Whether an "investigation" has "ended" can be a critical factor in determining whether a report on a physician's resignation is due to the National Practitioner Data Bank ("NPDB"). In a recent decision, a Federal Court of Appeals for the first time considered the issue and rejected the view taken by many doctors, and by a few hospitals, that an investigation ends when the fact-gathering has concluded. In doing so, the Court upheld the position taken in the NPDB Guidebook that an investigation is not ended until the hospital's "decision-making authority takes a final action or formally closes the investigation."
Doe v. Leavitt, 2009 WL 81655 (1st Cir. 2009). In the Leavitt case, a physician's resignation was held reportable even though it occurred after fact finding ended and after an initial "proposal" from the executive committee.
BACKGROUND
In the
Leavitt case, a hospital's medical staff had opened an investigation after a nurse filed a written complaint alleging that a male physician had threatened her. An ad hoc investigative committee was formed, conducted an investigation, and then made a report. Thereafter, the executive committee of the medical staff made a "proposal" to the physician under which he would return to practice as long as he agreed to certain contractual modifications and to provisions for regular proctoring and psychological evaluations. The physician rejected the proposal and resigned, believing no NPDB report would be filed. The hospital, however, filed a report with the NPDB, stating that the doctor had resigned while under investigation.
After attempting administratively to get the NPDB to vacate the report, the physician filed suit in federal court against the NPDB.
ISSUES
On appeal, the physician argued that the "investigation" was over when the ad hoc committee report was submitted and when the executive committee made a proposal. The long-standing view of HHS and the NPDB as to when an investigation is ended is set forth specifically in the NPDB Guidebook. The Guidebook states that an "investigation is considered ongoing until the health care entity's decision making authority takes a final action or formally closes the investigation." The physician made a variety of arguments as to what an "investigation" is and when it ends, the strongest of which was that, in its plain and ordinary meaning, an "investigation" involves seeking of facts, not deliberating and making a decision on facts. Under this view, the "investigation" was over when the MEC accepted the ad hoc committee's report.
The court acknowledged that there was logic in that position, but ultimately held that HHS had given a reasonable, although not mandatory, interpretation of the word "investigation" and when one "ends."
KEY POINTS
The court's decision reinforces the importance of a Guidebook, limited though it is, as a source of interpretations of NPDB rules under HCQIA. The case also forecloses the efforts of many doctors, and a few hospitals, to evade HCQIA by a resignation during the "deliberative" phase of a peer review process.
WHAT IS NOT COVERED
There are still some circumstances in which reporting can be avoided when a resignation follows adverse recommendations. In this case, if the doctor had accepted the recommendation and waived his rights to appeal, there probably would have been no report required, because it appears that the adverse recommendations were not independently reportable. The physician would not have resigned "while under investigation" if he had accepted the proposed action and let it become final.
Of course, the final action itself could have been "adverse action" requiring a report depending on how the proctoring (the only potentially reportable element in this particular case) was structured. The Guidebook makes clear that proctoring, which involves veto power over a practitioner's decision, is an adverse action or restriction on privileges, whereas proctoring that only involves consultation and review is not a reportable adverse action. Thus, in some cases, action that is not significantly adverse may be "acceptable" and may allow a physician to resign without generating a report.
Gordon Copland
P.O. Box 2190
Clarksburg, WV 26302-2190
Phone (304) 624-8000
Fax (304) 624-8183
gordon.copland@steptoe-johnson.com
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