After weeks of protests by journalists, academic researchers, patient safety advocates and a U.S. senator, federal health officials on Wednesday reopened a public website containing data on the malpractice and disciplinary histories of thousands of the nation’s doctors.
But the renewed access to the National Practitioner Data Bank’s public use file comes with strings attached — new restrictions aimed at journalists on how the data can be used. Anyone downloading the public files will have to agree in advance not to share the data with others or to use the anonymous information to identify doctors, as several journalism organizations, including The Kansas City Star, have done.
Critics immediately called the provisions unworkable and beyond the legal authority of the Health and Human Services agency that oversees the Data Bank.
The Health Resources and Services Administration “is overreaching and interpreting the law in a way that restricts the use of the information much more than the law specifies,” said Sen. Chuck Grassley, an Iowa Republican who last week demanded that the agency reopen the public data file. “This agency needs to remember that half of all health care dollars in the United States comes from taxpayers, so the interpretation of the law ought to be for public benefit.”
“The exclusion from access by reporters doing important investigative workis unacceptable,” said patient safety advocate Sidney Wolfe, director of Public Citizen’s Health Research Group. Public Citizen has used the Data Bank frequently for reports on national trends but has not attempted to identify individual doctors the way journalists have.
“(Reporters) will now have to agree to forgo this important, painstaking research they have previously done to bring more information to people about their doctors,” Wolfe said.
The Data Bank took its public use file off its website Sept. 1 after it learned that The Kansas City Star was able to glean information about Johnson County neurosurgeon Robert Tenny from anonymous data in the files. For many years, other newspapers had similarly identified doctors from the public use file without repercussions.
But the Health Resources and Services Administration, known as HRSA, now insists that identifying doctors from the public files is off limits.
“The law is pretty clear about what the data should and shouldn’t be used for,” said HRSA spokesman Martin Kramer. “We have to make certain that information about individual practitioners remains confidential.”
Kramer said putting restrictions on how the public files are used is “the best path forward” for restoring public access. He said HRSA may enforce its new rules by asking people who break them to return all their copies of the files and by barring them from future access.
Medical boards, hospitals and other health care institutions use detailed, confidential information from the Data Bank to decide whether to grant licenses and staff privileges and for other purposes. Revealing this information can lead to hefty fines.
The Data Bank also maintains separately the public database for use primarily by researchers and journalists. The public database is designed to maintain the anonymity of doctors by identifying them through randomly assigned numbers.
But for a decade, such newspapers as the Hartford (Conn.) Courant and the St. Louis Post-Dispatch have used court records and other public documents to identify doctors in the public Data Bank files who have lengthy histories of malpractice payments or other problems. Some of these newspaper accounts have led to reforms of state medical licensing boards.
The Data Bank did not react to these previous newspaper stories. But the agency decided to take the public file off its website after receiving a complaint from Tenny alleging a possible violation of the confidentiality of his file. Tenny complained after The Star had offered him an opportunity to respond to information about him that the newspaper had gathered from court records and the Data Bank.
The Star story, published Sept. 4, reported that the public Data Bank files show that 21 doctors, including Tenny, had spotless Kansas and Missouri licenses despite numerous malpractice payouts.
The story said Tenny had been sued by patients or their families at least 17 times since 1983. While denying the allegations, Tenny eventually settled at least seven of those lawsuits, according to court records, including a recent brain surgery malpractice claim for more than $1 million.
Charles Ornstein, a reporter with the nonprofit ProPublica journalism organization and president of the Association of Health Care Journalists, said the new restrictions HRSA has placed on the Data Bank’s public files will prevent reporters from writing the kinds of investigative stories they have done in the past.
“I think for obvious reasons journalists’ work needs to continue,” Ornstein said. “These restrictions they’re putting in place are unworkable.”
Ornstein also said HRSA was overstepping its authority: “The last time I checked, the federal government doesn’t have the authority to check on the reporting methods of reporters.”
Grassley said nothing in the law creating the Data Bank says a reporter can’t combine the data in the public use file “with other sources and potentially identify doctors who have been disciplined in their practice of medicine.”
“It’s also hard to see how HRSA has the resources to require the return of supposedly misused data or how that would even work,” Grassley said. “It seems the agency’s time would be better used in making sure the database is up to date and as useful as possible.”
Grassley said he wants a briefing from HRSA on its handling of the public database “including participation from the person who pulled the public data file after a single physician complained that a reporter identified him through shoe leather reporting, not the public data file. One complaint shouldn’t dictate public access to federally collected data for 300 million people.”