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U.S. Department of Health and Human Services
Risk Management

Current Functions

Processing Federal Malpractice Tort Claims and Reporting to the National Practitioner Data Bank

Claims Branch, Office of General Counsel (CB). The CB receives notification of all non-medical and malpractice tort claims filed against the Federal Government that involve Indian Health Service (IHS), tribal or urban Indian health programs. The CB is responsible for reviewing the validity of the claim, requesting medical records from the site of the incident, and responding to inquiries and questions about the claim. They also ask for employment information for involved providers to determine if these providers are covered by the FTCA. Once they receive the medical records from the site, the CB forwards the materials to the IHS Risk Management Program for medical review (see below). Upon completion of the IHS review, the CB receives all copies of documents pertaining to the review and forwards the information to the Claims and Employment Law Branch of the Office of General Counsel. The attorneys in this Branch make the decision about whether or not to allow or disallow the claim. The CB also notifies IHS when claims are paid, and maintains a database of all claims filed against the Federal Government that involve any of the operating divisions of HHS.

IHS Risk Management Program (IHS/RM). The review and evaluation of malpractice tort claims is an inherent Federal function that cannot be contracted, and therefore the IHS/RM processes claims arising from care provided at IHS direct care sites as well as tribally operated facilities and urban Indian sites. When the IHS/RM receives the tort claim and accompanying medical records from the CB, the case is assigned to a risk manager (currently Dr. Steve Heath or Dr. EY Hooper, and for dental cases, Dr. Patrick Blahut) to coordinate the medical review of the claim. This case coordinator reviews the case in detail and discusses the need to obtain any missing information with the CB (e.g., outside medical records). Then the clinical director or risk manager at the involved site is contacted to initiate a site review of the incident. In addition to obtaining the site review, the coordinator asks that all providers involved in the care be notified about the claim, and be given the opportunity to respond with a practitioner narrative or to participate in the local review of the claim. He also requests specific practitioner identifying and credentialing information. For providers who may have left the facility, the coordinator requests the service unit send notification to that provider. While the claim is “open,” former employees do have the opportunity to participate in the analysis of the claim.

At the same time, the case coordinator will request a peer medical review of the case from an IHS provider distant from the site in question. The coordinator identifies someone with similar training to the individual(s) involved in the case. If a particular case involves care provided by practitioners of various disciplines, then additional reviews are sought. Once all this information is compiled, the case is sent to the Office of General Counsel (OGC) for legal review. At this point, a Case Summary sheet is sent to the facility that outlines the background information of the claim, gives a short anonymous statement summarizing the conclusions of the independent review, and includes any risk management recommendations transpiring from that review.

The case coordinator attempts to maintain communication with the OGC attorney who is analyzing the case. If and when it is decided to allow the claim, the OGC attorney will often (but not always) consult with the IHS case coordinator to discuss the settlement. If the case is not allowed by OGC, then a suit may be filed. When a suit does occur, the case becomes the responsibility of the Department of Justice in the Federal district in which the allegations occurred. If a payment does occur related to a claim or suit, the IHS/RM is responsible for presenting the case to the Malpractice Claims Review Panel (MCRP) for review (see below). At this point the IHS coordinators will attempt to contact involved parties to inform them of the payment and help determine if additional information is available. Once a determination has been made by the MCRP, the IHS case coordinator will communicate with the IHS/tribal site in question, send an updated Case Summary to the clinical director, and discuss with the provider(s) of record issues related to Data Bank reporting.

The IHS/RM has many other functions related to tort claims including (in part) maintaining a database, sending Area reports to the chief medical officers, communicating with outside credentialing services and regulatory boards, and assisting providers to submit appeals to the MCRP. The IHS case coordinators attempt to advocate for providers and make every effort to support the position of the IHS or tribal practitioner throughout the process.

Office of General Counsel (OGC). The Claims and Employment Law Branch of OGC assigns an attorney to each malpractice case received. The assigned attorney makes his or her decision to allow or disallow the claim based on the merits of the claim and particularly on all of the medical reviews submitted by the IHS/RM. The attorney will frequently discuss issues with the coordinator before making a final decision. Depending on the amount of money involved, the OGC must communicate with the Department of Justice before agreeing to allow higher cost claims. If after considering the facts, the law, and the medical standards involved, OGC decides that the claim is meritorious, settlement negotiations will be initiated with the claimant (or claimant’s representative). If it is determined that there is no liability on the part of the Government, the claim is disallowed and the claimant will be notified; if he/she chooses, the claimant may then institute court action within six months. Should the OGC fail to take action on a claim within six months after filing, the claimant may also file suit in the appropriate Federal District Court.

Department of Justice (DOJ). Once a suit (civil action) commences, the local U.S. District Attorney (AUSA), who is assisted by a Departmental attorney, will defend the case. At this stage, there is less opportunity for IHS Risk Managers to be involved. The AUSA will often seek outside expert witnesses to defend the case, obtain depositions from involved providers, and procure all private records through inevitable discovery (this discovery is not available at the administrative claim stage). While some cases with little merit are dismissed, the majority of cases are settled before going to trial. When cases do go to trial, they are argued before a Federal judge in the respective U.S. District Court. The applicable medical practice act is that which is in effect in the state in which the incident occurred. The DOJ is not responsible for naming individuals to the NPDB.

To further amplify and clarify the role of the Department of Justice in this process the following points were provided for this article from a DOJ Headquarters counsel and manager, Roger Eiserson.

  • Each Federal agency that employs doctors or other health care providers who are reportable to the NPDB is responsible for ensuring that its employees understand the agency’s reporting obligations to the NPDB and any rights the employees might have regarding any reporting.
  • Unless the Attorney General or his designee has specifically authorized Department of Justice representation for a Federal employee, the Assistant United States Attorney (AUSA) or Civil Division attorney handling a Federal Tort Claims Act (FTCA) lawsuit represents the United States only. The United States is the only proper defendant for claims arising out of the conduct of a Federal employee acting within the scope of his or her employment. Accordingly, the AUSA or Civil Division attorney is not representing the interests of the individual Federal employee or employees whose conduct gave rise to the FTCA suit. Again, the Federal agency that employs the person whose conduct is at issue must make sure that the employee understands that the AUSA or Civil Division attorney is not representing the interests of the employee, whether it relates to the lawsuit or other issues, such as the NPDB or post-employment malpractice insurance issues.
  • The Department of Justice is not responsible for naming individuals to the NPDB, nor does the Department have a role in the decision. Whether an individual AUSA or Civil Division attorney thinks the health care provider’s conduct was negligent or not is irrelevant. The Federal agency involved has to make an independent determination, based upon the information available, as to whether any payment whether by way of settlement or judgment is reportable to the NPDB, based upon that agency’s reporting obligations.

Medical Claims Review Panel (MCRP). The original name for the MCRP was the Quality Review Panel (QRP), which was chartered in 1989. The QRP was given the responsibility to review all malpractice claims filed against the Federal Government that involved care provided at facilities operated by various operating divisions of the HHS and to determine if: (1) the standard of care was or was not met, or if a system breakdown caused the outcome of the care provided to be outside the control of the involved practitioner(s), and (2) which practitioners were primarily responsible for providing the care in question. Should payment be made on a claim, it is these identified practitioners who would be subject to be named to the NPDB. According to the original HHS policy, an NPDB report was required for every case, whether or not the standard of care was met. The only exception was when the Panel had declared a “system breakdown.” The IHS is actively trying to get the HHS policy changed to eliminate the requirement of reporting providers in cases where the Panel found no breech in the standard of care. The IHS does not report providers in cases where the standard of care was met or where a breech in standards was due to system problems.

In the past, cases were presented to the QRP prior to being sent to OGC for legal deliberation. Therefore, the Panel’s decision was also made available to OGC, in addition to the other reviews obtained by the case coordinators. Over time, the Panel’s workload increased to more than 250 cases annually, following the enactment of a law that brought a wide range of federally supported health centers under the auspices of the FTCA. In 2004, the Panel was re-chartered and became the MCRP. Under this new charter, the Panel does not review every malpractice tort claim, only those cases that have been allowed by the OGC or paid by the DOJ (e.g., settled or adjudicated).

The MCRP consists of approximately 15 members of a variety of medical disciplines, including physicians, dentists, nurses, advance practice nurses, and pharmacists. It is responsible for reviewing HHS claims from all of its operating divisions, not just IHS and tribal programs. Meetings are held monthly; an IHS/RM case coordinator presents the IHS/Tribal/urban cases. All the reviews and supporting documents are sent to all panel members prior to the meeting. Decisions regarding the standard of care are made by majority vote after the case has been discussed. Providers of record are determined in a similar fashion, with particular reference to the responsibilities of the practitioners involved.

Next section: National Practitioner Data Bank Reporting