDB) is a 20 year experiment created by an act of Congress along with the Health Care Quality Improvement Act of 1986 ( HCQIA). The experiment has failed. It is time to abolish this agency.
The NPDB is a black list reminiscent of the McCarthy blacklist of the 50s. Instead of targeting the Red Menace, or Communists, the target of this blacklist of the White Menace: “Bad Doctors.”
The problem is that too many good doctors’ names are submitted to this list. And it is disturbingly easy to do.
The perception is, if a doctor is included on this list, they must be a bad doctor, otherwise, why are they on the list?
The consequences of a listing are dire. As a result of a listing in this “data bank”, many doctors become unemployed and unemployable. For surgeons who must use a hospital Operating Room, the “data bank” is a permanent as a tattoo.
Clearly, a doctor has a “liberty interest” in his professional career and reputation. Also, plenty of hard work goes into becoming a doctor. A listing by this agency irreparably damages a doctor’s career and his reputation. A listing thus leads to a loss of liberty. Yet in the United States of America, we have this document called the Constitution. So, in examining the National Practitioner Data Bank, are doctors being deprived of liberty without due process of law?
When Congress created the NPDB, they created a highly unique agency. This is the only federal agency that has delegated publication power to corporations, corporations that have been granted the authority to publish whatever they please on federal stationary.
Not only does the federal government allow them to publish, they assist them with the distribution of the publication, and they also grant them immunity for what they publish. These publishers, private corporations, have thus been released from the confines of laws of libel. They can publish whatever they please without fear of reprisal and the federal government protects them behind a veil of immunity. This means that the victims of defamation by said corporations have no recourse against those corporations for various and sundry torts such as defamation.
Consider the scenario where an entry is made to the NPDB that is simply flat out defamation. I estimate that the entire process takes less than one hour. What recourse does the doctor have to combat this? In the real world, in the event of defamation, the doctor could sue for defamation to recover any resulting damages. When a defamatory statement is laundered thru the NPDB, there is no recourse. Any lawsuits will be dismissed under the veil of immunity defense. The doctor can then proceed with a time consuming and arduous formal “secretarial review” to obtain redress. That is assuming he, or his lawyer, has heard of this. Chances are, he has not. One doctor fought a defamatory listing for eight years before someone informed him of the secretarial review option. He had never heard of it. No lawyer advised him of it.
And the “secretarial review” option is not a de novo review of the facts of the case. The NPDB does not do that. In fact, no agency does. The chances of prevailing are remote. The NPDB is designed as the “roach motel” of medicine. Statements can be entered freely and rarely come out.
In addition to release of liability for defamation. Congress also released these private corporations from fear of an antitrust suit. But it is only reasonable that by granting such immunity, the federal government must assume responsibility for the wrongful action of these private corporations, let the victims of a wrongful publication be denied the equal protection of the law. And isn’t such protection also part of our Constitution?
Upon submission, these corporate publications are distributed on federal letterhead. There is no scrutiny by the federal government to verify the accuracy of these corporate publications. There is no oversight. They publish and thus endorse what is mailed to them in a government publication originated from Washington DC.
The publications are distributed widely. First, they are sent to the doctor’s employer, his licensing board, any secondary licensing agency, their certification board and every hospital he works at, or will work at in the future. The item is then sent to the DEA, the agency that issues the prescription powers.
With each publication, the doctor is inevitably subjected to a new “adverse action” which generations secondary “adverse action reports”. Other states he is licensed in will issue their own investigation and still another Data Bank. This is the multiplier effect, where one entry becomes 5 entries. Clearly there is a double jeopardy issue here.
And then there is a due process issue. If a hospital is publishing so called “data”, how exactly was such “data” arrived at? The reference to a data bank entry as “data” would suggest some sort of mathematical accuracy to the publication. Yet who guarantees it’s accuracy? Does false information become data upon typing it into a computerized “data bank”? When it comes to computer data entry, garbage in equals garbage out.
There are very serious consequences to a data bank entry. If the doctor loses his job, he loses his liberty. Is there any guarantee this loss of liberty if accompanied by the requisite “due process of law” that is guaranteed by the US Constitution? The answer to this question is a resounding no.. Congress did not mandate these hospitals comply with Constitutional due process standards before they submit what amounts to corporate verdicts of corporate trials. As such a trial, no appeal is allowed, no discovery is allowed and no confrontation is mandated.
Congress can only do what they are authorized to do . All congressional authority comes from the Constitution. The Constitution guarantees the right to constitutional due process before a man is deprived of his liberty. A listing leads to a loss of liberty, yet there is no guarantee of due process.
And that is where Congress failed. They failed to abide by the supreme law of the land. Congress created an agency that is in fundamental violation of the rules they are obligated to follow. Thus the NPDB must fail, as the McCarthy blacklist failed, lest we all lose more good doctors. That that is bad for all of us.
For further information on the Data Bank, please feel free to consult with The Center For Peer Review Justice at info@PeerReviewjustice.org or 504-621-1670