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Docs Fret as HHS Addresses Malpractice Reporting 'Loopholes'

 |  By John Commins  
   August 26, 2014

The recent reaffirmation of mandatory disclosures of all medical malpractice payments has left physicians in Oregon and Massachusetts concerned that it will quash laws crafted in those states for mediated settlements.

 

Alan Woodward, MD

The recent ruling by the federal government that reaffirms mandatory disclosures of all medical malpractice payments has left physicians in Oregon and Massachusetts concerned that it will quash laws crafted in those states for mediated settlements.

"Nobody is trying to carve out a loophole that would compromise the need to report substandard care to the National Practitioner Data Bank," says Alan Woodward, MD, past president of the Massachusetts Medical Society and current chair of MMS's Committee on Professional Liability.

"We asked HHS and the National Practitioner Data Bank to provide a clarification. What they did was to restate the status quo. That is what this whole interpretation is, just to say we've done things this way, this is what the law says, and this is how we interpret it," Woodward told HealthLeaders Media.

A challenge to the mediation laws surfaced last fall when Public Citizen asked then-Secretary of Health and Human Services Kathleen Sebelius to address what the patient advocacy group said were "loopholes" created in Massachusetts and Oregon that allowed physicians in those states to avoid reporting malpractice settlements with the National Practitioner Data Bank.

Public Citizen said the laws "threatened the viability of the NPDB as a comprehensive and reliable source of data regarding malpractice payouts," especially if the Oregon and Massachusetts laws were used as models in other states.

In a letter this month to HHS Secretary Sylvia Burwell, Public Citizen Senior Advisor Sydney Wolfe, MD, praised HHS for its "well-reasoned and favorable determination."

"We recognize that a single malpractice payment is not necessarily a good indicator of the quality of care provided by a physician or other practitioner," Wolfe said in his letter. "Yet research has shown that a pattern of malpractice payments is an excellent indicator of whether a physician has quality-of-care problems and may need retraining, proctoring, or other serious action to ensure the safety of their future patients."

"If state efforts succeed in creating a legal basis to avoid reporting malpractice payments to the NPDB, it would become more difficult, if not impossible, for NPDB users, such as hospitals and medical boards, to identify such patterns of malpractice by a practitioner when they conduct background checks through the NPDB."

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The Oregon Medical Association issued a statement this month saying it was "recently made aware of the memo and we are reviewing HHS's analysis and rationale to determine how the conclusions will affect the Oregon program. We continue to believe Oregon's Early Discussion and Resolution (EDR) program is good for patients and physicians and will work to continue the goals of the program within the NPDB requirements as they are determined to be."

Woodward was part of a group of physicians who worked with trial lawyers to write Massachusetts' statute for mediated malpractice settlements. He says the HHS ruling puts all that work in jeopardy.

"The whole focus of our program is to do what is morally and ethically right when a patient has an unexpected negative outcome," Woodward says. "It is to increase transparency and encourage full disclosure in an ongoing dialog with the patient. It is to meet the patient's medical, psycho-social, and financial needs without them having to resort to litigation."

"The other major focus is to improve patient safety, because the current system in many ways impedes patient safety improvement," he says. "The concern is that when you tell physicians that any payment, regardless of whether it was a systems error or a human error as opposed to negligent or substandard care, that it is going to be reported to the National Practitioner Data Bank, they are less inclined to participate in this type of open dialog with patients."

"We are absolutely supportive of the statement from Public Citizen that the goal is to protect patients from doctors with a record of substandard or negligent care. We are all in favor of reporting and think that should be reported to the NPDB," he says.

"What we don't want to do is inhibit the adoption of this type of program because of fear of reporting when it isn't negligence or substandard care, but in many cases it is found to be a system deficiency—not having the checks and balances to protect the patient, and there is a series of events that leads to a bad decision."

John Commins is a content specialist and online news editor for HealthLeaders, a Simplify Compliance brand.

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