Legal Case Highlights Reporting and Recruiting Problems for Hospitals, Doctors

Liz Jones, for HealthLeaders Media , September 4, 2009

When it comes to reporting a physician to the National Practitioner Data Bank (NPDB), hospitals can sometimes find themselves between a rock and a hard place. Hospitals are obligated under the Health Care Quality Improvement Act to report physicians whose privileges have been denied or revoked under certain circumstances, but in doing so, they run the risk of being sued by those same physicians.

Such is the predicament that Georgetown University Hospital is facing now. Carlos F. Gomez, MD, is suing Georgetown University Hospital for $1.25 million for rejecting his application for staff privileges and reporting Gomez to the NPDB, according to an August 28 Washington Business Journal article. Gomez, who has a history of substance abuse, but has been sober for the past five years, alleges that Georgetown rejected his application based on his scarred past.

"Hospitals generally wouldn't say that you can't have a history of substance abuse to qualify for privileges," says Sally Pelletier, CPMSM, a credentialing consultant based in Intervale, NH. "They would use much broader language to determine the applicant's ability to perform. Basically, the burden would be on the applicant to resolve any doubt that his physical and mental health would not impair his ability to perform the privileges he is requesting."

Gomez claims that Georgetown reported to the NPDB that the reason for denying him privileges was due to "diversion of controlled substances," although HealthLeaders Media cannot confirm this because neither the public nor media have access to the NPDB.

In January, Gomez and Georgetown signed a settlement agreement under which Georgetown agreed to tell Gomez's potential future employers that the reason for his denial of privileges was due to "concerns about his current clinical ability to care for patients due, in part, to his length of time away from clinical practice," according to the Washington Business Journal article.

Although this settlement agreement may have been intended to help Gomez find fruitful future employment, it does not negate the hospital's federal obligation to report to the NPDB, Pelletier explains. Thus, the question may be not whether the hospital should have reported Gomez, but whether it reported him correctly.

"Generally, hospitals don't knowingly provide false information and they take precautions, such as seeking legal counsel before reporting a physician," says Pelletier. "Sometimes the NPDB categories are not clear, so hospitals may struggle to choose the category that truly defines the reasons they denied someone privileges."

A hospital wouldn't go through the trouble of reporting a physician unless it felt it was on firm ground, adds Sandra DiVarco, an attorney with McDermott Will & Emery LLP in Chicago. "Clearly, someone thought that they were in the right making the report, but if all they were looking to do was reject his application, there were likely other ways they could have done it that would have been less burdensome for them."

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