A Letter to Neil Sampson Regarding NPDB Notice of Proposed Rule Making
February 16, 1999
Neil Sampson
Acting Associate Administrator
Bureau of Health Professions
Health Resources and Services Administration
Room 8-05 Parklawn Building
5600 Fishers Lane
Rockville, Maryland 20857
Re: National Practitioner Data Bank
Notice of Proposed Rule Making
Dear Mr. Sampson:
Our firm is general counsel to The Doctors Company, the nation’s largest physician owned professional liability insurance carrier. We are writing to express our concerns regarding certain aspects of the Notice of Proposed Rule Making (NPRM) which appeared in the December 24, 1998, edition of the Federal Registerwith respect to proposed changes to NPDB reporting requirements.
Based upon our review of the NPRM, we understand that insurers and other reporting entities would be required to report medical practitioners whose conduct might have factored into causation of the underlying claim regardless of whether or not the practitioner was named in the action.
In order to comply with this requirement, insurers would be obligated to make a determination as to whether the standard of care was met by each practitioner who saw the patient. In essence, insurers would be asked to render their “expert opinion” concerning liability in the underlying case. This is simply not a role which professional liability insurers are equipped to fulfill.
It is universally held that nearly all cases involving allegations of medical negligence require the testimony of experts to establish the relevant standard of care and whether or not a breach of the standard occurred. As held by the California Supreme Court in Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001:
The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony. . .
The changes proposed under the above-referenced NPRM directly contravene the widely accepted standard of review in cases involving allegations of professional negligence. The question of whether or not a practitioner’s treatment might have played a role in a patient’s injury is a question which is properly determined through the judicial process and with the assistance of expert witness testimony. It is not reasonable nor proper to ask professional liability insurance carriers to independently make determinations of this nature.
Notwithstanding the fact that insurance carriers are not equipped to make standard of care determinations, the reporting requirement changes now under consideration would be extremely burdensome upon the insurance industry, and the cost of bearing such burdens would, of necessity, lead to increased premiums.
For example, if insurance carriers are required to make “expert witness determinations” regarding standard of care issues, it seems certain that insurers will face numerous lawsuits brought by practitioners who disagree with the insurer’s evaluation of an underlying claim.
In addition, the above-referenced changes could result in a vast increase in the number of claims being filed since a claimant who did not name a given practitioner in his or her first action might subsequently decide to do so upon learning that the practitioner was identified by an insurance carrier as someone who may have committed professional negligence.
Finally, the changes included in the NPRM would impose huge administrative burdens upon insurance carriers and would greatly delay an insurer’s ability to expeditiously resolve claims. Public policy considerations dictate that insurers should act as quickly as possible to resolve meritorious claims. The National Practitioner Data Bank reporting requirement changes referenced above would greatly impede insurance carriers ability to accomplish this.
If insurance carriers are required by NPDB to make these determinations, conflicts will arise between the carriers and their insureds. To sort out these conflicts and to protect the carrier from litigation, third party administration to make “independent” determinations would be necessary. The likely cost of this would range from $150–$300 per hour.
This is no small matter. Potentially, 50% of all settled claims might involve multiple insureds where independent administrators would have to be utilized.
With regard to obtaining the necessary information required in the proposed data bank language, namely every insured’s affiliation with hospitals, HMOs, etc. prior to finalizing any settlement, carriers would need to spend a great deal of time and effort researching each insured’s background. This additional administrative responsibility would also slow down the settlement process and be a tremendous drain on available resources.
Credentialing type issues such as these are usually done on a full-time basis requiring personnel. There are companies which specialize in credentialing of this nature, and they charge considerable fees given the time and effort it takes to thoroughly credential physicians. The Doctors Company is not a credentialing facility and would need to hire additional persons for such a task.
Overall, The Doctors Company would incur additional expenses and, more importantly, slow down the settlement process. As a result, the proposed language creates an undue administrative burden.
In summary, we believe that standard of care determinations must be left for adjudication through the judicial process. We strongly oppose the above-referenced NPRM amendments for the reasons set forth above.
Thank you for giving consideration to our viewpoint. Please do not hesitate to contact the undersigned if any further information is desired.
Very truly yours,
Douglas S. Free, Esq.
