Processing Federal Malpractice Tort Claims and Reporting to the National Practitioner Data Bank 1
The Office of Clinical and Preventive Services (OCPS), Indian Health Service (IHS) Headquarters, is the entity responsible for the Agency-level review of all malpractice tort claims filed against the Federal Government that involve care provided at IHS, tribal and urban Indian health facilities. Since the mid 1980s, this office has coordinated the review of more than 1,350 malpractice claims. During the past several years, the functions of certain components of the review process have changed. In addition, the IHS is now responsible for the actual submission of National Practitioner Data Bank reports. This article will summarize the current role and responsibilities of the persons and offices responsible for Federal malpractice tort claims review and Data Bank reporting.
Federal Tort Claims Act (FTCA). The FTCA allows for the Federal Government to be sued for any damage to property or for personal injury or death caused by the negligence or wrongful act or omission of Federal employees (and certain contractors) who were acting within the scope of their employment. The FTCA also covers tribal facilities operating under P.L. 93–638 compacts or contracts. The injured party or representative cannot initially commence a lawsuit but must first file an administrative Federal tort claim with the Office of General Counsel, Department of Health and Human Services (HHS). In addition, the injured party’s exclusive remedy is to file a Federal tort claim; no legal action can be taken against any IHS or tribal healthcare employee; that is to say, such employees are immune from civil liability.
National Practitioner Data Bank (NPDB). The NPDB opened in 1990, pursuant to the Health Care Quality Improvement Act of 1986 (HCQIA). The NPDB serves as a clearinghouse to collect and release information concerning payments made on behalf of physicians, dentists, and other licensed health care practitioners as a result of malpractice actions and claims. In addition, it maintains information concerning certain adverse actions regarding the licenses and clinical privileges of physicians and dentists. Reports submitted to the NPDB must be made “for the benefit of” (on behalf of) an individual provider, not an institution or health care program.
The mandatory reporting provisions of the HCQIA do not apply to the Federal Government. However, the Department of Defense, the Department of Veterans Affairs, and the HHS all elected to participate through Memorandums of Understanding and/or Departmental policy. Therefore, the rules and regulations of the NPDB published in the Federal Register (and found on the NPDB Web site) that govern how individual practitioners are to be reported do not necessarily apply to the Federal sector. In regards to practitioners working for operating divisions of the HHS (and tribal organizations), the policy and procedure for reporting to the NPDB can be found in a 1990 memorandum signed by the then Assistant Secretary of Health, James O. Mason. This policy is currently under review.
1 Heath SW, Hooper EY. Processing Federal Malpractice Tort Claims and Reporting to the National Practitioner Data Bank. The IHS Primary Care Provider. October 2005;30(10).[PDF]
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