Reforming the National Practitioner Data Bank to Promote Fair Med-Mal Outcomes

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 5, Issue 1 along with a link to an electronic copy of the full form of the piece. 

(image by Ted Eytan)

In 1990, the federal government created a clearinghouse to track, among other things, all medical malpractice payments made in the United States. Congress created the National Practitioner Data Bank (NPDB) as a repository to hold information about individual doctors’ malpractice and disciplinary histories. Doctors’ NPDB files, while not visible to the public, are available to medical organizations. The availability of doctors’ NPDB files aid medical organizations in making better hiring decisions, as well as preventing incompetent doctors from moving from state to state in the hope of escaping local regulators.

The NPDB’s existence, though, has become a significant barrier to malpractice claims settlement. Many doctors fear being listed in the NPDB and this has significantly diminished the likelihood of payment when a claim is made (a claim made post-NPDB is only 59% as likely to attract a settlement as a pre-NPDB claim). Fear of being listed in the NPDB has resulted in a culture of evasion and exploitation of reporting loopholes that weaken the NPDB’s data collection efforts.

This Article argues that, while the NPDB seeks to protect potential malpractice victims from inept doctors, part of the cost has been borne by actual malpractice victims. These patients are now more likely to go without compensation because payments would create a paper trail of past performance that some doctors are unwilling to allow to exist. This article tells the story of the NPDB – and organized medicine’s response to it – and argues for improvements to remove barriers to fair compensation and to improve the NPDB’s ability to track malpractice data.

Find the full version of this article in PDF form here.

Gabriel H. Teninbaum is a Professor of Legal Writing, Suffolk University Law School.

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