U.S. GOVERNMENT PRINTING OFFICE

62–975CC WASHINGTON : 2000

PUBLIC ACCESS TO THE NATIONAL PRACTITIONER

DATA BANK

HEARINGS

BEFORE THE

SUBCOMMITTEE ON

OVERSIGHT AND INVESTIGATIONS

OF THE

COMMITTEE ON COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

MARCH 1, 2000—WHAT CONSUMERS SHOULD KNOW ABOUT THEIR

DOCTORS

MARCH 16, 2000—ASSESSING THE OPERATION OF THE NATIONAL

PRACTITIONER DATA BANK

Serial No. 106–93

Printed for the use of the Committee on Commerce

(

COMMITTEE ON COMMERCE

TOM BLILEY, Virginia, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

MICHAEL G. OXLEY, Ohio

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

Vice Chairman

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

RON KLINK, Pennsylvania

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

TOM SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

JAMES E. DERDERIAN, Chief of Staff

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

FRED UPTON, Michigan, Chairman

JOE BARTON, Texas

CHRISTOPHER COX, California

RICHARD BURR, North Carolina

Vice Chairman

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

ROY BLUNT, Missouri

ED BRYANT, Tennessee

TOM BLILEY, Virginia,

(Ex Officio)

RON KLINK, Pennsylvania

HENRY A. WAXMAN, California

BART STUPAK, Michigan

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

JOHN D. DINGELL, Michigan,

(Ex Officio)

(II)

C O N T E N T S

Page

Hearings held:

March 1, 2000 ................................................................................................... 1

March 16, 2000 ................................................................................................. 107

Testimony of:

Croft, Tom, Director, Division of Quality Assurance, Health Resources

and Services Administration, Department of Health and Human Services .................................................................................................................. 111

Gedz, Liana, accompanied by Christopher T. McGrath ................................ 27

Hochman, Rodney F., Senior Vice President and Chief Medical Officer,

Sentara Health System, on behalf of American Hospital Association ...... 55

Loniewski, Edward, on behalf of American Osteopathic Association ........... 50

Neuman, Barbara, President, Administrators in Medicine, Board of Medical Practice, State of Vermont .................................................................... 47

Newman, Robert G., President and CEO, Continuum Health Partners,

Inc., on behalf of Beth Israel Medical Center ............................................. 63

Osten, Wayne M., Director, Division of Health Care Standards and Surveillance, New York State Department of Health ...................................... 67

Reardon, Thomas R., President, American Medical Association .................. 59

Silver, Lawrence, Silver and Field .................................................................. 70

Smart, Anderson, accompanied by Linda Cronin .......................................... 29

Sullivan, Mary Anna, Chair, Board of Registration in Medicine, Commonwealth of Massachusetts .............................................................................. 41

Sullivan, Nancy Achin, Executive Director, Board of Registration in Medicine, Commonwealth of Massachusetts ....................................................... 42

Wyden, Hon. Ron, a United States Senator from the State of Oregon ........ 19

(III)

(1)

WHAT CONSUMERS SHOULD KNOW ABOUT

THEIR DOCTORS

WEDNESDAY, MARCH 1, 2000

HOUSE OF REPRESENTATIVES, COMMITTEE ON COMMERCE, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, Washington, DC.

The subcommittee met, pursuant to notice, at 10:06 a.m., in room

2123, Rayburn House Office Building, Hon. Fred Upton (chairman)

presiding.

Members present: Representatives Upton, Bilbray, Ganske, Bryant, Bliley (ex officio), Stupak, Green, Strickland, DeGette, and

Dingell (ex officio).

Staff present: Charles Symington, majority counsel; Chuck

Clapton, majority counsel; Amy Davidge, legislative clerk; Chris

Knauer, minority investigator.

Mr. UPTON. Good morning everyone. Let me say that again. Good

morning. Welcome to today’s hearing by the Oversight and Investigations Subcommittee on the issue of whether or not the National

Practitioner Data Bank should be open to the general public.

I want to thank all of our witnesses for agreeing to appear before

us today and offer their perspectives on this important and certainly very timely issue.

We are going to hear from two individuals who have had horrific

experiences with our health care system, as a consequence of their

physicians’ incompetence and/or misconduct. No health care system

and, particularly one that is touted as offering the most sophisticated, finest quality of care in the world should ever tolerate such

conduct or permit such incompetence.

We need to ask some very hard questions this morning. How did

our system fail to weed out these doctors? Did the States that licensed them thoroughly investigate them when they applied for licenses? Did the hospitals where they practiced have effective, stringent peer review programs in place and query the Data Bank as

required by the law? Do we have all the tools necessary at the

State and Federal level to protect patients from incompetent and

even criminal doctors?

As these patients’ experiences reveal, the question before us this

morning should be a much broader one than whether or not we

should open up the Data Bank. There is an old saying that has

been heard many times before in this committee. Sunshine is the

best disinfectant. Well, I say let the sunshine in. We owe it to these

individuals and to every American to shine a hard light on our Nation’s health care delivery system.

2

The vast majority of the doctors in this country are able practitioners, dedicated to the welfare of their patients. We owe it to patients and to these doctors to see that the few bad apples are quickly discovered and appropriately disciplined or we will erode patient

confidence in all doctors and undermine access to care and quality

of care.

I think we all share a common goal here this morning. We want

to assure that every American receives high quality health care

and that every American can have faith that the doctor who is delivering one’s baby or operating on one’s child is competent and

committed to the patient first.

We also want to give patients access to the information that they

need to make informed choices of practitioners. It is important that

we debate the implications of opening the Data Bank, but we must

not let that debate obscure the need to address the problems in our

credentialing and licensing system, which is largely State-based

that resulted in the horrible experiences of today’s witnesses.

There are no easy answers and I do not pretend to have the endall solution. This is a complex problem that requires examination

of all the various pieces of the puzzle. In this process, we should

heed the physicians’ oath. First, do no harm. I think we should consider enacting common sense solutions, such as, providing grants

to State medical boards to ensure that they have the resources to

promptly and professionally review all reports that may warrant

disciplinary action.

To more effectively address the issue of physicians crossing State

lines and setting up in practice when they lose licenses or face disciplinary action in another State, we should consider giving States

incentives to query the National Practitioner Data Bank whenever

a physician licensed in another State seeks additional licensure.

I would also like us to look at ways to improve communication

between the Medicare professional review organizations and State

medical boards and to make sure that Medicaid agencies can and

will share information with State medical boards. We need to make

ensure that HCFA is making sure that its intermediaries are referring cases of apparent unethical practice or unprofessional conduct

to State medical boards as well.

I think it would be a good idea if the Drug Enforcement Administration released a monthly report to all State medical and pharmacy boards on all practitioners whose controlled substances have

been revoked, surrendered, restricted or denied.

The National Practitioner Data Bank was created by Congress in

1986 in response to several factors, the increasing occurrence of

medical malpractice litigation and the need to improve the quality

of medical care by increasing the willingness of physicians to participate in diligent peer review programs. The Data Bank Law does

this by shielding physicians from liability from antitrust and private damage suits when they’re engaged in peer review.

By creating a nationwide flagging system, the Bank was designed to address the problem of physicians who lose their licenses

or face other discipline in one State by simply moving to another

State to practice. From its inception, the Data Bank was intended

to be an additional tool for States and hospitals and other health

3

care providers engaged in credentialing decisions, not as a tool for

use by the general public in evaluating physician competence.

The malpractice information in the Bank, for example, could be

quite misleading to those not trained in its interpretation. The

number and even the size of malpractice payments may not necessarily indicate a doctor’s competence. Insurance companies often

settle out of court rather than go to trial, even though there is compelling evidence that the physician’s care was appropriate.

Doctors who take on the toughest cases because they are highly

skilled may have more malpractice suits than others in their field.

Doctors who are in high risk fields, such as, obstetrics, neurology,

may face more suits than their peers in other areas of medicines.

Doctors who are engaged in cutting edge clinical research to develop and perfect what will be tomorrow’s routine standard of care

may also have higher rates of malpractice suits.

Opening the Data Bank to the public, including trial lawyers,

could discourage doctors from going into high risk fields of medicine, from delivering babies as part of a family practice or from engaging in clinical research. These are outcomes that will reduce not

enhance access to care and quality of care, both now as well as in

the future.

In the 1999 report, the President’s Quality Committee, it noted

that current systems to improve the quality of care tend to focus

too much on individual practitioners and not enough on system

problems. That was brought home in a very dramatic way by the

Institute of Medicine’s report on Building a Safer Health Care System: To Err is Human.

This report came to the startling conclusion that, anywhere from

44,000 to 98,000 folks die every year as a result of medical errors

caused largely by failures or glitches in systems of care. The report

notes that, more people die from medical errors in a given year

than from motor vehicle accidents, AIDS or breast cancer. The report notes that, our systems of care are complex, decentralized and

fragmented.

One study found that, an intensive care patient may have as

many as 178 different tasks performed on them by medical personnel in a single day. What would seem to be the very straightforward task of getting a drug to a patient actually involves six different activities: the doctor making a decision on which drug to

use; the doctor ordering it; usually in the form of a handwritten

prescription; the pharmacist dispensing the drug; the aide transporting it to the patient; and, finally, a nurse who actually administers it. An error, potentially fatal, could occur in the execution of

any one of those steps.

The report’s major recommendation for correcting these problems

in the system is reporting of errors, both serious errors resulting

in death or serious harm as well as less serious errors or near

misses that, if uncaught, could have resulted in serious harm. The

report notes that, the effective reporting programs require the fostering of a climate that encourages individuals to come forward and

report errors, rather than covering up out of fear of individual punishment or liability suits.

The IOM report recommended a nationwide, mandatory system

for reporting serious errors, with public disclosure and a voluntary

4

reporting system for less serious errors that would be protected

from public disclosure as well as litigation. However, the Agency

for Health Care Research and Quality, in its review of the report,

came down against any mandatory reporting requirement, finding

that it could make matters worse and that, allowing disclosure of

hospitals in practitioners’ names would be counter-productive.

I agree with the Agency for Health Care Research and Quality

and with the White House, which has adopted the agency’s position. This goes to the heart of my concern about opening up the National Practitioner Data Bank to the general public. When we created the Bank, we assured doctors that we would not open up the

Bank to the general public, because the information requires both

interpretation and because it could result in an explosion of malpractice suits.

If we break this commitment, how can we expect doctors and

other health care providers to trust us when we tell them if they

come forward and report errors that they will not be singled out

for punishment or be opening themselves up to malpractice suits?

If we want to correct this serious problem in our health care delivery system that undermines quality of care for tens of thousands

of Americans every year and if we agree that confidential, voluntary reporting systems are the key to fixing our health care systems, then we had better think very carefully about the message

we will be sending if we open this Bank up to the public.

I yield to my friend, Mr. Stupak.

Mr. STUPAK. Well, thank you, Mr. Chairman and thank you for

yielding.

This hearing will allow us to explore and raise some very interesting questions regarding the information available to patients

about their doctors. I believe that patient should have access to

reasonable and reliable information about physicians, collected by

the government, to improve their abilities to choose a physician to

provide quality care.

However, Mr. Chairman, I am very concerned about press reports that this hearing is in retribution by members of the majority

for the American Medical Association’s support of a real patients’

bill of rights. I certainly do not believe that this subcommittee

should be used as an instrument of retaliation for political agendas.

I hope this is not the case.

Putting aside the motivation for this hearing, I believe this hearing will raise a number of very interesting questions. Members of

the public have a right to accurate, relevant information about

their health care providers. If the Federal Government collects accurate and relevant information about health care providers, we

should seriously consider whether or not it should be made available to the public.

Currently the National Practitioners’ Data base collects data

about physicians, medical practice liability, adverse disciplinary actions taken by State medical and dental boards, suspensions of

clinical privileges by hospitals, sanctions by professional societies,

exclusion from participating in Medicare and Medicaid, an action

taken by the Drug Enforcement Agency, DEA. Access to the National Practitioner Data base is not available to the general public.

5

It is restricted to health care entities and physicians, seeking their

own information.

Before we open up the National Practitioners’ Data base to the

general public, we should ensure that the information is accurate

and relevant to the patient’s choice of a doctor. I am concerned that

some of the reported categories may not have the required level of

accuracy. Any reported action should ensure that the due process

rights of the practitioners have been followed. In addition, the categories should provide information that are reliable indicators of

medical quality.

Clearly, any action by a Federal or State agency have constitutional procedure requirements. Thus, the categories reported by the

NPD that require State action, seem to meet the accuracy requirement. On the other hand, an adverse action by a hospital by a physician, may not follow procedural safeguards to insure the action

was brought in good faith and followed a proper procedure.

In addition, there is a second data base called a Health Care Integrity and Protection Data Bank. It is pronounced HIPTB. HIPTB

reports only adverse final actions brought by State and governmental agencies against practitioners. All the reporting categories

provide information only after a governmental agency has taken action against a provider. I would be interested to know whether the

information in HIPTB should be made available to the public.

I look forward to the hearing, the witnesses, their views on what

information, if any, should be made available from the NPD or the

HIPTB. With that, Mr. Chairman, I yield back and thank you for

the time.

Mr. UPTON. I yield to the committee chair, the Commerce Committee Chair, Mr. Bliley.

Chairman BLILEY. Thank you, Chairman Upton and thank you

for holding this hearing, so that the committee can explore an increasingly important issue facing health care consumers today, access to quality information about the doctors to whom they entrust

their lives and those of their children.

The United States is blessed with the best doctors and the finest

health care in the world. However, as we have moved away from

a health care model in which physicians were well known by their

patients to a more complex system of managed care, HMOs and

layers of specialists, patients now may choose a doctor from a list

of health care providers about whom they know very little.

As a result, the general public now has a greater need for access

to quality, comparative information about doctors practicing in

their community. As we all know, knowledge is power. When consumers have accurate information, they are able to make sound

health care choices, but to date, most patients have not been able

to gain access to important information about their doctors’ malpractice or disciplinary histories from any single source, even

though taxpayers have established a source for this information.

That is unacceptable.

Today I want to empower patients by giving them the keys to

this locked national data base. The National Practitioner Data

Bank, a clearing house of information concerning doctor malpractice and disciplinary histories, has been operating pursuant to

congressional mandate since 1990, but for reasons that have not

6

withstood the test of time, the critical information in this Data

Bank has not been available to the general public for the past 10

years.

Back then, the idea was that patients would be protected from

bad doctors by self-reporting and self-policing among the health

care providers. After too many tragedies over the past 10 years, we

now know that patients remain prey to certain highly questionable

doctors. We will hear today that patients are suffering serious injury and sometimes even death due to a very small number of

problem doctors, doctors who had numerous reports in the Data

Bank, but nonetheless, continued to be licensed by State medical

boards and hired by hospitals to care for patients.

For example, there is one doctor in the Data Bank with a history

of almost 300 malpractice payments. There’s a box right over here

that contains it. I say that his patients had a right to know about

this history before seeking his care.

I believe now is the time to open the Data Bank to the public.

It is unconscionable that consumers have more comparative information about the used car they purchase or the snack foods they

eat than they have about the doctor who has a history of malpractice sanction, even though we entrust their care to these doctors and enough information about a doctor’s prior criminal convictions is not presently reported to the National Data Bank.

I believe it should be available to consumers in the same manner.

The arguments of those opposed to public access, such as, the

American Medical Association, do not make sense. They argue that

the information reported to the Data Bank is not detailed enough

to be useful. They say that consumers will misunderstand it.

I submit to you, those are reasons for improving the Data Bank,

not keeping it under lock and key.

They also make a valid case that, not all malpractice settlements

reflect poor quality of care, but many other malpractice cases do reflect poor medical care. Certainly, an extreme history of malpractice is cause for concern. Can the AMA or other opponents of

public access really look Dr. Liana Gedz or Anderson Smart in the

eye and tell them, that the next time they choose a physician, they

still should not be allowed to view the critical information about

doctors that the Federal Government already collects in the Data

Bank.

We also know that public access to this type of information works

and without the ill effects predicted by some. A few States, through

physician profiles legislation, already have taken positive steps to

provide consumers with information about doctors practicing within their jurisdiction. These efforts are impressive and I believe they

can serve as a model for using the information currently in the National Data Bank and improving upon it as necessary.

The testimony we will hear today also will raise serious questions about how well State licensing boards and hospitals screen,

investigate and discipline doctors. While it is clear that States

must do a better job in protecting patients from dangerous doctors,

I firmly believe that State laws will not alone solve this problem,

given the demonstrated ability of questionable doctors to move

from State to State and slip through the regulatory cracks.

7

With a National Data Bank, we have a unique opportunity to assist the States with their initiative, to offer consumers one central

source of information and to give patients in those States that have

not passed physician history legislation access to information about

their doctors. We should seize this opportunity. It is sound public

policy. Given the remarkable growth of and advances of Internet

communication, it is very easy.

We now have the ability to give the public with the click of a button access to critical information about their doctors—days, hours

or even minutes before an appointment. How can we not do so? I

reject the claim that consumers cannot be trusted to understand

and use this information. I do not believe that patients should have

to rely solely on State medical boards or hospitals to make such

critical health care decisions for them.

Today’s hearing also reflects the committees larger focus this

year on patient safety issues. I believe that public access to the National Practitioner Data Bank may be one of the best and quickest

ways to improve patient safety. The sunshine of disclosure, coupled

with the pressures of an efficient and competitive marketplace of

informed consumers will help to weed out the few bad apples and

insure a safer health care system for all patients.

I would like to thank all the witnesses appearing before the committee today and I look forward to hearing their testimony.

Thank you, Mr. Chairman.

Mr. UPTON. Thank you, Mr. Chairman.

I now recognize a ranking member of the full committee from the

great State of Michigan, Mr. Dingell.

Mr. DINGELL. Mr. Chairman, I thank you. Good morning to you

and good morning to my colleagues and to the witnesses.

I want to say that, this is a very important hearing. The subject

of protecting consumers from sub-standard medicine and from dangerous doctors who do not provide the highest quality of care is a

serious one. It needs careful, thoughtful and serious consideration.

Giving the consumer the ability to make more informed choices

when selecting a doctor is also extremely important. Seeing to it

that the consumer has the tools that are necessary to do that well

and intelligently and seeing that he has truthful information is, of

course, a matter of the highest urgency and importance.

Our goal here should be to make medicine safer and empower

consumers further. I hope this hearing will assess the various approaches to accomplishing these goals and demonstrate why some

choices are more useful or better than others. We need to look at

all the options before us, find out what is good, find out what is

bad, find out what protects the consumer, find out what empowers

the consumer, but find out also what gives the consumer truthful

and adequate information to make proper judgments.

Mr. Chairman, the practice of medicine is regulated by the

States. To that end, they decide who should and who should not

get a license, who should continue practicing. They also decide who

remains competent and who should be allowed to continue that

practice. The States have established these regulatory systems to

protect consumers, with little intervention by the Federal Government.

8

Nevertheless, as our witnesses will demonstrate today, sometimes dangerous doctors who should not practice, do practice and

often with little or no intervention by the State’s authorities. Why?

Do we know? What can and what should be done?

There is also a question of then whether we grant public access

to the National Practitioner Data Bank. To answer that question,

we first have to address a number of other questions, one of which

is the first and, that is, there are certain fields of discrete data collected by the Data Bank that, if released, could help the public

make more informed choices when selecting a doctor.

Now, I call on my colleagues and everybody else to remember.

Patients have very important rights here. They need to know these

things to assure they receive proper care. But so also do the doctors, whose reputations and good names are their most precious

possessions. This raises then questions about the reliability of the

input into the National Data Bank.

Is it going to provide the necessary information the patient

needs? Is it going to consider the rights of the doctor to be fairly

treated and to have his or her good name properly protected?

Second, are the present methods used to collect such data thorough enough and consistent enough to allow it to be used as a public tool in rejecting or selecting doctors? Doctors need this; patients

need this. The system requires it.

Finally, can we define precisely what problems we are attempting to solve by opening the Data Bank to the public? Again, is the

Data Bank an adequate tool for a fair appraisal of the doctor’s capability on the part of the patient and also a fair appraisal of the

doctor’s capability with regard to the doctor himself? Is he being

properly treated here?

Whatever decisions we make, we must improve patient safety

and not merely make a symbolic gesture toward that goal or a symbolic effort to punish anyone. Remember, we may very well wind

up, if we are careless, protecting wrongdoing and punishing innocent practitioners because of slovenly data base management and

input. Let’s address that then the first question.

Any data released from the National Practitioner Data Bank

should help the consumer make better choices. In other words, the

data must be a solid predictor of doctor quality. For example, when

a doctor has his or her license revoked or suspended by a particular

State or when a doctor is convicted of a criminal offense, patients

can infer some degree of doctor quality because the State authority

has taken a specific action against a practitioner relating to medical competency.

But not all data is this useful. Let’s consider, for example, the

Data Bank’s collection of malpractice claims and settlements. Now,

there are many variations on how these claims can be made and

settled. This data cannot readily predict physician competency. For

example, some States do not limit malpractice damage awards; others do. Of those that do, a range exists from one State to another.

The obvious problem with data aggregated from these many

sources is, that it is subject to significant predictive error. You are

assembling a large body of statements which may or may not relate

one to the other, or be interpreted fairly or properly together.

9

If Dr. ‘‘A’’ settles a suit for 50,000, is he more or less competent than Dr. ‘‘B,’’ who settles a claim for $25,000 in another State? Ask

yourself, does this settlement mean that the doctor had done something wrong. The settlement doesn’t tell you that.

Let’s assume that Dr. ‘‘C’’ has two suits, each for 10,000. Is that

doctor more competent or twice as incompetent as Dr. ‘‘B.’’ Again,

the question of the settlement. Does it signify, in fact, that this doctor is less than competent or that the claim was a valid one or was

settled simply because it cost too much to fight out in court?

Certain specialties have medical procedures prone to greater

risks than other specialties and thus, are more likely to attract litigation. Should a particular doctor specializing in high risk procedures be judged against doctors specializing in lower risk procedures or in different medical disciplines?

What about doctors who have more than one specialty? Can we

control for such variations? If so, how? Finally, many claims

against doctors are settled by the insurance companies, because as

I have pointed out earlier, that is cheaper than litigation and insurance companies often times compel doctors to settle to save

money for the insurance companies. In such a case, then, the doctor has little or no input as to whether litigation should be carried

forward and the question of how the doctor’s good name should be

protected under these conditions.

Such claims do not necessarily indicate physician incompetence,

although they could, but rather, they are business decisions. The

question is, are they business decisions by lawyers, insurance companies or doctors? What does this tell you about the particular case

in question?

The point then is this. Before we agree that any category of information should be released, we have to be sure that the data will

allow the consumer to make better choices, that it is reliable data,

that it, in fact, constitutes good information when properly assembled, and that the end result is, that the consumer makes fair and

better choices.

We also have to see to it, again, that the good name of the doctor

is properly protected, because here is a rich opportunity for significantly hurting the good name of a professional person whose good

name is really all that he has.

There are other significant problems with the National Practitioner Data Bank as it currently stands. Before the public can use

it as a valuable tool to select their doctors, we must improve collection consistency. There is ample evidence that these entities required to report to the National Practitioner Data Bank have not

done so on a consistent or regular basis. There are considerable

variations across States amongst providers, such as, hospitals regarding reporting frequency.

In fact, it was reported in the 1999 National Practitioner Data

Bank executive meeting that, as many as 60 percent of all hospitals, at the time of that session, had yet to file a single adverse

action report to the Data Bank. What then does this mean? I don’t

know and I don’t think anybody else does. I do know that it does

not clearly support the argument that the National Practitioner

Data Bank is a uniform or fully reliable repository of data and

facts.

10

Certainly, if we want the Data Bank to be improved as a consumer tool, these areas need significant improvement. I remind the

subcommittee that it was always intended that the information

contained in the repository would be considered together with other

relevant data in evaluating a practitioner’s credentials for this precise reason. Incomplete data on bad doctors could be dangerous if

it led to a consumer falsely concluding on the basis of the information presented to him that a doctor was safe if he or she was, in

fact, not.

Similarly, it would be unfair to lead a consumer to falsely conclude that a doctor was safe if he or she were fully competent because we have required release of data and information which,

again, does not correctly inform the consumer of the facts and,

again, protect the concerns of the legitimate practitioners of medicine.

Finally, patients have a right to expect State authorities to do

their jobs properly by finding and removing dangerous and incompetent practitioners. This is a responsibility of the States, under

their licensing authority and it needs to be exercised properly. If,

indeed, that is done, much less need exist for other kinds of judgments that will have to be made.

We need to determine if States are failing to do this and if so,

why. Opening the National Practitioner Data Bank addresses only

the symptoms of a much deeper problem and one in which the patient has, at best, limited ability to make a real wise and informed

medical decision on the care that he or she is receiving or would

receive.

Mr. Chairman, my mind is open regarding ways in which to

make the National Practitioner Data Bank more useful to consumers. Certainly, that is an important step that this subcommittee can take and should indeed do. Any foray into this matter should be done with care and should be done in close consultation with both the consumers and the provider community to make

sure that our action is wise and does credit to this committee, to

consumers, and to practitioners of medicine. A perfunctory approach could cause more consumer harm than good and probably

will.

Mr. Chairman, I have one last concern, which I express to you

today. Just days after the House passed the Patients’ Bill of Rights

by an overwhelming bipartisan vote, with an enthusiastic endorsement of doctors and over the vehement objections of my good

friends in the Republican leadership, the prospects of hearing an

action on the National Practitioner Data Bank was explicitly linked

to retaliation against the American Medical Association and other

practitioner groups for their support of the Norwood-Dingell bill.

I would read here something from Roll Call on October 21, 1999.

I hope that these hearings will rebut the statement that I read at

this time.

‘‘In a move that several Republicans said is pay back for the

American Medical Association’s position on HMO reform legislation, Commerce Chairman, Tom Bliley, (R) VA, wants to make public a sealed data base that holds the names of all doctors sued for

malpractice. They teamed up with trial lawyers on HMO reform

after all we did for them.’’ This is a quote. ‘‘That is pretty much

11

Bliley’s beef,’’ continuing the quote, ‘‘said a senior GOP source familiar with the situation. A GOP official said that Representative

Fred Upton, who chairs the Commerce Committee on Oversight

and Investigations, is uneasy with the idea of holding hearings on

a topic that will be viewed as retaliation against the AMA.’’

I certainly understand that our chairman today does feel those

sensitivities and I commend him for it. I know that as this matter

goes forward, he will assure that this proceeding is conducted fairly

and perhaps we are finding that my dear friend, the chairman, has

been erroneously quoted on these matters and that we will look to

both achieve a correct determination of how we should proceed and

how to protect the patient’s right to know and also how to protect

in the fairest possible fashion the good names and the reputations

of medical practitioners who are out there trying to serve their patients.

I hope that this will not be seen then as an effort to intimidate

doctors because of their support of patients’ rights or an attempt

to delay meaningful and enforceable reforms in managed care.

These are significant issues that are worthy of careful and constructive attention. I hope that all my colleagues on the committee,

patients, the other providers, and the Nation’s doctors will be able

to work together with us in a harmonious fashion to address these

and other concerns which are legitimately raised in this hearing

this morning.

Thank you, Mr. Chairman.

Mr. UPTON. Thank you and the gentleman’s time has expired.

I just want to say that, this hearing, as all hearings, will be conducted in a very fair, thoughtful and reasonable way. With that, I

yield to the gentleman from Iowa, Dr. Ganske.

Mr. GANSKE. Thank you, Mr. Chairman. I will be even more

brief, otherwise Senator Wyden’s finger will be healed by the time

we get to his testimony.

Rumors are rife on Capitol Hill that the motivating factor behind

these hearings is to poke a stick in the eye of the American Medical Association for bucking the Republican leadership in Congress

on backing a strong patient bill of rights. I’m not going to comment

on that. The statements that have been read already allude to that.

I would say this to the provider groups. This is an opportunity,

in my opinion, to bring up some of the problems that we have seen

in the National Practitioner Data Bank. The testimony by the physicians and the hospitals and the others that have to deal with this

will point out some real inequities as well as inadequacies in the

National Practitioner Data Bank. So, I welcome these hearings,

whatever the motivation was behind those who chose to have them,

because I think that this offers an opportunity to improve the system, both for consumers and for the practitioners.

Many physicians work with patients that suffer from very debilitating or life-threatening conditions that require high risk treatments or procedures, such as, open heart surgery or brain surgery.

Both of these high risk areas have been noted by Chairman Bliley

and Ranking Member Dingell.

Well, in my prior life, before being a congressman, I was a physician who did high risk procedures. Let me give you an example.

12

As a reconstructive surgeon, I took care of a gentleman who was

involved in an automobile accident. He and a friend were riding

along in a car. His friend reached over to put a cassette in. The

car veered and went through a barrier—and a steel rail came

through the windshield, right through the left side of the head of

my patient and he lost a lot of his brain on that side as well as

almost his entire skull on the left side of his head. This left him

with a tremendous defect there. He couldn’t go out in public. Yet,

he was amazingly functional. He was certainly aware of this tremendous deficit and how if he would go to a grocery store, people

would just look at him. He couldn’t go out in public.

So, I did a procedure in which I took bone from other parts of

his skull, bone from his ribs, bone from his hip, wired it all together, carved it, molded it and created a new skull for him. This

was a high risk procedure. I mean, the risk of complication when

you’re operating around the residual brain, going in through the

dura, having your reconstruction fall apart, cave in and ending up

with a big infection, losing all the bone, whatever, the risk is significant when you take on procedures like that.

Yet, what we have is, a Data Bank which, in my opinion, does

not provide a fair and objective medium for public review of information that takes into account the inherent risks associated with

those high risk procedures. So, as I said before, I am glad we are

having this discussion today. I think we are going to have some interesting testimony that points out some serious, serious deficiencies in the National Practitioner Data Bank.

Last year, the President’s Quality Committee released its final

report on improving and sustaining the quality of health care, in

which it considered and rejected open access to Data Bank information to improve quality because, this is a quote from the President’s

Quality Committee. On opening up the Data Bank they said, ‘‘evidence shows that consumers have a tendency to perceive risks inaccurately.’’

The information available in the Data Bank is misleading for a

lay person, untrained in the complexities of high risk operations

like the ones that I took care of. We need to address that issue.

Finally, Mr. Chairman, I ask unanimous consent to enter into

the record the statement by Congressman Norwood, who could not

be here today. I want to just read a portion of his statement, because with characteristic reserve, Dr. Norwood states: Yet here we

are today considering the idea that making the National Practitioner Data Bank public will help improve health care quality.

As I said, with characteristic reserve Congressman Norwood continues: It is an asinine idea that just makes no sense to me. The

problem with this approach are twofold. First, it attaches a level

of sophistication to the National Practitioner Data Bank that is

just not appropriate. Second, it ignores State-based approaches

that make more sense and are already in place today.

Mr. Chairman, I look forward to the hearing. I look forward to

hearing from Senator Wyden and thank you for having this hearing.

Mr. UPTON. Thank you.

13

Without objection, his statement will be made part of the record.

In fact, all members of the subcommittee statements will be made

part of the record.

[The prepared statement of Hon. Charlie Norwood follows:]

PREPARED STATEMENT OF HON. CHARLIE NORWOOD, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF GEORGIA

I would like to express my debt of gratitude to the Chairman for allowing me to

submit my statement for the record. Although I do not sit on the Oversight and Investigations Subcommittee, I feel it is very important for me to participate in this

hearing. I appreciate my friend, Dr. Ganske, submitting this statement for the

record.

It is my view that the practice of medicine is local. I have made this view known

in many forums over the past several years. When I was a practicing dentist, I was

licensed by the state of Georgia, practiced in my local Augusta community, and was

subject to the medical malpractice laws of Georgia. In trying to address quality of

care issues, it has always been my preference that we consider state and local approaches rather than federal cookie-cutter approaches.

Yet here we are today considering the idea that making the National Practitioners

Data Bank (NPDB) public will help improve health-care quality. It is an asinine

idea that just makes no sense to me. The problems with this approach are twofold.

First, it attaches a level of sophistication to the NPDB that is just not appropriate.

Second, it ignores state-based approaches that make much more sense and are already in place today.

The problems with releasing the NPDB are well documented. The NPDB is simply

gathered information. It shows no context. Information does not in anyway explain

the conditions behind judgments made in specific cases. As my colleagues Dr.

Coburn and Dr. Ganske will attest, simply saying whether a judgment was rendered

hides the incredibly complex decisions that doctors make in every case.

It was never the intent of Congress that the NPDB be made public. The Committee Reports written by this very committee in 1986 make clear that information

in the NPDB should only be available to those who understand its’ meaning and

are charged with making decisions about professional conduct.

States and their medical licensing boards are making tremendous strides in holding physicians accountable. Thirty states have responded to interest for information

about physicians and other health care practitioners. Twelve states have enacted

laws that mandate the provision to consumers of information about physicians who

practice medicine within those states.

I strongly believe that state medical licensing boards should have the primary role

on governing the practice of medicine. In many states, the state legislatures and

state medical boards are working together to proactively create a stronger role for

licensing boards. They are using the Internet, in many cases, to put important physician information on the web for consumers to be able to review.

We should also look to the Federation of State Medical Boards as the appropriate

venue for sharing information. Though underfunded, they are the appropriate, private-sector mechanism to share information among and between states regarding

physician profiling.

If there is a doctor out there who is incompetent or unethical, we need a system

that identifies them and makes sure the public is adequately protected. We need

to use organizations like the Federation of State Medical Boards to move information across state borders. Simply opening up the NPDB is a bad idea that will do

nothing to improve quality of care. I hope that we will look to the states to build

on existing processes to address the quality of care patients receive.

Mr. UPTON. Mr. Green?

Mr. GREEN. Thank you, Mr. Chairman. And, again, I appreciate

your calling this hearing and look forward to the testimony. Hopefully, we will be able to deal with the issues in its entirety, instead

of using it as a response to other legislation that this house had

considered.

Hopefully, our patients will have as much information as possible

about their health care providers and allow them to make an informed and intelligent decision about their health care. I think, as

a community and our country, we share that. And so I hope that

14

this subcommittee hearing, will be able to expand on that. Thank

you.

Mr. UPTON. Thank you, Mr. Green.

I note that Senator Wyden has an amendment on the floor at

some point this morning. If we could try to do a better job, all of

us, in limiting our opening remarks, I know it will make him a lot

more comfortable.

Mr. Bryant?

Mr. GREEN. I could not be any shorter, Mr. Chairman.

Mr. UPTON. You did a good job. You get kudos, extra credit at

the end of the day.

Mr. GREEN. Oh, okay. Thank you.

Panel four.

Mr. GREEN. I need that star.

Mr. BRYANT. Thank you, Mr. Chairman. Out of respect to the

Senator, I know we have been asked to keep our opening statements short, and I know a lot has been said, but there are instances where people talk, and talk and talk in their opening statements and say things I think that have to be answered, and this

whole issue of politics, and I realize I am in Washington, and I

have not been up here as long as some people have been up here,

but this is a good hearing. And there is an absolute necessity and

need to have this type of discussion in Washington. And I think to

attribute this to political motives and stick in somebody’s eye I

think lowers the level of this issue, brings this hearing down I

think, and I hope that wasn’t the intent. Because I think we have

the potential in this hearing, based on the panels that I have seen,

to really garner some outstanding information and some outstanding insight on this very important issue.

So to try to denigrate it and call this just a political act of retribution I think is unfair to this subcommittee and to the chairman

of this subcommittee, and to the interests that will be discussed by

this very qualified group of witnesses today.

This is the Information Age, not everything should be disclosed.

There are good reasons a lot of times when you don’t want disclosure. And I think that is what I welcome today and want to hear

from people like the doctors. The hospital association, AHA, I think

has made an excellent statement. I look forward to hearing more

about their reasons that deal with the openness and continued validity, usefulness of peer review if you get into disclosing who is

rating who and who is talking about who.

The issue of context I think is a very important issue, that any

information, as Dr. Norwood’s statement that Dr. Ganske read

said, the sophistication level out there of people to understand this

is a reality. Without discrediting anybody, that is a reality, and

there has to be a context, in a way, put around this information

to explain that.

I come from a background of representing doctors in malpractice

cases, and I understand the issues of settlement, sometimes why

you settle cases and sometimes why lawsuits are filed and frivolous

lawsuits, together with some very meritorious lawsuits, I might

add, that probably do need to have a public airing out there.

I think I want to commend those that have offered bills in this

area and that will, I understand our subcommittee chairman has

15

a bill that he will offer, I think the more that we can debate this

issue and get the right type of quality information out there for

consumers to make those decisions, the better off we are.

I do want to commend what the State of Tennessee has done, my

home State. It has, with the help of doctors, and hospitals, and consumers, come up with a balanced approach to this. In fact, I have

a copy of such a listing of a doctor, who I understand we can use

this and I would like to submit it for the record, that goes through

the doctor and lists the academic background, and certifications,

and the appointments and staff privileges, the disciplinarian actions, any criminal offenses, any liability claims, and this was,

again, done with the cooperation of the medical profession and

those on the other side. So it can be done, I think, in an effective

way, and I will submit this for the record.

[The information referred to follows:]

16

17

18

Mr. GREEN. I think one other issue I would like to hear some testimony on today, some explanation, because I do kind of like the

State-by-State issue, although there is a Federal level, a Federal

bill here that would Federalize a lot of this. And I am getting

wound up here, so I will stop right now, in deference to our Senator, and yield back the balance of my time.

Mr. UPTON. Thank you.

The gentleman from California, Mr. Bilbray?

Mr. BILBRAY. Mr. Chairman, I appreciate the chance to participate in this hearing, and I thank you for calling it. Let me just say

that being the last speaker here, listening to my colleagues on both

sides of the aisle, I hope we keep this transcript. Because I think

that we are not just talking about the consumer right to know

when it comes to the choice of physician. I am hearing colleagues

on both sides of the aisle discuss this issue in a manner that I don’t

hear them talking about consumer-to-right-know issues on many

other aspects.

I think that there may be those that want to divert away from

the substance of this by trying to bring politics into it. I think this

is something that is an American issue. How do you have an informed consumer make the best decision possible? And we hear a

lot about damages and about problems and trying to litigate reimbursement for damages done and by certain providers in many

fields. And I think that, as any physician will tell you, is damage

avoided is absolutely the best opportunity that we have as consumers and as providers. And if an informed populace out there

can make the best decision of choosing a health care provider, then

it may, in the long run, mean that we avoid a lot of the problems,

and we don’t have to talk about bringing in tort issues, trial lawyers and all of the other things that we talk about.

Let me just say, though, sincerely, that the issue of informed consumer has been abused in the past, and California is a good example. Those of you who ever visit California, that when you go walk

into a five-star hotel, out on the front door of a five-store hotel is:

‘‘Warning. There are cancer-causing agents within this building,’’

and that could be anything from the carpeting to the drapes. But

the argument of give so much information that the more quantity

somehow means that you will have a higher quality decision being

made by the consumers not necessarily always pencilled out.

But I would just like to say on this one, I think we have got a

perfect situation now to set a standard about consumer information

that does not only apply to the choice of physician, but should

apply to every other service the consumers in America want to

make. And I would just ask Democrats and Republicans to consider

the big picture. When you set a standard for the choice of physician, you darn well better be able to stand by that when people

start talking about choosing other services and other products in

America. And I think this hearing is great, not just for the health

care issue, I think it is great for the consumer issue across the

board.

I yield back, Mr. Chairman.

Mr. UPTON. Thank you, Mr. Bilbray.

Mr. Wyden, we are ready. Welcome back to the committee. We

always found you to be a friend and fair adversary, and we are preVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00022 Fmt 6633 Sfmt 6602 E:\HEARINGS\62975 pfrm07 PsN: 62975
19

pared to listen to your opening statement, and then we will take

questions.

STATEMENT OF HON. RON WYDEN, A UNITED STATES

SENATOR FROM THE STATE OF OREGON

Senator WYDEN. Mr. Chairman and colleagues, it is an honor to

be invited to be back with so many friends. For 15 years, I had the

privilege of working with almost all of you in this room on health

care issues, the area in which I have specialized in the Congress.

I believe when the members of this committee tackle an important

issue in a bipartisan way, there is nobody in this country that does

public policy better.

Now, today, you are looking at the question of opening the National Practitioner Data Bank to the public. I commend you for recognizing that to debate the matter of opening the Data Bank to the

public, you must examine the entire Health Care Quality Improvement Act that created it. At a minimum, you are going to have to

look at why the law was originally enacted, how our health care

system has changed since the law’s enactment and how or whether

a number of amendments to the act should be enacted so that the

law better meets the needs of patients and families.

I would like to touch briefly on these concerns. However, before

I do, I want you to be aware of two concerns that are foremost on

my mind. First, there is no logical argument for keeping information about proven flagrant cases of professional misconduct from

the public. For the Federal Government not to disclose this important information in the Data Bank about physician misconduct

simply doesn’t pass the smell test.

Second, because the vast majority of physicians are talented,

dedicated individuals who have never perpetrated flagrant, proven

cases of misconduct, great care must be taken to ensure that these

physicians do not have their reputations unfairly maligned in the

effort to protect the public from the truly incompetent. That is why

it is so important, as several of you have noted, that your work not

be part of a political agenda, but instead be part of a bipartisan

effort to update the act.

Having introduced legislation to accomplish these two objectives

in both the House and the Senate—I did it in the House with our

former colleague, Scott Klug, Republican from Wisconsin, and I

have done it in the Senate with our colleague, Senator Olympia

Snowe from Maine, I can tell you that I have firsthand evidence

about how hard it will be to accomplish the two objectives that I

have stated this morning.

I would like to spend just a few minutes telling you about a little

bit of what went into the committee’s consideration 14 years ago

because I think it might make your job a little easier this morning.

Fourteen years ago in Astoria, Oregon, when the physicians of a

clinic reviewed a colleague’s surgical competence, the doctor sued

them. I reviewed that case in detail, and I decided that regardless

of that Astoria doctor’s guilt or innocence that to persuade physicians to come forward and prevent incompetent doctors from harming patients, there needs to be strong legal protection for good-faith

physician peer review.

20

With the help of a Commerce Committee bipartisan trio, the late

Ed Madigan, Tom Tauke and Henry Waxman, I drafted and was

able to include in the Health Care Quality Improvement Act unprecedented protection for good-faith peer review. My prepared

statement outlines that four-part test. But suffice it to say, I don’t

believe that there is a profession in America that now has such significant legal protection for physician peer review. In short, what

we did is say that when physicians are doing peer review and they

meet certain procedural protection, the presumption shifts that

they have acted in good faith and anyone who challenges it must

prove otherwise.

In return for those physician peer review rights that were part

of the bill in 1986, I told our colleagues on this committee that it

was only fair that provisions be included in the law to require that

the medical profession assume new responsibilities to the public.

There were rights with respect to peer review, and we felt it was

important that there be responsibilities to the public in terms of

National Practitioner Data Bank.

My specific concern in 1986 was, and it remains to this day, that

the small number of physicians who are truly incompetent have a

unique, almost extraordinary ability, to stay one step ahead of the

disciplinary authorities. These are the physicians who voluntarily

surrender their license just before it is about to be taken away.

They jump from State to State so their record of incompetence does

not catch up with them or they plea bargain with understaffed

State medical boards so that the true nature of their incompetence

doesn’t show up in their records.

So because of these concerns, the committee created the National

Practitioner Data Bank, in which various health care organizations

were required to report to the Data Bank disciplinary actions taken

against physicians and all settlements and verdicts in medical malpractice cases. Credentialing authorities were required to check the

Data Bank prior to hiring a physician and regularly review the individual’s record in the bank.

To enforce the law, the committee determined that if a

credentialing body didn’t comply with these provisions and a patient was harmed by an incompetent physician and a lawsuit was

filed, the credentialing body would have imputed to them the

knowledge that was in the Data Bank. Now, this law was passed

almost 15 years ago, and I believe one of the first issues you should

examine is how much the health care world has changed since the

law was enacted. For example, in 1986, when we sat in this room,

we didn’t know much about the Internet. Today, there are 10,000

websites where you can get information about physicians. Millions

of our citizens visit these sites regularly and certainly a significant

number of these sites offer information of dubious quality. When

we sat in this room, the Government hadn’t created the Health

Care Integrity and Protection Data Bank, which seeks to track

fraud and it is accessible to different individuals than the National

Practitioner Data Bank information is available to.

Since we sat in this room, several States have passed legislation

providing the very sort of information to the public that would have

generated enormous opposition had Congress included them in the

Health Care Quality Improvement Act in 1986.

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That is a little bit of the history, a little bit of what I think has

changed in health care since we enacted the law in 1986. I will

wrap up this morning by trying to outline what I think the most

important issues are as you go about the effort to improve the act.

First, because there now is so much information about physicians

from so many sources, the committee needs to decide what information is likely to be most helpful to patients and their families and

how the Data Bank might be retooled to deliver it. The public is

much hungrier for information today about health care quality

than it was in 1986. The question is whether they are going to get

it from sources that are accurate and objective. I want to see an

amended Data Bank law help deliver meaningful, reliable and relevant information that assists patients and families in choosing

their health care providers.

Second, I hope the committee will work on a bipartisan basis to

update the law in several areas where it cries out for improvement.

For example, the Data Bank ought to be required to receive reports

on the denials of licensures, along with the revocations and suspensions of a medical license.

The committee should look at additional ways to ensure that bad

doctors and others can’t go from State to State because this remains a problem today. For example, the Data Bank’s current information does not enable the Data Bank to report how many physicians have lost their license in one State and have received licenses in another. The committee ought to look at due process

guarantees for doctors to assure that the Data Bank is not used as

a threat to muzzle physicians who report concerns about patient

care to appropriate authorities.

Third, I believe the committee needs to carefully study several

issues that were controversial in 1986 and are just as controversial

today. One of those areas is the use of malpractice information. The

Data Bank does not currently receive a significant amount of information about malpractice settlements because of what is known as

the corporate shield. Because of the corporate shield, physicians

can settle suits under the corporation’s name and not as an individual and escape being reported to the Data Bank. I believe that

the corporate shield loophole ought to be closed, but I can tell you

there will be a very vigorous debate in this committee as to whether a majority of our colleagues agree.

In addition, the committee needs to consider if malpractice data

provides predicted information that is useful to consumers. Some of

our colleagues have stated just because you say a doctor has five

malpractice settlements doesn’t mean that that individual is a bad

physician. We need to do more work in the area of looking at what

really is predictive.

Another area of study should be how to assure information in the

Data Bank that is useful to licensing boards and consumers actually gets into the Data Bank. With nearly 60 percent of the hospitals having never made a report, we all know that the Data Bank

today is not getting all of the relevant information it should. Certainly, hospitals doing their own internal reviews of quality of care

need to be encouraged to provide information to the Data Bank.

Finally, a word about what sort of information should be made

public. I was approached recently by a physician in Oregon, who

22

has one report of a malpractice settlement in the Data Bank. He

was the physician in charge of a surgery in which a medical resident made a mistake. Yet because the surgeon was the one in

charge, the malpractice settlement was made in his name. That information isn’t predictive of whether the surgeon is good or bad.

That is not going to help patients or families. We want to make

sure that patients and families can get important information, such

as when a significant diagnosis that a physician should have been

able to make is missed and avoid the kinds of things that harm

physicians who certainly haven’t done anything wrong.

My last point is that I think you also have a major challenge in

making sure that the National Practitioner Data Bank is coordinated with the efforts that are ongoing by the States and with the

fraud Data Bank that Congressman Stupak was right to mention.

Now, all of these reforms are going to require careful study, and

it just can’t be done through an abbreviated schedule and a slapdash approach. I can tell you I personally spent many, many

months negotiating with physician groups, patients, hospitals, licensing bodies and insurers before I even introduced the Health

Care Quality Improvement Act. Then Chairman Henry Waxman

spent many months, in addition, examining this issue at length in

the subcommittee before it even came to the full committee. So I

have got firsthand evidence that a rush job on issues this important can do more harm than good.

Mr. Chairman, I thank you for having me. The fact that you

would reach out and want to know some of the history of what

went on in this room almost 15 years ago seems to me to show your

good faith in trying to tackle this in a bipartisan way. That is the

way this committee does its work best, and I happen to believe that

these are just about the best precincts in American politics when

you work together on a bipartisan basis, and I look forward to having the chance to do that with you again.

Mr. UPTON. Well, thank you very much. Your staff has been calling frantically. I know that you are needed on the Senate floor, and

I know that there are a number of members that have some questions for you, and I will let you make the call as to whether you

need to go now or whether you would like to come back, and we

will put you into the right order when we come back.

What is your——

Senator WYDEN. You are gracious as always. Why don’t we take

maybe a few minutes, and then I better shoot off to——

Mr. UPTON. Okay. Let me just yield to Chairman Bliley. We will

try to do about 2 minutes per member. Is that okay?

Senator WYDEN. Yes, I think I have got 7 or 8 minutes maybe.

Chairman BLILEY. Thank you, Mr. Chairman. Good to see you

again, Senator, having served with you for many years when you

were in the House. I am sorry you saw fit to go over to the other

body, but that is the way it goes.

I am not sure if you have had a chance to review the data in the

National Practitioner Data Bank, but my committee staff demanded and received information from HHS. And I am shocked by

some of this information.

I understand that approximately 200 doctors and dentists have

13 or more reports in the NPDB. In light of this, do you believe

23

the current system of doctor discipline adequately protects consumers from problem doctors?

Senator WYDEN. As I indicated in my prepared remarks, Chairman Bliley, I think that there are a number of areas where this

law needs to be improved. I mean, there are something like

700,000 physicians in this country. I think there were close to

3,500 significant disciplinary actions taken against those physicians in 1998. These are actions taken by colleagues against colleagues. I think that kind of information and what I call proven flagrant violations ought to be made public, and we need to work together in a bipartisan way so as to do it to not injure the many,

many physicians who, obviously, haven’t come close to committing

such a violation.

Chairman BLILEY. I couldn’t agree more.

Thank you, Mr. Chairman. I don’t want to abuse the time.

Mr. UPTON. Mr. Stupak?

Mr. STUPAK. Thank you, Mr. Chairman.

Senator, good to see you again, as always. Let me just ask you

about three questions, and if you can respond, great.

Do we have an idea of the number of doctors we think that are

presently practicing that, if scrutinized by competent peer review

process, would be disallowed from practicing? Chairman Bliley

mentioned these physicians that have 13 or more malpractice

claims or malpractice cites against them. Where are the State licensing boards? Why is this being allowed to continue? Where is

the breakdown here?

Senator WYDEN. I think you heard me mention, in response to

Chairman Bliley’s question, there are perhaps 700,000 doctors in

this country. In 1998, there were close to 3,500 major disciplinary

actions taken by colleagues against colleagues. The AMA on a regular basis cites a concern about a small percentage of the physicians in this country. Part of the problem, to respond to the additional part of your question, is I think a lot of these State medical

boards are woefully understaffed. There are some that are very

good. Congressman Bryant is proud of his in Tennessee. We are

proud of ours in Oregon, but we have found, even in Oregon, that

very often when you have one of these small number of incompetent people that they are extraordinarily slippery and evade the

disciplinary authority.

Mr. STUPAK. But if we have this 5 percent that you claim, and

they must be in the data base, then why isn’t the data base being

enforced and their licensing being removed or whatever remedy

that should be delved out? Is it a lack of money? Is it moving from

State to State, as you mentioned? What is it specifically? If we

know the 5 percent, they are in the data base, how come we are

not doing something about it?

Senator WYDEN. Well, I think, as I touched on and several of our

colleagues, a number of reports aren’t being filed at all. For example, I cited 60 percent of the hospitals haven’t made a report at all.

I think there are significant shortcomings with respect to reporting,

No. 1. I think there are problems that I cited in my testimony with

respect to matters like the corporate shield. We know that some

physicians and medical groups seek to work out arrangements so

that the final settlement comes in just under the terms that reVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 E:\HEARINGS\62975 pfrm07 PsN: 62975
24

quire reporting. I think most of the issues that I sought to examine

in my testimony are the major shortcomings in the Data Bank as

it exists today.

Mr. UPTON. Thank you.

Dr. Ganske?

Mr. GANSKE. Senator, welcome.

Senator WYDEN. Thank you.

Mr. GANSKE. I have actually practiced medicine in the State of

Oregon. I did my general surgery training there, and Dr. Reardon

will be testifying and he practices in Oregon. I can testify that the

credentialing process in the State of Oregon is very rigorous and

that the Oregon Board of Medical Registration is very thorough. I

think you would agree with that, wouldn’t you?

Senator WYDEN. That is why I mentioned we are very proud,

Greg, of our process in Oregon. What we found recently—I want to

highlight one case in Oregon—is that we had a situation in our

State where disciplinary action was taken and, in effect, the person

moved a short distance away to Washington State, and it took a

long time before their questionable conduct caught up with them.

Mr. GANSKE. And let me just follow up by saying that in Oregon,

in Iowa, in all of the States that I know of, when the Board of Medical Registration or the Board of Licensure makes a decision that

is adverse to a physician, it is published on the front page of the

Des Moines Register in Iowa, for example, so that the public is informed of those medical licensure decisions in which, for instance,

a physician’s license is revoked or they are put on suspension. So

it is not a case that under the current situation, the public does

not get the information from the Boards of Medical Registration; in

fact, they do, and many times with front-page coverage.

Your point, though, was valid, and that is that the National

Practitioner Data Bank was set up to provide help for other Boards

of Medical Registration so that they can get the data. But my point

would be this: The National Practitioner Data Bank was set up to

provide a help to State boards of registration and licensure so that

they can do their job with adequate information from physicians

transferring from other States, and that was your point on that.

But it was not set up to be an open Data Bank, it was set up

to give help to the boards of registration, such as Oregon, which

are already doing a very good job in publicizing the misadventures

of, as you put it, a small number of physicians. And so I appreciate

the original intent of the bill. What I have problems with is moving

from the National Practitioner Data Bank as an adjunct to the

boards of registration and changing it totally in concept. I think it

would be detrimental to the way the National Data Practitioner

Bank is working.

And thank you, Mr. Chairman.

Senator WYDEN. Let me see if I can respond because I think Dr.

Ganske raises a couple of thoughtful points.

First, there is no question that in a significant number of cases,

in places where there is a vigorous press, when there has been an

action taken to revoke a license, that will get out to the public, and

that is helpful. Hovever, I think as you are going to hear today and

we have seen, there are a significant number of cases where that

has not been the case, where these physicians who are truly incomVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00028 Fmt 6633 Sfmt 6602 E:\HEARINGS\62975 pfrm07 PsN: 62975
25

petent have had, either through a voluntary surrender of a license

or a plea bargain or something of this nature, been able to consistently stay ahead of these disciplinary authorities. And what it

comes down to, for me, and I have said this to many, many physicians, I cannot think of one logical argument for not making public

proven, flagrant cases of professional misconduct. I don’t think you

can stand up in a town hall meeting anywhere in this country and

say that for proven, flagrant cases of professional misconduct, the

public shouldn’t have that information.

The question is, and this is why I agree with part of what you

are saying is, how do we do that so that we act in concert with the

State licensing boards? And that is critical. Second, how do we do

it, given the dramatic changes in the health care world since this

law was originally enacted? I have talked to many people who are

close to the Board of Medical Examiners, and they have said, ‘‘You

know the public is going to get this information somehow. They are

going to get it off some website. They are going to get it from some

press account.’’

I am concerned that unless we work in a bipartisan way, like I

have tried to do with Scott Klug, and Olympia Snowe, and colleagues both in the House and Senate, to update this law and do

it in a way that is fair to patients and families and to the vast majority of physicians who are dedicated and honorable, I think we

are going to see the public look at a variety of other ways to get

this information, and that will end up doing more harm than good.

Mr. UPTON. I know Ms. DeGette has questions, and she has allowed me to go ahead of her.

A couple of things. I am going to ask my questions first and let

you respond all at once. I know that the Data Bank, when it was

set up, had six criteria. One of them was not criminal convictions.

I would be interested to know the legislative history in terms of

why that was not included.

You talked about the Data Bank not getting all of the relevant

information, which I think is a concern by all of us here. And I do

not know if you saw today’s New York Times, but on the front

page, there was a story, and I quote, the headline is, ‘‘Surgeon is

Treated Wrong Side of Two Brains, Albany Says.’’ And in the story

it says, ‘‘While the State investigation did not conclude that Dr.

Arbit’s surgery caused the death of a Staten Island patient, it said

that one other patient of his had died after a questionable procedure and that others had become disabled. In several instances, the

State said the hospital did not report any of the medical errors, as

it is required to do, and violated several provisions of to New York

health laws.’’

I would be interested in what we can do. That law is on the

books already, but obviously isn’t being followed through, at least

in one State, and I would sense that there are other States as well.

I, also, constructively, when a State denies a license, whether it

is Des Moines, Oregon, Michigan, New York, I don’t know whether

that is always included in the Data Bank, and I believe that those

State licensure boards ought to have access to that information. I

have seen physicians in my own district whose licenses have been

revoked in one State and only years later the same instances catch

up with them and that license is pulled again, which shows that

26

there is some misinformation. I would like you to comment on that

in the remaining 13 seconds that I have.

Senator WYDEN. Starting at the end, as I noted, Mr. Chairman,

in my testimony, these denial of licenses, generally, are not reported. I definitely support receiving that. I think that is important

information, just as suspension or revocation, as it relates to quality issues, that information should be reported as well.

With respect to why we didn’t address criminal issues, this was

a bill concerned with health care quality. And, of course, criminal

issues are more the province of the Judiciary Committee. In an effort to focus on quality, we said let’s look at rights which are protections for physicians doing good-faith peer review and let’s look

at responsibilities, which are requirements that you work with the

Data Bank.

Finally, with respect to State law, one of the areas that you have

to look at to update the law and to modernize it along the lines of

what we have been talking about, is to examine how to integrate

it with what is going on at the State level. I agree with Dr. Ganske

that the States have got to have a very significant role in this.

Many of the States are putting their information online which, in

one sense, means they are vastly ahead of the Federal Government

at this point, and I think that we ought to be looking thoroughly

at why States aren’t enforcing current law, in some instances. At

this point we don’t know much more about the New York case,

other than what we read in the paper.

Put more broadly, we have to make sure that at the end of the

day, we integrate this fraud Data Bank, the National Practitioner

Data Bank, the efforts of the States, particularly the ones that are

serving as a model, and that’s why it is going to require some careful and bipartisan work to do the job right.

Mr. UPTON. Thank you.

Ms. DeGette.

Ms. DEGETTE. Thank you, Mr. Chairman. Thank you, Senator.

Just a couple of questions.

First of all, I have been reading some evidence that not all entities that are required to report to the Data Bank are doing so. For

example, in the last National Practitioner Data Bank Executive

Committee meeting, it was reported more than 60 percent of all

hospitals haven’t ever filed an adverse action report to the Data

Bank since 1990, and it is hard to believe that they wouldn’t have

something to report. So that would suggest a significant problem

with underreporting. And I am wondering if you could comment on

what the implications of underreporting are to the Data Bank.

Senator WYDEN. I am going to have to really zip out the door.

Congresswoman, I touched on that 60-percent figure in my prepared remarks.

Ms. DEGETTE. Right.

Senator WYDEN. But I share your view. I think clearly, without

that kind of involvement by the hospitals, their participation in a

meaningful way, that is a significant limitation on our ability to

address this issue in a responsible way. So I think you are on to

a matter that I feel very strongly about, and I am anxious to work

with you on.

27

Ms. DEGETTE. Thank you. I have got more, but I will let you go.

Thanks, Senator.

Senator WYDEN. Mr. Chairman.

Mr. UPTON. I would just like to say we would like to keep the

record open, and if you wouldn’t mind answering written questions

that we can make as part of the record, that would be terrific.

Senator WYDEN. I would be happy to. I look forward to working

with all of you.

Mr. UPTON. Perhaps on the, we wish you good luck or bad luck,

depending on whatever the amendment is in the Senate.

Our next panel will include Dr. Liana Gedz and Mr. Anderson

Smart. And if they are there, if they would take seats I guess for

a moment.

We have a longstanding tradition of taking testimony under

oath. We waived that for Mr. Wyden as a former member of the

committee. But under committee rules, do you have any objection

to that procedure?

Ms. GEDZ. No.

Mr. UPTON. And, also, the committee rules allow you to have

counsel, if you desire. Would you ask for counsel?

Ms. GEDZ. Yes.

Mr. UPTON. And could you state who that individual is, for the

record.

Mr. MCGRATH. Christopher T. McGrath of Sullivan, Papain,

Block, McGrath & Cannavo, 55 Mineola Boulevard, Mineola, New

York.

Mr. UPTON. Okay. And?

Ms. CRONIN. For Anderson Smart, Linda Cronin of Trager,

Cronin & Byczek, 1983 Marcus Avenue, Lake Success, New York.

Mr. UPTON. That is very good.

If you would stand, all of you, and raise your right hand.

[Witnesses sworn.]

Mr. UPTON. You are now under oath, and we would like you take

no more than about 5 minutes for your testimony. Your testimony

will be made part of the record, as it was submitted, with unanimous consent.

And we will start with Dr. Gedz.

TESTIMONY OF LIANA GEDZ, ACCOMPANIED BY CHRISTOPHER T. McGRATH; AND ANDERSON SMART, ACCOMPANIED BY LINDA CRONIN

Ms. GEDZ. Mr. Chairman and committee members, my name is

Liana Gedz, and I’m a Russian-born dentist, have graduated from

New York University Dental School, and live and practice in New

York City.

I am pleased to have the opportunity to testify today as you consider issues related to making the information currently in the National Practitioner Data Bank available to the public. I believe that

availability of such information would give patients the chance to

make an intelligent choice about who should be their health care

provider before they place their health and well-being into the

hands of a doctor or hospital. In the next few minutes, I would like

to summarize what happened to me 6 months ago from the hands

of a supposedly prominent and experienced OBGYN, Dr. Alan

28

Zarkin, in the supposedly reputable medical facility known as Beth

Israel Medical Center.

Six months ago, I delivered a baby girl in Beth Israel Hospital

by Caesarian section, emergency Caesarian section. After the completion of surgery, Dr. Alan Zarkin carved his initials on my abdomen. What happened to me is traumatizing enough. What was

more devastating is that after Dr. Zarkin was suspended from Beth

Israel Hospital, he was able to work as an OBGYN physician for

5 more months, performing complicated surgical procedures on

unsuspecting patients. In Beth Israel’s report to the New York

State Health Department, Dr. Zarkin’s actions were described as

gross misconduct, without giving any details.

If the entire information would have been made available to the

public through the National Practitioner Data Bank, I don’t think

Dr. Zarkin would be able to practice medicine any longer. The patients seeing Dr. Zarkin after me would have known of my horrific

experience. Dr. Zarkin’s attorney blamed his action on a frontal

lobe disorder. As described in any medical textbook, frontal lobe

disorder manifests itself in violent behavior. It is very, very dangerous to have a person like this allowed to hold a scalpel when

you give him power over your body or your life on the operating

table. The information in the National Practitioner Data Bank

should be available not only to medical facilities, but also for every

patient who needs to protect themselves from questionable doctors

and facilities.

Another issue is whether hospitals fully comply with their statutory obligation to report to the National Practitioner Data Bank before hiring a doctor. The failure to do that would seriously undermine the ability of the Data Bank to protect the patient. Also, I

truly believe we have a ‘‘white wall of silence’’: hospitals protect

doctors, doctors protect their peers, and in all of this, crucial information is getting lost.

We, as the patient, are in a very vulnerable position not knowing

if you are dead because God wanted to or because your doctor is

insane. Please understand I am a doctor myself, and I am not attacking the medical profession. The United States has some of the

most brilliant doctors and the most sophisticated medical facilities

in the world. But lately, medicine has become more of a business

with bottom lines, in detriment of patient care.

Now it is the time to let the public know and choose who will

hold their life in their hands. We shouldn’t make decisions blindly.

We should be able to question and research. If I knew what I know

now, Dr. Zarkin would never have been able to rob me of the experience of my daughter’s birth. He would not be my doctor.

I hope that availability of information to the public will make

sure that every man, woman and child, when they seek medical

care, feels safe. I wish I had that information available to me. I

should have—it should have been my right, as the patient, to have

this information.

Thank you.

[The prepared statement of Liana Gedz follows:]

29

PREPARED STATEMENT OF LIANA GEDZ

Mr. Chairman and Committee Members: My name is Liana Gedz. I am a Russian

born dentist, have graduated from New York University Dental School and live and

practice in New York City.

I am pleased to have the opportunity to testify today as you consider issues related to making the information currently in the National Practitioner Databank

available to the public. I believe that availability of such information would give patients the chance to make an intelligent choice about who should be their health

care provider before they place their health and well being into the hands of a doctor or a hospital. In the next few minutes I would like to summarize what happened

to me six months ago from the hands of a supposedly prominent and experienced

OBGYN Dr. Alan Zarkin in the supposedly reputable medical institution known as

Beth Israel Medical Center.

Six months ago I delivered a baby girl in Beth Israel Hospital by emergency caesarian. After the completion of the surgery Dr. Zarkin carved his initials on my abdomen. What happened to me is traumatizing enough, but what is more devastating

is that after Dr. Zarkin was suspended from Beth Israel Hospital, he was able to

work as an OBGYN physician for five (5) more months performing complicated surgical procedures on unsuspecting patients. In Beth Israel’s report to the New York

State Health Department, Dr. Zarkin’s actions were described as ‘‘gross misconduct’’

without giving any details.

If the entire information would have been made available to the public through

the National Practitioner Databank, I don’t think that Dr. Zarkin would have been

able to practice medicine any longer. The patients seing Dr. Zarkin after me would

have known of my horrific experience. Dr. Zarkin’s attorney blames his actions on

frontal lobe disorder. As described in any medical textbook, frontal lobe disorder

manifests itself as a violent behavior. It is very, very dangerous to have a person

like that allowed to hold the scalpel when you give him the power over your body

and your life on the operating table. The information in The National Practitioner

Databank should be available not only to medical facilities but also for every patient

who needs to protect themselves from questionable doctors and facilities.

Another issue is whether hospitals fully comply with their statutory obligation to

report to the National Practitioner Databank before hiring a doctor. The failure to

do that would seriously undermine the ability of this Databank to protect THE PATIENT. Also, I truly believe that we have a ‘‘white wall of silence’’, hospitals protect

doctors, doctors protect their peers, and in all of this, crucial information is getting

lost. We, as patients are in a very vulnerable position not knowing if you are dead

because God wanted to or because your doctor is insane. Please understand I am

a doctor myself and I am not attacking the medical profession. The United States

has some of the most brilliant doctors and the most sophisticated medical facilities

in the world, but lately medicine has become more of a business with bottom lines

in detriment of the patient care. Now it is the time to let the public know and

choose who will hold their life in their hands. We shouldn’t make a decision blindly,

but rather be able to question and research. If I knew what I know now, Dr. Zarkin

would never have been able to rob me of the experience of my daughter’s birth, he

would not be my doctor. I hope that the availability of the information to the public

will make sure that every man, woman, and child will be safe when they seek medical care. I wish I had that information available to me. It should have been my

right as a patient to have it.

Mr. UPTON. Thank you very much.

Mr. Smart?

TESTIMONY OF ANDERSON SMART

Mr. SMART. Mr. Chairman and members of the committee, thank

you for inviting me to appear before you today. My name is Anderson Smart, and I am a detective with the New York City Police Department.

Twenty-seven months ago, my wife Lisa, who was just 30 years

old, died after undergoing routine surgery to remove a fibroid

tumor. Her death was caused by negligent doctors who disregarded

her basic right to be informed that they would, for the first time,

be using a new machine; for allowing nurses into surgery who, like

themselves, had never been trained on the proper use of this new

30

machine; and for allowing a salesman from Johnson and Johnson

to actually participate in the surgery. Most egregious of all was the

failure of these doctors to act upon the nurses’ warnings that Lisa

was literally drowning to death.

I am here today to address the issue of public access to the National Practitioner Data Bank. I am certain that if Lisa knew that

her doctor’s partner would be participating in the surgery, a doctor

who was already on probation for professional misconduct and who

had been sued several times for malpractice, she would have made

a different, more informed choice of physicians.

Lisa and I knew each other since we were teenagers. We worked

hard, had just purchased our first home and were going to start a

family. We moved to a rural county far from our work so that we

could enjoy nature. I was so proud of her when she started her career at Chase as a financial analyst. Her tragic death was a direct

result of her doctor’s negligence during what I—what should have

been a simple, routine, outpatient procedure. Had Lisa been given

access to the National Practitioner Data Bank, she would be alive

today.

Lisa’s ability to succeed in her career were basic qualities that

she used in her own life. She was a perfectionist who would have

certainly made use of the information in the National Practitioner

Data Bank if it had been available to the public. In fact, Lisa was

adamant that she did not wish to have her surgery in our hometown, choosing instead a physician affiliated with a hospital with

an outstanding reputation for quality care. She was very frightened

about this procedure, as this was her first hospitalization, and she

was especially concerned about the use of anesthesia. Lisa, an avid

reader, who regularly referred to the Internet and Consumer Digest for information, had, in fact, prior to the surgery, done exhaustive research on anesthesia. However, Lisa had no access to any

relevant data concerning her physician, other than that he qualified under her health plan. Certainly, she was entitled to make an

informed decision about who would be performing the surgery.

When Lisa died, I promised myself that I would do everything

possible to make certain that Lisa did not die in vain and that her

kind of senseless death would never happen again. In New York,

we are supporting legislation named in honor of Lisa, which would

provide patients access to relevant information about their medical

providers. We are encouraged that the chairman of the New York

State Health Committee is revisiting Lisa’s Law and his position

against the New York Bill.

Requiring practitioners and hospitals alike to be held responsible

for reporting and consulting with the National Practitioner Data

Bank is only the first step. Consumer access to this information is

essential. Access to data will assist all patients in making informed

decisions about their medical care. While the Government cannot

protect us from all conceivable harm, public access to the National

Practitioner Data Bank will certainly help us to help ourselves.

I want to thank the chairman for giving me the opportunity to

tell my story and hope that he and the committee can find some

way to prevent what happened to our family from ever happening

again. I would like to thank you all.

[The prepared statement of Anderson Smart follows:]

31

PREPARED STATEMENT OF ANDERSON SMART

Mr. Chairman and members of the Committee, thank you for inviting me to appear before you today. My name is Anderson Smart, and I am a Detective with the

New York City Police Department.

Twenty seven months ago my wife Lisa, who was just thirty years old, died after

undergoing routine surgery to remove a fibroid tumor. Her death was caused by

negligent doctors who disregarded her basic right to be informed that they would,

for the first time, be using a new machine; for allowing nurses into surgery who,

like themselves, had never been trained on the proper use of this new machine; and

for allowing a salesman from Johnson and Johnson to actually participate in the

surgery. Most egregious of all, was the failure of these doctors to act upon the

nurses’ warnings that Lisa was literally drowning to death.

I am here today to address the issue of Public Access to the National Practitioner

Data Bank (NPDB). I am certain that if Lisa knew that her doctor’s partner would

be participating in the surgery—a doctor who was already on probation for professional misconduct and who had been sued several times for malpractice, she would

have made a different, more informed choice of physicians. Lisa and I knew each

other since we were teenagers. We worked hard, had just purchased our first home

and were going to start a family. We moved to a rural county far from our work

so that we could enjoy nature. I was so proud of Lisa when she started her career

at Chase as a financial analyst. Her tragic death was a direct result of her doctor’s

negligence during what should have been a simple, routine, outpatient procedure.

Had Lisa been given access to the National Practitioner Data Bank, she would be

alive today.

Lisa’s ability to succeed in her career were basic qualities that she used in her

own life. She was a perfectionist who would have certainly made use of the information in the National Practitioner Data Bank if it had been available to the public.

In fact, Lisa was adamant that she did not wish to have her surgery in our hometown, choosing instead a physician affiliated with a hospital with an outstanding

reputation for quality care. She was very frightened about this procedure, as this

was her first hospitalization, and she was especially concerned about the use of anesthesia. Lisa, an avid reader who regularly referred to the Internet and consumer

digests for information had, in fact, prior to this surgery done exhaustive research

on anesthesia. However, Lisa had no access to any relevant data concerning her

physician, other than that he qualified under her health plan. Certainly, she was

entitled to make an informed decision about who would be performing the surgery.

When Lisa died, I promised myself that I would do everything possible to make

certain that Lisa did not die in vain and that her kind of senseless death would

never happen again. In New York we are supporting legislation named in honor of

Lisa, which would provide patients access to relevant information about their medical providers. We are encouraged that the Chairman of the New York State Health

Committee is revisiting ‘‘Lisa’s Law’’ and his position against the New York Bill.

Requiring practitioners and hospitals alike to be held responsible for reporting

and consulting with the National Practitioner Data Bank is only the first step. Consumer access to this information is essential. Access to data will assist all patients

in making informed decisions about their medical care. While the government can

not protect us from all conceivable harm, public access to the National Practitioner

Data Bank will certainly help us to help ourselves.

I want to thank the Chairman for giving me the opportunity to tell my story and

hope that he and the Committee can find some way to prevent what happened to

our family from ever happening again.

Mr. UPTON. Thank you both very much. And, certainly, Mr.

Smart, you kept your promise, and we hope that, just both of you,

it is a very sad and tragic story, and I think it certainly tells us

all that there is much needed reform. We need to do it on a bipartisan basis.

It seems as though, particularly Dr. Gedz, not only did the system break down in terms of where it is supposed to be, in light of

today’s front-page story in the New York Times as well, but as you

heard from Mr. Wyden’s questions and the dialog that went back

on both sides of the aisle, Republicans and Democrats, I think that

there can be some very constructive reform that moves forward.

And by shedding light on some of those reforms in this morning’s

32

hearings, perhaps we can work on legislation and look at a number

of different proposals that are out there so that your cases will not

ever happen again.

And your willingness to go public through this very painful and

certainly personally private experience is a credit to you both for

seeking changes. I know I speak for all members here in appreciation for the time that you are spending with us this morning.

And I just want to say, too, that I think most of us here will have

some very tough questions later on for the panels that are coming

later, as it pertains specifically to the examples that you raised this

morning, and to seek a common bond where we can move together

to make sure that it doesn’t happen again. I think your statements

speak in a very meaningful and full way, and I have no further

questions at this point and would yield to my colleague from Michigan, Mr. Stupak.

Mr. STUPAK. Thank you, Mr. Chairman.

Dr. Gedz, you mentioned in your testimony that you believe that

a ‘‘white wall of silence’’ exists regarding the protection of doctors,

hospitals and other health care providers. Can you elaborate a little bit more what you mean by that term.

Ms. GEDZ. Well, in my particular case, as Dr. Zarkin, like I said

in my testimony, after he was suspended from Beth Israel Hospital, only the New York State Department of Health was notified

as gross misconduct, without any details. So he was able to get a

job and actually practice and perform surgeries for 5 months, supposedly being insane. I believe, if doctors and nurses who were in

this operating room would report it, hospital would report it in a

different way.

Mr. STUPAK. ‘‘In a different way,’’ what do you mean?

Ms. GEDZ. Just describe what he did to me. Just let——

Mr. STUPAK. Okay. But in this case here, it was reported to the

New York State Medical Board?

Ms. GEDZ. Right, as gross misconduct. That doesn’t give you any

details. I mean, I don’t think carving initials with a deadly weapon

as a scalpel on the body who lays in front of you that’s gross misconduct. That’s a crime.

Mr. STUPAK. I don’t disagree with you there. I guess what I’m

trying to say is where did the system break down? If the New York

Licensing Board found gross misconduct, was it not disseminated

then within New York, not within the State, in the country? Where

do you think the breakdown occurs? I guess no one can say what

was done to you was appropriate or anything. I agree with you

wholeheartedly there. What we’re trying to find out where is the

breakdown, in your estimation? You have mentioned this code of silence, you mentioned the doctor was disbarred by gross negligence.

Then what happened? Where did it break down? That is what we

are trying to get at.

Ms. GEDZ. Well, then everybody was quiet, and this is why his

colleagues, who knew what happened, Dr. Saltzman is a chairman

OBGYN, a former chairman OBGYN of Beth Israel Hospital, after

the fact what Dr. Zarkin did to me, was trying to conduct business

with the facility where Dr. Zarkin was medical director. I mean,

how would you explain that?

33

Mr. STUPAK. I guess what I am trying to get at, and maybe I am

missing——

Ms. GEDZ. I know what you are trying to get——

Mr. STUPAK. I am trying to say how do we correct that? How do

you get the communication lines open? Just by throwing open the

data base doesn’t necessarily do that. There are some, I am sure,

some physicians in there who, when cases are reviewed, we have

heard a lot about 200 cases with 13 or more malpractices. How do

you make sure that you are not punishing a doctor, while at the

same time trying to protect the public? I mean——

Ms. GEDZ. Well, I think it could be two ways of doing this: One,

if we see why doctors fail to police other doctors, maybe an independent organization should be established to police doctors. And

another way is the National Practitioner Data Bank giving a patient the right to know this information and question the doctors.

Mr. STUPAK. Did you ever inquire of the New York Board as to

why the doctor, after they found him responsible for gross negligence, why he was allowed to practice? Did the New York Licensing Board ever give you a reason?

Ms. GEDZ. No, I didn’t.

Mr. STUPAK. Thank you.

Mr. Smart, basically the same kind of questions. It is my understanding that at least two doctors involved in your wife’s case had

previously had actions taken against them by the New York State

Board of Medicine.

Mr. SMART. It was only one.

Mr. STUPAK. One?

Mr. SMART. Yeah.

Mr. STUPAK. What should New York have done differently, in

your estimation?

I guess we are trying to figure out how does the system break

down.

Mr. SMART. Personally, my wife’s death was ruled as an accident.

I knew something was wrong. I went to attorneys and told them

what had happened. And when they started their own investigation, the hospital really didn’t cooperate with them at all. They

asked for information, they asked for documents. They were only

sent maybe a total of 10 to 15 pages’ worth of what happened on

that particular day, and we all knew that there was more to it than

what was received.

I think there was too much time, too much time allowed for

these, the hospital and whoever else, to sort of get their story

straight, and speak to their people and, you know, be prepared for

when they interact with us.

The New York State Department of Health informed us maybe

about approximately a year later that something was wrong, and

they sat us down and told us exactly what happened in that operating room, and that’s when we found out, indeed, what went

wrong. We knew something was wrong all along, but we didn’t

know what it was. And I think that’s where the breakdown is.

Mr. STUPAK. Did you ask them about the one physician then who

has been involved with other problems? And did you ask whatever

happened, how can this individual continue to practice if there’s

been problems?

34

Mr. SMART. They really didn’t give a straightforward answer.

They also were like, you know, ‘‘we really don’t know.’’

Mr. STUPAK. This is the licensing board that is supposed to license the physicians; is that what you are telling me?

Mr. SMART. Yes. And that was the first time that I had heard

of a Dr. Sklar. I have never—I have never heard of him before.

When I went my wife to have the procedure done, I met the other

doctors. I knew nothing of a Dr. Sklar. A year later I found out

about a Dr. Sklar, and that was very disturbing to me.

Mr. STUPAK. Sure.

Mr. SMART. Knowing his background.

Mr. STUPAK. Thank you. Thank you both.

Mr. UPTON. Chairman Bliley?

Chairman BLILEY. Thank you.

Dr. Gedz, both you and your husband, as practicing dentists, can

be reported to the National Practitioner Data Bank. Does this, in

any way, change your belief that the National Practitioner Data

Bank should be open to the public?

Ms. GEDZ. No, it doesn’t change our opinion because as long as

information is accurate and as long as—the most important thing

is would a patient have a chance of knowing about my or my husband’s prior record and make an intelligent decision if they wanted

to be treated by me or my husband.

Chairman BLILEY. In your testimony, you referred to the ‘‘white

wall of silence,’’ in describing the medical profession failing to

speak out against questionable doctors. Do you think that solely

giving more information and resources to State licensing boards

without giving consumers access will adequately protect consumers

from problem doctors?

Ms. GEDZ. No. I believe it should be an independent organization

or the public should know and be able to question doctors if they

have any questions or make a choice if I wanted to be treated by

the doctor.

Chairman BLILEY. Some have argued, Doctor, that consumers

cannot understand this kind of information that is in the National

Practitioner Data Bank. Do you think patients would be able to understand what is in the National Practitioner Data Bank and especially what Dr. Zarkin did to you?

Ms. GEDZ. Well, in Dr. Zarkin’s case, it’s pretty self-explanatory

what he did to me. I think every person would understand what

he did. And I don’t think we should underestimate the intelligence

of the public. But I agree that there should be some guidelines or

in language what you put in the National Practitioner Data Bank.

But, also, if a patient didn’t understand something, at least they

have a chance to question a doctor.

Chairman BLILEY. Thank you.

Mr. Smart, you indicated that your wife Lisa was an avid reader

who regularly referred to the Internet and, in fact, did extensive

research on anesthesia before her operation. Do you believe that if

comparative information about doctors, like the National Practitioner Data Bank were available to her, she would have used that

information to select a doctor?

Mr. SMART. Yes, I do.

35

Chairman BLILEY. Do you think that if she had known about Dr.

Sklar’s prior history in the National Practitioner Data Bank involving numerous malpractice payments, she would have ever agreed

to be treated by him?

Mr. SMART. No, she wouldn’t have.

Chairman BLILEY. Thank you both. Thank you very much.

Thank you, Mr. Chairman.

Mr. UPTON. Thank you.

Ms. DeGette?

Ms. DEGETTE. Thank you, Mr. Chairman. Thank you both for

coming here to testify. I know it is hard, and I appreciate it because it helps us understand your perspective and what happened

to you.

I got here a little bit late, but I read the materials, and what I

am struck by, especially hearing your testimony, is how complex

this issue is and how very little of a tip that we can actually handle

on the Federal level. Because even if you opened up the Data Bank,

I am not sure every patient would be as diligent as Dr. Gedz would

or as your wife would have been, Mr. Smart. So I think we need

to look at the Data Bank. But more importantly, perhaps, we need

to look at the State entities that are taking disciplinary actions

against bad doctors.

Both of these cases happened at Beth Israel; is that correct? I am

wondering if either one of you could comment whether you think

there is some fundamental problem with the way they are supervising their physicians there.

Mr. SMART. I think it’s something that can happen at any hospital. It just so happened that it happened two times, actually, at

Beth Israel. And I think peo—basically, if you have information on

the background of a doctor, I think that’s your choice whether or

not you should go to that doctor.

What happened with this lady right here, I mean, and especially

to hear it happening at another institution, I mean, that’s very disturbing.

Ms. DEGETTE. Uh-huh. Doctor?

Ms. GEDZ. I believe it’s a fundamental problem in Beth Israel

Hospital because I spent 21⁄2 months there on complete bed rest.

And I was a witness of lack of knowledge of nurses, negligence of

residents, and I made sure, as a doctor being there and knowing

what’s going on, that I complained on every single day and pointed

to the problems. But what did I get in response? I basically was

told if I’m not going to stop making waves, I’m going to be dismissed from the hospital.

Ms. DEGETTE. Mr. Smart, I have been told—and maybe I am

wrong, let me know—that this doctor was provided by your HMO;

is that correct? That came through your HMO?

Mr. SMART. Yes, by the primary care physician.

Ms. DEGETTE. And so is it your understanding that if the HMO

didn’t check out the qualifications of the doctor and just said,

‘‘Here, go do this procedure,’’ did you know you would not be able

to sue that HMO for that negligence?

Mr. SMART. I hold the HMO responsible as well.

Ms. DEGETTE. But did you know you can’t sue them for negligently providing that doctor to you?

36

Mr. SMART. No, I didn’t know that. That I didn’t know.

Ms. DEGETTE. That is why we are trying to do a Patient’s Bill

of Rights.

Mr. SMART. Yeah, I didn’t know that.

Ms. DEGETTE. Now, let me just ask you, Dr. Gedz, in particular,

because I do think patients should be able to get more information

from the Data Bank, but what I’m concerned about is how we make

sure that the information in the Data Bank is accurate. For example, if someone gets a—if someone doesn’t like the root canal you

did on them and so they decide to manufacture some kind of complaint, how do we deal with that? How do we make sure that patients who are going on the Internet to get this information are actually getting accurate information? I think that that is the concern

people have.

Ms. GEDZ. Well, I don’t believe the National Practitioner Data

Bank is made to be court, jury and executioner of a doctor. I believe

information which you put there should be evaluated and only

valid information should be put in the data.

Ms. DEGETTE. And who would evaluate that and make sure it

was accurate? Let’s say I have a doctor in Colorado who gets sued.

The evidence of that lawsuit is going to go on the Data Bank, but

who is going to evaluate that to see whether that is accurate or

not?

Ms. GEDZ. Well, maybe we should establish an independent organization with a board of physicians and doctors who would be independent from a State to evaluate every case, and only cases with

proven—proven would be put in the Data Bank.

Ms. DEGETTE. Thank you.

Mr. Chairman, let me just say I think we should get more NYU

graduates here to testify in front of our committee. I am a graduate

of NYU Law School myself.

Ms. GEDZ. Thank you.

Ms. DEGETTE. Thank you for coming.

Mr. UPTON. Dr. Ganske?

Mr. GANSKE. Thank you, Mr. Chairman. I thank both of our

guests today.

Dr. Gedz, did you require any stitches for these initials?

Ms. GEDZ. No. Well, they shouldn’t be placed because he went

subcutaneous and now I have a healing by keloid.

Mr. GANSKE. So there was underlying fat exposed?

Ms. GEDZ. I saw the initials 2 days after. I wasn’t aware what

he did to me. I only found out 2 days after. When I saw it, the tissue was necrotized. So, but I know, when I asked people and when

I saw the scar, I could tell it was subcutaneous.

Mr. GANSKE. So when you did see, when you saw the wound, was

the skin completely cut through so that you could see fat underneath?

Ms. GEDZ. Well, what I could see, I could see necrotized tissue

at that point. After 2 days, it was all gray and inflamed.

Mr. GANSKE. Now, clearly, there is litigation going on; is that

right?

Ms. GEDZ. Yes.

Mr. GANSKE. Personal injury?

Ms. GEDZ. Litigation is concluded.

37

Mr. GANSKE. Yes. And will there be criminal charges?

Ms. GEDZ. He is criminally prosecuted, and I was subpoenaed by

grand jury, and I give my testimony.

Mr. GANSKE. To the best of your knowledge, was there ever this

type of behavior before by this physician?

Ms. GEDZ. Dr. Zarkin had, I believe, four former complaints

against him—I don’t think to the extent of what he did to me, but

he had four former complaints.

Mr. GANSKE. Of what type, do you know?

Ms. GEDZ. I am not sure. I am not sure.

Mr. GANSKE. Well, it certainly is a bizarre thing. I was just

amazed.

How long after this happened did this appear in the newspapers?

Ms. GEDZ. Five months after. I really wasn’t craving publicity. I

think it’s a very private matter, and it’s not really pleasurable to

see your stomach plastered all over television and the newspapers,

so——

Mr. GANSKE. Will you require reconstructive surgery?

Ms. GEDZ. Yes, I would have to have reconstructive surgery.

Mr. GANSKE. Like an abdominal plasty?

Ms. GEDZ. No. That would be a full-blown tummy tuck.

Mr. GANSKE. You would need a full-blown——

Ms. GEDZ. Yes.

Mr. GANSKE. Yes.

Ms. GEDZ. I would have to replace this piece of skin completely.

Mr. GANSKE. So how did you choose Dr. Zarkin?

Ms. GEDZ. Dr. Zarkin was recommended to me by a friend, and

I went to see him after the loss of my first baby.

Mr. GANSKE. Are you in an HMO?

Ms. GEDZ. Yes, I have insurance.

Mr. GANSKE. Is it a Health Maintenance Organization?

Ms. GEDZ. Yes.

Mr. GANSKE. So you had to get an authorization from your HMO

to go to Dr. Zarkin?

Ms. GEDZ. No, he was participating with the Blue Cross/Blue

Shield.

Mr. GANSKE. He was a participant. So I guess I will ask the

same question that Congresswoman DeGette said. Is your insurance through your employer?

Ms. GEDZ. No. I believe we purchased the insurance.

Mr. GANSKE. You hold an individual policy on your own.

Ms. GEDZ. Yes.

Mr. GANSKE. So, in that situation, you could hold the HMO responsible for having somebody on their staff that would do something like Dr. Zarkin. You could, but Mr. Smart could not.

Ms. GEDZ. Mr. Ganske; is that correct?

Mr. GANSKE. Uh-huh.

Ms. GEDZ. This lawsuit, it wasn’t really about the settlements

and money. It really was about, in the beginning, it was very embarrassing to me, and I felt completely violated with what he did

to me. But in the end, right now, the only purpose of my speaking

out and doing all of this publicity and TV shows is because if I can

go to sleep and know that it’s never going to happen to anybody

again, because this is the purpose.

38

Mr. GANSKE. I guess what——

Ms. GEDZ. I didn’t want to sue my insurance company.

Mr. GANSKE. I guess what my point would be is that it may or

may not be that you would or would not have chosen Dr. Zarkin

if the National Practitioner Data Bank were open because it may

or may not have given data that would have made a difference to

you in terms of who you chose.

Ms. GEDZ. But if I saw Dr. Zarkin’s name in a National Practitioner Data Bank with four former complaints, it doesn’t matter

how small or big they were, and if I still was—he was recommended to me by a friend, at least I had a chance when I talked

to Dr. Zarkin for the first time to ask him about that and expect

an explanation why he’s reported to the National Practitioner Data

Bank and what were his actions.

Mr. GANSKE. Most obstetrician/gynecologists, because that’s a

high-risk area, over the course of a career very well may have four

incidents reported against them, which may or may not have been

any negligence on their part, but simply a settlement by an insurance company. So how would you distinguish that?

Ms. GEDZ. Mr. Ganske, every doctor, and being a doctor myself

I can tell you, could make a mistake under pressure. But as long

as there are no cover-ups and these mistakes are attended accordingly, this is what matters to the patient. Yes, I can do a bad root

canal and, yes, I can maybe even extract the wrong tooth. But you

know what matters is the patient, when he walks in and asks you

for medical care, he wants to be good in the end. He wants to be

well.

Mr. GANSKE. I understand.

Ms. GEDZ. So if I made a mistake, but I didn’t try to cover it up,

and I tried to fix it and tried to tell the patient, ‘‘You know what,

because I did the bad root canal, let me fix it. Let me do this, this

and that, and in the end you would function as you functioned or

even better before you came to my office.’’ So——

Mr. GANSKE. What I want to get at, and I don’t think it is information you can give us, is along the lines of what Congressman

Stupak was getting at, and that was that after this behavior which,

as far as I know from everything you have said and I have read

in the newspapers, is inexcusable happened, what I want to find

out, and I think on the next panel we are going to have the hospital representatives on this, is after that happened, it must have

been reported to the operating room Director of Personnel, it must

have then gone up the administrative chain to committees, and

then your point on this is that he was able to continue—I want to

find out what happened to his privileges at that hospital and then

I want to find out——

Ms. GEDZ. They were suspended.

Mr. GANSKE. They were suspended?

Ms. GEDZ. Yes.

Mr. GANSKE. Immediately?

Ms. GEDZ. I believe so.

Mr. GANSKE. As soon as they found out? Then what I want to

find out is how should that information have been shared with any

other hospitals where he had privileges? That is what I want to

39

find out. And I thank you very much for coming forward on this.

And, Mr. Smart, I thank you also.

Mr. SMART. Thank you.

Mr. UPTON. Thank you.

Mr. Bryant?

Mr. BRYANT. Thank you, Mr. Chairman.

I apologize to this panel for having to step out, and I apologize

to the subsequent panels when I step out again. Because all of us

are on different schedules, as you can see people coming and going,

and that is not to say this is not very important, but they schedule

us in advance, and we have to do these kind of things.

I am going to try to get back because I still have those questions

that I would like to ask or hear answered by the subsequent panels

about why the current system we have is not working as well as

it should and perhaps how we can improve it.

In listening to these two witnesses, I want to add my appreciation I think that has been certainly offered by everyone on this

panel today for you coming forward and testifying.

Doctor, you certainly have, I think Dr. Ganske said, a bizarre situation, very unusual situation where, as I understand it, a doctor

intentionally did something. And that, in my experience, that is

really an unusual situation. And, Mr. Smart, you certainly have a

case that, while not intentional, it appears to be some degree of

negligence, a more traditional malpractice case, I would suppose,

and certainly with tragic results.

I think, as I sit here and listen to this testimony developing and

the statements developed, I kind of see two problems evolving: One

is that we have a small percent—1, 2, 3 percent, maybe even 5 percent—of doctors who play the system, and they are able to do

things and at the last minute move or plea bargain or whatever,

and perhaps these are the ones that need to be completely out of

the system, but because they are able to move, relocate, they stay

in the system.

And I think clearly what we are talking about in legislation,

whether it is at a State level or whether it is Federal legislation,

the current State legislation needs to do a better job. Again, I

asked the question in my opening statement, how can you do all

of this stuff in one State and then just bounce over to another State

and be recertified, and licensed and credentialed and those things?

But that is really a small percentage, and it needs to be addressed.

But the bigger problem I think the legislation we are talking

about would address is all of the other doctors and more the consumer learning about, Dr. Gedz, like you said, if you had seen the

doctor and perhaps they had only had one black mark against

them, you might not have gone to that doctor. And that is the bigger group out there. And how do we fairly have a system that does

that, as I said in my statement, to put these black marks, if you

will, or gray marks, if you will, in context so that the average person can understand and how do we do that fairly? Because I think

we have to have a balanced system here. We certainly want informed consumers, informed patients. But on the other hand, we

want to make sure that it is quality, valuable information that we

are putting out there that people can understand and make that

decision. I guess that is the bigger problem we are dealing with

40

here today. As opposed to the doctors that just bounce around from

State to State that need to be out of the practice altogether, we are

talking about the rest of the doctors that are out there that we are

trying to pick and choose from to get quality medical care.

And, again, I would thank you for coming out today, both of you,

and would yield back my time.

Mr. UPTON. Thank you.

To both of you I just want to say we have a number of subcommittees that are meeting today. So members are on multiple

subcommittees. There is a very important issue on the House floor

as well, so that is why members are coming in and out. I would

like to say that, for those members that are not here or members

that are still here, we may do some follow-up questions. We are

going to leave the record open for all members and for all panels

today.

But, again, we very much appreciate your openness and willingness to come and tell your story before us. It dramatically speaks

for reform, to examine the facts in terms of why even the existing

policy and law was not followed. And your statements today are,

in fact, very, very helpful to all of us, and we appreciate your time,

and it was well spent.

Thank you very much. You are formally excused.

Mr. SMART. Thank you, Mr. Chairman.

Mr. UPTON. The next panel includes the following: Ms. Nancy

Sullivan, executive director of the Board of Registration in Medicine from the Commonwealth of Massachusetts; Ms. Barbara

Neuman, president of the Administrators in Medicine, Board of

Medical Practice, State of Vermont; Dr. Edward Loniewski, from

Plymouth, Michigan, testifying on behalf of the American Osteopathic Association; Dr. Rodney Hochman, senior vice president and

chief medical officer of Sentara Health System, testifying on behalf

of the American Hospital Association; Dr. Tom Reardon, president

of the American Medical Association; Dr. Robert Newman, president and CEO of Continuum Health Partners, testifying on behalf

of Beth Israel Medical Center; Mr. Wayne Osten, director of the Division of Health Care Standards and Surveillance from the New

York State Department of Health; and Mr. Larry Silver, Silver and

Field, from Los Angeles, California.

We are going to try and keep strict time. And as you heard from

the earlier panel, we have a longstanding tradition of taking testimony under oath. Do any of you have objection to that?

[No response.]

Mr. UPTON. Seeing none, we also allow folks that are testifying

to be represented also by counsel. Do any of you want counsel to

speak on your behalf?

[No response.]

Mr. UPTON. Seeing none, if you would all stand. Again, raise

your right hand.

[Witnesses sworn.]

Mr. UPTON. You are now under oath, and we will start with Ms.

Sullivan—Dr. Sullivan. Oh, I see. There are two Sullivans. That is

right. We will start with Ms. Nancy Sullivan.

Mr. SULLIVAN. Actually, with me.

Mr. UPTON. Oh, actually, with you. Okay.

41

TESTIMONY OF MARY ANNA SULLIVAN, CHAIR; ACCOMPANIED

BY NANCY ACHIN SULLIVAN, EXECUTIVE DIRECTOR, BOARD

OF REGISTRATION IN MEDICINE, COMMONWEALTH OF MASSACHUSETTS; BARBARA NEUMAN, PRESIDENT, ADMINISTRATORS IN MEDICINE, BOARD OF MEDICAL PRACTICE, STATE

OF VERMONT; EDWARD LONIEWSKI, ON BEHALF OF AMERICAN OSTEOPATHIC ASSOCIATION; RODNEY F. HOCHMAN,

SENIOR VICE PRESIDENT AND CHIEF MEDICAL OFFICER,

SENTARA HEALTH SYSTEM, ON BEHALF OF AMERICAN HOSPITAL ASSOCIATION; THOMAS R. REARDON, PRESIDENT,

AMERICAN MEDICAL ASSOCIATION; ROBERT G. NEWMAN,

PRESIDENT AND CEO, CONTINUUM HEALTH PARTNERS,

INC., ON BEHALF OF BETH ISRAEL MEDICAL CENTER;

WAYNE M. OSTEN, DIRECTOR, DIVISION OF HEALTH CARE

STANDARDS AND SURVEILLANCE, NEW YORK STATE DEPARTMENT OF HEALTH; AND LAWRENCE SILVER, SILVER

AND FIELD

Ms. MARY ANNA SULLIVAN. I’m Dr. Mary Anna Sullivan, chair of

the Massachusetts Board of Registration in Medicine. On behalf of

the members of the board, I thank you for giving us the opportunity to provide the subcommittee with information on the Massachusetts Physician Profiles Project.

Like many practicing physicians, I had concerns about the impact of increased disclosure of physician information on my profession, and we have certainly heard those concerns this morning. But

Massachusetts was careful to respect due process and includes only

adjudicated or settled malpractice suits or final disciplinary action

as information on our profiles.

As Ms. Sullivan will describe in detail, malpractice information

is carefully presented in context. It’s not a perfect system, and we

will continue to try to improve it, but our patients in Massachusetts would have had the information that Ms. Smart, at least, so

tragically did not have. If a physician in Massachusetts has been

disciplined by us or by his or her hospital or if he or she has paid

on a malpractice claim, that information is available to our patients in Massachusetts.

I can assure you that this project has been a tool for positive

change for health care in Massachusetts. And interestingly, the

concerns of physicians have proved largely groundless. I am proud

of our board’s leadership positions on many of the complex issues

facing all of us who care about quality health care in our Nation.

Our Profiles Program is one example of this leadership.

Massachusetts also leads the Nation in another important area,

error identification and prevention. Through our confidential and

nondisciplinary Patient Care Assessment Program, we address the

quality of the health care systems in which individual physicians

practice.

Through our other activities, such as disciplinary actions and

public information programs, we ensure the competence of our licensees and strengthen the decisionmaking processes for our patients. These approaches are not exclusionary. In fact, they can and

should be part of an integrated approach to attaining health care

quality. Our board has asked our executive director, Nancy Achin

Sullivan, who oversaw the design of the Profiles Project in 1996,

42

to present the overview of the program, and we will both be happy

to answer any questions from the committee at the end of her presentation.

[The prepared statement of Mary Anna Sullivan follows:]

PREPARED STATEMENT OF MARY ANNA SULLIVAN, CHAIR, MASSACHUSETTS BOARD OF

REGISTATION IN MEDICINE

I am Dr. Mary Anna Sullivan, Chair of the Massachusetts Board of Registration

in Medicine. On behalf of the members of the Board, I thank you for giving us the

opportunity to provide the subcommittee with information on the Massachusetts

Physician Profiles Project. Like many practicing physicians, I had concerns about

the impact of increased disclosure of physician information on my profession. I can

assure you that this project has been a tool for positive change for health care in

Massachusetts.

I am proud that the Massachusetts Board of Registration in Medicine has taken

leadership positions on many of the complex issues facing all of us who care about

the quality of health care in our nation. The Physician Profiles Program is one example of this leadership. Massachusetts also leads the nation in another important

area: error identification and prevention. Through our confidential and non-disciplinary Patient Care Assessment program, we address the quality of the health care

systems in which individual physicians practice. Through other activities, such as

disciplinary actions and public information programs, we ensure the competence of

our licensees and strengthen the decision-making processes of patients. These approaches are not exclusionary; in fact they can and should be part of an integrated

approach to attaining health care quality. The Board has asked our Executive Director, Nancy Achin Sullivan, who oversaw the design and implementation of the Profiles Project in 1996, to present the overview of the program. We will both be happy

to answer any questions from the Committee at the end of Ms. Achin Sullivan’s

presentation.

Mr. UPTON. Go ahead.

TESTIMONY OF NANCY ACHIN SULLIVAN

Ms. NANCY ACHIN SULLIVAN. Thank you, Mr. Chairman and

members of the committee. My name is Nancy Achin Sullivan, and

I am here to provide information to assist the subcommittee on its

deliberations concerning public access to the National Practitioner

Data Bank.

Dr. Sullivan and I are not here to advocate for any specific outcome of the legislation at the Federal level. Instead, I would like

to talk about the genesis of the Profiles Project in Massachusetts,

the common concerns at the Federal and State level, and the outcomes of the Massachusetts project, now entering its fourth year of

operation.

I’m also here as a person whose personal experience with health

care I think underscores the importance of informed patients. I

have survived three separate battles with fairly advanced cancer

because I had wonderful doctors who fought for my life. But I live,

as I refer to it, under the sword of Damocles of not knowing how

long—what my health status will be because my cancers were very

advanced in the end because I was misdiagnosed. And those are

the issues that face patients every day. And each morning I pass

the cemetery near my home where I visit my sister, who died at

age 32, leaving a 6-year-old orphan behind. She died of a brain

tumor that went undiagnosed for years.

Part of the impetus behind this program in Massachusetts, and

I think others like it, is the recognition that families should not

live with that lingering doubt, ‘‘Did I do enough? Did I do everyVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00046 Fmt 6633 Sfmt 6602 E:\HEARINGS\62975 pfrm07 PsN: 62975
43

thing? Did I get every resource, including every information resource?’’

My primary message about the Physician Profiles Program, and

I hope the committee members will come away with this, is that

it is not in Massachusetts seen as a tool to identify and punish bad

doctors. Instead, it’s an educational tool. It is not disciplinary in

nature. The program’s primary goal is to help patients find the

right doctors for them and for their families. It’s the responsibility

of the State medical boards to remove bad doctors from practice.

The existence of the public information program does not relegate

that responsibility to the consumer. This is something different.

In November 1996, the Massachusetts Board unveiled the Physician Profiles Project in partnership with its lead sponsor, the Massachusetts Medical Society, the State legislature and the Governor.

The Profiles Project was the first of its kind in any State and has

since enabled millions of health care consumers to learn more

about the physicians to whom they entrust their care. And I have

supplied the committee with a breakdown of some of that information. Our recent numbers show that 4.9 million profiles have been

accessed either through our website or through other educational

tools we have for our consumers.

Prior to 1996, the Board collected a great deal of information

about consumers. Some of it was available to the public, if requested; some was statutorily protected and was not disclosed. As

public interest in health care has grown, the Board undertook a

very long examination of what information was appropriate and

how it could be presented to the public in a way that was organized

and set in appropriate context to be useful.

And finding the balance between the appropriate and useful information for consumers in protecting physicians from unwarranted adverse effects is difficult, but difficult is not impossible.

That’s why we have leadership, and that’s what I hoped that we

have achieved in Massachusetts and that that will be the goal for

whatever your—wherever your deliberations take you.

The medical community raised very reasonable issues, and we

tried to measure for that: The fear that physicians would leave the

State, reducing access to quality care; targeting of physicians who

already had malpractice payments with frivolous lawsuits; and the

possible chilling effect on peer-review reporting.

In Massachusetts, these concerns did not become reality. Since

the inception of the Profiles Program, the number of licensed physicians has not decreased; in fact, it is steadily increasing, particularly in the area of young physicians coming to train in our State

and stay in our State.

The decision to reveal the physician’s malpractice history did

cause the greatest concern and did really create the greatest challenge for us. The concerns raised included the issue of targeting

doctors with frivolous suits. Another major concern was how to

present the data in a context that accounted for differences among

specialties, where we know that there would be different experiences expected. The malpractice data really very vividly demonstrates the need for context as the data is reported.

We resolved the issue by reporting only the malpractice payments, not pending suits; by demonstrating how the individual

44

record—physician’s record compared to other physicians in the

same specialty; and by categorizing the payments in terms of it

falling at, above or below the average for that specific specialty. We

believe in large, to a large degree, that does address some of the

small nuisance suits, as I think many people consider the settlements because they do report as being substantially below the average.

Based on the Massachusetts’ experience, it’s strongly recommended that any Federal disclosure law be crafted in a manner

that allows for this type of contextual information. Simply throwing

out raw data is not going to be helpful. The committee may wish

to establish levels of contextual setting that reflect not only difference in specialty, but regional differences. The statistical data

support the general impression that the Physician Profiles Project

has not changed the nature of malpractice in Massachusetts. In

fact, our rate for malpractice payments has decreased since the release of the Physician Profiles Project. And, again, that information

is included as an attachment for the committee.

In 1998, when the national rate was at 21.1 suits per thousand

doctors, a decrease of 5.2 percent from the period before, the Massachusetts’ rate had declined during the same period 12.4 percent.

So we think that it has not had the effect for which we were very

carefully measuring out of respect for our doctor community.

Other States with physician populations similar to ours had different results for the same period. New York’s malpractice rate on

that same measure increased. New Jersey, Connecticut and Rhode

Island all had increases on that measure, and they didn’t have disclosure laws.

And, again, the chilling effect on peer-review reporting has not

materialized. Our Licensure and Clinical Privileges reports, as reported to the Data Bank, have remained constant in Massachusetts. They have maintained the same tight level as national

changes in addition. And, again, that is included as an attachment

for the committee.

The Physician Profiles Program in Massachusetts has been a tremendous success. The very reasonable fears voiced by organized

medicine did not come true. The response from the public has been

tremendous. Since Profiles was launched, nearly 4.9 million profiles

have been given to the public through the website or through the

call center. It has really become part of the culture of medicine in

Massachusetts. Countless numbers of patients have been given the

tools to have more helpful and rewarding discussions with their

physicians because they had good information to stimulate that

conversation. And, again, wherever your deliberations take you, I

hope that is the outcome, that people have better information.

[The prepared statement of Nancy Achin Sullivan follows:]

PREPARED STATEMENT OF NANCY ACHIN SULLIVAN, EXECUTIVE DIRECTOR, MASSACHUSETTS BOARD OF REGISTATION IN MEDICINE

My name is Nancy Achin Sullivan. I am here today to provide information to assist the subcommittee on Oversight and Investigations deliberations concerning

Public Access to the National Practitioner’s Data Bank. Dr. Sullivan and I are not

here to advocate for any specific outcome or legislation on the Federal level. Instead,

I will share the genesis of the Massachusetts Physician Profiles Project; common

concerns shared by both federal and state entities; and the outcomes of the Massachusetts Profiles Project, now entering its fourth year of operation.

45

I am also here as a person whose personal experience with health care underscores the importance of informed patients. I have survived three separate battles

with cancer because I had wonderful doctors who fought for my life. I live beneath

the sword of Damocles of being in remission with a cancer that would not have been

so advanced had I not been misdiagnosed . Each morning I pass the cemetery near

my home where I visit my sister who died of cancer at age 32 from a brain tumor

that went undiagnosed for years by her doctor. Part of the impetus behind programs

like the Massachusetts Physician Profiles is the recognition that families should not

live with the lingering doubt about whether or not they utilized all resources available, including information resources, in obtaining treatment for a loved one.

I have one primary message about the Physician Profiles Program that I hope the

Committee members will remember. The Physician Profiles Program is not designed

to identify or to punish bad doctors. The Profiles Program is an educational tool;

it is not disciplinary in nature. The Program’s primary goal is to help patients find

the right doctors for them and their families. It is the responsibility of state medical

boards to remove bad doctors from practice. The existence of a public information

program does not relegate a board’s responsibility to consumers.

In November 1996, the Massachusetts Board of Registration in Medicine unveiled

the Physician Profiles Project in partnership with the Massachusetts Medical Society, the state legislature, and the Governor. The Profiles Project was the first of its

kind in any state in the nation, and has since enabled millions of health care consumers to learn more about their physicians to whom they entrust their care. Prior

to 1996, the Board collected a great deal of information about physicians. Some of

this information was available to the public, if requested. Other information was

statutorily protected from disclosure, leaving health care consumers unable to access

most of this information. As public interest in health care information grew, the

Board undertook a long examination of how to respond to the public’s need for information. The underlying challenge to starting a comprehensive information system

such as the Profiles Project is to identify how much information should be disclosed

to the public and how the information can be organized and placed into appropriate

context to be both beneficial to the consumer and fair to the physician. (Attachment

1)

Finding the balance between appropriate and useful information for consumers

and protecting physicians from unwarranted adverse information is difficult. The

medical community raised reasonable issues of concern as the Profiles Program was

being implemented. The concerns included :

• The fear that physicians would leave the state and reduce the number of high

quality health care practitioners; • Possible targeting of physicians with reported malpractice payments with frivolous lawsuits; • A possible ‘‘chilling effect’’ on peer reporting of physicians if the action would appear on Profiles.

In Massachusetts, these concerns did not become reality. Since the inception of

the Physician Profiles Program, the number of licensed physicians in Massachusetts

has not decreased. In fact, the Commonwealth continues to attract thousands of the

most talented young physicians in the nation through its world-renowned medical

training programs.

The decision to reveal a physician’s malpractice history caused the greatest concern for many doctors. The concerns raised included possible targeting of physicians

who had malpractice payments with additional, frivolous suits. Another concern was

how to present the data in a context that accounted for differences in expected malpractice history among various specialties. It is the malpractice data that most vividly demonstrates the need for context as the data is reported. The Massachusetts

Board of Registration in Medicine resolved the issue by reporting only malpractice

payments, not pending suits; by demonstrating how the individual physician’s

record compared to other physicians in the same specialty; and by categorizing the

payment in terms of its falling at, above, or below the average for the specific specialty. Based on the Massachusetts experience, it is strongly recommended that any

Federal disclosure law be crafted in a manner that allows this type of contextual

information. The Committee may wish to establish levels of contextual setting that

reflect not only differences among practice specialty, but also regional differences.

The statistical data support the general impression that the Physician Profiles

Project has not changed the nature of malpractice payments in Massachusetts. In

fact, the Massachusetts rate for malpractice payments has actually decreased since

the release of the Physician Profiles Project in late 1996. The national average (payments per 1,000 physicians) in 1996 was 22.34. At the same time, the Massachusetts rate was 10.81. By 1998, the national average rate was 21.18, a decrease of

5.2%. In Massachusetts, the rate declined from 10.81 to 9.26%, a decrease of 12.36%.

46

The Massachusetts decline in the rate of malpractice payments was 2.4 times greater than the national decline.

Other states with physician populations similar to that of Massachusetts had very

different results for the same period. For example, New York’s malpractice rate rose

from 26.94 to 28.99, an increase of 7.6%. New Jersey, Connecticut and Rhode Island

all had increases in the rate of malpractice payments reported by the NPDB during

the period, yet these states had no disclosure laws in place. (Attachment 2)

The feared ‘‘chilling effect’’ on peer reporting has not materialized in Massachusetts. Licensure and Clinical Privileges reports about physicians have remained constant in Massachusetts. In 1997 and 1998 the number of reports from physician

peers and/or facilities remained 3.09 reports per thousand Massachusetts physicians. From 1996 to 1997, the national reporting rate for this measure decreased

from 7.04 per 1,000 physicians to 6.35. This was consistent with the Massachusetts

decline for the same period from 3.71 to 3.09. (Attachment 3)

The Massachusetts Physician Profiles Project has been a tremendous success. The

reasonable fears voiced by organized medicine did not come true. The response from

the public has been tremendous. Since the Profiles Project was launched in November 1996, nearly 4.9 million Profiles have been given to consumers through the

Board’s website or through its call center. It has become part of the culture of progressive health care in Massachusetts. Countless numbers of patients in Massachusetts have been given the tools to have more helpful and rewarding discussions with

their physicians because they had good information to stimulate that conversation.

ATTACHMENT 1.

Information Included on the Massachusetts Physician Profiles Program

By logging onto www.massmedboard.org or by calling the Board’s toll-free number, 1-800-377-0550, users can have access to timely data on a physician’s:

• business and professional demographics;

• education and training;

• hospital affiliations;

• insurance plans that are accepted;

• paid malpractice claims;

• hospital discipline;

• Board disciplinary actions (if any);

• criminal history (if any).

The Profile does not include:

• the number of suits filed against a physician;

• information about hospital or physician complications;

• patient mortality rates;

• malpractice dollar awards.

The Massachusetts Physician Profiles Project has become a popular consumer

product of the Massachusetts Board of Registration in Medicine. In its first year

alone, web site activity indicated that there were over 1,6000,000 hits. Currently,

the Profiles system operates at over 3,000,000 hits per year.

ATTACHMENT 2

Rate of Malpractice Payments for Massachusetts and Selected States.

Malpractice Payment Reports per 1,000 Physicians, by State

(National Practitioner Data Bank, 1994-98)

State

1994 1995 1996 1997 1998

Rate Adjusted

Rate Rate AdjustedRate Rate AdjustedRate Rate AdjustedRate Rate AdjustedRate

CA .............................. 24.47 24.47 19.45 19.40 22.74 22.70 23.67 22.97 19.26 18.84

CT .............................. 12.42 12.42 14.19 14.19 11.23 11.23 12.92 12.75 13.01 12.84

FL ............................... 26.37 26.27 26.96 26.87 32.70 32.52 34.11 32.07 31.87 30.30

ME ............................. 14.53 14.53 12.79 12.79 12.56 12.18 15.99 15.54 12.94 12.58

MD ............................. 11.60 11.50 11.38 11.33 12.00 12.00 12.00 11.37 13.11 12.64

MA ............................. 11.18 11.18 9.90 9.90 10.81 10.81 9.20 8.66 9.53 9.26

MI .............................. 53.19 53.14 50.85 50.80 32.40 32.40 31.58 30.40 35.84 34.76

NH .............................. 32.52 32.52 21.12 20.72 27.38 27.38 19.77 18.62 22.05 21.18

NJ ............................... 26.96 26.87 23.51 23.28 23.12 23.08 20.56 19.64 25.77 25.05

NY .............................. 32.26 32.18 25.55 25.52 27.00 26.94 27.94 26.98 29.66 28.99

OHIO .......................... 25.23 25.15 25.42 25.34 26.93 26.86 24.65 23.73 16.55 16.11

47

Rate of Malpractice Payments for Massachusetts and Selected States.—Continued

Malpractice Payment Reports per 1,000 Physicians, by State

(National Practitioner Data Bank, 1994-98)

State

1994 1995 1996 1997 1998

Rate Adjusted

Rate Rate AdjustedRate Rate AdjustedRate Rate AdjustedRate Rate AdjustedRate

PA .............................. 37.93 28.19 38.29 28.89 42.82 28.87 41.33 27.14 34.86 22.16

RI ............................... 19.02 17.61 19.25 18.92 19.00 19.00 27.38 25.38 23.51 22.32

TX .............................. 30.70 30.61 28.11 28.01 28.58 28.55 24.36 22.83 26.03 25.04

DC .............................. 13.61 13.61 10.23 10.23 17.66 17.66 15.67 16.69 21.64 23.42

Total .......................... 24.80 23.91 21.87 21.06 23.42 22.34 22.85 20.90 21.83 21.18

Source: NPDB

ATTACHMENT 3

Malpractice Payment and Licensure and Clinical Privileges Reports per 1,000 Physicians, by

State, Last Five Years

(National Practitioner Data Bank, 1994-98)

MedMal L & P MedMal L & P MedMal L & P MedMal L & P

CONN ........................................................... 11.23 4.81 12.75 4.75 12.84 4.66 12.69 4.98

MASS ........................................................... 10.81 3.71 8.66 3.09 9.26 3.09 9.96 3.60

MICHIGAN .................................................... 32.40 10.58 30.40 8.45 34.76 10.72 40.30 9.05

NEW YORK ................................................... 26.94 5.68 26.98 5.87 28.99 6.64 28.13 5.68O

HIO .............................................................. 26.86 10.81 23.73 8.11 16.11 11.63 23.46 10.29

PENN ........................................................... 28.87 5.19 27.14 6.01 22.16 3.88 27.05 4.57

RI ................................................................ 19.00 9.02 25.38 6.73 22.32 8.26 20.71 7.47

VERMONT .................................................... 17.00 6.68 20.80 12.13 28.31 6.93 21.31 9.43

TOTAL ...................................................... 22.34 7.04 20.90 6.35 21.18 6.53 21.90 6.56

This table includes only disclosable reports in the NPDB as of December 31, 1998. The rates for 1994 through 1997 may differ from those shown in previous Annual Reports because of modifications and voided reports. Modified reports are counted in the year of modification. Data on the number of physicians: For 1994: The number of physicians is the number of ‘‘total physicians’’ less the number of physicians

listed as inactive or ‘‘address unknown’’ as of January 1, 1994 from Table D-7 of the American Medical Association’s Physician Characteris- tics and Distribution in the U.S., 1995-96 edition. For 1995: The number of physicians is the number of ‘‘total physicians’’ less the number of physicians listed as ‘‘inactive’’ or ‘‘address unknown’’ as of December 31, 1995 from Table D-7 of the American Medical Association’s Physician Characteristics and Distribution in the U.S., 1996-1997 edition. For 1996: The number of physicians is the number of ‘‘total physicians’’ less the number of physicians listed as ‘‘inactive’’ or address unknown as of Dec. 31, 1996 from Table E-7 of the American Medical

Association’s Physician Characteristics and Distribution in the U.S., 1997-98 edition. For 1997-1998: The number of physicians is the number

of ‘‘total physicians’’ less the number of physicians listed as ‘‘inactive’’ or ‘‘address unknown’’ as of Dec. 31, 1997 from Table E-7 of the

American Medical Association’s Physician Characteristics and Distribution in the U.S., 1999 edition.

Mr. UPTON. Thank you very much.

Ms. Neuman? And we will let you get that mike close to you as

well. There is a little warning light. I don’t know, I have not been

on that side of the table, but on this side it has a little—do you

see it? That comes with a minute to go.

TESTIMONY OF BARBARA NEUMAN

Ms. NEUMAN. Mr. Chairman and distinguished members of the

subcommittee, I am Barbara Neuman, president of the Administrators in Medicine, the national organization for State Medical and

Osteopathic Board Executive Directors. I want to thank you today

for holding this hearing on this very important consumer access

issue.

As a founder of the Administrators in Medicine’s free online

DocFinder, I have seen firsthand the benefits of consumer access

to physician information. DocFinder is a centralized website of

States providing physician information for consumers in an easily

searchable format. DocFinder has been extremely popular with consumers, receiving millions of hits since it was launched in 1996.

48

One reason for its popularity is that DocFinder has helped provide

basic information to consumers in managed care plans, many of

whom are handed a list of doctors and told to make a decision with

little more information than name, address and specialty.

DocFinder information comes directly from the 18 State medical

and osteopathic boards on the site and includes States with physician profile laws, such as Massachusetts. Physician profile laws

provide medical malpractice, criminal conviction, hospital discipline

and board disciplinary action information to the public. Eleven

States have passed various versions of the profile law.

During the past 2 years, our organization has been active in assisting State boards in the implementation of physician profile laws

by holding annual meetings of the profile States, including those

with pending legislation. The inability of the public to access the

National Practitioner Data Bank has required State medical boards

to ‘‘reinvent the wheel’’ in implementation of profile laws. Except

for criminal conviction information, the major data components to

implement a physician profile law are contained in the National

Practitioner Data Bank. But since the information is not public,

States are faced with no other choice but to collect the information

all over again at great expense.

I believe a strong State and Federal partnership can be forged

to improve public information available about all physicians. State

medical board data bases in the DocFinder contain information

about all State licensees. The National Practitioner Data Bank contains reported information about certain physicians. In fact, the administrator of HRSA noted that most doctors never wind up in the

National Practitioner Data Bank. Expanding consumer access to

the National Practitioner Data Bank’s single national clearinghouse would make it harder for problem physicians to move undetected from one State to another because both data bases, the State

medical board data bases in the DocFinder and the National Practitioner Data Bank, would be working together.

It is my opinion, based on 16 years’ experience as a medical

board executive director, that the National Practitioner Data Bank

should be open to the public. I believe that consumers have a right

to this information to make informed choices about their health

care. We have now had experience with disclosing this kind of information to consumers in the profile States. The data provided in

the testimony of the Massachusetts Board indicates that the issues

of concerns raised by the medical community have not come to

pass, including the issue of greatest concern—malpractice history.

But as with profile information, the National Practitioner Data

Bank information should be put into context to help consumers understand the data. Calling on the expertise of the profile States to

assist in this process would make sense.

I also believe that the National Practitioner Data Bank should

be expanded to include records of criminal convictions and that information relating to these criminal convictions should be made

available to the public. The information also will help State medical boards, health plans and hospitals currently lacking this information.

The legislation which led to the creation of the National Practitioner Data Bank was enacted because Congress believed that the

49

increasing occurrence of medical malpractice litigation and the

need to improve quality of medical care had become nationwide

problems that warranted greater efforts that any individual State

could undertake. As we move to improve patient safety and reduce

medical errors nationwide by discouraging secrecy, I believe it is

time to remove the secrecy surrounding the National Practitioner

Data Bank and to allow informed consumer access to the information. It has been my experience that secrecy protects the bad doctors, not the good ones.

Thank you for this opportunity to testify, and I would be happy

to answer any questions.

[The prepared statement of Barbara Neuman follows:]

PREPARED STATEMENT OF BARBARA NEUMAN, PRESIDENT, ADMINISTRATORS IN

MEDICINE

Mr. Chairman and Distinguished Members of the Subcommittee: I am Barbara

Neuman, President of the Administrators in Medicine, the National Organization

for State Medical and Osteopathic Board Executive Directors. I want to thank you

for holding this hearing on this very important consumer access issue.

As a founder of the Administrators in Medicine’s free online DocFinder, I have

seen first hand the benefits of consumer access to physician information. DocFinder

is a centralized web site of states providing physician information for consumers in

an easily searchable format. DocFinder has been extremely popular with consumers

receiving millions of hits since it was launched in 1996. One reason for its popularity is that DocFinder has helped provide basic information to patients in managed care plans, many of whom are handed a list of doctors and told to make a decision with little more information than name, address and specialty.

DocFinder information comes directly from the 18 state medical and osteopathic

boards on the site and includes states with physician profile laws such as Massachusetts. Physician profile laws provide medical malpractice, criminal conviction, hospital discipline and board disciplinary action information to the public. Eleven states

have passed various versions of a profile law.

During the past two years, our organization has been active in assisting state

boards in the implementation of physician profile laws by holding annual meetings

of the profile states including those with pending legislation. The inability of the

public to access the National Practitioner Data Bank has required state medical

boards to ‘‘reinvent the wheel’’ in the implementation of profile laws. Except for

criminal conviction information, the major data components to implement a profile

law are contained in the National Practitioner Data Bank but since the information

is not public, states are faced with no other choice but to collect the information all

over again at great expense.

I believe a strong state and federal partnership can be forged to improve the public information available about all physicians. State medical board databases in the

DocFinder contain information about all state licensees. The National Practitioner

Data Bank contains reported information about certain physicians. In fact the Director of HRSA noted that most doctors never wind up in the National Practitioner

Data Bank. Expanding consumer access to the National Practitioner Data Bank’s

single national clearinghouse would make it harder for problem physicians to move

undetected from one state to another because both databases—the state medical

board databases in the DocFinder and the National Practitioner Data Bank would

be working together.

It is my opinion based on sixteen years experience as a Medical Board Executive

Director that the National Practitioner Data Bank should be open to the public. I

believe that consumers have a right to this information to make an informed choice

about their health care. We have now had experience with disclosing this kind of

information to consumers in the profile states. The data provided in the testimony

of Massachusetts Board indicates that the issues of concern raised by the medical

community have not come to pass including the issue of greatest concern—malpractice history. But as with profile law information, the National Practitioner Data

Bank information should be put into context to help consumers understand the

data. Calling on the expertise of the profile states to assist in this process would

make sense.

I also believe that the National Practitioner Data Bank should be expanded to include records of criminal convictions and that information relating to these criminal

50

convictions should be made available to the public. This information also will help

state medical boards, health plans and hospitals currently lacking this information.

The legislation which led to the creation of the National Practitioner Data Bank

was enacted because Congress believed that the increasing occurrence of medical

malpractice litigation and the need to improve the quality of medical care had become nationwide problems that warranted greater efforts than any individual state

could undertake. As we move to improve patient safety and reduce medical errors

nationwide by discouraging secrecy, I believe it is time to remove the secrecy surrounding the National Practitioner Data Bank and to allow informed consumer access to the information. It has been my experience that secrecy protects the bad doctors, not the good ones.

Thank you for this opportunity to testify. I would be happy to answer any questions.

Mr. UPTON. Extra credit for not using the full 5 minutes.

Ms. NEUMAN. Thank you.

Mr. UPTON. Dr. Loniewski, you are going to have to say it for me.

Mr. LONIEWSKI. Loniewski.

Mr. UPTON. Loniewski, got it. Thank you.

TESTIMONY OF EDWARD LONIEWSKI

Mr. LONIEWSKI. Chairman Upton and members of the committee,

my name is Edward A. Loniewski, D.O. I am a retired orthopedic

surgeon, which by the way is also a high-risk specialty, from the

State of Michigan and a past president of the American Osteopathic Association. I am also a board member of the National Practitioner Data Bank Executive Committee. On behalf of the 44,000

osteopathic physicians represented by the American Osteopathic

Association nationwide, I appreciate the opportunity to testify on

the issue of the National Practitioner Data Bank.

A full discussion of the AOA’s positions is found in my prepared

remarks, but I will just highlight a few for you today.

The AOA opposes the National Practitioner Data Bank and any

attempt to make the information in that bank public in its current

form because the information included within it regarding malpractice settlements and adverse actions can be misleading. The

use of such misleading information by hospitals and insurers is

damaging physicians’ careers. While the intent is to track the negligent practitioner, the information that is currently housed in the

Data Bank is often not appropriate for that purpose. Although the

AOA opposes the current National Practitioner Data Bank, the Association does not oppose a Federal Data Bank that is open to the

public if the information accurately reflects the negligence of the

practitioner. As I will state later in my testimony, these practitioners can be identified through true peer review.

The NPDB places much emphasis on medical malpractice. When

a medical malpractice payment is made on behalf of a practitioner,

payment information must be reported to the Data Bank. In many

cases, a malpractice settlement or judgment simply is not a good

barometer for quality of care. Recent studies have shown that

among malpractice claims, the severity of the patient’s disability,

not the occurrence of the adverse event or an adverse event due to

negligence, was predictive of payment to the plaintiff.

In addition, malpractice claims studies show that between a half

and two-thirds of the claims were brought with no apparent indication of negligence. Oftentimes a physician’s malpractice insurer will

51

settle the case, not because the practitioner is guilty of malpractice,

but to avoid the even greater expenses of taking a suit to court.

The harm created by the misleading entry concerning your malpractice settlement is very real. Whenever a doctor applies for a position or clinical privileges on a hospital medical staff at any hospital staff in the United States, that hospital is legally required to

request information concerning the physician from the Data Bank

and thus will learn of the settlement and consider it in connection

with his or her application. As such, a physician’s ability to secure

positions at other hospitals in the United States is severely damaged.

State medical and dental boards, hospitals, professional societies

and other health care entities must report certain adverse actions

related to the practitioner’s professional competence or conduct.

While a physician has a right to rebut the information in the Data

Bank, it is not sufficient to correct the damage that it causes. A

small- town New Mexico physician White House was reported to

the Data Bank after her obstetrical privileges were revoked reported that she could not relocate because of the Data Bank report.

The physician sued those responsible for making the Data Bank report and won a favorable verdict. The court found that the physician suffered impairment of reputation and standing in the community when she applied for privileges at a new hospital and had to

explain why her privileges had been revoked by the hospital which

reported her to the Data Bank. The court also noted, ‘‘An opportunity for rebuttal seldom suffices to undo harm of defamatory

falsehoods.’’

In conclusion, to summarize, the AOA opposes the National Practitioner Data Bank as it currently functions because the information included within it regarding malpractice settlements and adverse actions can be misleading and is damaging to careers of good,

competent physicians. However, the AOA is not opposed to having

a Federal Data Bank that is open to the public if, and I repeat,

only if the information accurately reflects the negligence of the

practitioner. These practitioners can be identified through true

peer review. To wit, when a professional organization, licensing

board or true peer review organization comprised of physicians of

the same specialty have ruled that a practitioner has been negligent in his or her performance of patient care, the public has a

right to know. But I emphasize that before any information is

made public, it must pass the true test of true peer review.

Thank you for this opportunity to testify before this committee.

[The prepared statement of Edward Loniewski follows:]

PREPARED STATEMENT OF EDWARD A. LONIEWSKI ON BEHALF OF THE AMERICAN

OSTEOPATHIC ASSOCIATION

Introduction

Chairman Upton and Members of the Committee, my name is Edward A.

Loniewski, D.O. I am a retired orthopedic surgeon from the State of Michigan and

the past president of the American Osteopathic Association. I am also a board member of the National Practitioner Data Bank Executive Committee. On behalf of the

44,000 osteopathic physicians represented by the American Osteopathic Association

(AOA) nationwide, I appreciate the opportunity to testify on the issue of the National Practitioner Data Bank.

The AOA is the national professional organization for osteopathic physicians who

number over 44,000 in the United States. In addition, the AOA is the recognized

52

accrediting authority for colleges of osteopathic medicine, osteopathic postdoctoral

training programs and osteopathic continuing medical education.

Osteopathic medicine is one of two distinct branches of medical practice in the

United States. While allopathic physicians (MD) comprise the majority of the nation’s physician workforce, osteopathic physicians (DO) comprise more than five percent of the physicians practicing in the United States. Significantly, D.O.s represent

more than 15 percent of the physicians practicing in communities of less than

10,000 and 18 percent of physicians serving communities of 2,500 or less.

AOA’s Position

The AOA opposes the National Practitioner Data Bank and any attempt to make

the information in that data bank public in its current form because the information

included within it regarding malpractice settlements and adverse actions can be

misleading. The use of such misleading information by hospitals and insurers is

damaging physicians’ careers. While the intent is to track the negligent practitioners, the information that is currently housed in the data bank is often not appropriate for that purpose. The problems I will highlight today include:

• Medical Malpractice and Adverse Action Data

• Practitioner’s Right to Recourse

• Corporate Shield

Although the AOA opposes the current National Practitioner Data Bank, the Association does not oppose a federal data bank that is open to the public if the information accurately reflects the negligence of the practitioner. As I will state later in

my testimony, these practitioners can be best identified through true peer review.

Background of National Practitioner Data Bank

The National Practitioner Data Bank (NPDB) was established through Title IV

of the Health Care Quality Improvement Act of 1986, as amended. The intent of the

law was to improve the quality of health care. The purpose was to encourage hospitals, state licensing boards and other health care entities including professional

societies to identify and discipline those who engage in unprofessional behavior and

then restrict the ability of incompetent physicians, dentists and other health care

practitioners to move from state to state without disclosure or discovery of previous

damaging or incompetent performance.

The NPDB is supposed to act as a clearinghouse of information. Its records include data relating to medical malpractice settlements and judgements as well as

adverse actions taken against the licenses, clinical privileges and professional society memberships of physicians, dentists, and other licensed practitioners. The Data

Bank also contains information regarding practitioners who have been declared ineligible to participate in Medicare and/or certain other state health care plans under

the Social Security Act.

Practitioners may not submit changes to reports. The practitioner must contact

the reporting entity to request corrections if there are any inaccuracies. A practitioner may add a statement to the report and/or dispute either the factual accuracy

or whether the report was submitted in accordance with NPDB reporting requirements. The practitioner may also request that the Secretary of Health and Human

Services review the issues, if the practitioner and reporting entity cannot resolve the

issues in dispute.

The NPDB is a resource for state licensing boards, hospitals and other health care

entities in conducting investigations into the qualifications of practitioners they seek

to license or hire or to whom they wish to grant membership or clinical privileges.

The Data Bank information should be considered with other relevant information

in evaluating a practitioner’s credentials.

Flaws Within NPDB

The NPDB places much emphasis on medical malpractice. When a medical malpractice payment is made on behalf of a practitioner, payment information must be

reported to the Data Bank. However, settlement of a medical malpractice claim may

occur for a variety of reasons that do not reflect negatively on the competence or

conduct of the practitioner. In many cases, a physician’s malpractice insurer will

settle the case—not because the practitioner is guilty of malpractice—but to avoid

the even greater expenses of taking the suit to court. Sometimes this is even done

without the consent of or notice to the physician.

For example, the AOA and Kansas Association of Osteopathic Medicine recently

filed a brief of Amici Curiae in the Kansas Court of Appeals on behalf of an osteopathic physician licensed to practice in the State of Kansas (Miller v. Sloan,

Listrom, et al, District Case # 95-CV-328). This lawsuit concerned the settlement

of a medical malpractice claim by an insurer without the physician’s knowledge or

53

consent. In accordance with federal laws and regulations, the settlement then was

reported to the National Practitioner Data Bank, where the report now stands as

a permanent part of the physician’s record.

Because a malpractice settlement was made without the physician’s knowledge or

consent, he had no opportunity to contest the settlement, deny his liability or explain to the NPDB his belief that he did nothing wrong when treating the patient.

In fact, the doctor only learned of the settlement through the National Practitioner

Data Bank, where the report has become a permanent scar on the doctor’s record.

The harm created by the misleading entry concerning a malpractice settlement is

very real. Now, whenever this doctor applies for a position or clinical privileges on

a hospital’s medical staff—at any hospital staff in the United States—that hospital

is legally required to request information concerning the physician from the Data

Bank and, thus, will learn of the settlement and consider it in connection with his

application. As such, the physician’s ability to secure positions at other hospitals in

Kansas and elsewhere in the United States has been severely damaged.

In many cases, a malpractice settlement or judgement simply is not a good barometer for quality of care. A study published in The New England Journal of Medicine

(December 26, 1996—Vol. 335, No. 26) showed that among the malpractice claims,

‘‘the severity of the patient’s disability, not the occurrence of an adverse event or

an adverse event due to negligence, was predictive of payment to the plaintiff.’’

The Rand Health Law Issue Paper of July 1999 (A Flood of Litigation? Predicting

the Consequences of Changing Legal Remedies Available to ERISA Beneficiaries;

Carole Roan Gresenz, Deborah R. Hensler, David M. Studdert, Bonnie DombeyMoore, Nicholas M. Pace, A Rand Health Law Issue Paper, July 1999) stated that

several studies have reviewed medical malpractice claims files to determine the relative frequency of appropriate and inappropriate suits (Harvard, 1990; Cheney et

al., 1989; Farber and White, 1991; McNulty, 1989) and found that between half and

two-thirds of claims are brought with no apparent indication of negligence.

Adverse Actions

State medical and dental boards must report certain disciplinary actions, related

to professional competence or conduct taken against the licenses of physicians or

dentists, including revocation, suspension, censure, reprimand, probation and surrender.

Hospitals and other eligible health care entities must report professional review

actions that may restrict or revoke a practitioner’s clinical privileges due to issues

related to conduct or competence. Professional societies are also required to report

specific information when any professional review action due to professional competence or conduct adversely affects the membership of the practitioner.

One small-town New Mexico physician who was reported to the Data Bank after

her obstetrical privileges were revoked reported that she could not relocate because

of the Data Bank report. Notably, that physician sued those responsible for making

the Data Bank report on a number of theories, including defamation, and obtained

a favorable jury verdict. On appeal, the court found that sufficient evidence was presented for a jury to have concluded the physician suffered impairment of reputation

and standing in the community, when she applied for privileges at a new hospital

and had to explain why her privileges had been revoked by the hospital which reported her to the Data Bank. Significantly, though the physician was ultimately

granted privileges at the new hospital, the Court did not feel that the physician’s

damage claim was undermined since: ′′an opportunity for rebuttal seldom suffices

to undo harm [sic] of defamatory falsehood.′′

Corporate Shield

Another problem that has arisen is what is termed the ‘‘corporate shield.’’ This

refers to those instances where an individual health care practitioner’s name is removed from a case, usually during the settlement process, and replaced with some

corporate entity. When this occurs, even though a settlement was made, no report

is filed to the NPDB. Removing a person’s name for the sole purpose of hiding that

individual is illegal under the original statute under which the NPDB was created

(the Health Quality Improvement Act of 1986).

To address this issue, the Health Resources and Services Administration (HRSA)

published a proposed rule on Christmas Eve, December 24, 1998. HRSA defines the

goal of the proposed change to be ‘‘to prevent the evasion of Data Bank medical malpractice reporting requirements.’’ The proposed rule describes instances ‘‘in which

a plaintiff in a malpractice action has agreed to dismiss a defendant health care

practitioner from a proceeding, leaving or substituting a hospital or other corporate

entity as defendant, at least in part for the purpose of allowing the practitioner to

avoid having to report on a malpractice payment made on his or her behalf subVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00057 Fmt 6633 Sfmt 6621 E:\HEARINGS\62975 pfrm07 PsN: 62975
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mitted to the Data Bank.’’ In this circumstance, this ‘‘corporate shield’’ allows for

no report to be filed with NPDB.

The AOA does not disagree with HRSA that this ‘‘evasion of the reporting requirement’’ is wrong. However, the remedy that HRSA proposes is equally wrong. It contains numerous factual, legal, and practical shortcomings. Among the problems are:

1. Failure to make any effort to create a factual record to document the existence and scope, if any, of the so-called ‘‘corporate shield’’ problem.

According to HRSA, the Department of Health and Human Services (DHHS) is

aware of efforts to evade the reporting requirements, especially with respect to selfinsured entities. However, no effort was made to document this assertion. As a

member of the NPDB Executive Committee, I participate regularly in the Committee meetings. Audit results, studies, or other evidence of the existence or extent

of the ‘‘corporate shield’’ problem were not reported during any of the meetings I

attended.

2. Lack of statutory authority to expand the reporting requirements beyond those set forth in the Health Care Quality Improvement Act.

HRSA’s plan would expand the reporting requirement beyond the name of ‘‘any

physician or licensed health care practitioner for whose benefit the payment was

made,’’ which is provided for by Congress in the Health Care Quality Improvement

Act. In place of this narrow mandate, the proposed rule would make it the ‘‘responsibility of the payer, during the course of its review of the merits of the claim, to

identify any practitioner whose professional conduct was at issue in that malpractice

action or claim that resulted in a payment, and report that practitioner to the Data

Bank.’’ [emphasis added] This rule far exceeds the statutory authority delegated by

Congress.

3. Imposition of substantial administrative burdens and costs on health

care providers and their insurers which will ultimately be passed on to

health care consumers.

The requirement that the payer identify any practitioners whose conduct was at

issue would impose investigative and claim costs far beyond those currently incurred by insurers in processing medical malpractice claims. The proposal would require the payer to identify each health care entity with which the practitioner is

affiliated. This would include any managed care organization, group practice, clinic,

medical society or other group that provides health care services and engages in a

peer review process. In addition the payor would also have to identify all practitioners who might be involved in the claim.

If this requirement were imposed, a significant administrative burden would be

added to those already in existence for the payer. Cost of health care and medical

liability insurance would undoubtedly increase, and ultimately be passed onto the

consumer.

4. Lack of fairness and due process involved in reporting practitioners.

Serious fairness and due process concerns are raised by the requirement that payers report any practitioner whose conduct was at issue, regardless of whether or not

that practitioner was actually named in the claim. Attention must be given to the

adverse impact a report to the Data Bank may have on a health care provider’s career and reputation.

The American Osteopathic Association, along with a large number of other organizations, brought this issue to the attention of the DHHS General Counsel, Harriet

S. Rabb, and HRSA Administrator, Claude E. Fox, M.D., M.P.H. at a September 29,

1999 meeting, Dr. Fox said that HRSA would withdraw the Dec. 24, 1998 NPDB

proposal. However, to date no withdrawal notice has been published in the Federal

Register, so the proposal has yet to be formally withdrawn.

Conclusion

To summarize, the AOA opposes the National Practitioner Data Bank as it currently functions because the information included within it regarding malpractice

settlements and adverse actions can be misleading. The use of such misleading information by hospitals and insurers is damaging physicians’ careers. However, the

AOA is not opposed to having a federal Data Bank that is open to the public if the

information accurately reflects the negligence of the practitioner. These practitioners can be identified through true peer review, to-wit: when a professional organization, licensing board or true peer review organization (comprised of physicians

of same specialty) has ruled that a practitioner has been negligent in his/her performance of patient care, the public has a right to know. But I emphasize that before any information is made public, it must pass the true test of peer review.

The National Practitioner Data Bank has serious flaws, which make it inadequate

for the purpose it is meant to fulfill. I encourage each of you to carefully consider

the issues presented today.

55

Americans have a right to the best medical care possible and physicians have a

right to be treated fairly when under review by government agencies, review boards,

hospitals and their peers.

Thank you for the opportunity to testify today. The AOA stands ready to participate in a bipartisan effort to develop a data bank that will truly protect the quality

of patient care.

Mr. UPTON. Thank you very much.

Is it pronounced Dr. Hochman?

Mr. HOCHMAN. Hochman.

Mr. UPTON. Hochman. Great. Terrific.

TESTIMONY OF RODNEY F. HOCHMAN

Mr. HOCHMAN. Thank you, Mr. Chairman. I think you have a

complete text of our comments, and I will try to keep my remarks

in the 5-minute timeframe.

Mr. Chairman, I am Dr. Rodney Hochman, chief medical officer

and senior vice president of Sentara Health Care in Norfolk, Virginia, and a board-certified internist and rheumatologist. I am

here, today, on behalf of the American Hospital Association’s nearly

5,000 hospitals, health systems, networks and other health care

providers. We are pleased to have the opportunity to testify on the

issue of public access to the National Practitioner Data Bank.

Sentara Health Care is not-for-profit health system which serves

more than 2 million residents in Southeastern Virginia and Northeastern North Carolina. We operate more than 70 care-giving sites,

including six hospitals, with more than 1,800 beds. More than

2,000 physicians are members of our hospital medical staffs.

As Sentara’s chief medical officer, one of my roles is to ensure

our staff provides high-quality services and that our credentialing

and peer-review processes are effective. Nothing is more important

than the safety of our patients. At Sentara, like most hospitals and

health systems across the United States, we conduct an exhaustive

background check on our medical staff before a physician is allowed

to treat a patient in our facility. We inquire about a physician’s

educational, personal, professional background, malpractice history

and any career gaps. We conduct primary source verification. We

inquire about past performance and quality issues at each hospital

at which the physician has had privileges, and we also query the

National Practitioner Data Bank, an essential step in our

credentialing process. The book which our physicians need to complete before they can be members of our staff is here, and we conduct that exhaustive review.

Hospitals take seriously their legal obligation to query the Data

Bank. At Sentara, we use the information to supplement our

credentialing activities and as a possible indication if there is a

problem. Let me say we firmly believe that consumers deserve to

have useful information that will assist them in selecting a practitioner.

Congress specifically created the Data Bank as a tool for health

care professionals. Its primary purpose is to alert health care facilities, licensing boards and professional societies to the possibility of

incompetent or dangerous performance by a health care practitioner. The Data Bank, as currently configured by Congress, was

not designed as a resource for consumers. However, consumers

have a legitimate interest in knowing that the people who provide

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their care are competent. In fact, the AHA agrees that some information in the Data Bank could be useful to consumers. For example, the public disclosure regarding licensure actions and criminal

convictions, which are not currently included in the Data Bank,

would be valuable to consumers.

At the same time, malpractice information must be put in the

proper context before it’s released to the public. As presently configured, the Data Bank does not differentiate between payments

made in situations involving substandard care and payments made

for a variety of other reasons, such as to eliminate the defense of

a frivolous or nonmeritorious claim or to minimize the cost of litigation.

In many cases, settlement payments are made by the insurer

without the consent of the physician being sued. In fact, the statute

that created the Data Bank argues against making malpractice reports public, cautioning that a settlement does not necessarily indicate that malpractice occurred. In today’s litigious society, numerous malpractice settlements result from frivolous claims. While

we’re willing to discuss the concept of public disclosure of large

malpractice awards clearly related to quality, we must ensure that

only claims that reflect clear quality of care concerns are publicly

available.

Congress promised confidentiality when it created the National

Practitioner Data Bank. Complete disclosure of the Data Bank’s

contents to the public could cause caregivers to be less forthcoming

about their own mistakes and less likely to express concerns about

the competence of their peers. The confidentiality of the peer review process allows practitioners to candidly discuss the qualifications of their peers. Hospitals depend on the peer review process

to ensure that practitioners are capable. We must do nothing that

would be detrimental to the peer review process. Peer review is one

of the most important tools, but not the only tool, for the assurance

of quality care, and confidentiality of peer review and activities is

essential.

Mr. Chairman, the AHA looks forward to working with Congress

to develop the appropriate approach for determining the future use

of the National Practitioner Data Bank, including which information can be useful to consumers.

Thank you.

[The prepared statement of Rodney F. Hochman follows:]

PREPARED STATEMENT OF RODNEY HOCHMAN, CHIEF MEDICAL OFFICER AND SENIOR

VICE PRESIDENT, SENTARA HEALTHCARE, ON BEHALF OF THE AMERICAN HOSPITAL

ASSOCIATION

Mr. Chairman, I am Rodney Hochman, M.D., chief medical officer and senior vice

president of Sentara Healthcare in Norfolk, Virginia. I am here today on behalf of

the American Hospital Association’s (AHA) nearly 5,000 hospital, health system,

network, and other health care provider members. We are pleased to have the opportunity to testify on the issue of public access to the National Practitioner Data

Bank.

Sentara Healthcare is a not-for-profit health system, which serves more than 2

million residents in southeastern Virginia and northeastern North Carolina. We operate more than 70 caregiving sites, including six hospitals with a total of more

than 1,800 beds. Sentara Healthcare employs more than 180 physicians representing 20 medical specialties and subspecialties. Our hospitals provided care for

more than 250,000 outpatient and emergency department visits and close to 65,000

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hospital admissions in 1999. More than 2,000 physicians are members of our hospitals’ medical staffs.

I am a board-certified internist and rheumatologist. As Sentara’s chief medical officer, I am responsible for the clinical effectiveness programs, physician integration

efforts, and medical management issues for its six-hospital system and 300,000

member HMO. One of my roles is to work with our hospitals’ medical staffs to ensure their credentialing and peer review processes are effective. Twelve employed

physicians, functioning as medical directors under my direction, facilitate and monitor these processes across Sentara. I also participate as an ex-officio member of our

board’s Medical Affairs Committee, which is responsible for the quality of care provided in our hospitals.

The AHA supports the goals of the Health Care Quality Improvement Act, under

which the National Practitioner Data Bank was created. The act recognizes the importance of encouraging and supporting effective professional peer review to help

protect consumers from incompetent or dangerous performance by practitioners. The

AHA and its members engage in a range of activities that help hospitals and health

systems deliver the highest quality care. One of the most important of these being

the peer review and quality assurance activities that occur every day in hospitals

across the country.

PEER REVIEW ACTIVITIES

At Sentara, like most hospitals and health systems across the United States, we

conduct exhaustive background checks on our medical staff before a physician is allowed to treat patients at our facilities.

Initially, physicians applying for hospital privileges are subject to an intense

screening process. The credentialing application inquires about a physician’s educational, personal, and professional background, malpractice history and any career

gaps. We then conduct primary source verification. For example, we verify with the

physician’s medical school that he did indeed graduate; we check with the Board of

Medical Specialties that he is a board-certified physician, and we confirm with the

state licensing board that he is in fact licensed by the Commonwealth of Virginia

to practice medicine. We inquire about past performance on quality issues at each

hospital at which the physician has had privileges, and we also query the National

Practitioner Data Bank.

The National Practitioner Data Bank contains information on medical malpractice

payments, adverse licensure actions, adverse actions taken by physician professional

societies, and suspension of hospital privileges for more than 30 days. Hospitals by

law are mandated to query the data bank. At Sentara, we use the information to

supplement our other credentialing activities, and as a possible indication that there

is a problem.

Sentara uses a three-tier screening process. First, our Credentialing Committee,

which consists of 12 physicians from many different specialties, reviews a physician’s complete credentialing application. Next, the Credentialing Committee’s recommendation is forwarded to the Medical Executive Committee, which consists of

15 physicians including the officers of the medical staffs and the chiefs of each clinical department. Final approval or denial is made by our board’s Medical Affairs

Committee.

Physicians are subject to re-credentialing every two years. At that time, physicians formally attest to whether anything has changed since the initial credentialing

process. The department’s quality improvement chairman assesses this information

along with the physician’s quality assurance profile for the previous two years and

makes a recommendation to the department chairman. We also query the National

Practitioner Data Bank and state licensing board for reports of any adverse actions.

The department chair makes a recommendation to the Credentials Committee. The

Credentialing Committee reviews all information and makes a recommendation to

the Medical Executive Committee, and the Medical Affairs Committee makes a final

decision.

Besides this aspect of the formal peer review process, we have ongoing quality improvement (QI) activities designed to flag possible quality of care problems. For example, at Sentara the following situations automatically initiate a QI review: a

death; a return to the OR within 48 hours; a return to ICU; and re-admissions for

certain diseases. In addition, patient complaints and incident reports, which can be

initiated by any staff member, are reviewed. As part of the QI review process, a QI

nurse investigates the incident/complaint and files a report with the department’s

QI Committee, and the physician has an opportunity to present his case. The department QI Committee reviews these cases and forwards appropriate ones to the

hospital QI Committee. If the hospital QI Committee identifies a quality concern,

58

the case is sent to the Medical Executive Committee for review and possible corrective action. Records for such cases are kept in the physician’s QI file and reviewed

at the time of re-credentialing.

Hospitals actively monitor the quality of patient care and services. Every health

care organization must ensure that its workforce, including all clinical staff affiliated with the organization, is competent, adequately credentialed and trained. As

you can see, querying the National Practitioner Data Bank is an essential step in

the credentialing and QI process. However, it is only one part of the equation.

OPENING THE DATA BANK

Consumers have a legitimate interest in knowing that the people who provide

their care are competent. But completely opening up the data bank to public scrutiny would do much more harm than good for two reasons. First, public disclosure

of the data bank’s contents, as presently configured, would undermine the confidentiality of the peer review process in hospitals across America—thus impeding the

data bank’s goal of promoting quality care.

Congress promised confidentiality when it created the National Practitioner Data

Bank. The normal tensions created by peer review would be significantly heightened

if reports were available to the public. And complete disclosure of the data bank’s

contents to the public could cause caregivers to be less forthcoming about their own

mistakes and less likely to report errors made by their peers.

The threat of public access to adverse credentialing decisions in the data bank

will force mistakes underground, and hospitals and practitioners would lose the opportunity to analyze what went wrong and make the necessary changes to ensure

that the mistakes do not happen again. Of course, the real losers are the public who

would benefit the most from improved quality of care that comes from quality assurance activities.

Second, the data bank, as it is currently configured, is not designed to a be a tool

for consumers. Congress created the National Practitioner Data Bank to be a resource for health care professionals. One fear is that consumers would misinterpret

settlement reports. In fact, the statute that created the data bank argues against

making its reports public. The statute cautions that a settlement does not necessarily indicate that malpractice occurred. For a consumer trying to evaluate a potential caregiver, knowing only that a settlement occurred could be misleading. It

could cause serious consequences for a practitioner and unnecessarily undermine

public confidence in the hospital.

As presently structured, the data bank does not differentiate between payments

made in situations involving substandard care and payments made for a variety of

other reasons, such as to eliminate defense of a frivolous or nonmeritorious claim,

or to minimize the cost of litigation. There is no minimum threshold for reporting

amounts paid in relation to malpractice claims or litigation.

REPORTING PHYSICIANS TO THE DATA BANK

Hospitals take seriously their legal reporting obligations to the data bank. The

AHA is not aware of any data which documents that hospitals are not meeting these

obligations. Questions about potential noncompliance appear to be based on anecdotal information and studies that use the level of hospital reporting to suggest that

NPDB requirements are not being met. A recent study by the Journal of the American Medical Association (JAMA) raised concerns about the rate of reporting. However, the JAMA study measures current reporting against what appears to have

been, at best, projections of future reporting at the time the National Practitioner

Data Bank was created. While a few hospitals have been noted as not reporting to

the data bank, that does not mean they are not effectively overseeing health care

practitioners.

Restriction and loss of a physician’s hospital privileges is a serious action. Hospitals usually suspend a doctor’s clinical privileges only as a last resort, after

they’ve tried alternative interventions, such as the use of supervision, requiring

medical education, and short-term limitations on privileges.

CONCLUSION

Hospitals are accountable for the care within their facility and bear legal responsibility. We are committed to the delivery of high quality care to the communities

we serve. Peer review is an important tool for the assurance of quality care, and

confidentiality of peer review activities is essential.

The data bank’s primary purpose is to serve as a ‘‘flagging’’ system for health care

facilities, licensing boards, and professional societies. The purpose is to alert these

59

agencies to the possibility of incompetent/dangerous performance by a health care

practitioner. The data bank was not designed as a public tool.

The public deserves to have information that is meaningful and could help them

make better decisions about their health care.

Opening the National Practitioner Data Bank, as presently configured, to the public would not only breach the promise of confidentiality under which the data bank

was created and reports are submitted, but public disclosure, as the data is currently configured, would not provide the consumer with valid or practical information.

Consumers would be better served by reforms that foster an environment promoting candor. Candor is absolutely critical if we are to be truly successful in identifying and learning what makes the health care system safer. We need to create a

non-punitive culture that will encourage people to participate in peer review—the

frontline protection for health care quality.

Mr. UPTON. Thank you very much.

Dr. Reardon, welcome back.

TESTIMONY OF THOMAS R. REARDON

Mr. REARDON. Good morning, Mr. Chairman and members of the

committee. My name is Thomas R. Reardon, M.D. I am a general

practice physician from Portland, Oregon, and currently serve as

the president of the American Medical Association. On behalf of

our 300,000 physician and medical student members, I appreciate

the opportunity to testify today on the National Practitioner Data

Bank.

Safeguarding the millions of patients in our expansive American

health care system is one of the AMA’s highest priorities. We need

to ensure that patients have access to accurate and relevant information to help them choose among health insurance plans, physicians and other health care providers. We believe that the best approach to meet patients’ needs is to enhance the State-based systems already in place.

State agencies and some private-sector organizations are at the

forefront of providing consumers with relevant information on

health care providers and are taking appropriate steps to rid the

health care system of negligent and incompetent providers. Congress can assist by supporting these efforts.

Prominent commissions, institutes and other health care leaders

that have studied ways to improve the quality and safety of health

care have concluded that simply opening the National Practitioner

Data Bank and disseminating raw, unsynthesized legal data would

not improve the quality and safety of health care for patients. For

example, the recent IOM report on health system errors discussed,

but did not recommend, opening up the NPDB.

And in 1998, the President’s Health Care Quality Commission,

on which I had the privilege of serving, released its report on consumer protection and health care quality. The commission considered and then rejected a recommendation to open the Data Bank

as a method to improve patient quality and safety.

We agree the NPDB was designed for a specific and limited purpose and does not contain information about the overall qualifications of physicians and other health care providers. The licensing

and regulation of physicians and other health care providers has

always been in the purview of States, and the AMA strongly agrees

that this should remain the case.

60

State medical boards are in the best position to assess accurate

data on physicians and revoke or suspend medical licenses to protect patients. They are uniquely positioned, both historically and

practically, as the primary source of information about the physicians that they regulate. In fact, with the advent of the Internet,

States have taken the lead in developing physician profiling systems. For example, over 30 States have recently initiated action to

provide consumers with information about physicians and other

health care providers. Further, consumers in 25 States now have

Internet access to key information about physicians licensed in

those States, and in another nine States plan to have the programs

in place by the end of the 2000 legislative session.

The Federation of State Licensing Boards, a private-sector entity,

has recognized the advances at the State level and is providing important assistance to the development of State-based profiling systems. In April 1999, the FSMB established the Special Committee

on Physician Profiling. This committee is reviewing the current

physician profiling information available to the public and determining what information is most helpful. We understand that the

FSMB will release the Special Committee’s report within the next

month. To our knowledge, this report will include the most comprehensive and up-to-date information on physician profiling available. Thus, we strongly recommend that Congress consult with the

FSMB on their findings and recommendations.

The well-balanced and complete information that States and the

FSMB are working to give to patients stands in stark contrast to

the National Practitioner Data Bank. Roughly, three-quarters of

the reports in the NPDB pertain to medical malpractice settlements. Unfortunately, this NPDB system for collecting medical liability settlements is fundamentally flawed and an exceedingly inaccurate measure of the competence of a physician or other health

care provider. Some of our Nation’s best physicians are involved in

settlements, yet the NPDB data does not reflect their high level of

competence.

Further, it has found that malpractice claims infrequently correlate with findings of negligent care. A New England Journal

study—of Medicine—study indicates that only about one in five settlements resulted from negligent medical care. Thus, reports to the

National Practitioner Data Bank on malpractice claims provide an

incomplete and misleading indicator of a physician’s competence or

quality.

In conclusion, opening the Data Bank would not solve the problem of weeding out negligent or incompetent physicians and other

health care providers. We recommend that Congress consult the

Federation of State Medical Boards on its forthcoming report and

support State medical boards in their efforts to provide the most

relevant information to consumers.

I thank you for the opportunity to testify.

[The prepared statement of Thomas R. Reardon follows:]

PREPARED STATEMENT THOMAS R. REARDON, PRESIDENT, AMERICAN MEDICAL

ASSOCIATION

Good morning, Mr. Chairman and members of the Committee, my name is Thomas R. Reardon, MD. I am a general practice physician from Portland, Oregon, and

currently serve as President of the American Medical Association (AMA). On behalf

61

of our 300,000 physician and medical student members, I appreciate having the opportunity to testify on the National Practitioner Data Bank (NPDB).

The AMA commends the Committee for addressing issues surrounding the safeguarding of the millions of patients in our expansive American healthcare system.

As you know, this system continues to undergo dramatic change, and with this

change there is a pressing need to ensure that patients have the best information

available to help them choose among the many competing physicians and other

health care professionals seeking the privilege to treat.

The AMA is strongly committed to the objective of improving patient safety and

protecting patients from preventable harm caused by incompetent or unethical practitioners. In fact, beyond the initiatives that we outlined for this committee in our

February 9, 2000, statement for the Record on the Institute of Medicine (IOM) Report, the AMA regularly reviews its membership master file and reports to the

NPDB those physicians we expel for reasons relating to peer reviewed breaches of

quality of care and patient safety.

As we search together for ways to best safeguard patients, we must continue to

question whether disseminating to the public raw, unsynthesized data from existing

Federal repositories would improve the quality of health care for patients. Or, instead, do we need to advocate for other private sector or State-based mechanisms

that would provide the public with relevant, reliable, verified, accurate, and contextual information? In our opinion, we need to perfect mechanisms already in place

that hold the best chance of meeting patients needs. This is the view of opinion

leaders in health care and finds its firm basis in the Congressional intent and history surrounding the NPDB.

On February 9, 2000, the House Commerce Subcommittee on Health and Environment, the Subcommittee on Oversight & Investigations, and the Committee on Veterans’ Affairs Subcommittee on Health held a joint hearing on the IOM Report on

health system errors. At this hearing a Majority member of this Subcommittee

posed the question to the entire third panel of witnesses of whether the NPDB

should be expanded beyond its intended purpose. The entire panel responded in the

negative. The panel was comprised of such health care experts as Dennis O’Leary,

MD, Joint Commission on Accreditation of Healthcare Organizations; William Golden, MD, American Health Quality Association; Michael Langberg, MD, Cedars-Sinai

Health System; Daniel Perry, Alliance for Aging Research; and Mary Foley, RN,

American Nurses Association.

These views echo what Congress intended when it designed the NPDB: Congress

did not design the NPDB to disseminate information at large. In fact, the House

Committee on Energy and Commerce (now the Commerce Committee) emphasized

this view in its Committee Report on the Health Care Quality Improvement Act of

1986 (HCQIA) (Rept. 99-903), which created the NPDB. For example, in discussing

malpractice settlement data the Committee Report stated that the Committee was

‘‘confident that those authorized under the bill to gain access to this information will

have the awareness and sensitivity to use it responsibly’’ (p.14). Further, the Committee stated that ‘‘it is essential to collect and disseminate these data to those in

the health care community who make judgments about the competence and professional conduct of health care practitioners’’ (p. 13). These statements are as true

today as they were then.

The NPDB was established as a flagging mechanism to improve the quality of

health care by encouraging state licensing boards, hospitals, and professional societies to identify and discipline physicians who lacked the requisite competency and

high ethical standards required for patient care. At the time there was concern that

States did not have the resources to advance quality of care initiatives. The NPDB

was also intended to prevent physicians who lost their license in one State from

moving to another State without disclosing disciplinary actions taken against them.

The AMA supports the goal of preventing physicians from moving State to State

or hospital to hospital without disclosure of adverse peer reviewed actions taken

against them. We respectfully disagree, however, that the NPDB is the appropriate

mechanism by which information on physicians and other health care providers

should be disseminated beyond its intended purpose. Opening the NPDB would not

solve the problem of weeding out bad physicians and other health care providers

from the health care system.

Since the establishment of the NPDB, Congress has consistently recognized that

only medical credentialing and licensing entities have the resources and expertise

needed to evaluate NPDB reports and analyze how the reports reflect the competency of health care professionals. In addition, public disclosure of the NPDB data

was discussed at length in the 1986 and subsequent debates on the NPDB, including the 1995 debate during the Senate Labor & Human Resources Committee’s

mark-up of the Health Care Liability Reform and Quality Assurance Act of 1995 (S.

62

454). After extensive deliberation in each debate, greater dissemination of the

NPDB’s data was rejected.

There are other influential commissions and institutes that have studied ways to

improve the quality and safety of health care and have come to the same conclusion.

It was a personal honor and privilege for me to serve on the President’s Advisory

Commission on Consumer Protection and Quality in the Health Care Industry that

in 1998 considered, then rejected a recommendation to open the NPDB. I can assure

you that this matter was thoroughly discussed by the Commission, with the Commission’s 1998 report stating that the ‘‘current systems to reduce or prevent errors

in the provision of health care services tend to focus too much on individual practitioners and not enough on system problems’’ (p. 155). Additionally, the Commission

recommended that steps be taken to improve error reporting and focus on determining the causes of error. Similarly, the recent IOM Report on health system errors discussed but did not recommend opening the NPDB.

The AMA agrees with the above cited opinion leaders, Congressional drafters of

the NPDB legislation, the President’s Quality Commission, and the IOM Report that

the NPDB was designed for a limited purpose and is not the mechanism upon which

to provide patients with the information about the overall qualifications of physicians. The licensing of physicians and other health care providers has always been

within the purview of the States, and the AMA strongly agrees that this should remain the case. We see no value in Federal programs outside the context of Statebased licensing and state medical boards.

In fact, a Federal response is probably unnecessary because the States are far

ahead of Washington in addressing these concerns and have made tremendous advances in the last few years in developing profiling systems. For example, over 30

States have recently responded to public interest for information about physicians

and other health care practitioners. In the last two legislative sessions, 12 States

have enacted laws that mandate the provision to consumers of information about

physicians who practice medicine within those States.

Supplementing these actions by State legislatures, state medical licensing boards

are recognizing profiles as a significant resource for consumers and have elected to

address the profiling issue voluntarily. To date, 16 state medical boards have put

in place physician profile mechanisms that are accessible directly by consumers.

These efforts address local needs and are established by the regulatory body that

controls medical practices. With the advent of the Internet, consumers in 25 States

now have Internet access to key information about physicians licensed in those

States, and another 9 States plan to have their programs in place by the end of the

2000 legislative session.

Historically, States tracked physician information related to education, training,

licensure status, disciplinary actions by state medical boards and hospitals, and

criminal offenses. Recently, however, State-based physician profile programs have

begun expanding to include no-contest pleas, pending complaints, medical malpractice data, malpractice comparison, instances of ‘‘derogatory information,’’ and

‘‘findings of unprofessional conduct.’’

State medical boards are an important gateway to this provider profiling information. At the State level, medical boards are able to access accurate data and can

take affirmative action through the control of medical licenses and have authority

to enforce disciplinary actions on medical practitioners. They are uniquely positioned—both historically and practically—as the primary source of information

about the physicians they regulate.

We are encouraged by the recent activities of the Federation of State Medical

Boards (FSMB) to assist in the development of State-based profiling systems. It is

our understanding that the FSMB will soon release a report on the findings and

recommendations of its Special Committee on Physician Profiling. This Committee

was established in April 1999 to review the current physician profiling information

available to the public and determine what information is most helpful. To our

knowledge, the Special Committee’s report will include the most comprehensive and

up-to-date information on physician profiling available. Thus, we strongly recommend that Congress consult with the FSMB on their findings and recommendations.

The well balanced and complete information that States and the FSMB are working to give to patients stands in stark contrast to the NPDB, which is administered

by the Health Resources and Services Administration. In its Operations Summary

of November 1999, HRSA showed that roughly three-quarters of the reports in the

NPDB pertained to so-called ‘‘Medical Malpractice’’ settlements.

Unfortunately, this NPDB system for collecting medical liability settlements and

verdicts is fatally flawed and an exceedingly inaccurate measure of the competence

of a physician. Inclusion of malpractice settlement data in the NPDB does not indiVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00066 Fmt 6633 Sfmt 6621 E:\HEARINGS\62975 pfrm07 PsN: 62975
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cate that a physician has provided substandard care. Even some of our nation’s finest physicians who specialize in high-risk cases are involved in settlements.

Malpractice claims seldom correlate with findings of negligent care in the medical

record. Thus, reports made to the NPDB on paid malpractice claims provide, at best,

an incomplete and haphazard indicator of a practitioner’s competence or quality.

The HCQIA acknowledges that malpractice payments do not indicate that malpractice has occurred. Section 427(d) states:

Interpretation of Information.—In interpreting information reported under this

part, a payment in settlement of a medical malpractice action or claim shall not

be construed as creating a presumption that medical malpractice has occurred.

The Department of Defense and the Department of Veterans Affairs recognize the

serious problems with correlating lawsuits with physicians’ competence or negligence. Under the DOD and VA health systems, physicians are not reported to the

NPDB when a claim is settled on their behalf unless a panel of peers found negligence or incompetence. Representatives of the DOD and VA told the AMA that the

correlation of settled claims and actual negligence is about 30%. This is somewhat

similar to a study published in the New England Journal of Medicine indicating

that only 23.8% of claims closed with an indemnity payment resulted from negligent

medical care. (see, 335 New Eng. J. Med. 1963 (1996)).

In addition, the NPDB makes no adjustment for high-risk patients or cutting-edge

medical procedures. Each day many people would die or become severely incapacitated if it were not for the high-risk medical procedures of dedicated and very capable physicians. High-risk obstetrics, open-heart surgery, and neurological surgery to

relieve the effects of Parkinson’s Disease are just a few examples of commonly used

high-risk procedures. Only the most highly qualified and competent physicians are

willing to perform such high-risk procedures that offer the only hope for relief of

debilitating symptoms or life-threatening conditions. The NPDB information is

flawed and misleading because it does not adjust for the risks involved in these procedures. Unrestricted public access would lead to unfair scrutiny of some of our nation’s most talented physicians.

Also, advances in medicine are made only by utilizing new procedures and drugs.

Someday these ‘‘cutting-edge’’ procedures will be as common as yesterday’s new innovations. But, for the same reasons as above, these pioneering physicians could be

unfairly evaluated by a systematic release of gross settlement results.

Further obscuring the relevance of malpractice claims data in the NPDB is the

fact that many cases are settled without the consent of the physician. Many insurers

disallow ‘‘consent to settle’’ clauses in their contracts with physicians. In fact, some

States actually prohibit ‘‘consent to settle’’ clauses. Without this clause, the insurer

can disregard the physician’s right to defend him or herself on the merits. Such decisions are purely economic and do not take into consideration the quality of medical

care. Nevertheless, the settlement and physician are reported to the NPDB.

Conclusion

Improving patient safety and protecting patients from preventable harm caused

by incompetent or unethical health care practitioners are issues strongly supported

by the AMA. We are encouraged that many states and the FSMB are developing

systems to provide relevant information on their licensed health care providers. We

respectfully disagree, however, that the NPDB is a mechanism by which information

on physicians and other health care providers should be disseminated beyond its intended purpose. Other state-based systems are currently being developed and deserve deferential consideration. We believe that Congress should consult with the

FSMB regarding its forthcoming report on state-based profiling systems.

We appreciate the opportunity to discuss this matter before the Subcommittee and

would be pleased to answer any questions.

Mr. UPTON. Thank you very much, as well.

Dr. Newman?

TESTIMONY OF ROBERT G. NEWMAN

Mr. NEWMAN. Thank you very much, Chairman Upton. I do have

two somewhat embarrassing acknowledgements to make at the

very outset. First, for reasons that I really can’t explain, the resume which I submitted along with my testimony failed to mention

that I am a graduate of New York University.

I hope you will convey to the Congresswoman my apologies for

that.

64

Mr. UPTON. She will be back, sir.

Mr. NEWMAN. Second, after having spent endless hours trying to

squeeze into four or five pages a clear, concise summary of my

views on this very important subject, I see, in today’s New York

Times, a letter to the editor by a Ms. Wittkin of Yonkers, which

in one brief sentence really says it all. Ms. Wittkin, in this letter

to the editor in today’s newspaper says, ‘‘All patients should have

access to the taxpayer-financed National Practitioner Data Bank

and any other doctor-specific information that can be culled from

State medical board records.’’ That, in essence, Chairman Upton,

members of the committee, summarizes my view on the issue before you today.

The law that currently demands that every single hospital query

the Data Bank to get information which will obviously be considered of great help in making a decision who should have staff appointment, that that same data is not available to the consuming

public for making decisions in terms of the provider to take care

of their own health care needs and the health care needs of their

family members seems paradoxical and probably also patronizing.

Furthermore, I believe that there is no dichotomy of interest here

between the consuming public and the providers. Certainly, in New

York there is a very, almost universally known commercial which

goes, ‘‘An educated consumer is our best customer.’’ What applies

to suits and other haberdashery items I think very definitely also

applies to the health care field. I think the patient that has the

most possible access to information about his or her illness, about

the medical treatment that is contemplated and about the provider

is the patient that the providers are going to be able to most be

in a position to help.

At the same time, I think it would be wrong not to acknowledge

the limitations that will continue to exist no matter how much data

is made available, no matter how freely, to the consuming public.

And one of the limitations is that there simply is no way to protect

ourselves against totally unanticipated, random, unpredictable, erratic actions. And this is a truism in our society, whether we are

talking about the workplace, whether we are talking about, and

there’s tragic evidence of this almost every day, whether we’re talking about the schools of our country, and it’s true when we’re talking about health care institutions.

I do have a couple of very specific recommendations that I would

urge you to consider with regard to the Data Bank and its increased usefulness. Currently, there is no requirement, no requirement, that any health care provider organization, other than hospitals, to query the Data Bank prior to hiring or giving an appointment to a physician. There is no requirement that ambulatory surgery centers or community neighborhood health centers or any

other type of health care provider entity query the Data Bank.

And, again, that seems paradoxical.

Second, and this goes to the heart of a question that was repeatedly heard this morning, there is no requirement imposed on State

licensure agencies that they query the Data Bank before making

the decision whether to grant a license to practice or whether to

renew a license to practice. That is a type of paradox that, to me,

makes absolutely no sense whatsoever, and certainly should be corVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00068 Fmt 6633 Sfmt 6602 E:\HEARINGS\62975 pfrm07 PsN: 62975
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rectable very, very easily, and I truly can’t imagine how anybody

would take exception to that kind of a change.

The final suggestion, in terms of considering how to improve access to the public, making access to the public a reality, is that you

and your congressional colleagues not allow the best to become the

enemy of the good. I think if we discuss how to address every conceivable, conceivable concern with regard to data release, I think

we will be debating this point for the next 50 years. I think we

have some very excellent models—Massachusetts being one. I think

we should implement it on a national scale and then we should all

work together to perfect it in the future.

Finally, I do want to express in this very public forum, on my

own behalf and on behalf of the entire Beth Israel Medical Center,

which I represent, the very sincere condolences to Mr. Smart and

our very great regrets for the experience of Dr. Gedz.

I also want to come back to a comment, and this will be my last

comment, that Congressman Dingell made regarding the good

name and the reputations of practitioners. I’m sure the Congressman will agree with me that those who do not earn that reputation

and good name that we need feel no sympathy for them whatsoever. But I think I would be remiss if I didn’t point out that at

Beth Israel Medical Center, and I believe the same thing is true

at other institutions, the overwhelming majority of practitioners

are of the highest quality, the most competent, the most dedicated.

And speaking for Beth Israel Medical Center, I truly believe that

their good name and their reputation is very richly deserved and

places them among the very best medical staffs at any hospital

anywhere in the United States.

Thank you.

[The prepared statement of Robert G. Newman follows:]

PREPARED STATEMENT OF ROBERT G. NEWMAN, PRESIDENT AND CHIEF EXECUTIVE

OFFICER, CONTINUUM HEALTH PARTNERS, INC.

It is a privilege to testify before this Committee on the subject of Public Access

to the National Practitioner Data Bank: What Consumers Should Know About Their

Doctors. My own views can be summarized very simply: although there are valid

concerns about specific procedural aspects. I strongly support the right of all individuals to obtain any and all information contained in the National Practitioner Data

Bank (NPDB).

The law demands that hospitals and other health care entities query the NPDB

when screening applicants for a medical staff appointment or when granting, adding

to or expanding clinical privileges, and biennially for existing staff members. Obviously, this legal mandate reflects the premise that NPDB data are of great importance in determining whom an institution should authorize to provide services in

its facilities. And yet, paradoxically, members of the public are expressly forbidden

from receiving that same information to help decide on the health care providers

to whom they will entrust their very lives.

This prohibition seems to be a vestige of an earlier era, when patients were not

expected to play an active role in all aspects of their health care. It was rare for

patients to challenge the medical care regimen that was contemplated, let alone the

credentials and the disciplinary and malpractice records of their providers. Even in

the eleven years since the final regulations governing the NPDB were promulgated,

access to data via the Internet and other communications breakthroughs has risen

dramatically, along with the assumption that this is a right and not a privilege. Our

society has undergone a veritable transformation in its demand for detailed information regarding those who seek to serve be they aspirants for political office or health

care professionals. This is not a demand that is to be denied! Nor, I believe, should

it be.

I am convinced that open access to the files of the NPDB is good for all concerned.

The utility of universal access to NPDB records, however, will be directly proporVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00069 Fmt 6633 Sfmt 6621 E:\HEARINGS\62975 pfrm07 PsN: 62975
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1Massachusetts Board of Registration in Medicine, www.massmedboard.org

tional to the accuracy, comprehensiveness and currency of the data. There is a need

for close and ongoing communication among all concerned parties, who must share

a common commitment to perfecting the system of data collection and dissemination

despite (indeed, because of) the reality that perfection can never be achieved. The

point to be stressed is that the essential characteristics of a meaningful and useful

data bank are equally relevant to all: practitioners, health care organizations, professional societies, State agencies and other currently authorized recipients of NPDB

information, as well as the general public. In other words, there is no dichotomy

of interests!

To those concerned about possible adverse effects of making practitioner information readily available to the public, reassurance can be derived from the experience

in those areas where these data already are accessible. Massachusetts, for example,

provides unrestricted, free, on-line information via the Internet with regard to every

licensed physician in the State, including:1

• Education and training, specialty certification, honors and awards

• Malpractice history—number of payments made in the past ten years, whether

the dollar amount of each was above average, average or below average compared to all payments by specialists in the field, and the number and percent

of these specialists who made one or more malpractice payments in this time

period.

• Disciplinary actions—criminal convictions, hospital disciplinary actions and/or

final disciplinary actions by the State Board of Registration in the past ten

years.

To my knowledge, there is nothing to suggest that unfettered public access to the

Massachusetts practitioner data base has had any negative impact on physicians or

patients with respect to satisfaction, malpractice experience, or quality of care.

A final, critical caveat: Any advocate of open access to NPDB records must acknowledge that there are limits to the benefits to be derived from such access; it

would be disingenuous to imply otherwise. Specifically, it will not be possible in the

future, just as it has not been possible in the past, to provide protection against random, irrational acts. This truism applies to society in general, in every setting, private as well as public, in schools, the workplace and, of course, in health care settings—hospitals, nursing homes, private practitioner offices, etc.

A recent, widely publicized occurrence at my own hospital, Beth Israel Medical

Center, is illustrative. An obstetrician, Dr. Allan Zarkin, carved his initials in the

abdomen of a patient following a Cesarean section. The NPDB file on this physician,

queried as a required part of the biennial reappointment process in 1999, confirmed

that he had never been reported for disciplinary action by any hospital or state

agency; his malpractice history consisted of one settlement, in 1994, with respect to

a case that occurred in 1987. Also as part of the reappointment process, a medical

and mental assessment of Dr. Zarkin was received from an internist, not associated

with Beth Israel, which had no positive findings. Earlier, in November, 1998, an episode of verbal abuse by Dr. Zarkin was the subject of a meeting with Beth Israel’s

Medical Director, the Chairman of Obstetrics and Gynecology and the Chief of the

Division of Obstetrics. While no disciplinary action was considered warranted, he

was required to receive both a medical and a psychiatric assessment. The former

was provided by the Director of Employee Health Services and was negative. As for

the psychiatric evaluation, it was carried out by a psychiatrist with no connection

to Beth Israel, and the file contains two written assessments. These reports are

dated December 31, 1998, and February 4, 1999, and each states that Dr. Zarkin

was ‘‘fully fit for duty’’ and ‘‘poses no threat to patients.’’

The egregious act of Dr. Zarkin is a sobering reminder that public access to NPDB

data is not a panacea that will provide 100% protection either to patients or the

institution in which they seek care. Nevertheless, just as the ability to query the

NPDB data base is an important element for hospitals in their consideration of appointment and reappointments of medical staff, so too will it be helpful to patients

in selecting their personal care-givers.

Thank you for the opportunity to testify. I shall be pleased to try to respond to

questions the Committee may have.

Mr. UPTON. Thank you.

Mr. Osten?

67

TESTIMONY OF WAYNE M. OSTEN

Mr. OSTEN. Thank you. Good afternoon. My name is Wayne

Osten. I’m the director of the Office of Health Systems Management for the New York State Health Department. Chairman

Upton, Chairman Bliley, Congressman Dingell, thank you for inviting me to speak with you today.

I am speaking to you on behalf of the New York State Commissioner of Health, Antonia Novello. My responsibilities in the New

York State Health Department include oversight of the physician

medical conduct program, as well as activities related to the regulatory oversight and quality improvement of all hospitals, clinics,

dialysis programs and ambulance services in New York State.

Governor Pataki, Commissioner Novello and the New York State

Health Department are committed to providing information to consumers that they can use to make decisions about their health

care. New York, in fact, is a leader in the Nation and its efforts

to reduce medical errors and to provide information to consumers

on quality of care provided by physicians, hospitals and managed

care plans.

New York State was the first State in the Nation to have a mandatory incident reporting system. This system known as NYPORTS

has been improved since Governor Pataki took office by providing

clear criteria about what kinds of adverse incidents health care facilities need to report to our Department.

In addition, New York is currently collecting incident reports online, reducing paperwork. Currently, New York’s incident reporting

system receives over 20,000 incident reports a year from hospitals,

clinics and ambulatory surgery centers. We work with these facilities to make sure that corrective action is taken to prevent these

incidents from occurring in the future.

Last week, at the direction of Governor Pataki, Commissioner

Novello sent a letter to every administrator in New York State in

which she reminded them of the importance of prompt reporting of

adverse event incidents to New York’s incident reporting system.

Dr. Novello warned hospital administrators that the Department

will publicly sanction those facilities that fail to promptly and accurately report incidents that result in patient death, injury or potential injury. I believe, Congressmen, the New York Times report of

our investigation at Staten Island Hospital gives ample testimony

to our commitment to that promise.

New York’s Professional Medical Conduct Program is also recognized as a national leader in taking action to protect patients from

physicians who commit misconduct, fraud, abuse and incompetence. During 1999, the Office of Professional Medical Conduct of

the State Health Department took 356 disciplinary actions against

physicians, including nearly 200 actions that involve revocation or

surrender of a physician’s license to practice medicine.

Information on disciplinary actions involving physicians has been

published on the Department’s website since 1995. The site, the

website located at www.health.state.ny.us receives, on average, two

hits every minute of every day of the year.

Just last week, the New York State Health Department released

its fifth annual report on the performance of managed care plans.

Our nationally recognized QARR Reports, which stands for Quality

68

Assurance Reporting Requirements, provides information on the

performance of both commercial and Medicaid managed care plans

in a variety of performance areas.

And New York led the Nation in providing consumers with critical information on the quality of care provided by cardiac surgeons

and cardiac centers across New York State. This information is updated annually so that consumers can make better health care decisions.

We believe that consumers have the right to information about

credentials, track record, experience of health care providers that

is complete, accurate and easy to use. With comprehensive improvement, the National Practitioner Data Bank could be a useful

source of information for consumers. In its current state, however,

this Data Bank could provide consumers with a false sense of security and could actually cause patient harm.

There, from our perspective, are three major problems with the

National Practitioner Data Bank. First, the data is not complete,

and therefore it is not accurate; second, the data is not made available in a timely manner; and, third, the Data Bank system is difficult to use.

As you know, the Federal law requires that hospitals report to

the Data Bank disciplinary actions involving the suspension of hospital privileges of a physician for 30 days or longer. The data in

the National Practitioner Data Bank is not complete because, simply said, the reporting requirement is not being enforced.

The U.S. Department of Health and Human Services which oversees the Data Bank recently reported, as you have already heard,

that approximately 66 percent of all hospitals in the Nation have

never reported a physician disciplinary action to the Data Bank.

It’s highly unlikely that since the implementation of the Data Bank

in 1990, that 66 percent of the hospitals in this Nation have never

suspended a physician’s hospital privileges. Under these circumstances, a consumer using the system might see no disciplinary

action listed for a certain physician when, in reality, the physician

may have been involved in one or more disciplinary actions.

The information in the National Practitioner Data Bank also

lacks completeness because there are loopholes that hospitals use

to circumvent the reporting requirement. As I mentioned, the law

requires hospitals to report suspensions of a physician’s privileges

when the suspension is 30 days or longer. Rather than report a

suspension to the Data Bank and expose the hospital and physician

to bad publicity, hospitals frequently suspend a physician’s hospital

privileges for less than 30 days.

I see my time is up. Let me just conclude, in my report, my written comments, I talk about the other concerns with the Data Bank.

Let me conclude by saying we want to emphasize that consumers

deserve complete and accurate information that they can use to

make informed decisions about their health care. With substantial

improvements, the National Practitioner Data Bank can be one tool

that consumers can use to ensure they receive high-quality care.

Perhaps the Department of Health and Human Services should

look to States like New York that are leading the way in making

physician discipline information available to customers.

69

We, in New York, stand ready to work with the Federal Government in making the data base—the Data Bank the best it can be.

And with that, I will conclude my remarks.

[The prepared statement of Wayne M. Osten follows:]

PREPARED STATEMENT OF WAYNE M. OSTEN, DIRECTOR, OFFICE OF HEALTH SYSTEMS

MANAGEMENT, NEW YORK STATE DEPARTMENT OF HEALTH

Good afternoon. I am Wayne Osten, director of the Office of Health Systems Management for the New York State Department of Health. Chairman Upton, Chairman

Bliley, and Congressman Dingell, thank you for inviting me to speak with you

today.

I am speaking to you today on behalf of New York State Commissioner of Health

Antonia Novello. My responsibilities in the New York State Health Department include oversight of the physician medical conduct program as well as activities related to regulatory oversight and quality improvement at all hospitals, clinics, dialysis programs, and ambulance services in New York State.

Governor Pataki, Commissioner Novello, and the New York State Health Department are committed to providing information to consumers that they can use to

make decisions about their health care. New York, in fact, is the nation’s leader in

efforts to reduce medical errors and to provide information to consumers on the

quality of care provided by physicians, hospitals, and managed care plans.

New York State was the first state in the nation to have a mandatory incident

reporting system. This system, known as NYPORTS, has been improved since Governor Pataki took office by providing clearer criteria about what kinds of adverse

incidents health care facilities need to report to our Department. In addition, New

York is currently collecting incident reports online—reducing paperwork.

Currently, New York’s incident reporting system receives over 20,000 incident reports a year from hospitals, clinics, and ambulatory surgery centers. We work with

these facilities to make sure that corrective action is taken to prevent these incidents from occurring in the future.

Last week, at the direction of Governor Pataki, Commissioner Novello sent a letter to every hospital administrator in New York State in which she reminded them

of the importance of prompt reporting of adverse incidents to New York’s incident

reporting system. Dr. Novello warned hospital administrators that the Department

will publicly sanction those facilities that fail to promptly and accurately report incidents that result in patient death, injury, or potential injury.

New York’s Professional Medical Conduct Program is also recognized as a national leader in taking action to protect patients from physicians who commit misconduct, fraud, abuse, and incompetence. During 1999, the Office of Professional

Medical Conduct of the New York State Health Department took 356 disciplinary

actions against physicians, including nearly 200 actions that involved the revocation

or surrender of a physician’s license to practice.

Information on disciplinary actions involving physicians has been published on

the Department’s web site since 1995. This web site—located at

www.health.state.ny.us—receives an average of two hits a minute every minute of

every day.

Just last week, the New York State Health Department released its fifth annual

report on the performance of managed care plans. Our nationally recognized QARR

Reports—which stand for Quality Assurance Reporting Requirements—provide information on the performance of both commercial and Medicaid managed care plans

in a variety of performance areas.

And New York led the nation in providing consumers with critical information on

the quality of care provided by cardiac surgeons and cardiac centers across the

state. This information is updated annually so that consumers can make better

health care decisions.

We believe that consumers have the right to information about the credentials,

track record, and experience of health care providers that is complete, accurate, and

easy to use. With comprehensive improvement, the National Practitioner Data Bank

could be a useful source of information for consumers. In its current state, however,

this data bank could provide consumers with a false sense of security and could actually cause patient harm.

There are three major problems with the National Practitioner Data Bank. First,

the data is not complete, and therefore is not accurate. Second, the data is not made

available in a timely manner. Third, the data bank system is difficult to use.

70

Lack of Completeness

As you know, federal law requires that hospitals report to the data bank disciplinary actions involving the suspension of hospital privileges of a physician for 30

days or longer. The data in the National Practitioner Data Bank is not complete because this reporting requirement is not being enforced. The U.S. Department of

Health and Human Services, which oversees the Data Bank, reported recently that

approximately 66 percent of all hospitals in the nation have never reported a physician disciplinary action to the data bank. It is highly unlikely, that since the implementation of this data bank in 1990, 66 percent of the hospitals in this nation have

never suspended a physician’s hospital privileges. Under these circumstances, a consumer using the system might see no disciplinary actions listed for a certain physician when, in reality, the physician may have been involved in a disciplinary action.

The information in the National Practitioner Data Bank also lacks completeness

because there are loopholes that hospitals use to circumvent the reporting requirement. As I mentioned, the law currently requires hospitals to report the suspension

of a physician’s hospital privileges when the suspension is 30 days or longer. Rather

than report a suspension to the Data Bank and expose the hospital and physician

to potential bad publicity, hospitals frequently suspend a physician’s hospital privileges for less than 30 days or impose a lesser disciplinary action.

In New York, we have seen cases in which a hospital suspended a physician’s

privileges for four weeks—or 28 days—in cases in which the physician caused serious patient harm. Such a suspension is not reportable to the National Practitioner

Data Bank. While this avoids the federal reporting, New York State reporting is

still mandated and would result in both hospital and physician investigations and

appropriate disciplinary actions. Hospitals also may take lower level disciplinary actions against physicians, such as fining them or requiring them to perform community service, and these actions are not required to be reported in the Data Bank.

In contrast, New York State requires that all disciplinary actions taken by hospitals against physicians are reportable to the New York State Board for Professional Medical Conduct.

Lack of Timeliness

Another problem with the National Practitioner Data Bank is that information

about physicians doesn’t get on the system in a timely manner. New York’s medical

conduct program immediately reports to the Data Bank all physician disciplinary

actions it takes in New York State, and this information is posted immediately. But

we know anecdotally that some hospitals have had difficulty getting information

into the system at the time they report it because of alleged system break-downs.

Not Consumer-Friendly

Based on our experience in using the system, the National Practitioner Data Bank

in its current form would be difficult for consumers to use. To extract information

from the system, the user must input very precise language and be fluent in using

and understanding the technical language and terms used by the system. At the

New York State Health Department, we have had to provide extensive training to

our staff who use the system and interpret the information in the Data Bank.

Again, we want to emphasize that consumers deserve complete and accurate information that they can use to make informed decisions about their health care. With

substantial improvements, the National Practitioner Data Bank can be one tool that

consumers can use to ensure that they receive high quality care.

Perhaps the Department of Health and Human Services should look to states like

New York that are leading the way in making physician discipline information

available to consumers. We in New York stand ready to assist the federal government in making the Data Bank the best it can be. It will take resources, however,

to improve the data bank. In New York, Governor Pataki has committed both additional manpower and money to make our information available. The federal government will have to do this as well.

Thank you for allowing me to speak with you today on this very important issue,

and I will be happy to answer your questions.

Mr. UPTON. Thank you very much.

Mr. Silver?

TESTIMONY OF LAWRENCE SILVER

Mr. SILVER. Thank you, Chairman Upton, and thank you for inviting me to appear here today. I have presented, and I understand

it is going to be included in the record, 34 pages of documents with

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legal citations. And with your leave, I will not repeat those portions. But I would like to try to, in my formal remarks, answer

questions both you and Mr. Stupak, as well as Dr. Ganske, have

asked other witnesses, since I do have some views on that.

To that end, I have had a varied career in the last 30 years. As

a lawyer, I have prosecuted physicians, as part of the Pennsylvania

Department of Justice, in connection with their licensure matters;

I have represented hospitals and advised hospitals about how to

conduct peer reviews against physicians; and for a period of time,

represented physicians who were subject to peer review proceedings. It is accurate that this lawyer has been on all sides of

those issues, and so that you are aware, I represent no physician

involved in any litigation at current. I’ve been busy with others of

my clients.

Frankly, the issue is an interesting one. In California, we find it

of some concern, accusations brought against physicians by the licensing agency are made public in the front page of the paper, not

the Des Moines paper, but certainly in the L.A. Times. The conclusion of a licensure proceeding is made public, peer-review proceedings are not made public, and I’d like to get to those. But that

information is already available to the public and certainly available on any website.

The problem that you face, the problem that Congressman Dingell and others have raised, is the problem with peer review proceedings. And peer review started out, as you know, as a collegial

educatory experience with no due process procedures, ways to help

other physicians improve their medical care. That’s no longer the

case. That is not what it’s about. That’s not how it is practiced in

the field. The problem that you have is that peer review proceedings, starting out with this historical collegial educatory function, have ended up being utilized sometimes properly to get rid of

bad docs, but other times for highly competitive reasons, colleague

against colleague. There’s no difference in the economics and sometimes in the political area where colleagues against colleagues have

different and sometimes very hostile views.

I have reported in my remarks representing a physician who was

called into an administrator’s office and said, an OBGYN, ‘‘You either bring your good insurance patients to this hospital and take

your Medicaid patients to the hospital down the street or we’ll commence a peer review proceeding,’’ and had a document in the hand

which showed that the doctor, over 20 years of practice, hadn’t dotted every ‘‘T’’ or crossed every—done the other way around.

I have represented physicians in various States who have had

similar types of economic matters raised in a peer review proceeding where the violation of peer review conduct was trivial, but

nevertheless in violation of hospital codes. Indeed, in Tennessee, I

have represented Dr. Reid. Dr. Reid was a physician, an oncologist

employed by the hospital in Oak Ridge——

Mr. UPTON. Keep going. You will hear a couple buzzers.

Mr. SILVER. [continuing] the hospital in Oak Ridge. He found virulent cancers, cancers of unusual nature, cancers that had substantial amount of difficulty and unusual natures. He tried to investigate where the cause of these cancers were, and as a result, offended the political outrage and created the outrage of the local

72

business community which supported the hospital, which commenced peer review proceedings against him—peer review proceedings which had no semblance of due process. He lost, I lost,

that peer review proceeding. The judicial review in Tennessee, although certainly better than other States, was not sufficient to

overturn that decision. And as a result, Dr. Reid has suffered perhaps because of his own intense feelings about the cancers that he

observed in this community which, as you know, produces high

qualities of radiation—high levels of radiation, has suffered economically for years as a consequence. And his name is not only on

there once, but on there twice on the National Data Bank because

we lost these cases.

What you need to be very concerned about is the iconoclastic

physician, the physician who has something new or different to

say, the physician who condemns the community for not taking sufficient action to protect cancer patients, reminding us always of the

case in which a physician was excoriated, kicked out of the medical

society, removed from the staff, and had he been in the United

States rather than Austria, he would be on the National Data

Bank. His name was Dr. Semmelweis, and he came up with the

outrageous proposal, 100 years ago, that physicians before they do

surgery, wash their hands. He would be on your Data Bank because he was subject to peer review proceedings, and he was actually drummed out of the medical society.

I represented, unfortunately, Mr. Upton and Mr. Stupak, physicians in Michigan, not in Iowa, but I have the same to say for Iowa,

Dr. Ganske. Michigan joins ten other States as being the worst

States in terms of representing a physician. I have no basis to challenge what the hospital does. I can’t call witnesses, I can’t crossexamine witnesses, I can’t subpoena witnesses, and at times I’ve

been excluded from the proceedings. At times, the panel has gotten

evidence that I was not permitted to share. I was not allowed to

see the evidence against my own client. And do you know what judicial relief the States of Alabama, Arkansas, Iowa, Michigan, Nevada, Oklahoma, South Carolina, Virginia, Washington and Wisconsin—my alma mater—provide? None. Indeed, the last lawyer

that I know who brought an action in Michigan seeking either

damages or judicial review of the actions of the peer review panel

was sanctioned for bringing a frivolous lawsuit because Michigan

law is clear—Iowa is clear, Wisconsin law is clear—you cannot

bring such a proceeding.

Consequently, my physician, who in Michigan had what I will

call, and if you want more elaboration, I will certainly be able to

answer the questions, had what I considered to be a trivial problem, is now in the National Bank and I could do nothing. My critical witness promised to come, but later declined to come because

that witness was told, I was told, that had she come, she would

have been subject to peer review proceedings herself.

So in terms of the panoply and, frankly, there are many more

cases and individual cases, which I’d be happy to discuss with you

or with staff, which indicates that the peer review process can and

sometimes is used for improper purposes. And the immunity which

you have provided to encourage this area precludes lawyers from

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vindicating those. I have set forth in the formal remarks the deficiencies in peer review.

Do I believe, frankly, that you ought to be able to report and to

publicize the existence of health care providers who provide deficient care? Clearly, but only after you assure that you’re doing your

job and providing that information fairly, honorably and after full

and complete due process that we all know and at least have a belief that is correct.

I quote from an opinion, and very briefly, from an opinion of

Judge Cook of Oklahoma in a peer review case which he dismissed,

by the way, because of certain immunities, ‘‘This litigation was the

Court’s first exposure to hospital peer review process. The Court

was shocked to discover the physician’s career can be, and in this

instance has been, destroyed by patent—through patently improper

proceedings. Peer review, as it is presently practiced——’’

Mr. SILVER. Somebody doesn’t like what I’m saying.

Mr. UPTON. Mr. Silver, I regret to say you’re over your 5 minutes

by 3 minutes.

Mr. SILVER. Let me finish this sentence.

Mr. UPTON. Go ahead and finish, and then we are going to need

to department because those buzzers means we have votes on the

floor. So go ahead.

Mr. SILVER. [continuing] ‘‘is presently practiced is fundamentally

flawed,’’ and the judge continues.

In terms, I would like, just if I may, answer two questions. One,

I tell you in California, in the Beth Israel cases, at least certainly

the first case, 6 weeks would not have elapsed. The district attorney or the attorney general would have been in court, perfectly

properly, with a temporary restraining order to enjoy our initialing

doctor’s practice.

And in terms of the other proceeding, which is I think, and I

think it’s proper to say that it is bizarre, and I’m not entirely sure,

by the way, you ought to enact national legislation in terms of response to a singular bizarre and almost insane incident. But the

other proceeding would be a—a more difficult proceeding in terms

of a prompt response, but certainly would have been done, and certainly the information about prior activities would have been available.

I do have some additional comments and would wait, I guess,

until you return, if you are going to do that, to ask questions of

this panel.

[The prepared statement of Lawrence Silver follows:]

PREPARED STATEMENT OF LAWRENCE SILVER, ATTORNEY AT LAW

Mr. Chairman, Mr. Upton and Ranking Minority Member, Mr. Klink: I want to

thank the Committee for the opportunity to discuss possible amendments to certain

provisions of the Health Care Quality Improvements Act of 1986 (AHCQIA’’). As I

understand it, these amendments would provide for posting of information regarding

physicians whose names are kept in National Practitioner Databank.

I have been an attorney for over 30 years. During the early 70’s I was the head

of the civil litigation section for the Pennsylvania Department of Justice, in which

capacity I supervised actions brought against the licenses of physicians for improper

conduct and practice. After moving to California in 1976, I spent several years representing hospitals in ‘‘peer review’’ proceedings against physicians. Since then, I

have represented numerous physicians in peer review proceedings and in actions

brought by the California Medical Board against physician’s licenses. I argued one

of the few peer review cases taken for review before the Supreme Court of the

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1There is no assurance that the physicians who are already in the Databank are properly

there. Any decision to post the names should be prospective only, based upon the criteria which

I have set forth below. 2During preliminary discussions with members of this Committee’s staff, I was asked why a

physician wrongfully excluded from the hospital cannot sue for wrongful discharge, or make a

complaint before the National Labor Relations Board. I agreed that a physician employee of an

HMO who has a significant disagreement with the HMO may very well have a breach or contract or some other claim against an HMO which wrongfully discharges him. However, the

HMO, realizing that, may cause a peer review proceeding against the physician, causing his removal from the hospital, and making him ineligible to practice with the HMO. This effectuates

a discharge without, in fact, discharging or causing the discharge. Since physicians are not ‘‘employees’’ of a hospital, they have no claim against the hospital for ‘‘wrongful discharge’’, nor any

complaint which they may file with the National Labor Relations Board. In addition, because

of the immunities provided by HCQIA, such physicians may not have any claim against anybody

who participated in the peer review proceedings.

United States, Summit Health v. Pinhas, 500 U.S. 322, 111 S.Ct. 1842, 114 L.Ed.2d

366 (1991).

The proposal to provide to the general public the information contained in the national database, previously limited to hospitals and others involved in the delivery

of health care, presents troublesome issues of basic fairness. There are both practical and legal reasons why this is true.

There is a crucial assumption which underlies this proposal to publish the names

of physicians: that the result of the peer review was fair and accurate. I would like

to suggest to you that this assumption is not valid; that there are inadequate protections in place to assure fair and just results; and that the Secretary has no means

of confirming the fairness of the result even though posting the results suggests to

the contrary. This Congress must be very careful not to permit the creation of a

‘‘black list’’ unless it can be certain that results were achieved based upon a factual

and legal determination by an independent finder of fact after a hearing where full

due process protection has been granted to any physician charged.1

Many of the protections I will suggest are based upon my experience in handling

peer review cases. To make the suggestions concrete, I will discuss some individual

cases which I believe will be informative to the Committee. I have handled cases

from a number of states, but I will discuss cases from Tennessee, Michigan, and

California.

First, however, I want to discuss a case which you may not have heard anything

about. It involves an unusual physician. This physician was, as many physicians

are, an independent person concerned about the care of his patients. He proposed

a new procedure at his local hospital. His proposed procedure was a departure from

the then existing standard of care. He proposed the procedure hopeful that it might

save lives. His colleagues disagreed; they thought he was deranged and incompetent. They excluded him from the local medical societies. His colleagues commenced, in effect, a peer review proceeding and he was barred from hospitals.

Had there been a Databank in the 1800’s, Dr. Ignaz Semmelweis would have been

in it. His reputation would have been further besmirched by the posting of this information on the internet. Dr. Semmelweis’s suggestion, for which he was effectively

hounded out of the practice of medicine, was that before physicians engage in surgery, in order to avoid infections in their patients, they should wash their hands.

The story of Dr. Semmelweis exemplifies one major problem with peer review, one

at the heart of the Pinhas case which I argued: iconoclastic physicians with good,

but different, ideas frequently don’t get along with their fellow practitioners. Peer

review has been and is being used to silence those who are different.

You are undoubtedly aware that the Norman Rockwell image of the physician

making a house call no longer represents medicine as it is practiced in the United

States today. The practice of medicine has become a business, a big business. That

business is controlled by hospitals which are concerned about the ‘‘bottom line’’, including length of stay issues; it is controlled by insurance companies which may

veto proposed treatment of patients; it is controlled by HMO’s, big business which

may resist expensive treatments recommended by iconoclasts—imagine how much

time and money could be saved if surgeons didn’t need to scrub! 2

I have represented a highly competent obstetrician who was called into the administrator’s office in one of the two hospitals in which he primarily practiced. He

was told, ‘‘Either you stop putting your Medicaid patients in this hospital—take

them down the street to the other hospital and just bring us your ‘good insurance’

patients—or I will commence peer review proceedings against you.’’ The administrator held up a draft of charges for peer review proceedings—a list of 2 or 3 cases

in which, over approximately 20 years of the practice, this obstetrician may have

not have dotted all the i’s or crossed all the t’s. Fortunately, this case arose before

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HCQIA and was ‘‘resolved’’ when the hospital recognized that such peer review proceedings would violate federal and state law and would result in a civil suit—an

action which would not be possible today because of the immunity which HCQIA

provides.

You may have heard of the peer review case involving Dr. William Reid, an

oncologist, who blew the whistle in Oak Ridge, Tennessee regarding cancers that he

found in greater frequency, and of greater virulence, than in the normal population.

Dr. Reid had the courage, although perhaps foolish courage and disregard for his

own career, to bring these cancer problems to public attention, after efforts at private focus had failed.

The hospital in Oak Ridge, and its peer reviewers, brought numerous charges

against Dr. Reid. Although Dr. Reid’s diagnosis, care, and treatment were fully supported by experts and, indeed, the only other oncologist on the staff of the hospital,

Dr. Reid lost that peer review and had his name sent to the Databank. This report

necessarily implied poor quality care by Dr. Reid, yet the Medical Board in Tennessee never moved against Dr. Reid’s license and had no basis to do so. It is now

abundantly clear that those peer review proceedings were designed to silence Dr.

Reid.

A hospital staff is a very small place. Think of a hospital as a marketplace—it

is where physicians go to perform their services. Each physician in a department

is in direct competition with the others. If one physician can get another excluded,

that can have a direct economic benefit. Surgeons—or oncologists—without staff

privileges are effectively barred from practicing their profession. Let me give you an

example of how the lack of due process protections can contribute to abuse of the

system for economic motives.

Another doctor who is in the Databank resides in Michigan. He is an ophthalmologist. He was one of the innovators of cataract surgery in Michigan many years ago.

As he grew older, he secured a fellowship to become more familiar with and proficient in newer techniques of cataract surgery. His economic competitors jumped on

this and accused him of being outdated and incompetent. They did not succeed. So

far so good; but then they brought another charge against him based upon a technicality.

He was subject to a peer review proceeding and lost and was removed from the

hospital staff. The hearing was a star chamber proceeding. I asked the chief of the

department to come and testify; I could not subpoena witnesses or their documents.

The Chief assured us of an appearance. I listed the Chief as a witness. The Chief

did not appear. Later we learned that the Hospital threatened that if the Chief appeared, peer review proceedings would be commenced against the Chief also.

At this point I can hear you insisting that there must be a civil remedy for this.

Wrong. Michigan law, like that of 9 other states, allows no judicial review whatsoever of peer review. This ophthalmologist thus had no remedy available under state

law to challenge the lack of due process. Could he have sued under Federal law?

I can tell you from personal experience that an antitrust claim is enormously difficult to prove, even without the procedural hurdle that HCQIA imposes by forcing

the physician to prove that he did not receive due process.

This case would be tragic enough if it stopped here, but it didn’t. This doctor applied to other hospitals. The other hospitals said that they would need the record

of the original peer review. However, when I produced the record and certified that

it was full, accurate and complete, they refused to consider it and said that the

record—the transcripts, exhibits, motions and rulings—had to come from the first

hospital. The first hospital absolutely refused to provide it because ‘‘peer review’’

proceedings were confidential and it would be a violation of the confidentially requirements to send on the ‘‘official’’ record. Michigan courts refused even to enforce

the production of this record. As a result, this physician was effectively precluded

from practicing ophthalmology at any hospital and has been forced into economic

retirement. In a nation that does not have enough physicians of experience and competence this is not only a tragedy for him but for all of us.

Judicial supervision of peer review proceedings throughout the United States is

very uneven. There are, as I said, 10 states that permit no judicial review of hospital activities. As far as state law is concerned, the hospital need not provide the

physician with any due process whatsoever, any notice of charges, any hearing, or

any power to defend himself. A physician’s only hope in those states is that the peer

review violate some substantive federal law. She can then hope to sustain her burden of proving that HCQIA’s immunity provisions do not apply, such that she can

actually litigate her substantive case.

Fifteen other states provide for judicial review only to determine whether the hospital complied with its own bylaws. If those bylaws do not provide for a hearing in

which evidence can be compelled, if those bylaws do not provide for an impartial

76

hearing officer, if those bylaws do not permit attorneys to appear on even the crossexamination of witnesses, it is of no interest to those courts.

The National Databank depends for its accuracy upon the vagaries of the laws

of 50 different states. The Secretary lacks the authority and the resources to assure

due process in the reported cases. If state law does not protect due process, and if

the Secretary cannot, then Congress will have created a system ripe for injustice.

It is essential, if you are going to provide information to the public, that the following fundamentals of due process be available for every reported physician:

1. The hearing officer(s) should be impartial. I can tell you, as a former hospital

lawyer, that it was the custom in California to select as a hearing officer another

attorney who regularly represented hospitals and was ‘‘reliable’’ in his or her rulings. The physician had no say in the selection of the hearing officer. Also, we advised the hospital’s administrator to ‘‘select’’ hospital friendly physicians to sit on

peer review panels.

You must insure against ‘‘hometown justice’’ by ensuring that the hearing officer

be as completely impartial as an arbitrator. It is essential that the affected physician have a role in the selection of the hearing officer; if the parties cannot agree,

the court of local jurisdiction can select the hearing officer. There are enough retired

judges and lawyers with considerable experience who can perform this role, as they

do every day.

2. The medical members of the peer review panel must also be independent. They

should not be staff members at the hospital or even practice in the same market

area if they have the same speciality as the accused.

3. It is essential that the physician be able to subpoena both testimony and documentary evidence to the hearing. The hospital effectively has subpoena power because it already has all the records and because it can tell physicians that failure

to participate in peer review proceedings at the hospital’s request would be a violation of the hospital bylaws, subjecting them to peer review proceedings. The playing

field is now unequal—the physicians have no power to compel testimony which they

otherwise need, as in the case of the Michigan doctor which I described above.

4. The physician should have the right of discovery, that is, the right to obtain

evidence reasonably in advance of the hearing.

5. The physician needs the right to have counsel present the case and cross-examine witnesses. It is ridiculous, in this day and age, for a physician to have to do

this herself.

6. There should be reasonable statute of limitations for charges.

7. The physician should have the right, for his/her own benefit, to waive any confidentiality protection.

8. Lastly, the physician should have a right of judicial review. The state that accepts the benefits of HCQIA should provide judicial review, preferably de novo, but

certainly no less than a substantial evidence review. This means that a full record

must be available both in court and in subsequent peer review proceedings. Obviously no report should be made to the Databank, or posted, until all proceedings

are final.

I have presented these protections as essential for practical economic reasons, but

they are also necessary in order to meet legal standards of due process.

Congress enacted HCQIA in an effort to prevent ‘‘bad doctors’’ from moving from

hospital to hospital, state to state. 42 U.S.C. § 11101(2); House Report 99-903, Energy & Commerce Comm., 1986 U.S. Code Cong. & Admin. News, pp. 6384-5. The

statute consists of two parts. In the first part, Congress provided an incentive for

hospitals to grant certain due process protections to physicians who become subject

to hospital peer review proceedings. The incentive is a blanket immunity against all

actions, state or federal, arising out of the peer review action. 42 U.S.C.

§ 11111(a)(1). Neither HCQIA nor any other federal statute requires hospitals to provide such due process protections; the only incentive is the reward of immunity if

the hospital provides the ‘‘adequate notice and hearing’’ defined in 42 U.S.C.

§ 11112.

The second half of HCQIA establishes a national system for reporting actions

against physicians. Malpractice insurers, state licensing boards, hospitals, and professional medical societies are all required to report to the Secretary any adverse

action against a physician. 42 U.S.C. §§ 11131-34.

Professional societies and state licensing boards may request information from the

Data Bank. Hospitals alone have the obligation to obtain such information, an obligation which arises (1) whenever they screen applicants for medical staff appointments or grant clinical privileges, and (2) every two years for those physicians already on the medical staff. 42 U.S.C. § 11135(a); 1986 U.S. Code Cong. & Admin.

News, supra, at 6393-5. Hospitals which fail to obtain the information as required

77

3 Hospitals may become liable for negligent failure to screen medical staff members. Darling

v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965), cert. denied, 383 U.S.

946 (1966). 4The ‘‘substantive’’ aspect of the due process clause protects against arbitrary or capricious

actions. Gutzwiller v. Fenik, 860 F.2d 1317, 1328 (6th Cir. 1988).

are presumed to have knowledge of that information for purposes of medical malpractice actions. 42 U.S.C. § 11135(b).3

The Secretary’s regulations give physicians a very limited ability to challenge hospital’s report to the Data Bank. The Secretary does hold the report for 30 days before entering the information into the Data Bank, thereby providing an opportunity

for corrections. However, there are significant substantive limitations on the ability

to correct any report:

‘‘A practitioner may dispute (1) the factual accuracy of reported information

or (2) whether a report was filed in accordance with the Data Bank’s reporting

requirements, including the eligibility of an entity to report to the Data Bank.

The dispute process is not an avenue to protest a decision by an insurer to settle a claim or to appeal the underlying reasons of an adverse action affecting a practitioner’s clinical privileges, license, or professional society membership. Disputes of this nature will be rejected

if a practitioner requests review by the Secretary of HHS.

Neither the merits of a medical malpractice claim nor the appropriateness of

or basis for an adverse action may be disputed.’’

Four aspects of this system affect the due process issues. First, the Secretary

does not provide any procedural or substantive due process protections to any physician prior to any adverse action. HCQIA makes no provision for such a hearing by

the Secretary; that function, traditionally, rests with the local medical board, hospital, or professional society. The entire system assumes that the only hearing will

take place there. Second, the Secretary does not know if any particular physician

received any procedural due process protections during the course of the hearing

which led to the adverse action. Third, the Secretary does not know what, if any,

standards were applied by the hospital in taking adverse action against the physician, so does not know if the decision was arbitrary or capricious.4 Fourth, the Secretary provides no mechanism for the affected physician to challenge the propriety

of the report for reasons such as the failure to receive procedural due process or the

arbitrary or capricious nature of the decision.

These failures of due process affect a fundamental right. In Meyer v. Nebraska,

262 U.S. 390, 399, 43 S.Ct. 625, 626 (1923), the Supreme Court defined ‘‘liberty’’

to include ‘‘the right of the individual . . . to engage in any of the common occupations

of life.’’ Numerous other cases have reinforced this fundamental principle. See, e.g.,

Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411 (‘‘[T]he right to hold specific private employment and to follow a chosen profession free from unreasonable

governmental interference comes within the ‘liberty’ and ‘property’ concepts of the

Fifth Amendment . . .’’) and Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10 (1915)

(‘‘It requires no argument to show that the right to work for a living in the common

occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [14th] Amendment to secure.’’)

These protected interests include the right to practice such professions as law or

medicine. ‘‘A state cannot exclude a person from the practice of law or from any

other occupation in a manner...that contravenes the Due Process... Clause . . .’’

Schware v. Board of Bar Examiners, 353 U.S. 232, 238-9, 77 S.Ct. 752, 756 (1957).

See also State Board of Medical Examiners v. Friedman, 150 Tenn. 152, 263 S.W.2d

75 (1924); Margaret S. v. Treen, 597 F.Supp. 636, 674 (E.D. La. 1984) (physicianliberty interest); Poe v. Charlotte Memorial Hosp., Inc., 374 F.Supp. 1302, 1312

(W.D.N.C. 1974) (physician-property right); Yashon v. Hunt, 825 F.2d 1016, 1022 n.

2 (6th Cir. 1987). The Data Bank is intended to and does infringe on these protected

interests.

The Supreme Court’s decision in Wisconsin v. Constantineau, 400 U.S. 433, 91

S.Ct. 507 (1971), examined a state regulation similar to the HCQIA data bank. Wisconsin passed a statute which provided that certain designated persons could forbid

the sale or gift of intoxicating liquors to individuals who exposed themselves or their

families to ‘‘want’’ or became dangerous to the peace of the community. The police

chief in one city ‘‘posted’’ a notice in all retail liquor outlets in that city forbidding

the sale of liquor to Grace Constantineau for one year. Although the Supreme Court

had no doubt that states had the power to deal with the evils described in the Wisconsin statute, and noted that the police power of states over liquors was extremely

broad, it did not hesitate to rule that statute unconstitutional:

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‘‘Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be

heard are essential. ‘Posting’ under the Wisconsin Act may to some be merely

the mark of illness, to others it is a stigma, an official branding of a person.

The label is a degrading one. Under the Wisconsin Act, a resident of Hartford

is given no process at all. This appellee was not afforded a chance to defend

herself. She may have been the victim of an official’s caprice. Only when the

whole proceedings leading to the pinning of an unsavory label on a person are

aired can oppressive results be prevented.’’ 400 U.S. at 437, 91 S.Ct. at 510.

Government conduct becomes actionable whenever it denies ‘‘a person collateral

credentials or privileges practically necessary for pursuing an occupation . . .’’ Phillips v. Vandygriff, 711 F.2d 1217, 1223 (5th Cir. 1983), pet. for reh., 724 F.2d 490

(1984). Although denial of staff privileges at one hospital may alone suffice to raise

this protected interest, Id., the denial of staff privileges at one hospital forecloses

an entire range of employment opportunities for physicians.

The Data Bank affects not just one physician but physicians generally. Its impact

derives from the importance of hospital staff privileges to the practice of certain

medical specialties. Surgeons and other specialists must have access to the equipment and trained support staff of a hospital. Those with staff privileges can practice

their specialty, those without them cannot. Dolan & Ralston, Hospital Admitting

Privileges And The Sherman Act, 18 Houston L.Rev. 707, 713 (May 1981). Congress

was well aware of this when it passed HCQIA: ‘‘For most physicians . . ., perhaps the

most severe disciplinary action next to the loss of their license is the loss of clinical

privileges at a hospital.’’ 1986 U.S. Code Cong. & Admin. News, supra, at 6401.

Physician’s know this fact of life as well as anyone. Most physicians—surgeons,

ophthalmologists, anesthesiologists, oncologists, obstetricians, gynecologists, and

others—simply must have access to hospital facilities to practice medicine. For physicians and many others, a hospital is the marketplace in which they provide medical services. Peer review controls their access to that marketplace.

Before the passage of HCQIA, a physician denied access to one hospital might find

another marketplace (hospital) in which to provide services. Congress established

the Data Bank specifically to control this: ‘‘The reporting system in this legislation

would virtually end the ability of incompetent doctors to skip from one jurisdiction

to another.’’ 1986 U.S. Code Cong. & Admin. News, supra, at 6384-5; 42 U.S.C.

§ 11101(2).

HCQIA accomplishes this goal by (1) requiring peer review for all physicians at

all hospitals, 42 U.S.C. § 11135(a), (2) keeping track of any adverse action in the

Data Bank, (3) passing along the adverse information to other hospitals, and (4) penalizing those hospitals which fail to obtain information. The unspoken but obvious

implication is that hospitals should remove such physicians from their staffs or deny

them access in the first place.

As Congress no doubt knew, the law already provides a substantial incentive for

hospitals to do just that. The decision in Darling v. Charleston Memorial Community Hospital, supra, imposed liability on a hospital for negligence in screening its

staff physicians. ‘‘[I]mposing the duty of care upon a hospital should have the ‘prophylactic’ effect of supplying the hospital with a greater incentive to assure the competence of its medical staff and the quality of medical care rendered within its

walls.’’ Elam v. College Park Hospital, 132 Cal.App.3d 332, 345, 183 Cal.Rptr. 156,

164 (1982); 42 U.S.C. § 11135(b). The widespread adoption of this principle, Id. at

346, 183 Cal.Rptr. at 164-5, means that the Data Bank sows its tares on a field already fertile.

Even before HCQIA, the harmful impact of an adverse peer review was well

known:

‘‘Although there may be more than one hospital in the relevant geographic

market, excluding a physician from one hospital often leads to exclusion from

other hospitals. Moreover, exclusion by one hospital may lead to disciplinary investigation by local medical boards and thus further impede an excluded physician’s ability to practice medicine.’’ Drexel, The Antitrust Implications of the Denial of Hospital Staff Privileges, 36 U. Miami L. Rev. 207, 231 (Jan. 1982) (footnotes omitted).

‘‘The consequences of an adverse finding in the medical peer review process

may be very significant to the physician who is censured. The curtailment or

denial of clinical privileges can destroy the physician’s ability to practice and

earn a living.’’ Darricades, Medical Peer Review: How is it Protected by the

Health Care Quality Improvement Act of 1986, 18 J. Contemp. L. 263, 271

(1992), footnote omitted.

‘‘For physicians, the staff privileges granted or confirmed by review committees are crucial to their professional survival: ‘A physician without privileges is

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5 I have limited my discussion to peer review cases, but the Data Bank also ‘‘posts’’ physicians

for settlements of malpractice cases. 42 U.S.C. § 11131. As Congress recognized, ‘‘any number

of considerations other than the merits of a claim can affect the size and frequency of malpractice payments. The sympathy generated by the severity of an injury, the attractiveness of

a claimant, the skill of a claimant’s attorney, the demands of a busy medical practice and the

unpredictability of juries can all lead health care practitioners to settle cases... with respect to

medical services that meet or exceed accepted standards of medical care.’’ 1986 U.S. Code Cong.

& Admin. News, supra, at 6396. The insurance company may even make a business decision

to settle over the protests of the physician. In all these cases the physician receives no process

at all, yet ‘‘posted’’ she will be.

a physician without patients.’...This denial is particularly catastrophic for surgeons who rely extensively on hospitals for operating facilities and support personnel.

. . . A privilege denial or revocation may have an even greater impact on a physicians’ efforts to practice in the future. Not only is his reputation damaged, but

subsequent privilege applications invariably force the physician to detail previous privilege denials or revocations, resulting in further denials.’’ Comment,

Patrick v. Burget: Has The Death Knell Sounded For State Action Immunity In

Peer Review Antitrust Suits?, 51 U. Pitt. L. Rev. 463, 468 (1990), footnotes omitted.

In 1991, before the Data Bank went into operation, Howard L. Lang, then President-elect of the California Medical Association, pointed out that the Data Bank

‘‘raised the stakes’’ for physicians:

‘‘It is clear, therefore, that the courts have understood that membership on

a medical staff is essential to almost every physician and that without hospital

privileges, a physician loses the opportunity to practice the medical profession

to the fullest extent.

Indeed, the stigma of revocation or denial of privileges can ruin a physician’s

career. With the implementation of the National Practitioner Data Bank, the

stakes are raised even higher, as every physician’s record will follow him or her

to other communities. If the privilege denial is unjustified or unrelated to the

physician’s competence, therefore, that individual will be unfairly labeled. With

dissemination of this information to health maintenance organizations, preferred provider organizations, state licensing agencies, and medical staffs, the

physician may be unable to practice medicine anywhere. Besides destroying the

physician’s reputation and livelihood, an unfair privilege decision may deprive

the community of a qualified physician.’’ Lang, Economic Credentialing—Why It

Must Be Stopped, 5 The Medical Staff Counselor 19, 22-23 (No. 2, Spring 1991),

footnote omitted.

Since the practice of medicine is a protected liberty or property interest, and since

the Data Bank imposes a stigma which seriously infringes on those rights, it remains only to ask: Did the physicians who were reported to the Data Bank have

an opportunity to refute the allegations made against them that was consistent with

due process? The answer to this inquiry requires consideration of several possibilities.

One possibility is that HCQIA requires that accused physicians receive a certain

minimum level of due process prior to reporting. HCQIA does, in fact, specify certain due process protections for peer review hearings. If hospitals do provide such

protections, then they receive immunity from liability for their conduct of the peer

review proceeding. 42 U.S.C. Section 11111. However, those protections are not

mandatory; HCQIA provides a carrot but no stick. No portion of the statute actually

requires hospitals to provide these or any other elements of a fair hearing.

It is equally clear that the Department of Health and Human Services does not

itself provide any hearing to the accused physician. This implies no criticism of the

Department—the statute never intended for HHS to undertake this obligation. Instead, the Department serves only as a repository and distributor of information obtained from the local medical board, hospital, or professional society.

Nor does the Secretary provide the affected physician with any right to challenge

a data bank entry on the basis that the peer review hearing lacked due process fundamentals. As is clear from the challenge procedure described above, the Secretary

reports only the fact of a professional review action and does not judge the validity

of the accusation or the fairness of the hearing.

Because the Department does not itself provide a fair hearing and makes no judgment regarding the adequacy of the procedures followed, it has no way of knowing

whether or not the physician actually did receive the rudiments of due process. The

Secretary simply records the information without knowing either the basis for the

professional review action or the procedures which led to it.5

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Though all 50 states differ in the specifics of their treatment of private hospital

peer review, they tend to fall into several general categories. By examining these

categories this Committee will see that state laws do not protect physicians in private hospital peer review hearings, so the Secretary cannot rely on them to justify

the Data Bank.

(1) States which refuse to protect the physician. Ten states—Alabama, Arkansas, Iowa, Michigan, Nevada, Oklahoma, South Carolina, Virginia, Washington,

and Wisconsin—refuse to permit their courts to review a hospital’s actions.

Mr. UPTON. I might just say, for those members, and we will

pass the word on the floor, those buzzers meant we have a number

of recorded votes on the floor. So at this point, we will recess and

come back for questions from us at 1:45.

[Brief recess.]

Mr. UPTON. Well, I appreciate everybody coming back promptly.

I am told, as I left the House floor, that we are expecting one more

vote about 3 o’clock. So we will see how things go. And at this

point, again, I want to reiterate my thanks for all of you coming

to Washington, most of you, I think, for submitting your testimony

on time so we were able to review it last night and prepare some

questions.

And I am going to be pretty tight on this gavel, including on me,

as we start this round of 5-minute questions. We will probably go

maybe two rounds at least, maybe a third, depending on how many

members come back.

For me, I have a lot of questions, and it was a delight to talk

to a number of you during the little break and almost wish that

we could all sit at that table and just raise our hand and ask a lot

of questions.

First of all, Ms. Neuman, I would like to have a little dialog of

walking through the procedure of what a physician does to get licensed, and I want to raise a couple of points. One, as you walk

me through this, what do you do with multiple licenses and folks

that may, in fact, get disbarred, I guess you would say, in one

State, while they have another license in another, which would

then allow them to continue?

And I use a little bit of some anecdotal evidence on my part. But

I knew a physician in my district, no longer my district. It is not

in Bart’s either. But he, in fact, was disbarred by the State of

Michigan a couple of years ago. And lo and behold, I found evidence to show that he had practiced in Virginia for a number of

years before that and had been disbarred there. And somehow, and

I would like to ask my own Michigan people, and I intend to do

that, how does this individual, how did he get through the clearing

process to allow that to happen? That is No. 1.

No. 2, when they lose their license, does that get into the Data

Bank at all? And what tools do you have to check other States and

to make sure they are appropriate? And what do you do, as we

heard with the awful example a little bit earlier this morning, of

a hospital that doesn’t report really what happened? The term

‘‘gross misconduct’’ bad enough term on its own for sure, but the

carving of one’s initials into somebody is more than that. And without that detail, what red flags would a State have in terms of really checking into the information that was submitted? In other

words, the information that is there is only as good as those that

submit it. And when you read about that particular physician who

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still went on and began to practice, when you see today’s story allegedly—what do you do when you find providers or hospitals that

don’t, in fact, report individuals and they continue? How does that

all fit together? Go ahead.

Ms. NEUMAN. Okay. I’ll start out with the first question that you

asked me about the licensure process and how we prevent a doctor

from getting licensed in another State after he’s been disciplined in

the earlier State. What we do is that we, as the application comes

in, we do our own verifications of licensure on that individual. We

also query the Data Bank, we query our own Data Bank of the

Federation of State Medical Boards to make sure that the doctor

has not been disciplined. We ask a number of questions on the application form, and those all go, in a State like mine, to something

called the Licensing Committee of the Board, and in some States

they are called Credentialing Committees or whatever of the board.

But one of the most important things that we do as boards is to

check the Data Bank to make sure that the doctor has not been

disciplined when that application is coming in. So at that point,

what the board’s option is is to deny license. And what we see in

those cases is the doctor will bring his lawyer in, and we will start

the process up again of just reviewing all of the material, and they

will submit all of their material from that other State where they

were licensed and were disciplined, and the board reviews that.

In most cases, you have a better option of stopping that doctor

from practicing in your State at the licensure level than—and

being able to take action, rather than having to do a piggyback on

an existing licensee. So we do review the material, we do look at

it. And hopefully in a case like that, where a doctor has been revoked or suspended in another State, as it has been in my State,

we deny the license of that doctor so that he cannot continue to

move.

Now, the bigger problem is when you have a doctor who has been

disciplined in one State who takes off and moves to another State.

There are due process, even in the licensure denial process, there

are due process—there’s due process afforded the physician during

that process. You can, as we recommended to—and I’ve done in my

State, which is to pass a law that would allow the boards to automatically piggyback on serious disciplinary actions, and we would

encourage other State boards to do that. The process is long if you

don’t have that power to automatically piggyback on a disciplinary

action on another State, by another State, and so it’s very important that State boards look at passing laws that provide for this

automatic suspension or automatic piggyback of a suspension or

revocation in another State. That’s another way that you can address dealing with physicians who are moving.

And I agree with many of the comments made here today, that

doctors in trouble very often move very quickly. And if they have

multiple licenses, which many of them do, each State has to take

the action. And that’s what you’re facing. The time period, and one

of the reasons why we want—that I feel that the Data Bank should

be open is that that information would be instantly available to all

consumers. Even with the individual data bases, they are only data

bases for those States. By having this national clearinghouse open

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with this information, consumers could then get that information

immediately.

Mr. UPTON. And the Data Bank today doesn’t list, isn’t required

to list, if they actually lost their license; is that not correct?

Ms. NEUMAN. Oh, absolutely, they are required to, if they’ve

revoked——

Mr. UPTON. They are.

Ms. NEUMAN. Yes. So that’s what’s so important about having

this information available because, just because of the due process

that’s afforded the doctor, it takes a while for a State board to take

action and piggyback on that action unless they have, like they

have in my State, this automatic piggyback provision of their statute.

Mr. UPTON. Do you want to ask 5 minutes and then come back?

We are going to recess. I know, actually, that Dr. Ganske went

over to vote. So when he comes back, so stay tuned, he can start,

and then we will go to Mr. Stupak.

[Brief recess.]

Mr. UPTON. I apologize for the delay. I thought Dr. Ganske was

on the way back so I allowed myself to get grabbed by a couple of

people who wanted to chat about a variety of different things and

I also finally got something to eat today. So, a quick sandwich.

Mr. Stupak?

Mr. STUPAK. Thank you, Mr. Chairman.

You know, throughout the testimony today we have heard about

peer panel review and how that should be the determining factor

of what is made available to the public. But after listening to Mr.

Silver I guess I see a different aspect here where you see political,

economic and procedural safeguards not being part of peer review

panels and actually that could actually be abused and maybe people who should not then go into the national data base would be

in the national data base.

Mr. Silver, I would like to ask you a little bit more, give us a

little bit more specific example. You had mentioned—and I remember you being before this committee before on the investigative

work of Dr. Reid, I believe it was—he was looking into the nuclear

workers who were possibly exposed or showing unusual patterns of

disease in connection with the work at Oakridge facility in Tennessee. Can you briefly summarize what took place in that case

and how the national data base was used as a punitive tool against

that doctor?

Mr. SILVER. Yes. Dr. Reid is an oncologist and treats people who

have, among other things, cancer. And he observed having been a

member of the staff of the hospital and he having a separate position of being employed through a subsidiary of the hospital a variety of things that in his experience and in his private practice, in

his residencies had not observed. He observed cancers occurring

with greater frequency than occurred in the general population. He

observed cancers in people—prostate cancers is one that sticks in

my mind—in men much younger than we ordinarily experience

those types of cancers. He had four cases of a bizarre and unusual

kind of cancer that in his entire career up to that point had only

seen one. He had four active cases.

83

And as a result he has tried to find out what is causing these

cancers? And because when he used traditional, by-the-book medications or chemo or radiation, the cancers were much more virulent. So, he was not treating by the book. Now, that is really important. I will come back to that in a second.

As a result, he frankly is a very idealistic kind of person and

may not be as politically astute as others, tried privately to find

out what was going on and then when that failed, tried publicly.

That may have been a fatal mistake for his career and probably

was.

The public accusation against the company town and against the

factory led to a peer review proceeding against three physicians

who were part of that hospital group, selected by the hospital. And

as a result, it was determined by that panel after we had had the

10 days of hearings that his practice, even though supported by experts and even though supported by the only other oncologist on

staff, that he engaged in practice which was different than the

standard of care. And he said, you bet you I engage in practice different than the standard of care because I had like a lady down

our road here who has had four different types of virulent cancers,

you need to save her, you need to do what you have to do.

They found that that practice violated the standard of care in

Oakridge and he was on the national data base. As a result, by the

way the record in that case is at least 4-to-5 feet thick. The record

in that case is a few sentences in the national data base and as

a result, as far as I know, he has been unable to get on the staff

of any other hospital because he has been determined to have practiced in disagreement to the ordinary standard of care.

Mr. STUPAK. Well, if this doctor did not get back on to practice,

then how could those doctors that were from our other witnesses

we heard just before your panel, how do they continue practicing

after they do gross negligence and things like that?

Mr. SILVER. Well, first of all, there is the National Data Bank

and as I was speaking to Congressman Upton during the break my

experience is, for example, the piggyback is—I had a doctor who

did suffer a licensure action. There was some action taken against

his license in California. Within 30 days, New York suspended him

like that, revoked his license like that because he had violated the

standard of New York and that is he was eliminated from another

licensure.

California requires, Jersey requires, New York requires that

when you apply and in your reapplication that you list all the

States in which you are licensed and if any action against that license is taken, at least, California notifies all the other licensure

States.

Mr. STUPAK. Well, then is it fair to ask—do the different States

do it differently? I mean in New York here there is—when Dr. Getz

there, Dr. Zarkin, who went on to go into, I think, two other businesses after that, just like that hospital went on to two others with

Mr. Smart. He had no idea that this doctor was Dr. Sklar, or Sklar

was even going to operate on his wife.

I mean even though there is patterns of gross negligence, every

State doing it differently? Is there a need then for the Federal Government to step in and say, if the States aren’t doing it properly

84

we have to do it? And then after we come to some final disposition

then we end up putting that open to the public?

Mr. SILVER. Well, if we were to establish a national rule you

would, in effect, have the Congress tell the States how to operate

their own systems. I do not think there is anything bad necessarily

with piggybacking. The doctor in my case got substantially due

process in California and was then reported to New York and terminated in New York. That later gets changed by the way after an

appeal.

But at least in my practice, in the States in which I have practiced, I have not found that to be a problem. And even if you listen

carefully to the testimony, they have a piggyback statute, which is

what it is called, and down in one, down in all.

And as I said, in my opening remarks, at least in California, had

this doctor who carved his initials in the patient, there would have

been a temporary restraining order and proceeding very promptly

in California.

Mr. STUPAK. Well, but in New York he went onto another business and I guess I asked the question earlier, what is breaking

down here?

Mr. SILVER. Right.

Mr. STUPAK. I guess I am still without an answer. I am sure the

Chairman can find other witnesses who would have just as grievous stories as the other two people we heard here today.

Mr. SILVER. Well, I don’t know what broke down. I can tell you

in California, and I think in New York as well, that you could stop

the other doctor—you said other businesses, I think he went to another hospital where he was already a member of the staff. No. I

disagree, and I must say that the white wall of silence I think is

flipped. I have had a doctor who has been encouraged to resign

from one hospital and collegially the other doctors on staff let that

information get out to the other hospitals in the community and

usually there is a domino effect without due process in which he

is asked to resign.

And, in fact, I find that the informal method is much more brutal

than sometimes the formal method.

Mr. UPTON. Thank you.

Dr. Ganske.

Mr. GANSKE. It is hard to keep your train of thought when you

get called back and forth like we have. And I thank you all for your

patience because it is getting a little later in the afternoon.

My understanding is that denials of licensure are not reported to

the Data Bank. So, Dr. Reardon, what do you think about that?

Mr. REARDON. Thank you, Dr. Ganske.

No. We would support the denials of licensure should be reported

to the Data Bank. It is my understanding at the present time,

though, that a denial of licensure or a removal of a license is

shared through the Federation of State Medical Boards with all the

other Medical Boards. They send out a monthly newsletter so that

the information is available at that level.

Mr. UPTON. If I might just freeze the time and just—this was a

question that I asked Ms. Neuman before, at least that is the question I had thought that I had asked. And you indicated that they

are reported on the Data Bank; is that not correct?

85

Ms. NEUMAN. The denials of licensure are not reported in the

Data Bank but they are reported to the Federation of State Medical

Boards’ Data Bank. That was just recent though because within

the last, oh, I will say within the last 5 years, because our board

had to put a resolution into the Federation to encourage State

Boards to report denials of licensure because our State had been

burned by an applicant who applied to our State and in our investigation we found out that he had been denied in other jurisdictions

and there was not a place to get that information.

I would certainly support that the National Practitioner Data

Bank be collecting that information. It is very important information for the States to have.

Mr. UPTON. I am going to yield back my time here to Mr.

Ganske.

Mr. GANSKE. All right. What about denials of privileges? Should

that be reported to the National Data Bank, Dr. Reardon?

Mr. REARDON. Here, again, I think Dr. Ganske, it depends on

what the denial of privileges is for. If the denial of privilege is a

denial over substandard care, certainly. If the denial of privilege is

over an administrative issue, for example, probably one of the most

common reasons I have seen physicians lose their privileges at my

hospital is they don’t sign their charts on time and that has nothing to do with the quality of care they are providing to a patient.

It is an administrative issue within the hospital. But we would certainly support if a physician is practicing substandard care, poor

quality of care, then, yes, that should be reported.

Mr. GANSKE. Is there anyone on the panel that would disagree

with that?

Mr. NEWMAN. No, sir. If I might though, there is a distinction between denial of privileges and rescinding privileges.

Mr. GANSKE. Right.

Mr. NEWMAN. Rescinding generally is for cause of some kind. Denial could simply be a determination that there isn’t sufficient experience, training, what have you. So, there is a real distinction

there. But rescinding privileges, I am in full agreement, that they

should be reported.

Mr. GANSKE. Okay. Dr. Hochman, you are testifying on behalf of

the American Hospital Association. One of the criticisms that we

heard earlier was that our hospitals are not reporting reportable

events to the National Practitioner Data Bank, which is a problem

not in terms of opening it up but just in terms of whether current

law is working properly.

Can you comment on that? Is that true? What is being done to

remedy that?

Mr. HOCHMAN. Well, let me take it in three issues. One, there

are a whole bunch of activities that go on in the hospitals today

that fall before something is reported. Hospitals will take actions

against physicians revealing cases, monitoring their performance,

that will not make it to a Data Bank but will occur inside the processes that occur in a hospital, since there are a lot of activities as

it relates to the quality performance that go on.

The second, the 30-day rule is kind of an arbitrary rule that was

set up, and I guess there is some question whether someone has

passed the 30-day suspension, that gets reported; less than 30 days

86

doesn’t get reported; that, to me, raises some question whether that

criteria was appropriate or not. And then the third that has to be

looked at and one of the things that we want to look at, is there

a greater incidence of less than 30-day suspensions that are out

there; is that being used?

From personal experience, it isn’t. And generally in the institutions where I have worked when we decide to suspend someone it

is not like in the NHL where we take someone out for a week or

2; it is either we decide to suspend someone or not. So, to me it

may be that when the criteria were established the whole concept

of something 30 days or not that may be flawed and that may need

to be looked at.

We also need to look at whether, indeed, when we look across the

country at hospitals, whether shorter revocations or suspensions of

licensure or credentialing are being used by hospitals. We think not

in what we have seen but we need to look at that.

Mr. GANSKE. Okay. Dr. Newman, your representing Beth Israel

and I apologize if I am asking a question that has been asked before when I was not here. But we had a prior testifier today talk

about an incident that occurred at Beth Israel. And she said that

this doctor was immediately suspended. Now, then what happened?

Did Beth Israel then report that immediately to somebody? What

was the mechanism for that?

Mr. NEWMAN. Sir, the suspension did occur as Dr. Gedz testified.

A report was submitted to the State Office of Professional Medical

Conduct and also to the National Data Bank. I think that the fact

that this physician was able subsequently to apparently continue

working in some capacity in what I understand is an ambulatory

facility reflects two problems. One is a problem clearly at Beth

Israel Medical Center. We had believed unequivocally—it was a

wrong belief in retrospect—that gross misconduct—and I believe

the chairman asked this earlier—that gross misconduct was a sufficient red flag. It clearly was not in retrospect and I can only assure

you that that is a term that we will never again use in reporting

anything at Beth Israel. We will be explicit in excruciating details

spelling out exactly what the nature of the misconduct was.

The other aspect of the problem and I think this, again was in

part a response to the member from Tennessee’s question earlier

on and that is that not being a hospital and this facility was not

a hospital, there is——

Mr. GANSKE. That he was subsequently practicing in?

Mr. NEWMAN. That he was subsequently, as I understand it, employed by, there is no requirement—and again it seems paradoxical

and inexplicable to me—there is no requirement that that facility

would query the National Data Bank. They may, and if they do

they will get the access, but there is no requirement. So, I think

two things to learn from this very, very regrettable experience is

No. 1, that institutions should be explicit; and No. 2, that there

should be a requirement that any health care entity query the

Data Bank for the information that is there. It just seems silly not

to utilize it.

Mr. GANSKE. Well, let me if I may have unanimous consent for

1 additional minute?

Mr. UPTON. Hearing none, go ahead.

87

Mr. GANSKE. Okay. So, this gentleman loses his privileges at

your hospital and you report it to the National Data Bank and you

also reported it to the State Board of licensure?

Mr. NEWMAN. Yes. There was an oversight on our part. We reported it to the State Health Department. We viewed this egregious incident as being an incident of medical misconduct, so, we

reported it to the Office of Professional Medical Conduct. It was

subsequently pointed out to us as criticism, which we fully accept,

that we should also have reported that incident to the Office of

Health Systems Management of the State. But we did, in fact, report to both, but I didn’t want you to think that we were fully in

compliance, because we were not.

Mr. GANSKE. If you had done that was it then that State Department’s responsibility? How would anyone know where this physician would have multiple privileges so that those institutions could

get the knowledge that this incident happened? Who is responsible

for that?

Mr. NEWMAN. First of all, my understanding is and I might be

wrong, but my understanding is that he did not at that time, at

the time of his suspension, have privileges anywhere else. We have

instituted within Beth Israel a standard practice now——

Mr. GANSKE. But how would you know that? Do you know where

all your physicians have privileges?

Mr. NEWMAN. We know because there is a requirement. Again,

we can’t protect ourselves against out-and-out falsehoods, but there

is a requirement at reappointment time and at initial application

time that every applicant or member of the staff indicate every

other facility and we have adopted, in response to this issue, a

practice which is routine that we will immediately, at our initiative

without being asked, let everybody know.

But if there were a requirement that the other entities, nonhospital entities, query the National Data Bank, again, maybe gross

misconduct wouldn’t have been a sufficient flag, but they would

have seen this is somebody who was terminated from the staff and

it would have given them a clue that this is a problem physician.

Mr. GANSKE. If that physician is applying for new privileges?

Mr. NEWMAN. That’s right, that’s right.

Mr. GANSKE. And, Dr. Hochman, would it be generalized hospital

procedures similar to those around the country such as Beth Israel,

for hospitals to be required to have an idea of all the other facilities

that a physician would have privileges at so that if a physician

goes off the deep end and you have taken away his privileges you

can then notify these other facilities?

Mr. HOCHMAN. A couple of things. We do keep a listing of where

all physicians have their privileges. We also require that every 2

years they have to get recredentialed so that the issue of whether

it is new or not is there. And then when an action is taken that

is immediately reported.

Now, where some of the things, where some of the gaps that I

think some of you have been highlighting is some physicians are

very adept at moving around, having multiple privileges and there

are issues of what our reporting procedures are. So, if we report to

the State, we report to the National Data Bank there are potenVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00091 Fmt 6633 Sfmt 6602 E:\HEARINGS\62975 pfrm07 PsN: 62975
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tially holes that the other places where a physician has privileges

may not know. That there is a potential there.

The other thing is that not every system has an exhaustive way

of reviewing all the records and kind of going through in detail and

that’s another potential where, if the institutions like health clinics

don’t do that, there are really potentials for a physician to slip in

there under that.

Mr. GANSKE. Thank you.

Mr. UPTON. The gentleman’s time has expired but we are going

to have another round.

Mr. Dingell.

Mr. DINGELL. Mr. Chairman, I thank you.

I would like to welcome Dr. Loniewski and an old friend, Dr.

Reardon.

I have several questions, first, for Dr. Reardon, two in number.

Doctor, you mentioned that lawsuits are frequently settled by an

insurer without the physician’s consent. Again, a similar question:

What are the implications of this fact on the discussion of whether

we should open the Data Bank to the public on that kind of matter?

Mr. REARDON. Thank you, Congressman Dingell. And I think the

issue is oftentimes suits are filed. There sometimes is an agreement with the insurance company in the contract that they can settle a suit which they consider a nuisance suit rather than go

through the court process and defend that. It is a very low settlement. That then becomes a matter of record on the physician, the

physician has no choice. The physician may want to defend that

and, so, he can then maintain his integrity. So, that is one of our

concerns about the accuracy and the reliability and the validity of

the information on the Data Bank.

Mr. DINGELL. Dr. Reardon, one of the sections in your testimony

mentions that the NPDB does not make any adjustment for highrisk procedures. Tell us about the implications of this fact as to

whether it relates to our opening or not opening the Data Bank to

the public on this matter?

Mr. REARDON. Well, Congressman Dingell, I think our concern is

that there are many high—there are high-risk practices, neurosurgery, orthopedic surgery, obstetrics. There are also many highrisk procedures which are not often done, maybe not done frequently or done by a few physicians that we need those physicians

there to do those procedures, to have them available so when a patient is critically ill that someone will take that risk. There is not

always the best outcome on some of these high-risk procedures or

high-risk practices.

The physicians do their best job, provide high-quality care and,

yet, the outcome may not be optimum. And, so, there is a lawsuit.

If you have these continually released by the Data Bank which

does not reflect on the quality of care, the concern is will physicians continue to make themselves available to do the high-risk

type of practice and the high-risk procedures.

Mr. DINGELL. Thank you, Doctor.

Now, ladies and gentlemen of the panel, I am going to have to

ask you to respond as quickly as you can because I have two questions for each of you. And we will start at your left and my right,

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with Mr. Silver, and what are the primary weaknesses regarding

data in the National Practitioner Data Bank? Are there other

weaknesses and, if so, how do these matters affect the usefulness

of the Data Bank? Starting with you, Mr. Silver.

Mr. SILVER. The States under which the information is achieved

in peer review proceedings, in my judgment as my prepared remarks I think prove, do not conform to even the most basic due

process; and, as a result, you are having a determination made

without the adequacy of protections that we all, as Americans,

grow to love. And, as a result, good doctors, high-risk doctors, doctors who may do things a bit differently end up in the Data Bank

unnecessarily.

That’s not to say that there aren’t docs who ought not be there

because I think there are. But you end up with doctors like Dr.

Reid and others who do these kinds of things who will be discouraged from doing them in the future.

Mr. DINGELL. Next panel member, please?

Mr. OSTEN. Basically it’s in my testimony. I think the biggest

weaknesses are that the system is not accurate, it is not complete.

If you have two-thirds of the hospitals in this country not reporting, you really don’t have a Data Bank.

Mr. DINGELL. Dr. Hochman?

Mr. HOCHMAN. I certainly agree completely with what Mr. Osten

said by way of a weakness. I think the other weaknesses I have

already alluded to. One is that there is no mandate that nonhospital health care entities query the data registry and I think that

that absolutely should be done. And I think that there is no—and

I know there is no mandate that State licensure agencies query the

National Data Bank before issuing or renewing licenses.

And those are presumably problems that could be corrected immediately.

Mr. DINGELL. Thank you. Dr. Reardon?

Mr. REARDON. Thank you. I was—I have two comments. One is

the lack of access in the Data Bank by say licensing boards. I think

that is critical. And, second, one of our greatest concerns is the

malpractice settlements which do not reflect quality of care or competency. As I pointed out in my testimony when peer reviewed only

1-in-5 settlements were really true negligence.

Mr. DINGELL. Thank you, doctor.

Next panel member?

Mr. HOCHMAN. I would echo some of those comments. Just the

information that is there is information without knowledge and it

doesn’t have information that really relates to quality of care, particularly around the medical malpractice issue.

Mr. DINGELL. Thank you.

Dr. Loniewski?

Mr. LONIEWSKI. Yes. Rather than repeating everything that has

been said, there are too little other areas that I come up sitting at

the—on an executive committee as well—that seem to be disturbing to me. And one is the permanency of the record, itself.

Once a physician is in the record, he stays there forever.

No. 2, we also, I think, which is unfair and nobody has brought

this up, and that is that we do have at hospitals, interns and residents, that many times are mentioned through a—in a malpractice

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suit and then included in the Bank. Unfortunately, many times because they are acting as a delegate of the attending it is not their

actions there but for some reason they—the hospital will end up

settling that case and to get them out they will just settle it and

keep them involved with it. The resident doesn’t even know about

it until later on when he applies for privileges, finds out, hey,

you’ve been mentioned in three cases, while you were a resident

and really when they were not really directly responsible for the

care of that patient.

Mr. DINGELL. Thank you, doctor.

Dr. Sullivan?

Ms. NEUMAN. I am Ms. Neuman, but I can tell you that——

Mr. DINGELL. I am sorry.

Ms. NEUMAN. That is all right.

Mr. DINGELL. I see the name Sullivan there. You have my apologies.

Ms. NEUMAN. I think there are two areas, criminal convictions

and license denial actions, that should be included in the Data

Bank to encourage the State Boards to query the Data Bank. I met

with some HRSA officials a couple of—a few years ago about making it free for State Boards to query since their staffs, we all in our

States spend our staff time compiling the information to go into the

Data Bank. We should be able to query it for free and that would

help our Boards considerably.

Mr. DINGELL. Thank you.

Ms. Sullivan, if you, please?

Ms. SULLIVAN. Thank you.

I will save time and say that I believe that Ms. Neuman has expressed the same concerns that the Massachusetts Board has.

Mr. DINGELL. Thank you all.

Mr. Chairman, I have one more question to ask the entire panel

and I would ask unanimous consent that they be permitted to respond, if you please?

Mr. UPTON. Go ahead.

Mr. DINGELL. Ladies and gentlemen of the panel, we have now

discussed what we feel in a quick way are the concerns we have

with regard to the usefulness of the Data Bank and how it is affected by the weaknesses which have been identified.

Let us now address what you would suggest to make this National Practitioner Data Bank a useful public tool to inform the

public of problems that might exist with regard to particular physicians, which would impair the kind of care or put the patient at

higher risk or—and what should be done to assure that the system

is fair, not only to the patient who does need the information but

also to the physician so that the physician is not hurt.

So, ladies and gentlemen, if you would, please, tell us what

changes you think need to be made with considerable specificity

and in a short time because of our time limit, starting with you,

Mr. Silver, if you please?

Mr. SILVER. Well, thank you, again, Congressman.

I have set forth specific amendments, lines and words, that I

think ought to be contained in the National Data Bank to make the

changes necessary to make it fair but it seems to me that if you

are going to provide the public with information about physicians

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and malpractice actions, you might also include about other health

care providers, including hospitals as well, and to make sure that

the public is adequately and fully aware. But, last, I think all of

the people who may be listed on the Data Bank ought to have a

chance before the Secretary, who now has no discretion, the Secretary must report as it is reported to her, whatever it is. It seems

to me that if the hospital—I have had one case where the hospital

reported a different result, different grounds than were actually determined—there be some basis upon which you can, as against the

Secretary, get a hearing to have a modification of the report if it

is false or inaccurate.

Mr. DINGELL. Mr. Osten, if you please?

Mr. OSTEN. I think the key is in enforcing the requirements to

assure that you are getting accurate reporting and whether that

you charge HRSA or HCFA as a condition of Medicare participation, that hospitals are surveyed and if they are found not to be

complying with the reporting conditions that sanctions be imposed

to assure that reporting is carried out. And I think that should be

part of the standard Medicare survey process.

Mr. DINGELL. Thank you.

Dr. Newman?

Mr. NEWMAN. Congressman, the question is of such fundamental

importance and so complex that my suggestion would be that all

of the various parties some now have the opportunity to address

that specific issue and I’m not just talking about providers—hospitals, medical associations, State agencies—I am also talking

about patient advocacy groups, consumer advocacy groups, because

Heaven knows, they are a very, very interested party. I think the

only way to come up with a maximally optimally useful Data Bank

is to get the input of all of these parties.

Mr. DINGELL. Thank you.

Dr. Reardon?

Mr. REARDON. Thank you.

I think that some of these things have already been mentioned

and I think they enforce the requirements of the Data Bank, I

think the State Boards ought to have to inquire in the Data Bank

before they relicense, reporting of criminal actions would certainly

be there, but I think that one of the important things to do would

be do a peer review of malpractice actions. For example, the Department of Defense and the VA do not report malpractice actions

before peer reviewing and they have found like the ‘‘New England

Journal’’ article that very few malpractice actions are true negligence. And I just finally, our concern is that I think the States

are way ahead of the Data Bank in developing their Internet access

and their profiling and we ultimately would rather see it go in that

direction.

Mr. DINGELL. Thank you.

Dr. Hochman?

Mr. HOCHMAN. I would take the opinion that the NPDB, the way

it was constructed, is really there for a different reason and I

would advocate that we look at a different format for consumer reporting for patients. Looking at what some of the States have done

and looking at more of that format as a more adequate way to provide information to the consumer.

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Mr. DINGELL. Thank you.

Dr. Loniewski?

Mr. LONIEWSKI. Yes. As I mentioned in my testimony, I think the

best way to have the public access to a bank of this nature would

be to get true peer review, and I still stand with that and I agree

with what Dr. Reardon has been saying as well.

Mr. DINGELL. Nothing goes in that without appropriate peer review?

Mr. LONIEWSKI. That is correct. Appropriate true peer review by

specialist against specialist and physician against physician rather

than having a general practitioner trying to review my orthopedic

cases. It would have to be an orthopod looking at another orthopod.

Mr. DINGELL. Would you suggest that the proceeding be formal

and that there be opportunity to cross-examine and things of that

nature?

Mr. LONIEWSKI. Oh, yes, I believe so. Physician should have due

process as well. And I mean be well represented and be able to

present his case or her case to that peer review panel and then

they can make a decision from there whether it was within a normal standard of care and that good quality care was afforded or

not. And if not, I think that patient should be—that physician

should be reported.

Mr. DINGELL. Thank you, Doctor.

Ms. Neuman?

Ms. NEUMAN. Yes. I think that the information that is provided

to consumers from the National Practitioner Data Bank should be

put into context as our State Boards have done or our profile laws

and I think that that will go a long way to helping the consumer

understand the information. We certainly have had good experience

in the profile States in releasing this information to the public

without a problem. And the good thing about opening the National

Practitioner Data Bank is that it would cover all States, it would

be a national clearinghouse and that’s why I think the States

should work with the Federal Government in order for that to happen.

Mr. DINGELL. Ms. Sullivan, if you please?

Ms. SULLIVAN. Yes. I, once again, echo the importance of context.

But one fact that we found in developing profiles may be helpful

to you as you think about this. We actually used a consumer research company to test different versions of the product to see what

was meaningful for consumers. When we presented the malpractice

information without the contextual data setting and the disclaimer

information, the consumer focused on that to the exclusion of other

information. When we then adjusted the product to have the information of malpractice placed in context, it became far less important in the weighted view of the consumer of it. So, I think that—

but the one very consistent finding with every consumer focus

group was that the exclusion of the information invalidated the entire process for the consumer. That they felt very strongly information needed to be there in order to have a sense that the product

was truthful and full.

Mr. DINGELL. Thank you.

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Mr. Chairman, thank you for the patient and fair way in which

you have conducted these hearings. I have concluded with my questions.

Mr. UPTON. Thank you. Mr. Bryant?

Mr. BRYANT. Thank you, Mr. Chairman.

Ms. Sullivan, you may have touched on the answer to this question but you might want to expand. I would like you to answer the

question from your experience in Massachusetts and Mr. Osten,

maybe you can answer it, too, from your experience in New York

and then after both of you answer, my 5 minutes will be winding

up, but I would like to have Dr. Hochman speak on behalf of the

Hospital Association in response or comment, and also Dr.

Reardon, on behalf of the AMA, in response to the question.

The question is in essence, do you think that the information in

the Data Bank should be placed in context to provide consumers

nationwide with the same kinds of useful information that I assume both of you have used in your State systems?

And, again, if you can elaborate on the context. I think you mentioned a disclaimer and a couple of other things. But that is a real

concern I have in that whatever we put out there to the general

public that undue influence and so forth might not be put on one

thing or the other and how can you put it in a proper context?

Ms. SULLIVAN. I think that the issue is very valid and what the

research that we did with a third party firm that does this for a

living that even the consumer understood that it was not only not

fair but not helpful when it was not presented in a way that was

in context.

That the consumer is very educated and understood that there

were frivolous, nuisance cases and when something was reported at

being substantially at the low average that they really to some degree dismissed that in their considerations. I am never—I am always pleasantly surprised by the brilliance of the American people

and as people become more and more attuned to using complex information through the Internet, I think that the educated consumer does use the information well.

So, I think that we—you can craft a piece of legislation that addresses those concerns in a meaningful way. We think it is important to look at specialty to show what other doctors in that specialty have in terms of overall history, what percent of them have

any malpractice payments and to look at the payments in terms of

each suit, whether it is above-average, an outlier statistically, either above or below the average.

Mr. BRYANT. So comparisons with other doctors?

Ms. SULLIVAN. Within that specialty, yes.

Mr. BRYANT. Explanation of high-risk, those kind of issues?

Ms. SULLIVAN. Right. And the other issue that I would say with

that and I think to some degree there is a sense that I have heard

today that there is no review process for the mid-mal payments. On

our report we do not in any way make reference to open investigations of discipline, we do not make any reference to pending malpractice cases. We only look at payments.

And I think that we have to respect that there is a process that

is called a malpractice jury. I think to disrespect the jury process

and say that that is not a vetted review of the case, I think may

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fly in the face of some common sense with what goes on with the

constituents.

Mr. OSTEN. I guess we have some concerns about the malpractice

information for the concerns you have heard today about the information in there. But I think the ultimate litmus test is if you were

the patient, would you want that information? And I know applying that litmus test for myself, yeah, I would want that information, including knowing their concerns with the malpractice part of

that.

If the information is complete and accurate I would want that information if I was a patient and if it is a system that is maintained

by the Federal Government then people should have a right to that

and make their own judgment as to their use of the information.

Mr. HOCHMAN. You know, I think from our standpoint, what we

would like to see—the context issue is incredibly important to us.

We have reviewed quality data that is out there on the Net and

it is amazing what you see. It is all over the board. And what I

had hoped we would do here would be to take a rational approach

at looking at really reviewing what information is being put out

there, how helpful is it to the consumer, particularly as it relates

to the medical malpractice issue.

A lot of the frivolous suits that are out there that get reported

really could hurt a physician unnecessarily. If I look at our own experience, when we credential a physician in the process, when we

get the Data Bank information and we look at it, I got to tell you

the synthesis of that, we automatically can exclude or include

based on our previous knowledge.

And it took us, on the hospital side, a long time to get used to

the Data Bank information and understand how to use it. So, that

is something that we haven’t talked about but it has taken us a

while, when we look at that data to really interpret, oh, this is an

OBGYN physician, I may expect a different profile on this specialist with this suit. So, as we move toward the consumer reporting, I would hope that we try to exercise some of that and take care

with that not to throw out a lot of information that then doesn’t

inform or educate the consumer any more than they are today.

Mr. REARDON. Thank you, Congressman.

I wouldn’t disagree with, I think, with anything that has been

said. I think the information should be placed in context. Now, how

we do that through a peer review process, I think, is the right way

to do it. I guess I am struck at the moment that we are struggling

to try and correct a system that is just not a good system and is

not working. And I will come back to my testimony and say I think

the States are way ahead of Rockville, Maryland, and HRSA, in the

Data Bank. They already, 30 States are putting the information

out, good information, a wide-range of information, education,

board certification, where they practice, also information on malpractice in some States, as well as disciplinary actions.

So, I think as we wrestle with this, I think what we need to look

at is how do we get the best, most accurate, meaningful, valid information to the patients? And at the moment, I would say that I

look at this as the States are doing this and they are far ahead of

us. And I would hope that as you look at this as a committee, and

as Congress looks at this that you would look to strengthen what

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is already going on in the States and that we work very well with

that.

I think that is the best way to get the information to the patient.

Mr. UPTON. Thank you, Mr. Bryant.

We are going to start a second round of questions and I am going

to apologize in a few minutes as I have a meeting that I need to

be at and I intend to return. I will return I just don’t know whether you will be here or not.

And Dr. Ganske is going to take the gavel after I finish my questions but before I yield to Mr. Stupak, who I know has another

round as well. But I want to say a couple of things. I have learned

a lot, not only in this hearing, but in preparing for it. Particularly,

I want to thank our staff, who for a number of weeks we have done

a lot of good things and though we have some conflicts of opinion

I know that we are all on the same page: We want the system to

work better and sadly, not only us but, others, have exposed what

I think are a number of major flaws in the system as it works or

maybe doesn’t work today.

None of us ever want to see the nightmare that our first two witnesses on panel two experienced in any State. And I guess as I

have sat down with my chief medical officers in my district and

looked at what they see, look at the review that they undertake,

though I have not sat down with my State licensing board—Ms.

Neuman, you are sort of in that catbird seat speaking for all the

States—but my hospitals, my providers look at it every 2 years,

they have to. And I have two large hospitals in the center part of

my district and they, in fact, have over 600 physicians and they review them by pediatrics, they look at different divisions.

Do the State licensing boards do any type of periodic review or

is it once you get your license you are there until it is taken away?

Ms. NEUMAN. Review of the Data Bank?

Mr. UPTON. Correct.

Ms. NEUMAN. Yes. The State boards look at the Data Bank when

they open a case, like in our case——

Mr. UPTON. But is there an automatic review as my hospitals do?

It is like you are up for pediatrics this week and next week it is

the OBGYNs? I mean is there——

Ms. NEUMAN. No.

Mr. UPTON. So, unless something is flagged or a case is presented it is just autopilot?

Ms. NEUMAN. We do it in the initial licensure process and then

when an investigation is opened. But it is not done routinely on renewal and that would be comparable to what the hospital does.

Now, as I said earlier, one of the reasons why I went to meet with

HRSA is that we need to encourage that these inquiries can be

done at no charge. Right now we——

Mr. UPTON. I understand.

Ms. NEUMAN. [continuing] pay $4 to do that and for a State of

like Nancy’s with 27,000 physicians times $4, you would have to

put a chunk of your budget, which in many of the States they are

struggling with under-funding to begin with, to, to do that. So, I

think that if the States are putting their staff time into reporting

to the Data Bank there should be some consideration of the——

96

Mr. UPTON. And I know that the reviews of my providers it is

usually about a $250-or-so charge that they pass along to the physician to undertake that every 2 years as well.

Mr. Osten, I am concerned about under-reporting and I want to

go more than just New York, whether it is the ‘‘New York Times’’

today or the case that we saw with Beth Israel, too, just grossly

inadequate versus the real details of it. I mean this is, again, as

I looked at the field that someone can type in, it is unlimited. It

is on the computer. You know, it is not limited to 20 characters.

You know, it can be pages long. And I just—has the State of New

York learned something from what happened in the widely publicized cases?

Mr. OSTEN. Yes.

Mr. UPTON. I mean including this one today? I mean you have

fined the hospital but, you know, one of the things that this particular—and I don’t know if you are aware of this particular case,

but——

Mr. OSTEN. I am quite aware of it.

Mr. UPTON. [continuing] apparently this doctor had been fired

from Sloan Kettering, and the State gave him a 1-year probation

but he quickly found work at Staten Island University Hospital. I

know that is a relative term; I don’t know if it is 1 month or 13

months, but it doesn’t sound good.

Mr. OSTEN. What had happened—and let me give you some background. We did the initial investigation at Sloan Kettering and it

was a combination of issues, both the physician as well as system

failures on the hospital part. We sanctioned the hospital, the physician was put on probation for a year, sanction for that. That was

on the department’s Website and it was widely publicized at the

time.

Staten Island Hospital fully was aware of the background, did

their appropriate credentials check, checked with us, checked with

Sloan Kettering, and made the decision to award him privileges.

Mr. UPTON. Was it post—was it within that year cycle that he

was suspended?

Mr. OSTEN. After the——

Mr. UPTON. Or was it after——

Mr. OSTEN. It was after the Sloan Kettering event, which happened in 1995. We took action at that point so he was during that

1 year suspended. Staten Island knew that and it was on our

Website for the public to see and still is on our Website. They chose

to grant him privileges despite that background.

Mr. UPTON. Yes. Thank you. I need to move to my 3 o’clock meeting. I could stay on this for a long time but I am going to yield to

Mr. Stupak.

Mr. STUPAK. Thank you, Mr. Chairman.

Mr. Osten, does the State of New York, does it maintain a State

Data Bank that the public can access?

Mr. OSTEN. Yes. Every physician action that we have taken during, for the past 10 years, is on the Department’s Website. And

people, as I have said, we are getting a hit on the Website——

Mr. STUPAK. Do you have a way to know if the public accesses

this Website?

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Mr. OSTEN. As I said, we get a hit, two hits every minute of

every day. So, the public is using the Website. And using it, we

think, frequently and appropriately.

Mr. STUPAK. So, would the prior—you know, we had those cases

earlier today from Beth Israel—would those incidents have been on

that Website about those physicians?

Mr. OSTEN. In the first Beth Israel case, the case involving Lisa

Smart, the one physician, her primary surgeon had never had any

disciplinary actions taken. His record as far as we were concerned

was clean. So, if they had checked——

Mr. STUPAK. Right. But there was another physician.

Mr. OSTEN. There was another physician who was on the

Website, Dr. Sklar, for a previous enforcement action that we had

taken against him. I think the problem in that case is that Ms.

Smart didn’t know that he was going to be assisting in the surgery

so they never, you know, used the Website to check on his background.

Mr. STUPAK. Right.

Mr. OSTEN. But the information was on the Website regarding

Dr. Sklar.

Mr. STUPAK. So, the primary physician——

Mr. OSTEN. Had a clean record at that point.

Mr. STUPAK. But did he perform the surgery? I mean he was assisted by another——

Mr. OSTEN. He performed the surgery, the bulk of the surgery.

Dr. Sklar assisted but it was Dr. Klinger who was her primary surgeon.

Mr. STUPAK. Hmm. All right. You know, Mr. Smart indicated it

took him over a year to find out that information. Wouldn’t that

be available?

Mr. OSTEN. I mean I just in terms of background, that was an

extremely complex case. The hospital did report it. We, as, you

know, we did an initial investigation looking at the records and the

complete story about what happened with Lisa Smart only came

about after the New York City Medical Examiner identified some

discrepancies in the medical record. That then caused us to do an

intensive investigation where we interviewed dozens of people, reinterviewed them several times until we could get to the bottom

line. When we found that bottom line we issued a very detailed report of our findings.

Mr. STUPAK. Could you and, maybe Dr. Newman, could you since

we have those two cases here and there has been a lot of interest

in it today, could you give us a full accounting of what broke down

and what lessons were learned from those two cases?

Mr. NEWMAN. Well, I think with regard——

Mr. STUPAK. I mean in writing. I don’t mean for you to do it

today?

Mr. NEWMAN. Oh, yes, sure.

Mr. STUPAK. If you would just provide to us in writing. Other

members have asked questions, we talked about it on the floor and

we can get it all to the other members then.

Mr. NEWMAN. Absolutely.

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Mr. STUPAK. Because I think we need to learn what broke down.

I know I have asked that question a number of times today; I am

still trying to figure out what went wrong.

Mr. OSTEN. I would be happy to do that.

Mr. NEWMAN. And I might just say that with regard to the

Zarkin case, my written testimony does address that but I will be

happy to go into more detail and I shall.

[The following was received for the record:]

CONTINUUM HEALTH PARTNERS, INC.

NEW YORK, NY 10019

March 14, 2000

The Honorable BART STUPAK

Congressional Subcommittee on Oversight and Investigations

U.S. House of Representatives

2348 Rayburn House Office Building

Washington, D.C. 20515

DEAR CONGRESSMAN STUPAK: I wish to thank you, Chairman Upton and the other

members of the Subcommittee on Oversight and Investigations, for the opportunity

to testify in support of public access to the National Practitioner Data Bank

(NPDB).

As I stated in my written testimony, an effective NPDB is important to hospitals

in appointing and re-appointing medical staff, and it would be extremely helpful to

healthcare organizations, as well as to patients. In addition, I also strongly support

pending New York State legislation that would provide all New Yorkers access to

information on licensed practitioners in the State, similar to the successful program

in effect in Massachusetts. Mr. Anderson Smart, who gave such compelling testimony at the hearing, is a leading advocate for this legislation; at the hearing, I expressed to him my support for his efforts.

In response to your request, I wish to share with you and the other members of

the Subcommittee some of the steps Beth Israel Medical Center has taken recently

to enhance further the safe and effective care of all its patients.

With regard to the tragic death of Ms. Smart, Beth Israel has accepted its responsibility for failing to ensure compliance with its longstanding policies. (Ms. Smart

died from excessive fluid intake, resulting in cardiac arrest, during a hysteroscopic

procedure with a piece of equipment that had not been fully approved.) The physicians involved in the case were dismissed from the medical staff and reported to

the New York State Department of Health and the NPDB. Beth Israel’s plan of correction, submitted to and approved by the New York State Department of Health,

included the following steps:

• New procedures were implemented to monitor more effectively intrauterine fluid

during hysteroscopic procedures.

• Documentation on the approval of new equipment, and staff training in the use

of new equipment, was strengthened. In addition, a new policy was implemented to advise patients when new equipment is intended for use for the first

time during a surgical procedure.

• More stringent documentation of patient approval on professional and non-professional visitors to the operating room suite was implemented.

In the other case, involving Dr. Liana Gedz, upon learning of Dr. Allan Zarkin’s

outrageous act (carving his initials into the patient’s abdomen), we promptly suspended his privileges. We reported the incident to the New York State Department

of Health (DOH)-Office of Professional Medical Conduct, and to the NPDB. We cooperated fully in the DOH’s investigation, as well as in an investigation by the Manhattan District Attorney’s Office, which is ongoing.

Several weeks ago, we submitted our plan of correction to the State Department

of Health. It includes the following policy and procedure changes and enhancements:

• Explicit language will be used in all communications to the Department of Health

and other governing agencies regarding reportable incidents, and more stringent follow-up procedures were implemented with regard to submitted reports/

letters (e.g., to ensure the reports have been received and to seek assurances

that they are being investigated).

• The process for reporting and investigating any complaint of inappropriate physician actions and behavior was strengthened.

99

• Proactive notification by the Medical Center to other facilities where physicians/

providers are known to practice, of any significant privilege adjustments/terminations, was enacted.

As I testified, there was nothing in Dr. Zarkin’s files at the Medical Center, at

the National Practitioner Data Bank or, as far as I know, in the files of the State

Health Department that gave the slightest hint that he would pose a risk to any

patient. This was an irrational, random, egregious and unpredictable act.

I hope this additional information is helpful. If there is any further information

that you require, please do not hesitate to contact me. In the meantime, I look forward to working with you and your colleagues to provide every citizen in this country with the opportunity to learn as much as possible about their healthcare providers.

Sincerely,

ROBERT G. NEWMAN, MD

Mr. STUPAK. Thanks.

I mentioned in my opening statement the HIPTB reporting that

we do and it hasn’t come up much. We talked about the Federal

data base but the HIPTB; is that something we could look at as

a model to set up a system for reporting that the public could have

access to? There are some safeguards. You have to have State and

Federal determinations and nothing is reported until there is a

final determination. Is that something we should look at, Dr.

Loniewski or Dr. Hochman or Dr. Reardon or any other doctors?

Mr. LONIEWSKI. Well, HIPTB, my understanding is really that

they are looking at other areas as well and that the access is a little different. The original rules that were written which have been

held up because of they became really inappropriate to try to work

with in any way, so, really we don’t know where they are going

with it. At this time for me to say that it is good to look at or something, I just think it is just too broad the way it was originally

written to be an effective type or bank.

Mr. STUPAK. Well, it has a data base of final adverse actions

taken against health care providers, suppliers, and practitioners.

Final adverse actions include: One, civil judgments against the

health care providers, supplier or practitioner in a State or Federal

court. Two, Federal or State criminal convictions against a health

care provider, supplier or practitioner. Three, actions by State or

Federal agencies responsible for the licensing and certification of

the health care providers, practitioners. Four, exclusion of health

care provider, supplier or practitioner from participation in Federal

health care programs, and last but not least, any other adjudication, actions or decisions that the Secretary establishes by regulation. I know the last one is sort of a catchall.

But it seems like in each one of these four areas there is a final

action, there is some final conclusion, not just an accusation or a

peer review based upon political or whatever other reasons. That

is what you are looking before the public would have access, isn’t

it? Some final action which would be termination?

Mr. LONIEWSKI. The final action but worthwhile final action.

They didn’t identify things like civil actions. One of the questions

they asked at the NPDB was, well, are you talking about if my dog

bit my neighbor am I going to be placed in that Data Bank because

there was a civil suit against me? And that is the broadness that

I felt had to be further refined.

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Mr. STUPAK. Yes. Each one needs to indicate as their health care

provider, supplier, practitioner related to the delivery of health

care.

Mr. LONIEWSKI. Okay. Well, if it is with health care then we can

go for it.

Mr. STUPAK. Anyone else care to comment on that?

Ms. Sullivan?

Ms. SULLIVAN. Thank you. That is what we do in Massachusetts

and we actually have under the criminal conviction component of

ours language that says felony and serious misdemeanors and we

also have a list of what we consider to be serious. So, that people

know what the apples and oranges issues are. So, I think it is a

good model to look at.

Mr. STUPAK. But you wouldn’t post it until after, like the final

appeal is done and things like that?

Ms. SULLIVAN. That is correct. It is only final actions that we

post.

Mr. STUPAK. Okay. Dr. Newman?

Mr. NEWMAN. Yes. I certainly am all for fairness in terms of

wanting to wait until the process is totally exhausted. But in contrast to some of the amazing, to me, amazing stories that Mr. Silver described from other States, New York State, to its great credit,

has a very, very elaborate but also very time-consuming due process afforded to anybody whose privileges in a hospital are curtailed

or terminated. That process, which involves not only an internal

procedure within the hospital, but then goes to the Public Health

Council of New York and then goes to the judiciary, if I am not

mistaken, that can take many, many months or even years. So, I

think when, if you are fortunate—well, for New Yorkers, who are

fortunate enough to have such a very, very fine system of due process, the consumer should not pay the price of having to wait two

or three or whatever, however many years before a Dr. Zarkin, let

us say, has exhausted the remedies.

Mr. STUPAK. How does Massachusetts get around that then so

they didn’t have to wait 2 or 3 years?

Ms. SULLIVAN. In terms of a hospital disciplinary action?

Mr. STUPAK. Sure.

Ms. SULLIVAN. We do wait for the final report from the hospital.

We, of course, encourage quick action. It has not been a big issue

with us and we certainly think that the hospitals have acted in

good faith at all times. We do have substantial due process rights

also. But I think the fairness issue for the doctor does rise within

the institution to resolve the issue quickly and fairly.

Mr. NEWMAN. Could I just add just so I didn’t mislead anybody.

Mr. STUPAK. Sure.

Mr. NEWMAN. Certainly despite that lag that can exist before

final adjudication, Beth Israel Medical Center, in these cases and

just as a matter of routine, notifies the State and notifies the Data

Bank when the decision is made to take action rather than waiting.

I didn’t want anybody to think that we waited 2 years before

we——

Mr. STUPAK. Well, thanks, Dr. Newman.

And thanks again for agreeing to get that stuff to me in writing

on the Smart case and the other Doctor Gedz case.

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Mr. GANSKE [presiding]. The Chair will recognize Mr. Strickland

from Ohio for 5 minutes.

Mr. STRICKLAND. Thank you, Mr. Chairman.

Mr. Chairman, I will not take my 5 minutes. I apologize for not

being here more today. I have been tied up with other matters. But

this is an incredibly important issue. I thank you all for your testimony and I promise you that I will consider it very, very carefully

and I yield back the balance of my time.

Mr. GANSKE. Well, then the Chair will recognize himself.

We are coming to the end unless Mr. Stupak wants some additional time.

The sense that I am getting from this panel is that the data that

is in the Data Bank that is given to, for instance, hospitals, boards

of medical registration, et cetera, is useful but it requires some interpretation. That the raw data is not that easy sometimes to understand. For instance, I think there has been a reference to, as I

made earlier, on the specialty specific profiles. Because you may

have physicians, for instance, doing high-risk procedures or there

may be a higher incidence of complications, higher incidence of

queries, et cetera, and, so, after a while when you are looking at

that data you begin to get a feel for what is out of bounds and what

is way beyond the norm. But a norm for an OBGYN may be significantly different than a norm for a dermatologist. Is the panel in

unanimous agreement on that? And let it be recorded as, yeses,

across-the-board.

Dr. Newman?

Mr. NEWMAN. Yes. I would just point out, first of all, I am not

only a fan of New York, I am also a fan of Massachusetts. And

Massachusetts has currently available to anybody who wants access through the Internet, a listing of every single licensed practitioner. It lists not only the number of malpractice settlements, but

it also categorizes the payments as being above-average, average or

below-average. It also gives—and, you know, I just found all this

out in the last few weeks in preparing for this testimony—but it

also gives to that specialty the proportion of all doctors who have

had one or more settlements. So, I think it doesn’t take a tremendous amount of background and knowledge to be able to derive

some general conclusions from those data. And, so, I think we have

a very excellent model to build upon and that is the Massachusetts

model.

And maybe there are others, I just happened to be very familiar

with that.

Mr. GANSKE. All right. And the general sense that I have had

from this panel on another area is that there are some inequities

and possibly inaccuracies in the data, in the raw data that don’t

place some of that data into context. And, Mr. Silver, you have

been quite eloquent on describing how, for instance, there is a need

for better due process in terms of the data as it is in the Data

Bank.

Is that a fair statement? Does the Board agree with that?

Ms. SULLIVAN. Again, my—and I don’t mean this in any critical

way from the previous testimony—but sort of anecdotally when I

keep hearing that the issue is that there is not enough reporting

and, thus, the—without full information what there is there maybe

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skewed, as I have said to one of your staff members, I am somehow

remembered of the old story of the man—the person who has killed

both his parents and then goes before the judge begging for leniency, because he is an orphan. I think that there is a partnership

between the medical boards and the hospitals and practitioners to

fully report. Because not only is it the right thing to do for the

practice of medicine, not only is it the right thing to do for the law,

it gives the fuller, more robust data base that gives the context

even more meaning. So, there is a good reason for it.

Mr. GANSKE. Okay. So, we are in agreement that the data in

there is useful; we are in agreement that there needs to be corrections in how that data is valid and how it is reported.

I have another question. It is this: A week or so ago this committee held hearings on medical errors. And we had a similar panel

before us and there was unanimous agreement on that panel, all

across-the-board, from people representing all sorts of different organizations, that if you are going to get reporting of data that there

needs to be protections in terms of confidentiality or you could see

the reverse happen—you would have less reporting.

And I am concerned that if we were to open up the Data Bank

as it is now, when there are in my opinion flaws in the way it is

reported, would you then exacerbate rather than improve the problem of getting the information that you need to the medical licensing boards and others that need it?

Dr. Reardon, do you have any comment on that?

Mr. REARDON. Thank you, Congressman Ganske.

I do, yes. I have been sitting there thinking as you have been

outlining some of the, I think, testimony and I put down a comment here and maybe it is not correct, but I said, I almost think

this system is broken. And we have a system that was set up initially for the profession to use as they did the recredentialing and

they did their licensing but not a system that was initially set up

to provide information to the public. I think what we are struggling

with today is how are we going to correct the system, repair the

system so that it becomes information that will be usable for public

consumption or it would be good, reliable, valid data so the public

could have this to make good decisions?

And I will come back. In some ways I think the Data Bank is

redundant. And I am going to come back to what I have said earlier, I think the States are doing a great job. They are innovative.

We have the Federation of State Medical Boards, that has a committee who will report soon with some recommendations for all

States. You have 30 States already doing this. They have Websites

up, I think in 23 States and 7-to-10 more coming up.

I would hope, as you look at this, again, you would look at how

do you support what is going on out there in the private sector

which in my view are the States, and how can we build on that?

Massachusetts has been complemented for what they have done,

Tennessee has a good program, Oregon is getting a program, Texas

has something that is working well and helping the public. But I

think as you wrestle with this, Congressman, as you look at this

and say, is the Data Bank fixable? Is it repairable? Can we make

it over so it will provide the valid that that people need or is there

103

another mechanism which in my view would be working with the

State Boards?

Mr. GANSKE. All right, well, let’s talk about another mechanism.

We’ve got Ms. Sullivan, who is Executive Director of the Board of

Medical Registration in Massachusetts; and Ms. Neuman, who is a

Director of the Board of Medical Practice in Vermont. Tell me

about what the executive directors of the Boards of Medical Registration are doing across the country in terms of their Executive

Directors Association, to make sure that when a deficient practitioner moves to another State that the State gets the information

to make sure that we just don’t have people hop-skipping around?

Ms. NEUMAN. Well, one of the things that our organization has

is we have established a committee called the Golden Rule Committee, which is to look at to make sure as the Golden Rule is, do

unto others as you would like them unto you, and to make sure

that States are communicating with each other, improving our

State statutes so that we can exchange investigative information.

A lot of the times that, for example, in a State like ours, there will

be a situation where the doctor will be investigating the doctor and

the Stateswill take off to another State.

And right now, in most States, some States can share investigative information and some can’t, but we need to be able to start

that process early in the process when there is a problem physician.

We have had physicians in my State, where on a license denial

situation, they have fought us all the way up to the Supreme Court

because they wanted to withdraw their license so it wouldn’t be reported anywhere and we fought that. In a lot of States the energy

it takes and the staff resources it takes when a doctor tells you,

well, I’m leaving, don’t worry, I won’t practice here, is—there are

a lot of—it takes a lot of effort.

And in our State, we fought that up to the Supreme Court and

we won the case, but it is very—I think some of the stories you

heard today and the reason why I feel so strongly about the Data

Bank being opened is that having that information in one central

source—and I agree with Dr. Reardon that we need to have the

States work also together—but having all of that information and

having the States work with that and having that available, once

that doctor starts moving, the consumer, as it was portrayed in

these cases, would have that information immediately. We could

put it in context and they would know that. Because as Nancy

pointed out, the due process that is afforded doctors in this process

absolutely causes time delays in the Board’s taking actions.

I encourage Boards to look at using the summary suspension

process. That is an immediate suspension. Nancy has started doing

it more. In the early 1980’s I got criticized by the Medical Society

for taking too many summary suspensions and what I did is I provided them a list and summary of those cases. I said, you think

we’re taking too many? Why don’t I summarize those cases for you.

And I did and I didn’t hear anything back after I—well, oftentimes

what I will tell people when they criticize us is that take a look

at the actual action, take a look at the facts, take a look at the conclusions of law that the Board came up with in order to issue that

disciplinary action.

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Mr. GANSKE. But let me just interrupt for a minute. There have

been some—this is not exactly along the lines of what this hearing

is about—but there have been some who have suggested that we

move to a national registration, a national licensing board. I personally don’t feel that that is the best way to move.

Would you give us your opinion on that?

Ms. NEUMAN. I do not believe that there should be national licensure.

Mr. GANSKE. And why?

Ms. NEUMAN. I believe that the States, that is in the States’ purview to license their doctors to issue set standards for who they

should license and by having a national standard there would—I

really believe that it would not protect the public.

How would you handle disciplinary actions on a national level?

We, even though the States get criticized for how quickly they act

on a doctor’s license, there is no way that I would have confidence

that a Federal licensure system would be able to act any quicker

than the State Boards are considering the due process that is afforded the doctor.

Mr. GANSKE. I can imagine if that were the situation, Mr. Silver,

that you would have quite a problem in determining how to resolve

disputes where you have variations in care regionally.

Mr. SILVER. Well, I’m not necessarily sure that a national licensing system shouldn’t be considered. Clearly, standards of practice

ought to be in the local community and not necessarily national.

I just comment that you don’t want to throw out—we have been

using a lot of sort of afternoon expressions—the baby with the

bathwater. Summary suspension is just brutal. And a physician

can have a patient in the hospital and needing care and summary

suspension comes down, he can’t even discharge the patient, he

can’t do anything. And it is just a brutal thing. And to suggest that

in our system of Government that we would prefer that than to

yield to due process, I think does not give our tested institutions

a great deal of respect.

There are ways in which you can effectuate a prompt disposition

but to use that as a substitute for due process I think is incorrect.

But leaving that aside, you will have, you do have even currently

issues of what is the proper scope of review and what is the proper

standard to meet? And I think frankly what I will consider, if I

may be so bold, is your seminar approach that we have just used

for the last several minutes that we really do come back to Dr.

Reardon’s suggestion and that is that the National Data Bank is

flawed and I think you ought to do something about correcting it

for the purposes which it was to achieve.

Mr. GANSKE. Hmm-hmm.

Mr. SILVER. But I really think that what we have evolved here

is that it is not transmutable to accomplish the other goal of public

information and consequently don’t release information in a flawed

Data Bank. Create, if you wish, a national system, modeled on the

Massachusetts or other basis, and that rather than tinker with the

system, see if there is a real need, in light of the States’ individual

choices, but if you have a system that is clunking because of deficiencies that it has don’t ask it to do more than it can’t do already.

Mr. GANSKE. I appreciate your comment.

105

And I recognize Mr. Stupak.

Mr. STUPAK. If I may just for all our panelists, those who testified before and those who are with us now, the reason why it may

appear like we are tinkering, we are the Oversight Investigation

Committee. We don’t have legislative authority. When the Chairman said that he wanted this investigated for whatever reason,

whether it was because of patient bill of rights or whatever reason,

this is the only vehicle that we had.

I think most of us up here if we were going to design a system

or the public right to know—and we believe they have a right to

know of the quality of the health care professionals they are dealing with—it would be different than this national data base. But

that is the only thing that we have before us because we are Oversight and Investigation so we are oversighting that.

That is the reason why and the Chairman said we will do this

and that’s the reason why we are doing this hearing all day. But

we would do a much different, I think, system, I think that would

be fair to say, Greg.

Mr. GANSKE. And reclaiming my time, I think it would be an appropriate topic of a discussion for the Health and Environment

Subcommittee, to which I am also a member, to look at a way to

improve consumer education and to seriously look at some of the

methods that the various States have already started in doing.

And, so, that will conclude our hearing today. I thank you all

very much for coming.

[Whereupon, at 3:27 p.m., the subcommittee was adjourned.]

(107)

ASSESSING THE OPERATION OF THE

NATIONAL PRACTITIONER DATA BANK

THURSDAY, MARCH 16, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON COMMERCE,

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,

Washington, DC.

The subommittee met, pursuant to notice, at 10:08 a.m., in room

2322, Rayburn House Office Building, Hon. Fred Upton, (chairman)

presiding.

Members present: Representatives Upton, Bilbray, Ganske, Bryant, Bliley (ex officio), Stupak, and Green.

Staff present: Charles Symington, majority counsel; Amy

Davidge, legislative clerk; and Chris Knauer, minority investigator.

Mr. UPTON. Good morning everyone. I know as usual there are

a number of subcommittees meeting this morning. The House just

went into session. I don’t think we expect a vote for a little while.

I know that Chairman Bliley is expected to be here, my colleagues

Mr. Ganske, Mr. Whitfield, Mr. Bryant are on the way, and I know

that Mr. Stupak from the great State of Michigan is also on his

way, but I thought that we would start in any regard and would

make, if no one would object, just a unanimous consent request

that all members of the subcommittee will be able to put into the

record their full statement, if in fact they don’t get here by the time

that I am finished with mine.

So with that, welcome to today’s Oversight and Investigations

Subcommittee hearing on assessing the operation of the National

Practitioner Data Bank.

We are going to hear from Mr. Tom Croft, Director of the Division of Quality Assurance of the Health Resources and Services Administration. He oversees the administration of the National Practitioner Data Bank, and I am looking forward to discussing ways

in which we can make the Data Bank a more effective tool in the

improvement of health care quality across the country.

The National Practitioner Data Bank was created by Congress in

1986 in response to several factors—the increasing occurrence of

medical malpractice litigation and the need to improve the quality

of medical care by increasing the willingness of physicians to participate in the diligent peer review programs. The Data Bank law

does this by shielding physicians from liability from antitrust and

private damage suits when they are engaged in peer review. By

creating a nationwide flagging system, the Bank was designed to

address the problem of physicians who lose their licenses or face

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other discipline in one State simply moving to another State to

practice.

This hearing is particularly timely and important in light of the

recent release of the Institute of Medicine’s report, ‘‘To Err is

Human.’’ This report came to the startling conclusion that anywhere from 44,000 to 98,000 people die every year as a result of

medical errors caused largely by failures or glitches in systems of

care. The report notes that more people die from medical errors in

a given year than from motor vehicle accidents, AIDS, or breast

cancer. Clearly we need to strengthen all of the resources at our

disposal to improve health care quality, and the Data Bank is one

of the most important of these resources.

Several months ago in preparation for our hearings on the National Practitioner Data Bank I asked several hospitals in my district to arrange a demonstration of just how they use the Data

Bank in their credentialing process, and after the demonstration,

which was most informative, I had the opportunity to talk in some

depth with the credentialing staff and the chief medical officers of

the hospitals about their front-line experiences with this Bank.

It was certainly an interesting day for me and my staff and I

look forward to discussing the issues that they raised with Mr.

Croft.

I will get into specific issues in our question period, but let me

just raise one general concern that the credentialing staff had, the

fact that the Data Bank was not entirely online yet and the time

that it took to receive the response to a query. My staff followed

up yesterday to see how things were going now, and we received

an excellent report.

In the words of the lead credentialing staffer, Bronson Hospital

in Kalamazoo, Michigan, ‘‘The Bank has come a long way. It is now

online and the response times are between 4 and 6 hours.’’ She

noted that it is quite user friendly and that the Bank is working

on a system to allow hospitals to send in batch requests rather

than having to query for each doctor individually, and I would note

that they usually have about 600 that they do over—each of my

two hospitals there—over a 2-year span.

In the words of the Chief Medical Officer at Borgess Hospital in

Kalamazoo, the credentialing process has been greatly improved by

the creation of the Data Bank and ‘‘Borgess has profited’’—in his

words.

So I want to commend you, Mr. Croft, for the progress that you

have made in honing this important tool for improving the quality

of care and I also want to thank you for the courtesy that you extended to Jane Williams on my staff when she was arranging for

the demonstration.

With that, I will yield to my colleague from Iowa, Dr. Ganske.

Mr. GANSKE. I thank you, Mr. Chairman. I appreciate your being

here, Mr. Croft.

I have looked over your testimony and I know that you are going

to be talking about this, but I think there is one paragraph that

is particularly significant and that is that you say, ‘‘Nothing in the

Data Bank’s information is intended to produce an independent determination about the competency of an individual practitioner. It

is rather intended to supplement a comprehensive and careful proVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00112 Fmt 6601 Sfmt 6601 E:\HEARINGS\62975 pfrm07 PsN: 62975
109

fessional peer review. It is noteworthy,’’ you continue to say, ‘‘that

the vast majority of practitioners who have reports listed in the

Data Bank have only one, and that is almost always a malpractice

payment report. It is impossible and unfair to conclude from a single malpractice payment report alone or even in some cases from

numerous malpractice payment reports anything substantive about

the competence of that practitioner. To do so would be a disservice

to all parties involved.’’

Mr. Croft, I will be asking you to expand upon this statement because I think it is crucial when we look at the attempts by some

to open up the Practitioner Bank for uses for which it was just not

intended. I appreciate your being here today and I look forward to

your further testimony.

I yield back, Mr. Chairman.

Mr. UPTON. Thank you. Mr. Stupak.

Mr. STUPAK. Mr. Chairman, I will be brief. You know this is our

second hearing we have had on this and the question has been

whether we should or should not open up the National Data Bank

for public review of information that really has not been designed

for public scrutiny but rather to help out health professionals in

the way they license and review credentials of physicians and others.

Last time we brought up issues of under-reporting, the technicalities of the Data Bank, what may or may not be appropriate, and

of course there is always the concern that maybe this whole issue

has come up because many of the health care professionals supported a real Patient Bill of Rights that passed earlier.

Whatever the reasons are, I think we have to proceed cautiously.

I think you have to have a National Practitioner Data Bank that

hospitals and other health care professionals can access in a technology and a terminology that they use for their licensing requirements. If you want to put forth some kind of a national bank to

profile all physicians and health care facilities and rate them, that

should be completely different from this National Data Bank, the

Practitioner Data Bank, so I would look forward to this hearing

here today, and see what HHS and others have to say today, but

I think if we are really serious about having more public awareness

of health care professionals, then I think it is incumbent upon us,

the U.S. Congress, to put forth a system that is designed for public

input, easy public access, and not to rely upon something called the

National Practitioner Data Bank, which was not intended for the

purpose in which it is being looked at as maybe to provide information to the public because it was set up for a different purpose.

If we are going to set one up for public knowledge, then let’s set

one up for public knowledge and not use this National Data Bank.

Mr. UPTON. Thank you. Mr. Bilbray.

Mr. BILBRAY. I have no comments.

[Additional statements submitted for the record follow:]

PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE

Chairman Upton, thank you for holding this hearing which continues the Committee’s examination of the National Practitioner Data Bank. I believe consumers need

greater access to quality information about their doctors. So this hearing is important. I would also like to welcome Tom Croft, the Director of the Division of Quality

Assurance at the Health Resources and Services Administration, and express my reVerDate 11-MAY-2000 14:24 Jul 12, 2000 Jkt 064042 PO 00000 Frm 00113 Fmt 6601 Sfmt 6621 E:\HEARINGS\62975 pfrm07 PsN: 62975
110

gret that Administrator Fox was unavailable to attend today’s hearing on this very

important topic.

The purpose of today’s hearing is to examine the operation of the NPDB and determine whether this closed system, which denies consumers access to important information about doctors, is doing an adequate job of protecting these same consumers. Congress, when it established the NPDB, intended to protect patients from

incompetent doctors. Based on the testimony that we heard at the hearing before

this Subcommittee two weeks ago from Dr. Liana Gedz and Anderson Smart, I have

serious questions about whether this goal is being met.

I am also troubled by the information the Committee has reviewed relating to hospitals. Approximately sixty two percent of hospitals registered with the NPDB have

never reported a disciplinary action against a doctor. In fact, the Health Resources

and Services Administration has estimated that approximately 4,000 hospitals have

never made a single such report. Also disturbing is the fact that over the decade

that HHS has operated the Data Bank, only two hospitals have ever even been

warned about their failures to report clinical privilege actions to the NPDB. I have

serious concerns with hospitals reporting of valuable information to the NPDB and

HHS enforcement of those requirements.

Following our first hearing, there have been several accounts in the press, detailing other serious allegations involving problem doctors. I have here a stack of articles and editorials from around the country, all expressing their support for the idea

of increasing the public’s access to comparative information about their doctors. According to a recent poll, ninety six percent of the Americans polled want more comparative information about their doctors and hospitals, and most believe that currently they do not have access to such information. I think this should change.

Despite public support for empowering patients, the American Medical Association and others continue to fight to keep this information from the public. In fact,

the AMA’s official position on this issue continues to be that the NPDB should be

abolished and that no one should have access to the important information in the

NPDB.

All Americans deserve to have basic, accurate information about their doctor and

hospital. I believe that now is the time for the Washington-based special interest

groups to stop treating this information as ‘‘restricted.’’ As patients learn more

about information that the Federal government already collects in the NPDB, their

demand for such comparative information about their health care providers will only

increase.

Today’s hearing will evaluate how the Data Bank is currently administered, and

will identify improvements to the system. Questions relating to the validity and accuracy of the data in the NPDB were raised at our last hearing, which have been

used to justify continuing to prevent the public from obtaining this information. Today’s hearing will hopefully explain what HHS is doing to insure that the data in

the NPDB is accurate and reliable. I firmly believe that problems with the Data

Bank, if they exist at all, can be corrected, rather than keeping this information

locked away from the public.

I would like to again thank Chairman Upton for holding today’s important hearing and I look forward to Mr. Croft’s testimony.

PREPARED STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF TEXAS

Thank you, Mr. Chairman. I would like to welcome our witness to this hearing

today. I appreciate the fact that he has come to help clarify some of the many questions that we have about the National Practitioner Data Bank.

We would all like patients to have as much information about doctors as possible,

so that they might be able to make informed and intelligent decisions about their

health care.

However, we must ensure that such information is provided in a fair and accurate

manner. Simply dumping raw, sometimes inaccurate data on patients will not improve their quality of care. We must focus on how to improve reporting and accuracy

to the existing data bank before we go releasing information that could mislead the

public or give false impressions about the competency or incompetency of doctors.

Again, thank you for holding this hearing and I look forward to the testimony of

the witness.

Mr. UPTON. Okay. Mr. Croft, as you may know, we have a longstanding tradition of taking testimony under oath. Do you have any

problem with that?

111

Mr. CROFT. No, sir.

Mr. UPTON. And committee rules also allow you to have counsel

if you so desire. Do you have a desire to have counsel?

Mr. CROFT. Not at the moment, sir.

Mr. UPTON. Okay. If you do, please come to me. If you would

stand and raise your right hand.

[Witness sworn.]

Mr. UPTON. You are now under oath. We appreciate your sending

up your statement in advance so that we could review that. It is

part of the record in its entirety and if you could limit your remarks to about 5 minutes, that would be terrific, and the time is

now yours. Welcome.

TESTIMONY OF TOM CROFT, DIRECTOR, DIVISION OF QUALITY ASSURANCE, HEALTH RESOURCES AND SERVICES ADMINISTRATION, DEPARTMENT OF HEALTH AND HUMAN

SERVICES

Mr. CROFT. Thank you, Mr. Chairman. I want to begin by thanking you for your kind remarks. I am glad to hear that things are

going well and it validates what my staff and the staff of our contractors have been telling us as well. I also want to thank you for

the opportunity to come here today and talk to you about these important issues.

The National Practitioner Data Bank as you mentioned was created in response to the requirements of the Health Care Quality

Improvement Act of 1986 and began operation in September 1990

under the most difficult of circumstances. Funding and staffing

issues, opposition from many practitioner organizations and frankly

an operating system in need of updating were major obstacles to

its success. We believe we have overcome these problems now, at

least most of them, and primarily by moving away from a paperdriven system which often could not respond in 30 days to a request for information and now a typical response is 2 to 3 hours.

Today, because of our commitment to customer service and continuous quality improvement, the National Practitioner Data Bank

plays a vital role in the important process of practitioner

credentialing. It provides verification of sensitive adverse information about practitioners in an efficient and reliable manner, while,

at the same time, maintaining the security and confidentiality required by law.

At the beginning of the year the National Practitioner Data Bank

held nearly 228,000 disclosable records concerning more than

146,000 practitioners of which more than 100,000 are physicians.

In 1999 the Data Bank responded to nearly 3.5 million requests for

searches of the data base, more than four times the number in

1991, the first full year of operation. Those requests resulted in actual disclosures, or ‘‘hits,‘‘ at the rate of about 3.5 per minute during a normal business day. The Data Bank’s ability to respond

quickly and accurately, and for a relatively modest fee, and I might

add here, Mr. Chairman, contrary to what you heard at the other

hearing, this is not a taxpayer funded system. This is entirely

funded by fees including my salaries and those of my staff.

112

In any event, it has not only fueled the Data Bank’s success but

has made it a model for other government data collection and disclosure efforts.

It is fair to say that the significant growth and success of the

Data Bank can be attributed in large part to our efforts to improve

the systems which support the Data Bank. However, there is room

for improvement in other areas as well. We are refocusing our efforts on improving the practical usefulness of the information in

the Data Bank, particularly our efforts to collect information on all

actions and malpractice payments which should be reported.

For example, certain industry sources told us in 1990 that we

should expect hospitals to report more than 1,000 disciplinary actions every month, yet fewer than 1,000 are reported in a year.

After almost 10 years, more than half of all hospitals have never

reported a disciplinary action to the Data Bank.

In a 1995 report on this subject the Inspector General of the Department of Health and Human Services cited several reasons

which might explain this underreporting, but because of the confidentiality accorded peer review records in hospitals, none could be

substantiated conclusively. As a result of that OIG report, a forum

of industry leaders was held in Chicago in 1996, at which there

was general agreement that underreporting is an unfortunate reality. However, the continuing absence of wholly reliable data

makes it more difficult to assess the extent of the problem so that

useful solutions can be formulated.

Accordingly, the Health Resources and Services Administration

(HRSA) will soon contract with an accounting firm to help us devise, and execute, a plan for auditing hospital records so that required data can be efficiently collected and analyzed.

The Department is also considering a recommendation by the Inspector General to seek a legislative change which would provide

for monetary penalties in instances where hospitals had demonstrably failed to report reportable actions.

Another important issue that has been raised by Congressman

Bliley concerns disclosing Data Bank information to the public. As

you know, the Secretary, in her response to Mr. Bliley on this subject said, and I quote, ‘‘The issue of disclosing to the public information contained in the NPDB is complex. On one hand, I agree

with your assertion that consumers need more information in order

to make educated decisions regarding the medical professionals

whose treatment they may wish to seek. On the other

hand . . .there are privacy concerns regarding broad public disclosure of potentially incomplete negative information.’’

In fact, Mr. Chairman, the statute and the regulations under

which NPDB operates are very clear. In the nearly 10 years of our

management diligence has been exercised to ensure the confidentiality mandated by the law. You have previously heard testimony

on various sides of this multi-faceted issue from earlier witnesses.

HRSA would only caution that any changes in the law be carefully

considered and further debated, with due attention to what may be

significant privacy implications, before being enacted.

Without a doubt, there are legitimate arguments on both sides

of opening up NPDB which ought to be considered. However, it is

113

my opinion as the Data Bank manager that the key is not in the

data itself, but in how it is used.

Currently, for example, when a practitioner applies for employment or for admitting privileges, the hospital asks the practitioner

for a complete practice history including any malpractice payments

or adverse actions. A query of the Data Bank then verifies the information about malpractice payments and adverse actions for the

hospital, or it discloses information to the hospital which the practitioner may have failed to include in the application.

In either case it ensures that the practitioner cannot move from

place to place in the hope of escaping a checkered past. That is precisely the purpose of the Act.

Nothing in the Data Bank’s information, on the other hand, is intended to produce an independent determination about the competency of an individual practitioner.

Since Dr. Ganske has already read this for me, I think I will skip

that part of my statement down the point—and I think this is important for me to say—that at the same time, it is easy to understand the public’s frustration with the lack of entirely accurate and

unbiased information, particularly when some licensing authorities

are slow to act in the face of practitioners’ histories of poor and occasional shoddy medical practices. I will be glad to expand on that

as we get into the questions and answers.

In conclusion, Mr. Chairman, I believe that by almost any account the National Practitioner Data Bank has been a success.

However, there is room for improvement, to which we remain committed. To a great degree, the Data Bank’s successful beginning is

due to the Congress. We welcome your suggestions for better service and will work closely with you on these.

Mr. Chairman, this concludes my remarks. I will be glad to address your questions.

[The prepared statement of Tom Croft follows:]

PREPARED STATEMENT OF THOMAS CROFT, DIRECTOR, DIVISION OF QUALITY ASSURANCE, BUREAU OF HEALTH PROFESSIONS, HEALTH RESOURCES AND SERVICES ADMINISTRATION

Mr. Chairman, I am Thomas Croft, Director of the Division of Quality Assurance

in the Bureau of Health Professions, Health Resources and Services Administration.

The Division oversees the operation of the National Practitioner Data Bank. I appreciate the opportunity to speak with you today about the Data Bank and the important issues you have raised.

The National Practitioner Data Bank was created in response to the requirements

of the Health Care Quality Improvement Act of 1986 and began operation in September 1990 under the most difficult of circumstances. Funding and staffing issues,

opposition from many practitioner organizations and an operating system in need

of updating were major obstacles to its success. We believe we have overcome these

problems, moving from a paper-driven system which often could not respond in 30

days, to a fully electronic system which typically responds in 2 hours.

Today, because of our commitment to customer service and continuous quality improvement, the National Practitioner Data Bank plays a vital role in the important

process of practitioner credentialing. It provides verification of sensitive adverse information about practitioners in an efficient and reliable manner, while, at the same

time, maintaining the security and confidentiality required by law.

At the beginning of the year the National Practitioner Data Bank held nearly

228,000 disclosable records concerning more than 146,000 practitioners of which

more than 100,000 are physicians. In 1999 the Data Bank responded to nearly 3.5

million requests for searches of the data base, more than four times the number in

1991. Those requests resulted in actual disclosures, or ‘‘hits,’’ at the rate of about

3.5 per minute during a normal business day. The Data Bank’s ability to respond

114

quickly and accurately, and for a relatively modest fee, has not only fueled its success but has made it a model for other government data collection and disclosure

efforts.

It is fair to say that the significant growth and success of the Data Bank can be

attributed in large part to our efforts to improve the systems which support the

Data Bank. However, there is room for improvement in other areas as well. We are

refocusing our efforts on improving the practical usefulness of the information in the

Data Bank, particularly our efforts to collect information on all actions and malpractice payments which should be reported. For example, certain industry sources

told us in 1990 that we should expect hospitals to report more than 1,000 disciplinary actions every month, yet fewer than 1,000 are reported in a year. After almost

ten years, more than half of all hospitals have never reported a disciplinary action.

In a 1995 report on this subject the Inspector General of the Department of

Health and Human Services cited several reasons which might explain this underreporting, but because of the confidentiality accorded peer review records in hospitals, none could be substantiated conclusively. As a result of that OIG report, a

forum of industry leaders was held in Chicago in 1996, at which there was general

agreement that underreporting is an unfortunate reality. However, the continuing

absence of wholly reliable data makes it more difficult to assess the extent of the

problem so that useful solutions can be formulated.

Accordingly, the Health Resources and Services Administration (HRSA) will soon

contract with an accounting firm to help us devise, and execute, a plan for auditing

hospital records so that required data can be efficiently collected and analyzed. The

Department is also considering a recommendation by the Inspector General to seek

a legislative change which would provide for monetary penalties in instances where

hospitals had demonstrably failed to report reportable actions.

Another important issue raised by Congressman Bliley concerns disclosing Data

Bank information to the public. As you know, the Secretary, in her response to Mr.

Bliley on this subject said: ‘‘The issue of disclosing to the public information contained in the NPDB is complex. On one hand, I agree with your assertion that consumers need more information in order to make educated decisions regarding the

medical professionals whose treatment they may wish to seek. On the other

hand,...there are privacy concerns regarding broad public disclosure of potentially

incomplete negative information.’’

In fact, Mr. Chairman, the statute and the regulations under which NPDB operates are very clear. In the nearly ten years of HRSA management diligence has been

exercised to ensure the confidentiality mandated by the the law . You have previously heard testimony on various sides of this multi-faceted issue from earlier witnesses. HRSA would only caution that any changes in the law be carefully considered and further debated, with due attention to what may be significant privacy implications, before being enacted. Without a doubt, there are legitimate arguments

on both sides of opening up NPDB which ought to be considered. However, it is the

data bank managers’ opinion that the key is not in the data itself, but in how it

is used. Currently, for example, when a practitioner applies for employment or for

admitting privileges, the hospital asks the practitioner for a complete practice history including any malpractice payments or adverse actions. A query of the Data

Bank then verifies the information about malpractice payments and adverse actions

for the hospital, or it discloses information to the hospital which the practitioner

may have failed to include in the application.

In either case it ensures that the practitioner can not move from place to place

in the hope of escaping a checkered past. That is precisely the purpose of the Act.

Nothing in the Data Bank’s information, on the other hand, is intended to produce

an independent determination about the competency of an individual practitioner.

It rather is intended to supplement a comprehensive and careful professional peer

review. It is noteworthy that the vast majority of practitioners who have reports

listed in the Data Bank have only one and that is almost always a malpractice payment report. It is impossible and unfair to conclude from a single malpractice payment report alone, or even in some cases from numerous malpractice payment reports, anything substantive about the competence of a practitioner. To do so would

be a disservice to all parties involved. At the same time, it is easy to understand

the public’s frustration with the lack of entirely accurate and unbiased information,

particularly when some licensing authorities are slow to act in the face of practitioners’ histories of poor and occasionally shoddy medical practices.

In conclusion, Mr. Chairman, I believe that by almost any account the National

Practitioner Data Bank has been a success. However, there is room for improvement, to which we remain committed. To a great degree, the Data Bank’s successful

beginning is due to the Congress. We welcome your suggestions for better service

115

and will work closely with you on these. Mr. Chairman, this concludes my remarks.

I am happy to address your questions.

Mr. UPTON. Well, thank you very much.

The regular order is that we now proceed to the questions and

we will limit members’ questions and answers to 5 minutes and we

may go a round or two to get those questions in.

We will start off with the chairman of the full committee, Mr.

Bliley.

Chairman BLILEY. Thank you, Mr. Chairman.

Mr. Croft, in 1993 in the Clinton health care bill, the administration proposed opening the National Practitioner Data Bank to the

public. Why has the administration changed its view and it has

now taken a neutral position on the same issue?

Mr. CROFT. Mr. Chairman, that proposal as I recall was a part

of a much larger proposal to make some significant changes in the

way we deal with malpractice and malpractice complaints and I am

certainly not an expert on that, but I——

Chairman BLILEY. Well, I understand that, but what has

changed since 1993 to cause the administration to change its position?

Mr. CROFT. Well, the administration as far as I know is no longer

proposing that comprehensive approach.

Chairman BLILEY. I understand that, but this was a small part

of that comprehensive thing and so, you know, I was just curious

as to why they would change.

Are you aware of any inaccurate or any invalid data in the

NPDB?

Mr. CROFT. I am aware that occasionally there will be some errors in the presentation of the data by the reporter. When those

come to our attention we make every effort to get those corrected.

Chairman BLILEY. It is my understanding, Mr. Croft, that approximately 4,000 hospitals in the United States have not filed a

single clinical privileges report to the Data Bank since its inception

a decade ago. What are you doing to address this issue?

Mr. CROFT. I mentioned a couple of things in my statement, Mr.

Chairman, and I think the most important part of that is that we

are preparing to make an effort to look at those hospital records

that will be made and can be made available to us to start to document where we see the problems.

Chairman BLILEY. My committee staff has discovered that only

two, two hospitals have ever been warned by HHS for failing to

comply with the NPDB reporting requirements.

Shouldn’t—I mean this is pretty shocking—I mean shouldn’t

HHS be doing more to investigate and discipline hospitals that fail

to report?

Mr. CROFT. Our policy has been to respond, Mr. Chairman, to

any allegations or any charges that are brought to our attention,

but as I said in my statement we are now at a point where we

think we can be more proactive in trying to discover——

Chairman BLILEY. I hope so. Mr. Croft, in spite of your statements to the contrary, doctors are escaping their checkered past by

moving from place to place, in this hearing before the subcommittee 2 weeks ago we heard testimony of this. Why is it that

the NPDB is failing to prevent this?

116

Mr. CROFT. The National Practitioner Data Bank, Mr. Chairman,

collects information from various sources and we depend on those

sources of course to provide us with the information on the actions

they take. If there are no actions or if malpractice claims don’t end

in payments being made, then under the law those actions don’t

get reported.

Chairman BLILEY. Well, you know, we have found that doctors

with more than 20 reports to the NPDB continue to practice in

communities like Atlanta, Houston, Phoenix, and New York City.

How does this come about? I mean——

Mr. CROFT. Well, as you know, Mr. Chairman, our job really here

is to carry out the law. It is to collect information and provide it

to the licensing boards and to the hospital who conduct peer review. It is not our role nor do we have a mandate really to begin

making findings or decisions about the competency of practitioners

in taking action. We simply don’t have that role.

Chairman BLILEY. Well, thank you, Mr. Chairman, and Mr.

Croft, would you be willing to respond in writing to additional

questions, should I have any?

Mr. CROFT. Yes, sir.

Chairman BLILEY. Thank you very much. Thank you, Mr. Chairman.

Mr. UPTON. Thank you, Mr. Chairman. I would just have another

unanimous consent request that all members of the subcommittee

may have an opportunity to respond or further query Mr. Croft

with questions in writing when the hearing is completed.

Mr. Stupak.

Mr. STUPAK. Thank you. Mr. Croft, based upon the last questions

you had, why would you want a data base open to the public if 60

percent of the hospitals are not reporting or are underreporting?

That would not be a very reliable factor then, would it?

Mr. CROFT. Mr. Stupak, as I mentioned before, we have got a law

here that we are trying to administer, and the law really doesn’t

allow for that kind of release of information. In fact, the information is crafted specifically to be a part of a comprehensive peer

review——

Mr. STUPAK. Sure, but the reason why we are here is some people propose that we should open a national data base, but in theory

if 60 percent of the hospitals are not reporting it would not be a

very accurate indication then of the skills of the physician.

Mr. CROFT. Well, it may simply be a reflection that those hospitals are not disciplining practitioners——

Mr. STUPAK. True, but in theory then the National Data Bank

would not be a good source of information for the quality of information and actually could possibly produce some false negatives,

would it not?

Mr. CROFT. If I understand your question, sir, there are responses to queries, positive responses to queries about 12 or 13 percent of the time, so if there is no information in the Data Bank on

a particular practitioner, obviously there would be a negative response.

Mr. STUPAK. You said that the money comes from fees, user fees,

right?

Mr. CROFT. That is correct.

117

Mr. STUPAK. At our last hearing some witnesses said that they

thought it would be helpful if the States had free access to the

Data Base. What are your thoughts on this? I know that the National Practitioner Data Base is a user fee system, but if we really

want to encourage States to query, do you think that waiving these

user fees for States would be a good idea? What are your thoughts

on this?

Mr. CROFT. Mr. Stupak, my own personal view is that the cost

ought to follow the demand, and I think we have done a very good

job of doing that including recently starting to charge practitioners

for their own self-queries. I certainly would not be opposed to trying that idea to see if it worked.

I do know, on the other hand, that many State boards already

get the information by having the practitioners self-query and that

seems to work well for them.

Mr. STUPAK. The Practitioner Data Base is a reporting system

that is used, correct? You don’t have an enforcement powers on a

physician’s license, do you?

Mr. CROFT. No. No, we do not.

Mr. STUPAK. That is left to the States, is it not?

Mr. CROFT. That is correct.

Mr. STUPAK. So if a person really wanted to know about a physician, a place or a hospital they could actually look to the State

boards, could they not, who do the licensing and enforcing of the

medical practice in their States?

Mr. CROFT. They should be able to.

Mr. STUPAK. Okay. And your board, your National Practitioner

Data Bank doesn’t do enforcement of licensing or sanctions against

doctors who may have had difficulty?

Mr. CROFT. That is correct.

Mr. STUPAK. Okay. The chairman asked you about the 1993 Clinton health care, and your response was while the National Data

Base was mentioned in there it was part of a more comprehensive

approach. That comprehensive approach included certain criteria to

evaluate a provider and health care. It did not say, if you know,

did it say just open up the National Data Base and that could be

our evaluation of health care and health care centers and providers

as to their qualifications and that? There was a much more comprehensive approach to it in the Clinton health care plan, was

there not?

Mr. CROFT. That is my recollection, yes, sir.

Mr. STUPAK. In this proposal that is current—I should not say

proposal but the idea before this committee, why we are doing

oversight and investigation, is there anything else—I mean what

we are looking at is whether or not we should use the National

Practitioner Data Base and open it up to the public. Is there any

other comprehensive support mechanism before we open it up in

this proposal?

Mr. CROFT. I am not sure I understand the question, sir.

Mr. STUPAK. Well, in national health care, with the President’s

plan we at least had a comprehensive approach. What we have before us is just the stark proposal to open up this National Practitioner Data Base, correct?

Mr. CROFT. That is correct.

118

Mr. STUPAK. There is nothing there to support it. There is no

evaluation. There is no criteria on the National Data Base what

should or should not be given to the public—just throw the whole

thing open and let the public make up their own mind.

Mr. CROFT. I am not aware of anything.

Mr. STUPAK. Okay, thank you.

Mr. UPTON. Thank you. It is my understanding that under current law the hospital is obligated to report the doctor’s conduct to

the Data Bank. Correct?

Mr. CROFT. When they take an adverse——

Mr. UPTON. An adverse action, and at our hearing 2 weeks ago

we had, you are familiar with the case of Dr. Zarkin in New York

carved his initials into the abdomen of his patient and under questioning the hospital, all that they reported to the Data Bank was

gross misconduct as I recall——

Mr. CROFT. To the State authorities.

Mr. UPTON. [continuing] or to the State authorities was gross

misconduct. They didn’t actually indicate the details of that case.

Did they play by the rules in that situation? Should they not

have reported the full disclosure of what happened?

Mr. CROFT. If I recall correctly, Mr. Chairman, that was a report

to the State and, frankly, I don’t know what the State requirements are specifically for that explanation.

Mr. UPTON. See, what happened was he resigned and then sort

of skirted the reporting of that to the Data Bank. Is that not a

problem that maybe should be dealt with?

Mr. CROFT. Generally speaking, resignations when the practitioner is being investigated or being threatened with some sort of

disciplinary action, that surrender is supposed to be reported.

Mr. UPTON. When someone loses a license, it is my understanding that under current laws State medical boards are required to report revocations and suspensions of licenses but not

when they deny someone a license.

Would it not strengthen the Data Bank if that was an added requirement?

Mr. CROFT. You are speaking of denial of initial licensure applications. Denials of renewals are reportable and yes, I believe it

would strengthen the Data Bank.

Mr. UPTON. We had a situation in my State. A physician lost his

license. I do not believe that he was authorized to practice under

a hospital setting, but in fact we found out later on, after he lost

his Michigan license, and it was for, as I recall, for dealing drugs,

that he had lost his license in the State of Virginia for exactly the

same reason.

In my view, if that had been reported, though I do not know

again the details of whether he actually practiced at a hospital in

Virginia, but it seems to me that there ought to be a system where

the State of Michigan or any State ought to be able to have some

record that they could query as to whether an individual lost their

license under a situation like that.

Mr. CROFT. They can now, sir, query the National Practitioner

Data Bank. That information should be there.

119

Mr. UPTON. So the States when they revoke a license, they—regardless of whether they practice in a hospital setting or not, they

enter that into the Data Bank?

Mr. CROFT. Yes, that is correct, Mr. Chairman.

Mr. UPTON. Okay. The Health Insurance Portability and Accountability Act provided for the creation of a second Federal Data

Bank, the Health Care Integrity and Protection Data Bank, which

provides a repository of information about health care practitioners

who have been convicted of certain crimes.

I understand that you are responsible for administering that

Data Bank as well.

What types of crimes must be reported to that Data Bank?

Mr. CROFT. The crimes must be health care related. In other

words, if the practitioner were convicted of let’s say drunken driving, that would not necessarily be reported unless the particular jurisdiction believed that it was somehow related to the provision of

health care.

Mr. UPTON. What about something like sexual assault, rape,

murder? Are those crimes included?

Mr. CROFT. If they are related to patient care.

Mr. UPTON. Well, okay. Do you think that perhaps that ought to

be expanded, a serious crime of that nature, if it is not related to

patient care ought to be reported as well?

Mr. CROFT. As I understand it, Mr. Chairman, this Data Bank

attempted to focus its attention on health care related matters. We

certainly haven’t studied the issue of what impact other kinds of

actions like this might have on the usefulness of the data, but I

would say generally speaking for investigators I suppose more information is always better.

Mr. UPTON. Mr. Green.

Mr. GREEN. Thank you, Mr. Chairman, and I ask unanimous

consent to place a statement into the record.

Mr. Croft, since 1993 has there been any statutory changes in

the National Practitioner Data Bank?

Mr. CROFT. No, sir.

Mr. GREEN. Outside of the expansion, as the chairman mentioned, to other data you are supposed to correct. This is not a

question, but this committee considered the President’s health care

plan in 1993 and 1994 and I don’t remember it ever coming up for

a vote. I don’t remember if opening the Data Bank was going to

be that positive a thing in 1993 or 1994 to my colleagues. I was

not on this committee but I know it was considered, but I guess

if it was great in 1993 and 1994 it is good for 1999 and 2000.

Some of the primary weaknesses I see after our hearing last

week of NPDB is that the reporting criteria oftentimes—in fact, I

think looking at the minutes from the last National Practitioner

Data Bank Executive Committee meeting, a range of concerns regarding the Data Bank were evident and could I get your reaction?

For example, it was reported that more than 60 percent of all

hospitals had never filed an adverse action report to the Data Bank

since 1990, is that correct?

Mr. CROFT. That is correct.

Mr. GREEN. And it suggests there is a significant problem of

underreporting, is that correct?

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Mr. CROFT. That is correct. Yes, sir.

Mr. GREEN. What are the implications if 60 percent of all the

hospitals never filed a single report, either that or in those hospitals there are a lot of great things happening—why is it happening at those hospitals who are not filing those reports?

Mr. CROFT. The Inspector General in her report in 1995 suggested there were three reasons—one, simply that they are not taking disciplinary actions; a second one being that perhaps many or

all the actions they are taking do not approach the threshold for

reporting to the National Practitioner Data Bank; or possibly they

are taking actions that ought to be reported and they are not, for

whatever reason.

Mr. GREEN. What do you think we need to do on a statutory

basis to increase that reporting?

Mr. CROFT. I think there are a couple of things that could be

done.

One might be to provide stronger sanctions.

Mr. GREEN. Could you do that or could the board do that now?

Mr. CROFT. No, it could not. There is a sanction in the statute

for failure to report and it is loss of immunity. Of course, any time

an action is not reported there is no immunity anyway, but that

and making it possible, more possible for us to work with the hospitals in terms of how they are carrying out their peer review and

professional review responsibilities might make it easier to get

those actions reported.

Mr. GREEN. Okay, so it would take action by Congress to be able

to give you that authority?

Mr. CROFT. I believe it would, yes.

Mr. GREEN. What are your thoughts about the corporate shield

problem relating to the NPDB? How pervasive is that problem—

and again, does it take Congressional action to correct it?

Mr. CROFT. Well, as you know, Mr. Green, we have attempted to

correct it through regulation, through changing our regulations.

That has had a bumpy road, to say the least.

I do believe that there is underreporting of malpractice because

of the so-called corporate shield. Data is obviously hard to come by

to support that, but certainly in the discussions we have had with

many folks in the industry and responses we have had from letters

to insurers who tell us that they insure the organization rather

than the individual practitioner and therefore do not believe that

they need to report those things at least buttress the perception

that there are malpractice payments that are not being reported.

I think we in our efforts to help the insurers identify the payments that should be reported probably produced or created an opportunity for the so-called corporate shield to apply as well, but—

well, I will stop with that.

Mr. GREEN. Thank you.

Mr. UPTON. Thank you. Dr. Ganske.

Mr. GANSKE. Thank you, Mr. Chairman. It’s no secret that I oppose opening the National Practitioner Data Bank.

I think it should be disclosed that I practiced medicine for 18

years. I have never been sued, I have never settled. I have never

had any legal proceedings at all.

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But, you know what? I don’t know what’s in my Data Bank. And,

so, Mr. Croft, I need to get the address of where I should write.

How much does it cost, by the way, for an inquiry?

Mr. CROFT. The cost of a query of the National Practitioner Data Bank is $10, sir.

Mr. GANSKE. Okay, I’ll get that information, just to see if I’m listed on anything or not.

In your statement you say it is impossible and unfair to conclude

from a single malpractice payment report alone, or even in some

cases, from numerous malpractice payment reports, anything substantive about the competence of the practitioner. Can you expand

on that for us?

Mr. CROFT. Yes, sir, I can. First of all, more than 70 percent of

the practitioners who have reports in the Data Bank have only one.

And, generally speaking, that is a medical malpractice payment,

and it deals with one incident in the life of, or in the practice history of the particular practitioner.

Mr. GANSKE. Is that a settlement?

Mr. CROFT. Most often, it is.

Mr. GANSKE. What percent, do you think?

Mr. CROFT. Ninety-seven percent of the time, it is.

Mr. GANSKE. Ninety-seven percent of the time, it’s a settlement?

Mr. CROFT. It’s a settlement, and I might add, with no admission

of liability.

Mr. GANSKE. Okay, and so you say that doesn’t indicate anything

about the competence of the practitioner?

Mr. CROFT. I was going to also add that, generally, that is a matter which took place at least 4 or 5 years earlier, if not longer.

And so, yes, I would say that one incident doesn’t make a practitioner incompetent.

Mr. GANSKE. So if 70 percent of the people that are listed have

one incident, and 97 percent of those incidents are settlements, can

you speak to the committee about what a settlement means?

Mr. CROFT. Let me answer it this way, sir, by starting—I’m certainly no—I’m not an attorney and I’m not an expert in the matters

of settlement.

Mr. GANSKE. You run the thing, so what does it mean to you?

Mr. CROFT. But as I read the reports that are made to the Data

Bank, there’s a whole range of possibilities, everything from settling a case that perhaps the practitioner knew that he or she

would lose if it went to court, to those that are settled because the

amounts of money are so small that it’s not worth litigating.

Mr. GANSKE. Do they list the amounts in the Data Bank?

Mr. CROFT. Yes.

Mr. GANSKE. So, of those settlements, can you give us some idea

of what the average settlement amount is for, or what the mean

amount is for?

Mr. CROFT. I think we have that, and if not, I’ll certainly provide

it for the record. I don’t know it off the top of my head.

Mr. GANSKE. What percent of the settlements involve the doctor

and what percent involve health plans only, or do you have that?

Mr. CROFT. We don’t collect payment information against the entity, or the health plan, only where there’s a practitioner that’s

named.

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Mr. GANSKE. But it is fair to say that a sizable percent of those

settlements were decisions that were made by the insurance company, simply because for cost-effectiveness purposes, they just

didn’t want to pay for litigation? Do you agree with that?

Mr. CROFT. I apologize, but——

Mr. GANSKE. Is it fair to say that a sizable percentage of those

settlements were because the insurance company decided to settle,

rather than just simply expend more money on litigation, and as

a matter of cost/benefit analysis, they decided it would be cheaper

for them to settle, rather than to fight a spurious case?

Mr. CROFT. On the—generally, speaking, the reporter doesn’t tell

us that. Sometimes they do, but it’s rare. Generally they rely on

the claim filed by the patient for the information that goes into the

narrative description.

Mr. GANSKE. Isn’t it true, though, that, generally speaking, if it’s

a really egregious case of malpractice, that the settlement sum is

going to be a larger sum, rather than one of these smaller, $5,000,

$10,000, $20,000 settlements?

Mr. CROFT. It’s probably true that that’s the general bias, however, I can tell you that I have seen reports of incidents that look

pretty egregious, where the amounts are fairly small, and vice

versa.

I have seen some big settlements where at least from the description, it doesn’t necessarily seem all that egregious.

Mr. GANSKE. How much data do you get on those settlements?

I mean, is it like a paragraph or a page? Or is it a full legal brief?

Mr. CROFT. It’s certainly not the latter. It generally is about a

paragraph description.

Mr. GANSKE. A paragraph?

Mr. CROFT. Yes.

Mr. GANSKE. To sometimes describe some very complicated circumstances.

Mr. CROFT. I suppose you could say that, yes.

Mr. GANSKE. Which would make your point then that this data

ought to be taken and looked at more thoroughly by the peer review panels that are making the determination on credentialing?

In other words, that you’re providing the function that they get

information, say a hospital credentialing board, that they get information that, in fact, the physician that applied for credentials, actually told them that they had a settlement. Then they look into

the details of what that means; is that correct?

Mr. CROFT. That was certainly the intention, we believe.

Mr. GANSKE. How good a job do you think you’re doing in getting

that information to hospitals that are in the process of

credentialing?

Mr. CROFT. As I mentioned in my statement——

Mr. GANSKE. Do you think you’re covering 100 percent of physicians seeking credentialing? Ninety percent? Do you have a way of

knowing that?

Mr. CROFT. Let me answer it this way: I believe that hospitals

are following the law, and they querying their practitioners when

they should be querying.

We’ve had virtually no allegations to the contrary. And particularly, for instance, the use of the plaintiff’s attorney query, I think

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we’ve maybe had half a dozen in 10 years use that, and as yet, it’s

turned up nothing.

So, I think that, yes, hospitals are querying.

Mr. GANSKE. If a physician writes in and gets his report from

you, and sees that there is a mistake or an error, what is the procedure for getting that corrected?

Mr. CROFT. First of all, the Data Bank sends a copy of the report

to the practitioner at the time it’s filed with the Data Bank. That

notification document includes all of the instructions and information about how the practitioner can dispute that report.

The information that comes in a self-query, in response to selfquery, does not include that kind of information, and if that’s the

first time the practitioner has heard about it, then the practitioner

should call our help line and get all the necessary paperwork.

Mr. GANSKE. Is it true that a practitioner, if he sees an egregious

mistake, cannot get you to remove it, but has to go to the reporting

agency that has reported to you, to get them to retract it, but that

they are under no obligation to do that?

Mr. CROFT. That’s the first step in the process, Doctor, and the

statute does require that the reporting entity correct information

when it is wrong. And, in fact, even those cases that come to the

Secretary, many times when we find there is an error, we will instruct the entity to correct it.

Mr. GANSKE. Do they always comply? Is there any enforcement

that they comply?

Mr. CROFT. I don’t recall any incidents when they haven’t.

Mr. GANSKE. Thank you. Thank you, Mr. Chairman.

Mr. UPTON. Mr. Stupak.

Mr. STUPAK. Thank you, Mr. Chairman. During our last hearing,

Dr. Harkman remarked in his testimony that the National Practitioner Data Bank was never intended to be used as a consumer

tool. Do you believe this to be true?

Mr. CROFT. Yes.

Mr. STUPAK. Why do you say that?

Mr. CROFT. Well, because the statute is very clear about the purpose and about who has access.

Mr. STUPAK. Well, if we wanted to make the National Practitioner Data Bank useful as a public tool, what specific changes

would be needed to be made in order to make this into a public tool

that the public could use with some degree of confidence to get accurate information about a doctor or a medical care facility?

Would the data base need to be totally retooled, redone, or could

we just make some adjustments to achieve these objectives?

Mr. CROFT. Well, Mr. Stupak, I think there are several ways you

could go about that. For one, you could—we could talk about perhaps joining forces with States and other jurisdictions that already

have other data.

Certainly I would strongly suggest that having this data out

there by itself is risky because that wasn’t the purpose for it.

Frankly, anytime you try to use something for a different reason

than it was originally intended, you’re always running some kind

of risk.

But I would say it has to be taken in context with other information that may be available about the practitioner.

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Mr. STUPAK. In your testimony you state, and I won’t quote, but

in your testimony you state that you have previously heard testimony on various sides of this multifaceted issue from earlier witnesses. HRSA would only caution that any changes in the law be

carefully considered and further debated with due attention to

what may be significant privacy implications before being enacted.

Would you elaborate further on specific issues that should be

taken into account when considering opening the Data Bank and

what the pitfalls might be?

Mr. CROFT. I think what we were specifically referring to there

is that there are certain data elements in these reports which are

subject to the Privacy Act, the Social Security Number, for instance, and that if any of this information is going to be revealed,

there ought to be close attention paid to that data, and perhaps

purging it from the record.

Mr. STUPAK. At the last hearing, the chairman mentioned, Chairman Bliley mentioned that an individual had around 300, give or

take, reports in the National Practitioner Data Bank, and I believe

that was a doctor.

Mr. CROFT. A dentist.

Mr. STUPAK. A dentist. Could you elaborate on that? Does that

mean this was a bad dentist? What, exactly—how do you put that

in context? Wasn’t this really he gave them something that made

the kids’ teeth turn color, so everyone wrote into it?

Mr. CROFT. Not in this case. There was a physician or is a physician with many, many reports where that is the case. Tetracycline

was prescribed and turned teeth brown.

In the case of the dentist, my review of the records suggest

many, many claims for different reasons. A lot of them were about

faulty crowns and that sort of thing.

But this was certainly not a case where there was essentially one

problem that may have caused some minor harm.

Mr. STUPAK. So that’s 300 of them, though, in this one dentist

here with the bad crowns or something like that, you said?

Mr. CROFT. Well, 290-some were malpractice for the faulty

crowns and other work that the dentist had done. There are some

licensure actions.

Mr. STUPAK. So in this case, on the 297, it’s not the responsibility

of the National Practitioner Data Bank to take away this person’s

license. Would the State be responsible for doing that?

Mr. CROFT. That’s correct.

Mr. STUPAK. Did they ever remove that license?

Mr. CROFT. Yes, they did.

Mr. STUPAK. Okay, was that it your urging or the urging of others?

Mr. CROFT. It was probably at the urging of others.

Mr. STUPAK. I didn’t mean you, specifically.

Mr. CROFT. Hopefully they checked with us about this information.

Mr. STUPAK. Right. Thanks.

Mr. UPTON. Thank you. When I sat down with my Chief Medical

Officer and had a demonstration of how the Data Bank works and

we had the consent of a physician that was there with us as we

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looked into his own file, we had a long discussion that morning in

terms of pluses and minuses, constructive changes.

One of the things that I heard was that hospitals are always required to report when they deny privileges, but, in fact, they have

had a number of cases when physician has applied for a staff position, and the physician has voluntarily withdrawn their name or

their application.

They sort of flag it, you know, that you may not want to see this

done to fruition, and the physician says, okay, get the message.

Sometimes they go to another town, another State, who knows

where, but my CMO suggested that we require hospitals, in fact,

to report voluntary withdrawals. Do you think that’s a good idea?

Mr. CROFT. I believe it would be, yes.

Mr. UPTON. Now, we’ve talked about some good ideas that are

out there on the table, whether it’s reporting of sexual abuse cases

or whatever, 30 days, corporate shields, referenced here. You’re

not—as I understand it, you’re not able to do any of that.

You know, here’s a good idea, we’re going to proceed on this. You

need legislation to do that; is that correct?

Mr. CROFT. That’s correct, Mr. Chairman, they are all very specific.

Mr. UPTON. Well, something that this committee, I’ll bet, would

appreciate, is, as you think about this at night in the next couple

of weeks, we’re raising, I think, some pretty good questions.

But if you’d like to share specifically some other things in addition to your testimony that we might proceed in a constructive

route, we sure might appreciate that.

I know that I have had some discussions with the chairman. I’m

not prepared at this point to drop a bill or anything like that. I

want to work with the chairman, but I do think there are some

constructive changes that I have picked up from my local medical

community, and work in closer harmony with our State licensing

boards. I have some meetings and maybe my colleague from Michigan, Mr. Stupak, would like probably that it will happen back in

Michigan.

But I really want to walk through some of the conversations that

I’ve had and see what might help them as we look for continued

quality care physicians in our home State.

And to make this system work in a stronger fashion, that, in

fact, the few bad docs that are out there, in fact, don’t continue to

practice in areas where they really shouldn’t participate. I mean,

I know, as I have sat down with my physician community, 99.99,

probably a couple more 9s are there for the right reason. They have

the quality personnel to help them, and they want to do the job

right.

But we’re going to find every now and then, some others that

should have been weeded out a long time before, and, in fact, because of some of the lurches that are in the system, are able to

avoid having their license removed.

I think that we can come up with a little better system, and your

thoughts in that degree, participation, as we perhaps move forward

on a legislative process, I know would be appreciated by all members of the committee.

Mr. CROFT. We would be pleased to.

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Mr. UPTON. Terrific. Mr. Green?

Mr. GREEN. Thank you, Mr. Chairman, and if the subcommittee

jurisdiction on the legislation moves forward I would hope we

would have some statutory changes before we do anything and see

how that works.

Mr. Croft, some witnesses have suggested that some of the data

in the NPDB cannot readily be used to determine doctor quality.

Do you have any thoughts on that matter?

Mr. CROFT. Mr. Green, as we discussed earlier, certainly taking

one malpractice payment report in isolation is probably not a reliable way to make a determination about a practitioner’s competence.

I do believe that taking all the information together that a peer

review committee has at its disposal probably is usually sufficient

to make a reasonable determination.

Mr. GREEN. Do you think whether it is the agency or the Bank

or this Congress that enough study has been done on exactly

should be done with regard to giving the public access to the Data

Bank or do you think we should spend more time studying it?

Mr. CROFT. I think we ought to be very deliberate.

Mr. GREEN. One of the concerns I have, and I know it has been

asked in different ways, is because of the lack of reporting, for example, take a fictitious ‘‘Dr. Green’’ or ‘‘Hospital Green’’ and if this

was available and I contacted the Data Bank and it showed there

was no information on it, today would I be able to rely on that as

a patient or as an employer that is looking at a list of physicians

that may be on the list that my insurance carrier gives me? Could

I rely that there is no reports in the Data Bank if it was public?

Mr. CROFT. I am not sure I understand your question, sir.

Mr. GREEN. Okay. I guess the concern about the false

negatives——

Mr. CROFT. Right.

Mr. GREEN. [continuing] if I was an employer who has a contract

with XYZ Company and I want to check the physicians or the providers, the hospitals that are on my list, and if this bill was passed

that our chairman has, could I in good confidence——

Mr. UPTON. I just want to note I don’t have a bill yet.

Mr. GREEN. No, the chairman of the full committee has the bill—

and I contacted you if that bill passed, would I have a comfort level

under current information to say that since no one is listed there

that I should have that physician or that hospital or that facility

on that list?

Mr. CROFT. Well, the information there certainly does not attempt to make any sort of determination about the competency of

the practitioner or any facility or entity that he or she may work

for, and if there is no information there, that equally is not a determination about the competency of the practitioner.

Mr. GREEN. Particularly in light that 60 percent of all hospitals

have never filed an adverse report.

Mr. Croft, at our last meeting Dr. Hotchman at American Hospital Association mentioned in his testimony that one of the reasons that we should not completely open the NPDB is because it

ultimately would lead to further reduction of data reporting.

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In his testimony he says, ‘‘Public disclosure of Data Bank contents as presently configured would undermine the confidentiality

of the peer review process in hospitals across America, thus impeding the Data Bank’s goal of promoting health care.

Congress promised confidentiality when it created a National

Practitioner Data Bank and the normal tensions created by peer

review would be significantly heightened if reports were available

to the public and complete disclosure of the Data Bank’s contents

to the public could cause caregivers to be less forthcoming about

their mistakes and less likely to report errors made by their peers.’’

Now what are your reactions to that statement and do you think

Dr. Hotchman reports that opening the Data Bank to the public

could actually lead to a further reduction in data reported?

Mr. CROFT. Mr. Green, I do not know whether that is true or not.

We certainly have not studied the issue to find out, but that is a

big concern.

Let me answer the question more directly this way, and I use

this very often when I am speaking to groups about the Data Bank.

Practically every question that I get about reporting is how can I

avoid it, and practically every question I get about querying is how

can I get more information. Very often they come from the same

place.

Mr. GREEN. Thank you, Mr. Chairman.

Mr. UPTON. Thank you. Dr. Ganske.

Mr. GANSKE. I will try to be brief, Mr. Chairman. I know we

have a vote on.

At the previous hearing I mentioned a concern about the reporting for physicians who practice high risk procedures. I was one of

those physicians, a plastic and reconstructive surgeon. I did major

cranial faces cases, some of them lasting 10-12 hours, free flaps, all

sorts of complicated procedures where, you know, if one little blood

vessel doesn’t stay open the whole thing fails.

As I said, I was fortunate that I have never had a lawsuit, but

Mr. Bliley mentioned that there are some practitioners in the Data

Bank who have had around 20 reports. I can easily envision that

some of the best physicians in this country, particularly those at

academic centers, over a 20-, 30-, 40-year course of practice could

have 20 settlements.

Would you care to comment and amplify your comment in your

testimony that goes back to that question, to an uninformed observer, what does simply the mere reporting of those procedures

mean? Can they have any context?

I think, quite frankly, there are probably a lot of this Nation’s

best physicians that probably have some multiple entries into this

Data Bank that could be misinterpreted. Would you care to comment on that, Mr. Croft?

Mr. CROFT. What I was referring to, doctor, was—and I think we

talked about one already, the pediatrician who prescribed tetracycline to infants back in the 1960’s only to learn that that caused

staining of the permanent teeth of the children later.

Mr. GANSKE. Ex post facto.

Mr. CROFT. Yes.

Mr. GANSKE. Yes.

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Mr. CROFT. And because, I assume because there haven’t been

any other payments or incidents lately that have been recorded

that that pediatrician now knows better and otherwise is probably

a competent practitioner, but I should be clear about that.

That is not a determination that I am expected to make, nor am

I planning to do that.

There is another practitioner with multiple reports of malpractice because he failed to send employees home from a factor

that had a chemical explosion problem. I cannot tell from the Data

Bank report frankly whether the practitioner did anything wrong

at all, but the fact is that there are 177 or whatever the number

is reports that came from this one incident——

Mr. GANSKE. And your point being that that would be terribly

unfair to those practitioners to open that up to public consumption

when there is no context for them to make in terms of determining

whether this was truly a poor practice or not?

Mr. CROFT. As I said, I think it would be unfair to judge that

this practitioner was incompetent because of that one incident.

Mr. GANSKE. I thank you very much. Thank you, Mr. Chairman.

Mr. UPTON. Well, Mr. Croft, we appreciate your testimony. As

you have heard from these buzzers, we have a vote that doesn’t

have a lot of time left, so we are going to adjourn this hearing.

We look forward to hearing from you in the future in terms of

your thoughts and ideas and appreciate very much your time this

morning.

Thank you.

Mr. CROFT. Thank you, Mr. Chairman.

[Whereupon, at 11:16 a.m., the subcommittee was adjourned.]