Secrecy protects doctors with long histories of problems

Dec. 17, 2011
Secrecy protects doctors with long histories of problems
By ALAN BAVLEY - The Kansas City Star

Buried deep in a federal database is Practitioner No. 222117, perhaps the most frequently disciplined doctor in America.

This doctor has been accused of violating drug laws, prescribing unauthorized medications, providing substandard care and obtaining licenses through fraud.

From 2002 through 2006, 20 states and the District of Columbia revoked or suspended No. 222117’s medical licenses. Two professional societies took away the doctor’s memberships. The Department of Health and Human Services banned the doctor from billing Medicare and Medicaid. And the Drug Enforcement Administration revoked the doctor’s permit to prescribe controlled drugs. For most of these years, the doctor’s home base was Missouri.

But who is this doctor? And is he or she still practicing?

We don’t know. The federal government won’t say. And it won’t even let reporters or anyone else investigate to find out.

The Department of Health and Human Services imposed new rules this fall restricting how researchers and reporters can use anonymous information the government keeps in the database where No. 222117 resides — along with more than 196,000 other doctors with malpractice or discipline issues.

Before anyone can download the data from an HHS website, they now must agree not to combine it with any other information that would let them to zero in on a doctor’s identity.

In the past, journalists who dug into the court files and state disciplinary records of questionable doctors could occasionally identify them in the federal database and uncover additional information unavailable from other sources. Journalists used this information to report on shortcomings in the way doctors were regulated.

The government’s new rules forbid that kind of reporting. The rules were fashioned after a Johnson County neurosurgeon complained to HHS this summer that The Kansas City Star was able to identify him in the database.

Several weeks ago, The Star downloaded the federal database again and sifted through it, looking for doctors with particularly problematic histories. To get the data this time, The Star had to agree to the new terms set by HHS.

That means we can’t check the records of state licensing boards to find out who Practitioner No. 222117 is.

Nor can The Star, or any other newspaper, check court records or use other information to identify:

• A surgeon who lost or settled 247 malpractice cases in California during the 1990s for a total of more than $6 million.

• A doctor who had drug or alcohol problems and has been in and out of trouble since 1991 with hospitals and licensing boards in at least five states.

• A Missouri doctor whose staff privileges were suspended or reduced by hospitals seven times and who voluntarily surrendered hospital privileges on four other occasions.

The new HHS rules also say anyone who downloads the database can’t publish it so that others can do their own investigating.

“It’s hard to argue that people shouldn’t be able to know about their doctors,” said Charles Ornstein, president of the Association of Health Care Journalists and a senior reporter with the nonprofit news organization ProPublica. “The idea that we should be protecting the worst offenders in the medical community is chilling.”

The Association of Health Care Journalists is one of seven journalism organizations objecting to the HHS restrictions, along with patient-safety advocates such as Consumers Union and a ranking U.S. senator.

The Health Resources and Services Administration, the HHS agency that manages the database, declined requests for an interview or to answer questions submitted in writing. However, spokesman Martin Kramer provided this statement:

“The law requires us to protect the confidentiality of identifiable information and only allows us to make the information available in a form that does not permit the identification of individual practitioners. The data use agreement helps ensure that we meet this obligation while continuing to make information available for research and other public uses.”

Obscuring identities

The information in contention is held in the National Practitioner Data Bank, a repository of reports on malpractice payments and disciplinary actions involving doctors and dentists since 1990 and, more recently, other health care professionals.

States can use the database when reviewing license applications; hospitals can use it to decide whether to grant staff privileges.

The database was created in the late 1980s, when it became clear to lawmakers that doctors who got into trouble were moving to states where their histories were unknown. By collecting all the troubling information on doctors in one place, state boards and hospitals are able to make better decisions when new practitioners come to town.

At the insistence of doctors, legislation limits access to its full reports to licensing boards, law enforcement and certain health care organizations. But the law also requires HHS to give information that does not identify doctors to anyone who asks for it.

Early in the database’s history, its managers decided that the easiest way to handle most information requests would be to create a single file containing all the data that could be released to the public. In 1993, the data bank hired analyst Robert Oshel to take on that task.

To create a public file, Oshel scrubbed the data of names and Social Security numbers. Doctors’ medical license numbers were replaced with randomly assigned “practitioner numbers.”

Oshel also studied how other federal agencies, such as the Census Bureau, kept their data anonymous. Instead of giving doctors’ exact ages or medical school graduation dates, he provided decade-long ranges. For example, a doctor may be listed as being in his or her 50s, having graduated from medical school in the 1970s.

Malpractice payments also are reported by ranges rather than by exact amounts.

“We wanted to make sure we had enough practitioners with similar information,” said Oshel, who retired in 2008. “You would get a lot of practitioners with the same basic information; you couldn’t just zero in on somebody.”

That anonymity breaks down, however, when a doctor has such large numbers of malpractice payments or disciplinary actions that he or she stands out.

“But it was such a rare situation and so unlikely to happen, it was thought to be OK,” Oshel said. “It would be very difficult to figure out most people in the data bank, except extreme outliers.”

Pointing out problems

As technology advanced, the data bank put its public file online, available to anyone who signed in and clicked a computer mouse a few times.

In 2000, the Hartford Courant became the first newspaper to identify doctors in the public file.

“We took the position maybe they did (successfully identify doctors), maybe they didn’t. We wouldn’t confirm or deny,” Oshel said. “We thought we would get complaints, but we didn’t.”

In the years that followed, newspapers continued publishing stories that linked specific doctors to information in the database. The Association of Health Care Journalists compiled these examples:

• The St. Louis Post-Dispatch used the database last year to show lax discipline of doctors by Missouri’s licensing board. In one case, boards in several states, including Hawaii, disciplined a Missouri doctor for negligent patient care in Missouri while the state’s board did not.

• The News & Observer in Raleigh, N.C., used the database in 2005 to document the long history of malpractice allegations against a partially blind neurosurgeon. The story prompted the state medical board to more closely monitor malpractice actions and to post doctors’ malpractice payments online.

• The Virginian-Pilot in Norfolk, Va., used the database in 2002 to piece together a surgeon’s history of malpractice claims and lost hospital privileges. The investigation led the state to give its licensing board greater authority to discipline doctors.

Use of the data was challenged this summer, when Johnson County neurosurgeon Robert Tenny complained to the data bank that The Kansas City Star had identified him. The Star matched information from the public file to court records of malpractice cases filed against Tenny.

On Sept. 4, The Star published a story reporting that 21 doctors in Kansas and Missouri had lengthy histories of payments for malpractice claims but had not been disciplined by the states’ licensing boards. Tenny, who now faces an April disciplinary hearing in Topeka, was named among the doctors.

Days before The Star’s story ran, HHS shut down all access to the data bank’s public file, saying its confidentiality had been breached.

The action caused a storm of protests by journalism organizations, patient safety advocates and academic researchers.

Sen. Charles Grassley, an Iowa Republican and longtime proponent of government transparency, demanded that HHS restore public access.

On Nov. 9, the data bank reposted its public file but added the restrictions. Before people can download the file, they must agree to the terms.

“Continued access to these data is dependent upon compliance with such conditions,” the website says.

“We temporarily removed the (public file) from the Data Bank website to consider how it could continue to make the information available while complying with the law,” HRSA said in its statement to The Star.

“We moved quickly to repost the information in a way that is consistent with the confidentiality protections in (the) law.”

Some First Amendment advocates question the validity of this approach.

“Clearly they are trying to go beyond the statute and create a contractual obligation. I don’t think they have the authority to do that,” said Ken Bunting, executive director of the National Freedom of Information Coalition at the University of Missouri School of Journalism.

“I’d say the legality of it is arguable at best. It is akin to prior restraint.”

Mark Caramanica of the Reporters Committee for Freedom of the Press said, “It is such an extreme reading (of the law), it frustrates the use of the public file in the first place.

“Why are we putting this information out there? What purpose does it serve? The public has an incredible interest in whether doctors are practicing safely. If it’s just numbers with no meaning, you have to ask yourself, is the public use file doing its job.”

But HHS does have legitimate concerns about how the data is used, said Peter Scheer of the First Amendment Coalition.

“Their position would be: We need confidentiality or we wouldn’t get cooperation from people who report to us. They’d be afraid of getting sued,” Scheer said.

“Their argument is not silly. It’s important that we have full data for people with a need to know.”

Public sentiment seems to favor more openness with the information.

Nearly nine in 10 people surveyed in January by Consumers Union said the public should have full access to the database.

In the mid-1990s, President Bill Clinton and several members of Congress had proposed that, but they faced stiff resistance from the American Medical Association.

The AMA still opposes the posting of the public file.

In a September letter to HRSA, the association’s CEO, James Madara, said the database was designed for a limited purpose “and is not a reliable source of public information about the overall qualifications of physicians.”

222117: Still practicing?

And what more can we say about Practitioner No. 222117?

The last line of data entered on the doctor shows that in 2006, the District of Columbia revoked his or her medical license for incompetence. At that time, the doctor’s home state was listed as Delaware.

Is No. 222117 practicing there?

We don’t know. And we can’t find out.