HHS Ruling on NPDB Tells Docs to Be Pro-Active Post-Event
Below is a Medscape article discussing a recent ruling by HHS on NPDB reporting for the Oregon and Massachusetts Apology and Disclosure Programs. The leaders of the Oregon and Massachusetts programs requested that med-mal cases settled through their systems not be treated as written demands and thus not be reportable to the NPDB. As many of our readers know, physicians and other healthcare professionals are afraid of reports to the NPDB due to reputational damage and this fear can lead to resistance in settling legitimate claims. HHS said "no" to Oregon and Massachusetts, BUT there is actually great news here for the disclosure movement. The Medscape article had the following quote: "HRSA would issue guidance explaining that when 'the provider initiates the settlement and no written demand for payment is made,' no NPDB report is necessary."
At Sorry Works!, we have always encouraged pro-active behavior post-event - and now NPDB is telling you the same! This message is for hospitals, PIAA carriers, and RRGs. Be empathetic and stay connected with patients and post-event. Run a fast, credible review that includes a formal interview of the patient and/or family. And if the review shows there was an error, move quickly to fairly meet the financial and non-financial needs of the patient or family. Countless risk managers have told me that when they stay connected post-event, the likelihood of a written demand is greatly diminished, which means even if there is payment, there is no report to the NPDB.
Taking it a step further....reach out to the plaintiff's bar. Literally go meet with PI lawyers and educate them about your disclosure and apology program. Part of the conversation should sound like this: "Instead of deny & defend, we are now working hard to stay connected with patients and families after something goes wrong. We are running quick and credible reviews, which includes interviewing the family to get their perspective. If the review shows an error happened, we will work quickly to meet the financial needs of the family, and if the family is represented we are happy to work with you. Conversely, there will be times we honestly don't know about an event or a family leaves unhappy and shows up in your office. Please give us a call. If we don't know about the situation, please educate us and we'll figure it out. If we do know about the situation we'll share what we know and we'll figure it out. Let's work together." Reaching out to the PI bar and building relationship will reduce written demands.
Don't forget to educate patients and families about disclosure. One of the challenges we are hearing with disclosure is that, for example, the hospital wants to disclose but the family won't come back, won't answer the phone, etc. Or the hospital leadership honestly doesn't know about a bad situation but instead of calling the hospital the family goes straight to an attorney. Look, most patients and families think that hospitals and doctors cover up mistakes, and there is a reason for this! So we need to re-educate our patient and family populations that when something bad happens the door is open. Consider the following document we've produced at Sorry Works: http://sorryworkssite.bondwaresite.com/photos/File133.pdf. Use it or modify as you wish, but use it! And develop similar content and messages for your patients and families...they need to know that disclosure is the new way and your door is open post-event.
Remember, also, cases settled on behalf of the hospital don't have to be reported. As more physicians become employed, settling on behalf of the hospital will become a tool for more and more risk managers, defense attorneys, AND plaintiffs attorneys.
I know all of this is small comfort to our friends in Oregon and Massachusetts who worked so hard to develop their state-wide disclosure programs. I especially liked Oregon's approach. However, hospitals and insurance carriers in these states need to know they can do disclosure as described above and do it successfully even without the apology immunity offered by the state programs. The same is absolutely true for hospitals and insurance carriers in the other 48 states. This has always been the beauty of disclosure: You don't need any laws to be passed! Sure, apology immunity laws make docs more comfortable in post-event conversations, but you don't need them. Disclosure is just good customer service.
Going forward, I hope we can have a serious discussion about reforming the NPDB. It needs to be updated, especially with disclosure taking root. The NPDB was started with the best of intentions: Track payments made on behalf of physicians so that incompetent docs can't skip from state to state harming countless people along the way. Good idea. Great idea. The problem is that the NPDB has also become a badge of reputational shame among competent physicians. Getting reported to the NPDB causes fear with docs and increases resistance in settling of legitimate claims. There are studies showing the time to settle claims has dramatically increased since the NPDB was established. Reputation is everything to good docs. So, while we are helping some families by tracking incompetent docs, we are hurting other families with legtimate claims. Moreover, by increasing the culture of fear of among docs, we are impeding the disclosure movement and also stifling learning from medical errors, so even more patients and families are harmed. Clearly we can do better.
A couple years ago Sorry Works! suggested reforms to the NPDB in light of the disclosure movement. And holy cow, did I meet some nasty resistance. As my wife put it, I called their baby ugly and NPDB supporters didn't like it. Well, as a "baby," the NPDB was cute (track incompetent docs), but as a teenager the NPDB won't clean his room or get a haircut, plays loud music, wears goofy clothes, and constantly breaks curfew (delaying settlement of legitimate claims, impeding the disclosure movement, stifling learning from medical errors). Time for the teenage NPDB to grow up. The language change that is coming - HRSA would issue guidance explaining that when 'the provider initiates the settlement and no written demand for payment is made,' no NPDB report is necessary - is helpful, but we need more maturity from teenager NPDB!
Reckless and illegal acts should always be reported, and frequent flyers should be tracked, but what about the otherwise competent doc who makes a mistake, apologizes, and does the right thing? Should that person wear the same badge of shame? Or can they be put in a separate, confidential file, and so long as they don't commit the same error again, the record is eventually wiped clean? Surely we can do this...
Here is the Medscape article:
Apologize-and-Pay Laws Don't Keep Docs Out of Data Bank
August 18, 2014