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Is an EP considering a quick settlement of a malpractice claim to put a stop to years of unpleasant litigation? This means a report to the National Practitioner Data Bank (NPDB), which can negatively affect an EP’s future career and reputation for years to come, warns Karin M. Zaner, JD, of Dallas-based Kane Russell Coleman & Logan. In their eagerness for closure, EPs often fail to consider the serious implications of reporting requirements.
“They don’t teach this stuff in medical school,” Zaner says. “The EP thinks, ‘Why not settle? It’s not on my dime.’ But one of the ramifications is: Will it result in a [NPDB] report?”
The NPDB is accessible only to hospitals, other healthcare entities, state licensing boards, physicians, and attorneys representing physicians, not medical malpractice insurers or the general public. However, this doesn’t mean others won’t learn of the lawsuit. Robert I. Rubin, JD, an attorney at Becker & Poliakoff in West Palm Beach, FL, notes, “Some plaintiff attorneys request this information from the defendant physicians as discovery in a suit or presuit letter.”
In a medical malpractice case, the plaintiff’s counsel can discover the details of a prior case in a deposition.
“This information is generally not admissible at trial, with a few exceptions, because the prejudice outweighs the probative value,” Rubin explains.
Many state medical boards also require a physician to affirmatively report a settlement or judgment to them as an ongoing update of their “physician profile.” Frances E. Cullen, JD, an Atlanta-based malpractice attorney, warns, “There can be negative consequences if a settlement or judgment is required by law to be reported and is not.”
If a physician’s state licensing board requires reporting, the information then will be readily available to the public.
“The language of some settlements are confidential, but many are accessible to the public at the courthouse, or through online reporting services,” Cullen says.
Some state medical boards use a certain dollar amount as a threshold to determine if they will conduct an investigation of the medical malpractice case to assess if they will discipline a physician for practice below the standard of care, Cullen adds.
Regardless, the physician’s state licensing board will learn of the suit because the NPDB will notify them.
“For this reason, a physician should discuss potential reporting language with their attorney,” Cullen advises.
Rubin has seen insurance companies de-credential healthcare providers, citing too much malpractice activity. He once represented an obstetrician in a case in which the patient’s insurance company was sued for negligently retaining the physician on its provider list.
“The physician had many malpractice cases,” Rubin says.
Defense attorneys should be well-versed in what a settled claim means for the EP in terms of reporting requirements, Zaner stresses. This is one reason she suggests EPs consider retaining their own counsel as opposed to being represented by the hospital attorney, who won’t necessarily take reporting requirements into consideration when determining whether a claim against an EP should be settled or defended.
“Problems happen when one defense counsel represents not only the physician but also the hospital. The EP may feel like the entity is the one who’s really got counsel, and the EP’s interests come second,” Zaner explains.
In some cases, insurance carriers may agree to provide the EP with separate counsel. Even if the EP pays out of pocket, the investment could prove worthwhile.
“The attorney might be able to structure the resolution so that it doesn’t trigger reporting requirements,” Zaner adds.
Hospitals are required to consult the NPDB when granting privileges. This prevents EPs from hiding malpractice history or license suspensions by moving to another state.
“Even though it’s not publicly available, the people and entities that matter to an EP’s career are required to check it to make sure they consider any past history,” Zaner says.
For the rest of the EP’s career, he or she will need to explain the NPDB report whenever applying for privileges or credentials. Poorly informed EPs might not even realize they have one. Others have resorted to simply checking the “no” box, and hoping no one finds out.
“It doesn’t really matter what the EP’s explanation is at that point, because they look like someone who is not telling the truth,” Zaner cautions.
A clear, concise explanation for what happened is the best strategy. There should be no inconsistencies in what’s told to payers, hospitals, state boards, or other entities.
“If different forms say different things, then you look like a liar,” Zaner says.
An EP can send a statement to the NPDB or the state department of insurance to be included as part of the record.
“For example, if the claim is reported by an insurance company, I can assist the insurance adjuster in writing up the claim as favorably as possible,” Rubin says. It can be pointed out that a claim against an EP was settled primarily based on vicarious liability, not actual negligence.
Even if a malpractice suit is not reportable — if the EP prevailed or was dismissed from the suit, for instance — a credentialing board might ask the EP if he or she was ever named in a suit.
“The EP has got to have a concise answer that puts it to bed as much as possible,” Zaner advises.
Ill-prepared EPs often give explanations that are long winded, overly detailed, and blame others.
“You don’t want something that causes someone to dig deeper, or shrug their shoulders and say, ‘I don’t care who is right or wrong — we are just passing on this person,’” Zaner adds.
In Cullen’s experience, potential employers and state licensing boards usually are wary of EPs with several medical malpractice settlements and judgments against them.
“Any settlement or judgment will have to be explained, repeatedly, each time a physician seeks new employment or applies for a new state medical license,” she says.
Cullen advises clients to draft a comprehensive explanation for this purpose, and to use the same one each time they submit an application.
“A single medical malpractice settlement or judgment will most often have a limited effect, except if the case was one where the physician significantly departed from the standard of care, or was impaired by use of drugs or alcohol at the time of the event,” Cullen says.
Zaner believes that, generally speaking, EPs with one or two malpractice claims that aren’t egregious or high-dollar verdicts shouldn’t have too much to worry about.
“The more you have, the more you look like there’s something wrong with you,” Zaner explains. “They might look twice if you’ve got three or four or a bunch recently.”
There’s a general understanding that any EP practicing for a certain length of time is likely to have some malpractice history. Far more important is the EP’s ability to explain it matter-of-factly.
“You hope that the entity deciding whether to give you privileges is going to look at the explanation and move on,” Zaner says.
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor); Stacey Kusterbeck (Contributing Editor); Jonathan Springston (Associate Managing Editor); Kay Ball, RN, PhD, CNOR, FAAN, (Nurse Planner); and Shelly Morrow Mark (Executive Editor).