Dodging the Databank: A Moral Good, and How To Do It
Sorry Works! released a white paper entitled, "Reforming State Licensure Board and the National Practitioner Data Bank," back in 2012. In short, this white paper suggested that state licensure boards and the Data Bank, or NPDB, were impeding disclosure and apology programs because good doctors didn't want their reputations harmed or licenses suspended. We argued that the zest to root out truly bad doctors could unduly punish good clinicians who want to do the right thing post-event, and that changes needed to be made to the NPDB and state licensure boards in light of the growing disclosure movement. We caught a lot of flack from many in the patient safety community, including Consumer Union, but our white paper helped start an important discussion which continues today.
Unknown to me, also back in 2012 there was a great article published on this same topic entitled, "Malpractice, Mediation, and Moral Hazard: The Virtues of Dodging the Data Bank," written by Haavi Morreim, JD, PhD. This paper does an excellent job arguing that the NPDB is, in short, an unenforceable mess that houses poor and incomplete data which does little to improve safety and may actually harm safety efforts, most especially early resolution and offer programs. Written by a lawyer, this article includes discussion of "lawful ways for them (doctors) to avoid the data bank and thereby embrace early dispute resolution." This paper is a must read for any attorney or risk or claims manager who participates in a disclosure & apology program, or is trying to implement a disclosure program.
The Morreim article was published in 2012 in the Ohio State Journal on Dispute Resolution, which is probably not familiar to many readers of this space. Get a copy of the paper today and read it! Much work remains to be done with the NPDB and licensure boards, and this paper provides not only important ideas how to work around the regulatory concerns, but also provides robust arguments to rebut critics.
Doug Wojcieszak, Founder