Blacklisted: The Constitutionality of the Federal System for Publishing Reports of 'Bad Doctors' in the National Practitioner Data Bank
65 Pages Posted: 17 Oct 2011 Last revised: 24 Sep 2012
Date Written: October 16, 2011
The United States has a growing number of government created blacklists, including those for convicted sexual predators, suspected gang members and suspected terrorists. The latest surprise entry in this trend is the federally created databank of 'bad physicians' called the National Practitioner Data Bank ("NPDB"). Physicians are blacklisted after being 'found' to have provided poor quality of care through a highly subjective, and oft-times summary, peer review process conducted by private hospitals. The NPDB is first time the federal government has engaged in blacklisting since the McCarthy era.
Physician blacklisting by the NPDB has become a pressing national issue as it has serious legal and social consequences. First, the physician blacklisting process has a high risk of error as it is both over inclusive, unfairly destroying the careers of many competent physicians, and under inclusive as it ignores many incompetent physicians. Second, the NPDB reporting system encourages the perpetuation of custom-based practices undermining efforts to improve the quality and cost of healthcare through the practice of evidence-based treatment choices. Third, the NPDB system is being used to silence physician whistle-blowers which also negatively impacts quality of care. Finally, last year the NPDB expanded its scope to take on blacklisting of all licensed healthcare practitioners in the United States, including dentists, nurses, physician's assistants and social workers, extending its reach to over six million people. This expansion magnifies the NPDB's negative effects exponentially as it begins to affect the practice habits of all healthcare professionals.
In order to highlight the problems with the NPDB, this Article compares physician blacklisting with other forms of blacklisting. For example, both physician and sexual predator blacklisting programs have the same goals: allowing the public to engage in self-protection by preventing 'predators' from traveling to new locations to prey on a new group of unsuspecting victims. And both sexual predators and physicians suffer similar stigmatization as the result of the 'badge of infamy' that comes with being blacklisted. But this is where the similarities end. Accused sex offenders get all of the trappings of due process to avoid being wrongfully convicted and incorrectly placed on sexual predator blacklists. In contrast, most physicians, who are serving the community, get very few due process protections before being blacklisted. And some physicians are provided no due process rights at all. On the whole, the NPDB fails to fairly protect the liberty and property rights of targeted physicians.
The problems with the NPDB can be resolved by providing physicians, and other health care providers, with the same kind of due process protections that are provided to alleged sexual offenders before they are blacklisted. Adding these procedural protections will both protect competent physician providers from the erroneous destruction of their careers while increasing the accuracy of the NPDB which will protect patients from incompetent providers. Overall, the very specific due process protections suggested by this Article will improve healthcare quality, cost and access.
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