When it comes to improving the nation’s broken system of physician discipline, many advocates say the starting point should be fixing something that was created to do the job in the first place.
In 1986, Congress created the National Practitioner Data Bank (NPDB), pledging it would improve healthcare and reduce fraud and abuse. The data bank records all sorts of things: malpractice payments, disciplinary action, restrictions of hospital privileges, and other transgressions.
There are just three problems:
- The system can be gamed, so not all problem physicians appear on the list.
- State medical boards don’t always check the data bank.
- And, the information is off limits to those who are most at risk: patients.
“It is the one source in the country where all the data is available,” said Carol Cronin, executive director of the Informed Patient Institute, a Maryland-based nonprofit group that produces its own physician “report cards” from various sources.
“They need to bring it into the modern era.”
The NPDB is at the center of several key issues identified in the yearlong “States of Disgrace” investigation from the Milwaukee Journal Sentinel, USA Today, and MedPage Today.
The investigation exposed how readily physicians who were disciplined in one state — or surrendered licenses in the face of discipline — can practice in another, even as patients are kept in the dark.
Some problems with the data bank have been known since at least the year 2000, when a General Accounting Office report found it was riddled with duplicate entries, inaccurate data, and incomplete information.
The first step to fixing the data bank, experts say, is to assure that the information is comprehensive and up to date.
Robert Oshel, a former official at the NPDB, said there are several ways that physicians can avoid having their misdeeds listed.
For instance, he said, hospitals are required to report a physician who loses privileges for more than 30 days. Sometimes the term is limited to 29 days, so it doesn’t have to be reported.
Also, in cases where a physician is an employee of a hospital, malpractice payments can be made by the hospital, without naming the physician. The same is true if a physician makes a malpractice payment out of his or her own pocket, instead of through insurance. In such cases, they may not wind up in the data bank.
Meanwhile, state medical boards report their own actions against physicians to the data bank, but many don’t fully use it to check the records of physicians who apply to work or are already practicing in their state.
It costs states $2 per physician search to use the NPDB system. In 2017, 30 state medical boards used the database fewer than 100 times, according to numbers from the federal Health Resources and Service Administration. Thirteen boards didn’t check it once.
States can sign up for automatic updates, which will run physician names every 24 hours and report any new actions. But of the 64 state medical boards — some states have different boards overseeing osteopaths and medical physicians — only 13 subscribe.
“The best thing is to make the information readily available, nationally online,” Oshel said. “That will get rid of the problem of one state taking action and the folks in the next state not having a clue.”
That would also solve the third issue: Putting information in the hands of patients.
As it stands now, the nation’s patchwork system means patients can search records from their own state and read that a physician has a clear record — even though the physician had problems elsewhere.
“You can find out more information about whether your toaster is bad than whether your physician is a hatchet,” Oshel said. “It’s just nuts.”
Pressure from interest groups, such as the American Medical Association (AMA), kept NPDB records confidential from the beginning. And they oppose efforts to make the material public now.
In a statement, AMA President Barbara McAneny, MD, said state medical boards are best suited to report disciplinary action about physicians to the public. Another source is the website operated by the Federation of State Medical Boards, she said.
“Opening the NPDB would not help patients,” she said. “A far better approach toward helping patients is to enhance the state-run investigative and reporting systems already in place.”
Making the data public would take an act of Congress, but there appears to be little appetite for action. Reporters contacted eight members — from both parties — of the Senate committee that oversees the U.S. Department of Health and Human Services, which administers the data bank, and eight members of a House subcommittee with oversight of DHSS.
Only one offered an opinion.
U.S. Sen. Tammy Baldwin (D-Wis.) said she opposes making the data bank available to the public, though she acknowledged that “too many doctors are slipping through the cracks in our system.”
“When the federal database was built over 30 years ago it was never created for the purpose of being made public in full, rather it provides data to hospitals, state licensing boards, professional societies, quality improvement organizations, federal and state law enforcement agencies, and certain other healthcare facilities,” Baldwin said in a statement.
She said efforts should focus on improving the reporting process, to assure all relevant information is included.
Oshel noted that, even then, there’s no guarantee the system would be better.
“Of course, (medical boards would) have to do something with the data,” he said. “And maybe they’d say they can’t afford to have the staff look at it once they get it.”
Here is a look at five other ways to improve the system:
1. The Problem: Uneven discipline
A physician who holds licenses in multiple states can lose a license in one, but get lesser or no discipline in another.
Background: The Journal Sentinel/MedPage Today investigation found more than 500 physicians who have been publicly disciplined, chastised, or barred from practicing by one state medical board, but are able to practice elsewhere with a clean license.
A 2016 study in The BMJ found annual average rates of discipline varied widely from state to state, ranging from 1.9 actions per 1,000 physicians in Mass. to 10.3 in Del.
What can be done: State lawmakers could push for stronger actions by state boards or perform more oversight. They could also change the makeup of the boards.
Physician Sidney Wolfe, MD, a longtime critic of lax discipline by state boards, noted the panels are often made up largely of physicians, who can be sympathetic to those facing discipline. He said oversight bodies should look closely at cases where recommendations from a board’s investigative staff were overruled.
“State legislatures have completely fallen down on the job,” said Wolfe, founder and senior adviser of the consumer advocacy group Public Citizen’s Health Research Group. “There is not a state that can’t find cases, just from the newspapers. Why aren’t they having hearings and demanding information from the boards?”
“We need to put medical boards on the hot seat.”
2. The Problem: Dead letters
When the FDA performs investigations and sends warning letters to physicians — a rare step that indicates serious matters — the letters typically go only to the physician. Copies are rarely sent to medical boards in the states where the physicians are licensed.
Background: The Journal Sentinel/MedPage Today investigation found 73 physicians around the country with active medical licenses who got FDA warning letters over a five-year period. Only one was disciplined by his state medical board.
The warnings involved fertility clinics that didn’t test donors of eggs and sperm for communicable diseases; researchers who didn’t follow rules designed to protect patients who volunteer for trials of drugs and devices; physicians who pushed dubious treatments and supplements to unwitting customers; and a mammography clinic faulted for inadequate quality control testing.
What can be done: Congress could require the FDA to send the letters directly to state boards. Or states could require their medical boards to regularly check with the FDA.
That happened recently in Calif., which has jurisdiction over more physicians than any other state (nearly 150,000 physicians), after the investigation found three state physicians had received warning letters but faced no discipline. In June, the Calif. medical board began getting automatic updates from the FDA.
An FDA spokeswoman also said the agency may start notifying state boards of potential patient safety issues raised in its letters, at least on a case-by-case basis.
Agency spokeswoman Stephanie Caccomo noted states are able to sign up for the automatic updates and that redacted versions of the warning letters already are posted online.
Rita Redberg, MD, a cardiologist at the University of California San Francisco and editor of JAMA Internal Medicine, said a warning letter often signals an alarming issue.
“They should not be secret,” she said. “Otherwise, it would just be protecting bad medical practice.”
3. The Problem: Cryptic surrenders
In some cases, a physician facing discipline agrees to surrender his or her license prior to a hearing or formal charge. That can keep potential problems out of the public eye.
Background: The Journal Sentinel/MedPage Today investigation found more than 250 physicians who surrendered a medical license but were OK to practice in another state. Additionally, laws in several states — including Ohio and Md. — require the information be kept confidential. In others, including Wis., it may only be available through a formal open records request.
What can be done: Include information that caused a physician to surrender a license in a physician’s public file.
Oshel, the former data bank official, said state boards are required to report only surrenders that happen instead of discipline. Many medical boards, he said, work out deals or arrangements that get around the requirement.
“It’s unethical,” he said. “It ought to be illegal.”
He noted that if all surrenders had to be reported, it could lead to medical boards in other states more closely scrutinizing physicians who have multiple licenses and also practice there. That, in turn, could lead to preventing more problematic physicians from practicing.
Robert Wachter, MD, chairman of medicine at the University of California San Francisco School of Medicine, said posting information on surrenders would be valuable.
“I can’t see any argument for a patient not having access to the circumstances that led to a physician giving up their license,” he said.
Wachter said the one concern is some of the information might include unproven allegations, but patients should be allowed to know something about the circumstances that led to the license surrender.
4. The Problem: Inconsistent data
State medical boards vary dramatically when it comes to the information they include on their websites about a physician’s background.
Background: The information that is reported can include discipline by that medical board; discipline from other states; malpractice claims and payouts; loss of hospital privileges; criminal convictions; Medicaid/Medicare exclusions and fraud charges; and actions by federal regulators, such as the FDA and the Drug Enforcement Administration.
The Journal Sentinel/MedPage Today analysis found only five states include at least six of the seven categories — Fla., Kan., Md., Mass., and N.C. Five other states regularly reported five: Calif., Ga., Ind., N.Y., and Tenn. The majority report only their own disciplinary actions.
What can be done: State legislatures could give their boards the legal authority and funding needed to put more information on their websites in a user friendly manner.
That’s the view of Cronin, of the Informed Patient Institute.
“There needs to be more information on every board (website) that is accessible to the public,” she said.
5. The Problem: Medicare payments
Physicians who lose their licenses in one state, or who are banned from a state Medicaid program due to problems such as fraud or putting patients in harm’s way, can still collect money from the taxpayer-financed Medicare program.
Background: The Journal Sentinel/MedPage Today investigation found more than 200 such physicians who were paid a total of $26 million by Medicare in 2015 alone.
They include a surgeon who was sued for malpractice as many as 30 times and who surrendered his license in Ohio in the face of discipline but was allowed to continue practicing in Ark. Despite his record, he received more than $1.3 million from Medicare from 2013 to 2015. Most of that — $874,000 — came in 2015, the year after he surrendered his Ohio license. The physician died in 2017.
What can be done: Improve the flow of information between state and federal offices. Increase oversight of the program. A more stringent approach would be to prohibit physicians who have been barred from funding in one state from getting any Medicaid money in another.
States that expand Medicaid are supposed to employ auditors to look into improper payments, said Leslie Paige, vice president of policy and communications for Citizens Against Government Waste, a group that advocates for tighter control of public spending.
“You’ve got real split accountability,” he said. “Washington pays the bills, but the program is run at the state level. They cannot talk to each other. If a guy is a bad actor in one program, that does not necessarily mean they’re going to pull them out of another.”
John Fauber is a reporter for the Milwaukee Journal Sentinel and MedPage Today. Matt Wynn is a reporter for USA Today.
This story was reported as a joint project of the Journal Sentinel and MedPage Today.