Weiss Zarett Brofman | Sonnenklar & Levy, P.C. | Attorneys At Law

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Court Affirms 2004 Ruling Pursuant to Federal Privacy Act

On Behalf of | Oct 24, 2012 | Healthcare Law

Recent Healthcare Law Developments:

Court Affirms 2004 Ruling that
Healthcare Providers Can Challenge Inaccurate
National Practitioner Data Bank Reports
Pursuant to the Federal Privacy Act

As a physician, learning that you are the subject of an Adverse Action Report filed with the National Practitioner Data Bank (NPDB) is distressing, to say the least. It can have significantly negative ramifications on a physician’s professional practice and reputation. The NPDB is a federal clearing house, maintained by the United States Department of Health and Human Services, which collects information on every physician who has been the subject of a medical malpractice payment, adverse medical staff privileging action, Board or Professional Society discipline and/or state licensure penalty. Whenever a physician seeks to obtain or renew his/her professional credentials, such as for a medical license, hospital privileges, or malpractice insurance, the NPDB is

“queried,” which in turn could lead to adverse credentialing decisions. Needless to say, these issues are particularly upsetting if the physician believes the original report filed with the NPDB was inaccurate or misleading in the first place.

While the NPDB has built in administrative procedures to contest the posting of an Adverse Action Report, some physicians have taken the challenge a step further and gone to federal court to try to have these reports either modified or voided altogether. The 2004 case of Doe v. Thomspon, 332 F. Supp.2d 124

(D.D.C. 2004) is a good example. The United States District Court, for the District of Columbia, held that a physician could challenge an Adverse Action Report under the Federal Privacy Act (U.S.C. § 522a) (the “Act”). The Doe Court held that the Act requires a government agency, “prior to disseminating any record about an individual to any person other than an agency [such as HHS and the NPDB] … [must] make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes.” See, 5 U.S.C. § 552a (e)(6). Unfortunately for the provider in Doe, the two-year statute of limitations for filing an Act cause of action had expired, and his case was dismissed.

Recently, on September 7, 2012, the United States District Court, for the District of Columbia, revisited the issue in a case filed by plaintiff, Ziad Akl,

M.D., who argued that the summary suspension of his hospital privileges was motivated by malice and bad faith, and therefore the resulting Adverse Action Report should either be voided or amended. (Case No: 08-0461). In Akl, the Court dismissed the action, finding that the plaintiff failed to meet his burden of proof in showing the inaccuracy of the NPDB reports at issue. Nevertheless, the Court re-affirmed the Doe Court’s general holding that the Act does provide a viable legal theory to challenge the factual accuracy of an Adverse Action Report, where the internal review processes contained in the NPDB regulations have been unsuccessfully exhausted.