Free Speech

No Sealing of Health Care Quality Review Report in Doctor-vs.-Hospital Lawsuit

"Plaintiff would have his allegations litigated in a star chamber with a jury of ordinary citizens presumably barred from discussing the case after their service in a closed courtroom."


From Gabros v. Shore Medical Center, decided last week by Judge Noel Hillman (D.N.J.) (emphasis added) (for the backstory on the case, see here):

The Parties seek to seal … a report by the National Practitioner Data Bank ("NPDB"), submitted by Defendant Shore Medical Center on June 18, 2015. This report was a result of the final adverse action taken by SMC to revoke Plaintiff's clinical privileges.

In 1986, Congress passed the Health Care Quality Improvement Act of 1986 ("HCQIA"), 42 U.S.C. § 11101, et seq. The HCQIA requires that certain information regarding malpractice payments, sanctions, and professional review actions taken with respect to medical professionals be reported to the federal government. 42 U.S.C. § 11131-7. The regulations promulgated pursuant to the HCQIA established the National Practitioner Data Bank to collect and organize information collected under the HCQIA.

The NPDB operates as a centralized clearinghouse for state licensing boards, hospitals, and other health care entities to obtain relevant background information about physicians. Hospitals are required to request information from the NPDB with respect to each physician or health care practitioner who applies for staff membership or clinical privileges. The NPDB makes the information it collects available to "State licensing boards, to hospitals, and to other health care entities (including health maintenance organizations) that have entered (or may be entering) in an employment or affiliation relationship with the physician or practitioner or to which the physician or practitioner has applied for clinical privileges or appointment to the medical staff." 42 U.S.C. § 11137(a).

Section 11137 also outlines the confidentiality provisions applicable to the information collected under the HCQIA. Specifically, it mandates:

"Information reported under this subchapter is considered confidential and shall not be disclosed (other than to the physician or practitioner involved) except with respect to professional review activity … or in accordance with regulations of the Secretary promulgated pursuant to subsection (a) of this section. Nothing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure. Information reported under this subchapter that is in a form that does not permit the identification of any particular health care entity, physician, other health care practitioner, or patient shall not be considered confidential."

As such, unless otherwise provided by state law, all information collected by the NPDB and "reported under this subchapter" is presumed confidential and is only released as specifically mandated by the HCQIA.

The Parties contend that federal law prohibits disclosure of National Practitioner Data Bank reports. The Parties highlight that the purpose of the NPDB and its reports is to improve health care quality, protect the public, and reduce health care fraud and abuse in the United States. According to the Parties, if NPDB reports were available to the public, reporting entities would lose confidence in the NPDB's confidentiality protections. The Parties argue that this lack of confidence would lead to a decline in voluntary or optional reports regarding problematic officials and would ultimately hinder the reliability and effectiveness of the NPDB in serving its public policy goals.

The Court has closely reviewed the documents the parties ask the Court to seal and does not find a legitimate private or public interest warranting sealing, nor a serious injury that would result from a failure to seal. While there is no doubt a generalized public benefit from a confidential reporting system allowing medical employers to share information about the qualifications of licensed medical professionals, that interest must fall away when those reports are themselves evidence in a matter pending in federal court or any court. The alternative is that medical employers and professionals may generate false or truthful information about each other material to their dispute and the potential claims of injured third parties under a regime where that information never sees the light of day.

It is hard to imagine how that benefits the public at large and begs the question why a federal court should aid in such secrecy absent clear statutory direction. What the parties really envision is a system that always shields the airing of claims of incompetency and malfeasance by medical professionals and the medical institutions that hire them. This lack of transparency and absolute immunity is as likely to cause false reports as it is to foster candor.

Nor does the relevant statute create such an absolute private world immune from outside scrutiny. It is one thing to say that information should be confidential between the parties for regulatory purposes and quite another to say that information can never be revealed when disputes arise over the content of such reports. The only law cited by the parties actually authorizes disclosure for purposes of litigation when the system breaks down as envisioned. See 45 C.F.R. 60.18(a)(1)(v) (allowing use of NPDB reports in medical malpractice litigation where hospital failed to request information from the NPDB).

Moreover, there can be no better example of the overbreadth of the parties' argument for sealing than this case. Plaintiff's case hinges on allegations that NPDB reports about him were false and he demands a jury trial. Plaintiff would have his allegations litigated in a star chamber with a jury of ordinary citizens presumably barred from discussing the case after their service in a closed courtroom. There is no precedent for such a proceeding in federal court except in those rare cases which might involve classified information or national secrets and even in those cases redactions and sanitized versions allow for public access.

In sum, the Court is unpersuaded by the parties' arguments that denying their motion to seal the NPDB reports will have a chilling effect on reporting. Moreover, there is nothing in binding case law or the relevant statute itself expressly forbidding disclosure of these reports in the context of the claims brought by this Plaintiff. Moreover, and perhaps most importantly, this Court has repeatedly emphasized the public interest in the disclosure of materials filed on this Court's docket, which often outweighs private interests in confidentiality.

This Court is funded by the public and does not sit, in general, to resolve private disputes in secret. Finding that the parties lack a legitimate justification to warrant sealing the identified information, the Court will deny the parties' joint motion to seal with regard to the NPDB reports….

The court also refused to seal a past opinion in the case:

The Parties argue that because the Court's Opinion "recites the content of the NPDB and DCA Reports verbatim," allowing public access to this opinion is "tantamount to allowing the public to review the reports themselves."

Having reviewed the Court's June 2019 Opinion, the Court notes that this Opinion does not contain any personally identifiable information or sensitive information that would justify granting the parties' joint motion to seal. And as the Court has noted, that the Opinion recites certain content from the NPDB and DCA is an insufficient reason to seal it.

Finally, while this Court's decisions are binding on no one except the parties, the development of the federal case law requires that the reasoning of the Court in interpreting statutes be widely available to be considered by sister courts as persuasive authority or not. The Court's 52-page opinion discusses the statute of limitations for defamation claims arising from NPDB reports, the scope of immunity under the HCQIA, and the reach of analogous claims under state statutory law.

The development of the law would be stymied if Courts issue secret rulings known only to the parties. In short, because the Court does not make its decisions in secret, the Court finds it is in the public interest to allow the June 2019 Opinion containing the resolution of certain issues in this case to made public….

Despite this decision, the June 2019 opinion remains sealed, presumably as a result of some delay in the Clerk's Office; I'll post it as soon as it's unsealed.

NEXT: SCOTUS Takes a Border Wall Case

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  1. The Parties highlight that the purpose of the NPDB and its reports is to improve health care quality, protect the public, and reduce health care fraud and abuse in the United States. According to the Parties, if NPDB reports were available to the public, reporting entities would lose confidence in the NPDB’s confidentiality protections.

    Yup, paternalists know best! We must protect the public by keeping them in the dark, because if they knew what we know, they wouldn’t trust us any more.

  2. Why aren’t these reports publicaly available? Isn’t it a plublic document?

    I for one would like to know if my doctors insurance company had paid out a lot of settlements.

    In fact as I think about it I am often required to provide certificates of insurance to my clients. Doctors apparently seldom are.

  3. The imposition of a standard of behavior attributable to the British Upper Class, where one does not express emotion, is racially discriminatory. That standard is not even true of  British other classes, nor of the Irish, nor of the Scot. 

    Slashing of another doctor’s tires is not related to patient care, and is irrelevant to renewal of hospital privileges. The other doctor can sue him for the cost of replacing the tires. The allegation of disturbing the peace, a summary offense, was dismissed in local court. All regulatory agencies who act on this allegation should be sued. All damages must come from the personal assets of the officials, and no payment should be accepted from the taxpayer as happens in 99% of verdicts of constitutional torts. 

  4. NASA once had a program that allowed airline pilots to report their mistakes and weaknesses confidentially. It too seems that the public should have a right to know. For example, your pilot has trouble staying awake without amphetamines. Or, “I had to pee so urgently that I landed in unsafe conditions.”

    But if the reports were not guaranteed to be confidential, the pilots wouldn’t submit them in the first place. NASA claims that some real improvements in airline safety resulted from that program.

    I’m sure that the same arguments apply to this medical case. But the idiots should have realized that you can’t use confidential reports as evidence in a lawsuit and keep them confidential.

    1. Why would NASA be regulating airline pilots? Was the FAA busy?

  5. An argument on the other side, analogous to whether confidential sources in journalism should get legal protection, is that if potential informants’ confidentiality isn’t protected, they will have incentive not to report in the first place, as by reporting they may get a reputation as trouble-makers and be subjected to retaliation.

    My difficulty with these types of opinions is that these issues are policy disputes, and there are always two sides in a policy dispute. Moreover, these policy dosputes are to be resolved primarily by legislatures. They could be resolved in a common law fashion, but legislatures can override the common law and may sometimes need to as society changes.

    The judge’s opinion here seems to be mostly opinion. It doesn’t really engage either the language of the statute or the policy issues behind the creation of the reporting system. It might be the correct statutory interpretation. But it seems more a policy statement than a genuinely judicial opinion.

    A judicial opinion should be respectful of the policy considerations on both sides. It should seek to communicate that both sides have been heard and to understand the balance the legislature or common-law tradition is making, it should avoid proclaiming the rightness of the judge’s preferred policy considerations and the wrongness or insignificance of those on the other side.

    Again, this opinion might have reached the correct result. But the judge’s language and tone doesn’t leave me with any confidence of this.

  6. I have some knowledge of the NPDB having worked for the agency in which it is embedded (Bureau of Health Professions; Health Resources and Services Agency; DHHS) directly across the hall from their offices for many years. And more importantly, having served on a Public Health Agency committee that reviewed med mal cases against the government to decide if they were meritorious or not, and if they were, then which individuals, if any, should be reported to the NPDB.

    First, I am confused as to the posture of this case. Why should the NPDB be involved in any way, directly, indirectly, or otherwise? The NPDB has no reason to hold any records that the parties don’t have or can’t get from the other through discovery.

    If there were open access to the NPDB’s files, that might deter the willingness of parties to settle litigation, which would not serve the public interest.

    If Dr. Gabros wants to sue Shore Medical Center for libel and the other causes of action he claims, then he is free to go for it, but the this judge was right, there is no good reason to put under seal any of the records introduced in the course of these two private parties litigation at public expenses. If the P and D don’t want the records to be made public, then let them turn to a judge-for-hire to arbitrate the case. It will cost them a not insubstantial amount (my friend is arguing before a retired judge who is get $1K per hour and has already earned himself $1.5M, and it hasn’t comto an end yet.)

    The NPDB was created to keep “practitioners” (not just MDs, but DOs, RNs, DDS, etc.) with a history of screw ups from moving from hospital to hospital or one licensing authority to another and doing it all over again in a new place. Some practitioners have on occasion reason to complain about their experience of the NPDB, but I don’t know of any on the public’s part.

    Again, the litigants don’t understand that dirty linen routinely gets washed when to go to court with their cases? The NPDB is a true “red herring” if ever there one in this case, which didn’t merit the court’s time.

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