On February 8, 2017, a Federal District Court in Texas provided a noteworthy ruling requiring a Texas hospital to void a NPDB report about a surgeon on its staff.  The underlying facts are simple: The surgeon was peer reviewed as a result of two cases; The MEC recommended proctoring for five cases; The hospital’s Board followed the MEC’s recommendation, however, it did not specify a timetable for completion of the proctoring; After the five proctored cases were not completed within 30 days, the hospital reported the surgeon to the NPDB.  The surgeon brought suit seeking various forms of relief, one being his request that the NPDB report be voided.

The question before the Court was whether or not the HCQIA (42 USC § 11133(a)(1)(A)) and the NPDB guidebook (E-37) required reporting because the proctoring took longer than 30 days to complete.  The surgeon argued that, since the proctoring sanction did not specify a time duration of greater than 30 days, it was not reportable.  The Court agreed, reasoning:

This [30 day] requirement gives hospitals and practitioners certainty regarding which proctoring sanctions are reportable. 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 30 days to satisfy the requirement. To find otherwise would lead to absurd results. For instance, a sanctioned surgeon in a busy Dallas hospital may be able to quickly find a proctor and complete the set number of cases within 30 days. In contrast, a surgeon in a Lufkin hosp[ital] given an identical sanction may be unable to promptly secure a proctor and complete the set number of cases within 30 days. In this scenario, though given precisely the same proctoring sanction, the Dallas surgeon would not be reported to the NPDB, and the Lufkin surgeon would be reported. The Court declines to read the NPDB reporting requirement in such a way that discriminates against practitioners in rural communities.

This holding is in contrast to the position many entities have taken on this precise issue.  It will be worth monitoring to see if the Department of Health and Human Services clarifies its stance.  In the meantime, the safest strategy is as follows: if a hospital decides to require proctoring and intends to report, it should specifically indicate in its sanction that the required proctoring “shall not be completed within less than 30 days.”

The full version of the opinion can be found at the following link:

http://law.justia.com/cases/federal/district-courts/texas/txedce/2:2017cv00066/173723/16/