Did you ever wonder if your doctor has a history of medical malpractice? You likely won’t be able to find out because physicians are able to avoid scrutiny from the public and state licensing boards by settling lawsuits confidentially in the names of their corporate employer.
Who Regulates Physicians and Hospitals?
One of the functions of the government is to protect the public’s safety. Governmental bodies like the Food and Drug Administration (FDA) and Centers for Disease Control (CDC) spend billions of dollars investigating new drugs and medical devices or studying diseases that could affect large numbers of people.
Similarly, the Federal Aviation Administration (FAA) protects passengers on airplanes by strictly regulating pilots and crew as does the Federal Highway Administration (FHA) over America’s roads.
Although healthcare is a multi-billion dollar industry that affects every one of us, there is no similar authority when it comes to protecting patients from medical malpractice. Patient safety is in the hands of a patchwork comprised of voluntary organizations, medical boards, hospitals that employ physicians, and insurance companies that are dependent on the medical industry for their livelihood.
The Joint Commission
The Joint Commission is an independent body that accredits hospitals and other medical organizations. Hospitals and other medical facilities are not required to seek approval of the Joint Commission. But they cannot receive payments from Medicare if they are not accredited by the Joint Commission. Practically all healthcare organizations are accredited by the Joint Commission.
The Joint Commission accredits the following types of organizations:
- General, psychiatric, children’s, rehabilitation and critical access hospitals;
- Home care organizations, including medical equipment services, pharmacy and hospice services;
- Nursing homes and other long term care facilities;
- Behavioral healthcare organizations and addiction services;
- Ambulatory care providers, including group practices and office-based surgery practices; and
- Independent or freestanding clinical laboratories.
The Joint Commission, however, is not a governmental entity. The Joint Commission, rather, is a not-for-profit comprised of other medical professionals. It does not license or regulate doctors nor does it have any ability to punish or take action against an individual physician.
It is up to the individual state medical boards to evaluate and license physicians to practice medicine. The state medical boards have chosen to allow the test administered by the National Board of Medical Examiners (NMBE) to serve as the primary method of confirming the competence of physicians who graduate from American medical schools.
The NMBE is also not a governmental body. It is a not-for-profit made up of medical professionals.
Once doctors are licensed to practice medicine, it is up to state medical boards to renew a physician’s license to practice medicine.
Every physician’s license is automatically renewed if she pays a fee and attends a specific number of continuing medical education (CME) courses. CME courses are very different than medical school courses. A physician may choose whatever CME courses she likes. The courses do not need to be related in any way to the doctor’s practice areas, are often provided by pharmaceutical and tech companies that encourage the doctors to prescribe or use their products. They can even put on courses overseas or on cruises.
Self-Policing By Hospitals
In order to work or see patients at a hospital, doctors must have privileges to do so. Hospitals are required to periodically review and confirm the training and competence of all physicians who have privileges at the hospital. This is a process known as credentialing.
The states defer entirely to individual hospitals in the process of granting, reviewing, and maintaining privileges to physicians. Every state, including Ohio, has a law that protects all discussions of hospital committees during these reviews. In Ohio, the discussions of hospital credentialing staff are hidden from the public.
Even when you’ve been injured and sue a hospital for medical negligence, you and your medical negligence lawyers are not able to learn how the doctor was credentialed.
Patients are often restricted to physicians practicing at only a few hospitals because of geography or insurance coverage. But those same patients are denied information about their doctors because of the secrecy involved in credentialing. Patients must simply trust that the physicians at the local hospital are competent and skilled.
The Role of State Medical Boards and the National Practitioner Databank
State medical boards and the National Practitioner Data Bank (NPDB) receive information about medical malpractice payments. The NPDB is a confidential clearinghouse that collects data on medical malpractice payments. Individual members of the public cannot gain access to the information maintained by the NPDB.
As it relates to malpractice, the NPDB requires:
“For each entity (including an insurance company) which makes payment under a policy of insurance, self-insurance or otherwise in settlement (or partial settlement) of, or in satisfaction of a judgment in, a medical malpractice action or claim shall report…information respecting the payment and circumstances thereof.”
Under Ohio Administrative Code § 4731-15-03, any settlement or payment of $35,000 or more must be reported to the Medical Board of Ohio, which may then conduct its own investigation of the case, and which can result in action against the physician’s license to practice medicine. Actions against individual physicians are exceedingly rare.
The data shows that about 25% of all medical malpractice cases settle before trial and less than 5% go to trial. This means that around 70-75% of medical malpractice cases result in dismissal where no payment is made and therefore no report is issued to the state medical board or NPDB.
Of those cases that go to trial, studies suggest that around 80% are verdicts for the defense. Accordingly, most reports to state medical boards and NPDB are generated by settlements.
How Doctors and Hospitals Avoid Reporting to the Medical Board, the National Practitioner Data Bank, and the Public
Medical malpractice insurance policies often include a consent provision. These are different than typical insurance policies with which most consumers are familiar. For example, if you strike and injure someone with your automobile, your automobile insurance carrier can settle the claim based on the merits of the case regardless of whether you consent to a settlement or not. Most medical malpractice insurance contracts are far different. The consent provision means that the physician has to consent before any settlement can be reached.
Protection of patients is the policy reason for the reporting requirements to state medical boards and NPDB. A physician can avoid a report being issues to the state medical board by refusing to consent to a settlement, aggressively defending against the claim, and prevailing at trial. As a result, avoiding a NPDB report actually encourages physicians to continue lawsuits rather than settling. Despite this sometimes perverse incentive, most cases are not going to trial.
A more common way physicians avoid reporting is through the “corporate shield,” which is used when corporate entities, such as hospitals and other medical institutions, are sued. Because the physician’s consent is required to settle the lawsuit, the doctor can hold up a settlement until he is dismissed from the case.
A settlement is reached and payment is made only after the physicians named in the lawsuit are dismissed. Because only the corporate entity, such as the hospital or medical institution, is named in the final settlement, no report is made to the state medical board or NPDB on the doctor.
As major hospital corporations purchase smaller, independent medical facilities, it is becoming increasingly common that physicians are employees of these institutions who can settle the claims after the doctor is dismissed.
When there is a settlement, the settlement unfailingly includes a confidentiality provision. This means that the patient, the patient’s family, and the patient’s attorney are prohibited from discussing the merits of the case or the result. To the injured patient or family, the benefit of a settlement often outweighs any concerns about confidentiality or reporting.
The care provided by individual doctors is usually the focus of medical malpractice lawsuits, but by requiring that the individual doctor be dismissed from the lawsuit and the settlement be between the hospital and the patient only, the negligent docotr is able to avoid a report to the state medical board or NPDB.
The purpose of reporting medical malpractice settlements to the state medical board and NPDB is to investigate the actions of doctors and protect patient safety. Patients and consumers can check the state medical board and websites about their doctors or hospitals all they want but won’t be able to find much if anything.
This is especially concerning as multiple studies show that a very small percentage of physicians are responsible for all malpractice claims. In 2016, The New England Journal of Medicine published a study that found that 1% of all physicians accounted for 32% of all malpractice claims over the past 10 years.
A report released by the Journal of Patient Safety in January 2017 showed that fewer than 2% of all physicians were responsible for half of all malpractice claims over the past 25 years.
These doctors can avoid public scrutiny by requiring their dismissal before settlement and thereby avoiding any reporting at the state or national level. By requiring a confidential settlement, patients, patients’ family members, and patients’ attorneys are prohibited from reporting anything about the doctor’s malpractice, including posting comments online.
These doctors can then continue to harm future patients, which will lead to additional medical malpractice claims that can be settled by the institution without any report being generated.
In turn, the only entities that are aware of the malpractice are the individual plaintiffs and plaintiff’s attorneys. And they contracted to keep that secret under the confidentiality agreement. The hospital’s credentialing body knows, but any discussions by the hospital’s credentialing body are strictly confidential and hidden.
The result is that the physician’s insurance company is able to pay to keep the negligence secret.