Senator joins fight to reopen database website shut down by government

Nov. 04, 2011
Senator joins fight to reopen database website shut down by government
By DAVE HELLING - The Kansas City Star

A ranking U.S. senator on Thursday demanded that the government reopen a public website with data on malpractice and disciplinary cases involving thousands of the nation’s doctors.

Sen. Charles Grassley, an Iowa Republican, said the government’s decision to shut down the website — made after The Kansas City Star used it in part to investigate local doctors with long histories of alleged malpractice — was designed to protect a doctor named in the story, and not the public.

The shutdown “flies in the face of (the) mandate to enhance the quality of health care,” Grassley said in a letter to Health and Human Services Secretary Kathleen Sebelius.

An HHS spokesman declined to comment.

The public database — maintained as part of the National Practitioner Data Bank — remains unavailable for general use, as it has been since the department shut off access Sept. 1.

Medical boards, hospitals and other health care institutions use detailed, confidential information from the data bank to decide whether to grant licenses and staff privileges and for other purposes.

The data bank separately maintains a public database primarily used by researchers. The public database, which is designed to maintain the anonymity of doctors, does not include their names; instead, they’re identified by randomly assigned numbers.

This summer, Star reporter Alan Bavley prepared a story based on information from the public database. He found that 21 doctors had spotless Kansas and Missouri licenses despite lengthy histories of malpractice payments. He also was able to identify one of the doctors, Johnson County neurosurgeon Robert Tenny, by comparing public database information with publicly available court records.

The story, published Sept. 4, said Tenny had been sued by patients or their families at least 17 times since 1983. While denying the allegations, Tenny eventually settled at least seven of those lawsuits, according to court records, including a recent brain surgery malpractice claim for more than $1 million. Despite that record, Kansas licensing officials have not taken action against him.

Other newspapers for a decade have identified doctors in the database, but the government took no action to close it.

After the government shut down the database Sept. 1, Grassley wrote HHS, asking for information about the decision and copies of correspondence related to the issue.

On Thursday, his office released a series of redacted emails and letters between Tenny and HHS written before and after Bavley’s story was published. In the letters, Tenny protested The Star’s story and encouraged an investigation.

On Aug. 24 — before the report went to press — Tenny faxed a message to Cynthia Grubbs, director of the division of the Practitioner Data Bank and a supervisor of the public database. The word “URGENT” was written in block letters at the top.

“Please see the attached email that my attorney received from Mr. Alan Bavley, a reporter for the Kansas City Star newspaper. The settlements made in the cases were all CONFIDENTIAL. PLEASE HELP!” he wrote.

The email that the attorney had received was from Bavley, asking for a comment on the facts in his unpublished report. Not all of Tenny’s settlements were confidential.

Just two days after Tenny’s faxed request for help, Grubbs sent Bavley a letter saying that information in the database was considered confidential and outlining possible fines for its use. The records released Thursday show Grubbs sent a copy of her letter to Tenny’s lawyer less than three hours after she sent it to Bavley.

“In all my many years of reporting, I have never received a letter like that before a story was published,” Bavley recalled Thursday. “It was troubling. But seeing the public database shut down was even more troubling.”

Tenny’s lawyer did not respond to a phone message or email request for comment.

A reporter who has written about the database issue criticized the HHS response.

“It’s outrageous that the record reflects attacks on the reporter and the newspaper,” said Charles Ornstein, president of the Association of Health Care Journalists and a reporter at Pro Publica, a public interest reporting website. “What we really should be talking about are patients, and physicians’ records and whether they are providing safe patient care.”

Grubbs could not be reached for comment Thursday. An HHS spokesman declined to comment.

The publication of Bavley’s story did not stop Tenny’s complaints to the government, the records show. He wrote six letters to Grubbs between Sept. 4 and 15, alleging that Bavley had plagiarized a report by a former federal official or had hired someone else to do the work.

“If he did hire someone to do his research, where did he obtain the revenue to finance the project, who did he pay and how much and when?” Tenny wrote Grubbs the day after the article was published. “Was he paid by someone to write the article? His financial records might indicate this information.”

A letter written Sept. 14 alleges that “someone supplied him with information for his article…Could a ‘watchdog’ group have developed the material and then sought out Mr. Bavley to be their spokesman?”

Grubbs wrote back Sept. 26, without a direct reference to those allegations and others, but said “we will act swiftly to investigate any potential violations of confidentiality.”

The Star’s editor and vice president, Mike Fannin, said the paper stood behind Bavley’s work.

“We carefully checked all of our facts before running this important story,” Fannin said. “We wish Dr. Tenny had done the same before throwing out a series of confused and conspiratorial allegations that have absolutely no merit.

“Alan Bavley did a terrific job unearthing the information for this story. No other person or agency did his work for him. Alan spent months combing through data, using public files and court records to give our readers a clear picture of how the system works — or in this case, doesn’t.”

Tenny’s letters also alleged possible collusion between the newspaper and Shawnee Mission Medical Center, where Tenny conducted the surgery that led to the $1 million malpractice case. He has claimed the hospital was responsible for the mismanaged case.

His letters included copies of advertisements in the newspaper paid for by the hospital, and he suggested the ads and the story were linked.

A spokeswoman for the hospital declined to comment. Bavley said he had not colluded with the hospital on his report.

Fannin and Tim Doty, The Star’s vice president of advertising, said normal business procedures were followed in selling a series of ads to Shawnee Mission Medical Center in April 2010.

Added Fannin: “To be clear, there is no relationship between The Star’s news operation and Shawnee Mission. Our coverage is not for sale.”

In Washington, Grassley said he is determined to force the government to make the database available to the public once again.

“Department officials are misguided if they think they can make this issue go away,” Grassley said in a statement.

Read more: http://www.kansascity.com/2011/11/03/3247032/senator-joins-fight-to-reopen.html#ixzz1clM8WG47