State Licensure Boards &
The National Practitioner Data Bank
A Special Project of Sorry Works! • Doug Wojcieszak, Founder • May 2012
Personal Note from Doug Wojcieszak, Founder, Sorry Works!
The 20 years since my oldest brother died from medical errors have been a journey for me. For several years I experienced a lot of anger, much of it directed at the medical community. That anger sometimes led me to take public and private swipes against healthcare organizations and clinicians that covered up medical errors. Now, anger in the form “righteous indignation” can be a force for good, however, uncontrolled, non-stop anger is unhealthy, unproductive, and, unfair.
What drew me to disclosure over 14 years ago was how this simple process addresses the anger felt by most patients and families post-event, including mine. Disclosure literally allows patients and families to complete the grieving process, receive not only an apology but also the compensation they deserve, and move forward with their lives, sometimes working hand-in-hand with the clinicians/organizations that caused the initial harm. Disclosure literally turns anger into understanding and reconciliation.
Advocating for disclosure across the United States and training thousands of clinicians on this simple process has been very cathartic for me. It has allowed me to get the anger out of my system and bring meaning to my brother’s death. However, the process has also been an eye opener for me. I’ve gotten to know countless clinicians on a professional and personal level. Once the enemy in my life, I am lucky to count several clinicians and healthcare professionals as colleagues and friends. In getting to know these people, I have acquired a greater understanding of how medical malpractice impacts them as human beings. Imagine going through life knowing you crippled or killed someone? Unbearable. Now, this statement isn’t meant to diminish the hurt caused to patients and families by medical errors…it is simply a call to recognize the clinician perspective when trying to craft a comprehensive solution.
I have also come to understand the vast majority of clinicians are good people doing a difficult and dangerous job. In fact, very, very few clinicians are the “sloppy docs” or “bad nurses” bandied about in tort reform debates, just like very few patients are actually “greedy.” The vast majority of people (clinicians, patients, families) caught in medical malpractice events are actually good people – and disclosure allows these good people to continue working together to find reasonable solutions.
The disclosure process has great value for clinicians, and not just in litigation reduction. Disclosure helps them serve patients better by making medicine safer, and it provides healing and closure for all sides, clinicians included. Disclosure also has great value for patients and families, most notably swift and fair resolution of legitimate claims versus cases dragging on for years. However, I’ve learned that for disclosure to truly work and have staying power, it must be fair and credible to all sides. Patients must receive the complete truth at all times and adequately compensated for preventable harm. Likewise, if we are going to ask clinicians to apologize for mistakes, clinicians also need to know they won’t be forced into settlements when their care was reasonable and good. It’s only fair.
I always stress the importance of fairness when teaching disclosure – however, I am troubled by how disclosing clinicians (docs, nurses, and other providers) are treated unfairly by state licensure boards and the National Practitioner Data Bank (NPDB). Clinicians who disclose are treated in the same manner as those that don’t disclose by the NPDB, and disclosing providers can be easy targets (versus non-disclosing clinicians) for state licensure boards. Under pressure from consumer groups, state licensure boards can "juice their numbers" by treating disclosing clinicians as low hanging fruit. It’s not fair.
The situation with medical licensure boards and NPDB actually creates perverse incentives to cover up medical mistakes (as opposed to disclosing), which delays learning from errors and causes additional harm to future patients and families. We must do better.
In seeking a fair solution to these problems and concerns, I have thought about the American criminal justice system. Though far from perfect, our criminal system does treat people who confess and mend their ways in a much different manner versus those who deny responsibility. First- and even second-time offenders who reform can be treated much differently than “frequent flyers.” I want to be careful here…medical malpractice does NOT involve criminal behavior in most instances…yet doctors, nurses, and other clinicians are often feel like they are treated like criminals in the process. Well, all sorts of “carrots” are available to judges and prosecutors to encourage positive behavior, and I wonder why we can’t create carrots for clinicians involved in malpractice….carrots that will encourage disclosure and increase patient safety.
Welcome to this proposal…I encourage you to read it thoroughly with an open mind and heart, and please send any comments, questions, or concerns to me directly at 618-559-8168 or firstname.lastname@example.org.
The American criminal justice system, though not perfect, has great sophistication and many nuances --- you kill someone we usually throw away the key, but if you commit a more minor offense, admit your mistakes, and promise to reform you can be treated much differently. The days of the Scarlet Letter are mostly gone, and judges and prosecutors have many “carrots” at their disposal to encourage positive behavior. Moreover, Americans in general believe in second chances. Unfortunately, state licensure boards for physicians, nurses, and other clinicians and the National Practitioner Data Bank (NPDB) do not display this level of sophistication or sensitivity, especially with clinicians whom have tried to do the right thing post. State licensure boards and the NPDB have created an unnecessary chill on the disclosure movement, forcing clinicians who want to do the right thing post-event (disclose, apologize, compensate) to simultaneously worry about disciplinary action against their licenses and reputation injury. Disclosure programs are reporting this situation as a problem. Indeed, the old saying “No good deed goes unpunished” seems to fit perfectly here. This fear factor delays or impedes settlement of legitimate claims, slows learning from medical errors, and delays healing for all parties involved in adverse medical events. The NPDB does a laudable job of tracking problematic clinicians, while state licensure boards rightly discipline problematic clinicians, including suspension and termination of licenses. However, Sorry Works! believes clinicians not engaged in reckless behavior who do the right thing post-event – disclose & apologize – should be treated differently by the NPDB and their state licensure boards (versus clinicians who refuse to disclose and apologize). Therefore, Sorry Works! is proposing a reform effort to state licensure boards and the NPDB to make sure clinicians who practice disclosure are treated differently. With state licensure boards, claims involving disclosure and apology as certified by the patient/family will be placed in a separate “disclosure category” and no disciplinary action will be taken against a clinician so long as no more than two paid claims in a rolling ten-year period are reported; if the number is breached disciplinary action will be initiated for all claims. Moreover, claims involving reckless behavior by clinicians as defined by the Just Culture Algorithm will not be shielded. With the NPDB, paid claims involving disclosure and apology as certified by the patient/family will, again, be put in a separate disclosure category. Paid claims in the disclosure category will not be viewable by healthcare organizations. Again, reckless behavior will not be shielded from disciplinary action, and only two claims in a 10-year period will be allowed in the disclosure category; if the number is breached all claims will be available for review. Indeed, the Sorry Works! reform proposal for both the state licensure boards and the NPDB will not be a shield for reckless clinicians or incompetent clinicians who simply say “sorry” for countless mistakes. Sorry Works! is proposing a national campaign to raise awareness of this reform proposal and to encourage state legislatures/governors and the Department of Health & Human Services to make the necessary changes. This will be a focused yet flexible campaign. Focused on reforming state licensure boards and the NPDB to encourage – not hinder – disclosure, but flexible enough to incorporate new/different ideas from interested parties as the campaign grows and proceeds along.
Introduction: What’s Problem?
The American criminal justice system, though not perfect, has great sophistication and many nuances --- you kill someone we throw away the key, but if you commit a more minor offense, admit your guilt, and promise to reform you can be treated much differently. The days of the Scarlet Letter are mostly gone, and judges and prosecutors have learned that “throwing the book” at every offender is not always the best course of action. In fact, prosecutors and judges often have many “carrots” at their disposal to encourage the right behavior. Some people refer to this phenomenon as “restorative justice.” Moreover, Americans in general believe in second chances.
To be clear, medical malpractice usually does not involve criminal acts – yet doctors, nurses, and other clinicians often feel like they are treated as criminals in process. Unfortunately, we don’t often see the sensitivity and sophistication of our criminal justice system with the National Practitioner Data Bank (NPDB) and state licensure boards, especially with clinicians who have disclosed and tried to do the right thing post-event. Clinicians who disclose are treated by the NPDB in the same manner as those that don’t disclose, and disclosing clinicians (doctors, nurses, and other providers) can actually make easy targets for state licensure boards. This is a problem, as clinicians fear for their licenses with state licesure boards and are literally mortified of reputation damage caused by the NPDB. Hospitals sometimes settle cases on behalf of disclosing physicians to avoid the NPDB. Independent med-mal insurers don’t have this option, but if their disclosure efforts are rapid enough to avoid a written demand, reporting to the NPDB is avoided. However, even with corporate shield and rapid disclosure leading to NPDB avoidance, reporting may still be required to state licensure boards. The reporting requirements for the NPDB and state medical boards can be especially problematic for disclosure programs, which encourage clinicians to do the right thing post-event (for a myriad of reasons, including reducing litigation), but may watch clinicians who did the right thing still be punished by state officials or indiscriminately listed on the NPDB with clinicians who didn’t disclose.
Sorry Works! is proposing a national campaign to reform state licensure boards and the NPDB in light of the growing disclosure movement. This campaign will be more important to the disclosure movement than the push for apology laws. This will be a focused yet flexible campaign. The campaign will always be focused on reforming state licensure boards and the NPDB to encourage - not hinder – disclosure, but flexible enough to accommodate new/different reform ideas as the campaign grows and proceeds along.
To be fair, the NPDB was created with good intentions. Implemented in the late 80’s, the NPDB was developed to improve patient safety by tracking clinicians with multiple paid claims and/or other disciplinary actions taken against their licenses. This tracking system was intended to prevent problematic clinicians from skipping from state to state, creating havoc along with way.
The same positive attributes can be applied to state medical boards and their important job of disciplining problematic clinicians, including suspension or termination of licenses when necessary.
With the NDPB, the tracking system is still a laudable goal, however, the NPDB’s implementation and continued existence have created unintended consequences that beg for reform. Yes, there are some truly bad clinicians who should not be practicing, but, fortunately, these are the outliers. The majority of American clinicians are competent, caring people. However, even the best clinicians can have a mistake or two in their careers, and they should be encouraged to disclose and apologize for these mistakes. Unfortunately, the NPDB treats all clinicians – good and bad - the same. Have a paid claim, you are in the data bank!
With state licensure boards, disciplining problematic clinicians is still a laudable goal, however, state licensure boards can often be underfunded and overmatched when it comes to reviewing paid claims. This means a clinician who refuses to acknowledge an error and disclose and apologize can hire a good lawyer to attempt to wiggle out of sanctions. On the other hand, a clinician who has disclosed and apologized for an error is literally an easy target for the typically overmatched state medical boards. Some nurses claim nursing boards like to eat their own young! Indeed, it can be easy for state licensure boards to show they are “being tough on clinicians” by focusing on people who have disclosed. It’s not fair. Criminal prosecutors generally don’t “tee off” on offenders who readily admit their guilt and promise to change their ways. Surely we can do better.
Clinicians who make an honest mistake and want to disclose fear their reputations are going to be permanently tarnished with a report to the NPDB and their licenses negatively impacted by their state boards. So, the belief is, clinicians fight all claims harder, even claims when malpractice is clear and there is adequate insurance to cover the damages, thus driving up the transaction costs, delaying or preventing healing and closure for all parties (clinicians included), and impeding patient safety. There is also evidence to suggest that lower value claims with legitimacy, which would have been quickly settled pre-NPDB, are now more likely to be fought because of the NPDB, possibly making them cost-prohibitive for personal injury attorneys.
Let’s be clear: Even the best clinicians can make honest mistakes, and that’s why we have insurance to take care of the people harmed by these errors. Moreover, we should be learning from these mistakes so medicine can improve and working to heal all parties injured by adverse events (clinicians included). However, clinicians not engaged in reckless behavior who disclose and apologize for their mistakes should not be treated by the NPDB in the same manner as clinicians who cover up their mistakes. Nor should they be targeted for disciplinary action by state medical boards. This is a situation that begs for reform. The need to fix this problem is growing even more urgent with the growing disclosure movement! Clinicians are actively being encouraged to apologize for medical errors and work with their insurance carriers/hospital to fairly compensate harmed patients and families. Disclosure has been shown to reduce the need for litigation, shorten the time for settlement of legitimate claims, increase learning from medical errors, and speed healing for all parties injured by an adverse event. Disclosure is the ultimate “sunshine.” However, apologizing is hard to do -- it shouldn’t be easy – but apologizing is made even more difficult when clinicians know they are being reported to state licensure boards and the NPDB.
When teaching disclosure, we always receive the following questions from anxious clinicians: “What about the data bank? What about the state licensure board?” The reputation and licenses of otherwise good clinicians should not be impacted when they do the right thing post-event. Disclosure programs are reporting this situation as a problem. Indeed, we need reform.
What's The Solution?
Sorry Works! is advocating for the reform of state licensure boards and the NPDB in light of growing disclosure movement. We believe a clinician who makes an honest mistake (not reckless behavior) but discloses and apologizes should be treated differently by state licensure boards and the NPDB. Clinicians who do the right thing post-event should not be punished by state and federal regulators.
With state medical boards, clinicians who disclose and apologize and work with their hospital/insurance carrier to provide quick & fair compensation will not have disciplinary action taken against their licenses. Note: cases involving empathy, apology, and disclosure where no money is paid (either because compensated was not warranted or the patient/family rejected compensation) will also be eligible for this program. To qualify for the “disclosure category,” there must be a documented apology meeting between the patient/family and clinician(s), and the patient/family must indicate by signature that the meeting happened as part of the settlement and reporting process to the state licensure boards. Any attempts to forge this “apology document” will be met with stiff civil penalties, including treble damages. This apology meeting may happen prior to litigation or any time during litigation (including during trial phase). However, only two claims involving apology can be reported to the state medical board in a ten-year time period. More than two claims during a ten-year time period will result in disciplinary action for all paid claims, including those previously shielded. Furthermore, paid claims involving reckless behavior as determined by the Just Culture Algorithm will not be shielded from sanctions --- but disclosure and apology (as confirmed by the patient/family) following reckless behavior may result in reduced sanctions against such clinicians.
With the NPDB, we propose the development of a “disclosure category” within the NPDB. Clinicians who have paid claims made on their behalf but disclosed, apologized, and worked with their insurance carrier to fairly compensate the patient/family will have their report to the NPDB put in the “disclosure category.” Note: cases involving empathy, apology, and disclosure where no money is paid (either because compensated was not warranted or the patient/family rejected compensation) will also be eligible for this program. Again, to qualify for the “disclosure category,” there must be a documented apology meeting between the patient/family and clinician(s), and the patient/family must indicate by signature that the meeting happened as part of the settlement and reporting process to the NPDB. Any attempts to forge this “apology document” will be met with stiff civil penalties, including treble damages. This apology meeting may happen prior to litigation or any time during litigation (including during trial phase). Reports in the “disclosure category” will not be made available to hospitals, practices, or any other entity that uses the NPDB for hiring practices or granting privileges. However, clinicians may only have two (2) reports in the “disclosure category” within any 10-year time period. More than two reports in a 10 year time period – including a written demand made during that 10-year time period that is ultimately successful regardless of settlement date and report to the NPDB – will result in all claims being made available for review, including those that were previously shielded. Furthermore, paid claims involving reckless behavior as determined by the Just Culture Algorithm will not be included in the disclosure category --- but if a clinician who acted in a reckless manner disclosed and apologized to the patient/family, said disclosure and apology will be notated in the data bank report.
Indeed, our reform effort will not be a shield for reckless clinicians or incompetent clinicians who simply say “sorry” for countless mistakes in an attempt to avoid detection by unwitting healthcare administrators.
Carve out Researchers
The NPDB has proven to be a valuable database for healthcare, insurance, and legal researchers. Researchers will still be allowed to see reports in the disclosure category so long as their work is limited to legitimate research efforts. Under penalty of law, researchers will be required to sign a confidentiality agreement.
What's the Way Forward?
Sorry Works! is proposing a public relations campaign to raise awareness about this reform proposal and encourage state legislatures/governors and the the United States Department of Health & Human Services (HHS) to enact reforms.
This will be a full-scale campaign deploying all public relations tools, including social media. We will need to raise money to launch and sustain our efforts. We hope the reform proposal will be adopted quickly by HHS and state legislatures/governors, but we will persist with this campaign as long as required. Failure is not an option when the disclosure and patient safety movements are at stake.
Focused Yet Flexible Campaign
This campaign will be clearly focused on reforming the state licensure boards & NPDB to help – not hinder – disclosure; however, the campaign will be flexible as we move forward to accommodate new/different ideas on how to reform the NPDB and state licensure boards. This flexibility will be especially important at the state level, as each state enjoys unique political realities, but also at the federal level too. The primary goal is to enact reforms that encourage disclosure, and all ideas on how to reach this goal are welcome!
Commonly Asked Questions and Challenges
- “If a doctor intentionally harms someone, is drunk on the job, or repeatedly ignores time-outs or the warnings of her partner and the nurses, all she has to do is say “sorry” to avoid the NPDB and state medical board!”
- Answer: Not true. Reckless behavior as determined by the Just Culture Algorithm will not qualify for this program.
- “Incompetent physicians can just keep saying ‘sorry’ for multiple claims to avoid discipline, and they will keep hurting and killing patients.”
- Answer: Not true. Only two paid claims over a ten year period are allowed for either the NPDB or state medical board proposals. If the number is exceeded, then all claims – including those in the program – are available for review and disciplinary action. We want to give people an incentive and chance to improve, and not permanently tarnish the reputations of otherwise good clinicians for an honest mistake when they disclosed and apologized. Again, this part of the proposal draws from our criminal justice system where first and even second-time offenders can be treated differently - even records wiped clean - if they admit their mistakes and genuinely work to improve themselves.
- “This is a just a mulligan or free-pass for docs and nurses.
- Answer: Not true. To qualify, clinicians must meet with the family, discuss their conduct and apologize --- that is a very, very tough meeting. Moreover, the clinician must work their hospital/insurer to ensure fair and quick compensation for harm caused by medical errors. In the end, the patient/family must certify the apology in writing. Not an easy process. Indeed, many clinicians may think it far easier to try their luck with the state licensure board!
- “This entire proposal is anti-sunshine.”
- Answer: The ultimate act of sunshine is when a clinician/hospital discloses an error to a patient or family. Talking about the mistake, owning the mistake, and providing adequate financial remedy not only reduces the need for litigation, it also rapidly advances patient safety and quality improvements --- which are the stated goals of all sunshine efforts related to medical errors/quality improvement. Indeed, when clinicians own a mistake the chances for quality improvements are greatly improved. To ensure a true disclosure/apology meeting happens for submission to the disclosure categories at NPDB and state licensure boards, this proposal requires that the patient/family sign a form agreeing the meeting occurred.
- “This is just another pro-doctor idea that hurts consumers. It’s anti-consumer.”
- Answer: The best thing that can happen to the patient safety movement is for more doctors and other clinicians to talk about their mistakes and learn from them. Disclosure is the best patient safety advancement hands down. This proposal removes barriers to disclosure. This proposal is win for everyone, especially consumers.
- “This proposal removes the incentives for doctors to improve their care.”
- Answer: Not true. A disclosure meeting, which is required to qualify for the program, is a very powerful event that often leads to quality improvements. Most safety experts will say learning from mistakes and subsequent quality improvements can only begin when the offending party admits their mistake. This is what disclosure is all about…and this proposal removes barriers to disclosure. Furthermore, in this proposal, clinicians who breach the number of allowable paid claims (2), have all claims – including those in the program – available for viewing and disciplinary action. Talk about an incentive to improve!
- “This proposal is step back for public and regulatory oversight of the medical community.”
- Answer: Not true. Let’s have the public, regulators, and the media focus on the truly bad apples…..those clinicians guilty of reckless behavior and/or frequent flyers. Otherwise good docs who make an honest mistake or get caught up in “team events” and admit those mistakes and work to improve themselves should not be the focus of regulatory oversight. Indeed, this proposal makes it easier to focus on the truly problematic clinicians who cause the greatest amount of harm.
- “This proposal will greatly harm the patient safety movement.”
- Answer: The greatest continued threat to patient safety is when clinicians and healthcare organizations run away and hide post-event. Doctors and hospitals cover up for a variety of reasons, most notably fear of litigation. With the disclosure movement, we have begun to convince healthcare organizations that disclosure is actually good for litigation reduction while subsequently improving patient safety. In fact, we believe disclosure is the best patient safety initiative hand downs. However, the NPDB and state medical boards are hindering disclosure --- which hurts patient safety. With this proposal, we seek to remove those barriers.