An adverse peer review report to the National Practitioner Data Bank is a threat frequently used by hospitals to leverage physicians into otherwise unacceptable peer review compromises. Once the report has been made to the Data Bank, the alleged adverse peer review of action is public knowledge and significantly jeopardizes physicians’ continued practice opportunities. Although the Data Bank allows physicians to submit a dispute and has a process to contest the report filed by the hospital, that process is cumbersome and does not provide much recourse for physicians who disagree with the ultimate decision by the Secretary of Health and Human Services.
The United States District Court for the District of Nebraska has provided a breath of fresh air and potential recourse to this process. In Costa v. Leavitt (2006 U.S. Dist. LEXIS 51675), the District Court ordered the Secretary of Health and Human Services “to remove the National Practitioner Data Bank the adverse action report filed on April 6, 2005, by Gothenburg Memorial Hospital.” In this case, the hospital was in the process of denying a physician’s application for reappointment, with the credentials committee making an adverse recommendation what the by-laws requiring approval of that recommendation before final action, when the physician withdrew his application for reappointment. The hospital submitted a report which stated:
“Dr. Costa’s competence and professionalism are under review at the Gothenburg Memorial Hospital at the time he withdrew his medical staff application for reappointment and surrendered his privileges. The medical staff had concerns regarding recent obstetrical cases in which Dr. Costa was the primary physician, as well as concerns regarding his professionalism to nursing and administrative staff. Dr. Costa surrendered his privileges one and one-half hours after the medical staff unanimously voted to reject his application for reappointment and prior to that recommendation being forwarded to the board of directors for further action.”
The physician disputed this report with the National Practitioner Data Bank, utilizing the dispute mechanism provided by the regulations. The Secretary of the Department of Health and Human Services ultimately determined that the hospital report was accurate. The District Court concluded that the evidence did not support the Secretary’s determination and ordered the Secretary to remove that report.