DECEMBER 7, 2012
ATLANTA – On September 24, 2012, the Center for Law, Health & Society at Georgia State University College of Law hosted guest speaker Haavi Morreim, JD, PhD, a professor of law and bioethics in the College of Medicine at University of Tennessee Health Science Center and a Principal in the ADR Institute in Memphis.
Morreim presented “Malpractice, Mediation, and Moral Hazard: The Virtues of Dodging the National Practitioner Data Bank” to an audience of students, attorneys, and medical professionals. “Many hospitals are adopting early dispute resolution programs in which, when they err, they approach injured patients with disclosure, apology, and restitution. This process is beneficial in many ways for patients, families, and hospitals,” said Morreim. “However, physicians are almost completely iced out and the name of that 'ice' is the National Practitioner Data Bank.”
The National Practitioner Data Bank (NPDB) was established in 1986 as a way to improve quality and safety in hospitals by letting hospital peer review committees have access to information about physicians' performance. Hospitals’ adverse professional review actions against physicians, state boards’ adverse licensure actions and, of particular interest here, medical malpractice payouts must be reported to the NPDB. The information in the NPDB is not available to the general public, but hospitals must check it upon initial credentialing and every two years thereafter. Managed care organizations also have access.
“Physicians are at a disincentive to resolve disputes early,” Morreim said. “If they settle early, even for only a small amount, they will incur a lifelong black mark in the Data Bank. But if the matter goes to trial the physician is highly likely to win, thus avoiding that black mark. Unfortunately, this means those physicians are not taking part in the important benefits of early resolution.”
“Fortunately, there are legal ways for physicians to engage in early mediation of medical malpractice disputes and avoid adverse reports to the databank,” she continued. “For example, the provider can waive the debt or fees of the patient or compensate the patient out of pocket rather than via insurance. The plaintiff’s attorney can also communicate the claim or demand for payment orally rather than in writing. Perhaps the most powerful option is the 'Corporate Shield,' in which a larger organization such as a hospital brings the claims against physicians under its own umbrella. As more hospitals buy physician practices, and as more Accountable Care Organizations are formed, the Corporate Shield will increasingly become an option for early resolution that includes physicians.”
“Early dispute resolution provides better opportunities to identify issues, better understand what occurred, and fix problems, preventing future injury to other patients,” observed Professor Charity Scott, Director of the Center for Law, Health & Society. “Professor Morreim’s important research offers physicians and attorneys legal options so that physicians can participate in this process.”
Stacie P. Kershner, JD
Associate Director, Center for Law, Health & Society