PROCTORSHIPS AND THE 30 DAY REPORTING REQUIREMENT
BY DAVID F. DURSO, Esq.
Recently, the United States District Court for the
Eastern District of Texas issued a decision regarding a hospital’s
obligation to report a restriction of a physician’s privileges to the
National Practitioner Data Bank (“NPDB”). Health care
entities are required to report “a professional review action that
adversely affects the clinical privileges of a physician for a period of
longer than 30 days” to the NPDB. A report to the
NPDB can have a chilling effect on a physician’s practice, as
insurance carriers, hospitals, state licensing boards, and other entities
review reports to the NPDB. The NPDB Guidebook states that
“[i]f, for a period lasting more than 30 days, the physician . . .
cannot perform certain procedures without proctor approval or without the
proctor being present and watching the physician . . . , the action
constitutes a restriction of clinical privileges and must be reported to
the NPDB.” Typically, a health
care entity that has imposed a proctorship restriction on a
physician’s privileges for an indeterminate period will wait for
thirty days to elapse and, if the requirements of the proctorship have not
been fulfilled, will report the restriction to the NPDB. In Walker
v. Memorial Health System of East Texas, the court ruled that the
defendant hospital should not have reported a proctoring restriction that
did not contain a temporal limit (i.e. 60 days) to the NPDB simply because
the restriction had been in place for longer than thirty days.
The facts of the
Walker case are not uncommon. Dr. Walker is a physician who
had clinical privileges at the defendant Hospital. His privileges
permitted him to perform surgery, including major abdominal surgery.
When questions arose about Dr. Walker’s surgical skill, the
Hospital’s Medical Executive Committee conducted a peer review.
Upon completion of the peer review, the Hospital imposed a proctorship that
required that Dr. Walker have a surgical proctor for five bowel surgery
cases. The restriction did not specify a timetable for the completion
of the proctored cases, and Dr. Walker did not complete the five proctored
bowel surgery cases within thirty days. After thirty days elapsed,
the hospital filed an adverse report to the NPDB that disclosed the
proctoring requirement, and indicated that the basis for the action was the
doctor’s substandard or inadequate skill level.
Walker filed suit and moved for, among other relief, a preliminary
injunction that would require the Hospital to submit a Void Report to the
NPDB. The Hospital claimed that “the Court lack[ed] authority
to issue a preliminary injunction because the Health Care Quality
Improvement Act (“HCQIA”) does not provide a private right of
action.” The court disagreed
with the Hospital’s position and found that the court had the
authority to issue a preliminary injunction, notwithstanding the HCQIA
because the matter before the court concerned injunctive relief.
The Court conducted an
expedited evidentiary hearing on the motion for a preliminary
injunction. After the hearing, the Court granted the injunction,
noting that the HCQIA sets a bright-line temporal threshold
of thirty days for reportable proctoring sanctions, the purpose of which is
to provide certainty for all concerned. The court ordered the
Hospital to submit a Void Report to the NPDB and to refrain from filing any
other statements or reports with the NPDB related to Dr. Walker during the
pendency of the suit.
The court reasoned that
due to the aforementioned temporal limit, a restriction should not be
reportable to the NPDB based on how long it takes a physician to satisfy
the requirement. “Whether a proctoring sanction is reportable
should be established by the terms of the sanction at the time it is
delivered, not by whether, in fact, it takes more than thirty days to
satisfy the requirement.” The court gave the following
example: a surgeon in a busy hospital might be able to quickly find a
proctor and complete the required cases within thirty days, but a surgeon
in a rural hospital might not be able to secure a proctor or complete the
required cases within thirty days. In that scenario, the exact same
proctorship restriction would be reportable for the surgeon in the rural
hospital, but not reportable for the surgeon in the busy hospital.
While the Walker
decision is not controlling authority in New York, physicians faced with a
proctoring restriction should be mindful of its holding. The holding
could provide a good faith basis for a hospital not to submit a report to
the NPDB or, if a report has already been submitted, to submit a Void
David F. Durso, Esq.
is an associate at Ruskin Moscou Faltischek P.C., where he is a member of
the firm’s Heath Law Department as well as the firm’s White
Collar Crime and Investigations and Cybersecurity and Data Privacy practice
groups. David can be reached at (516) 663-6667 or