In a memo issued earlier this year by the Department of Health and Human Services (HHS), the department made it clear that all medical malpractice claims must be reported to the National Practitioner Data Bank (NPDB), which is run by HHS. This database keeps track of all medical malpractice payments and physician sanctions in the country.
The memo was issued after a new medical malpractice law passed in Oregon changed the reporting process in that state. The law instituted the policy of Disclosure, Apology and Offer, which essentially stipulates that health care providers are able to fully disclose medical errors and apologize to patients for harm these errors caused, and that these statements are not able to be used against them in court.
The area of contention is found in wording in the law relating to the state’s malpractice mediation system. Like several other states, Oregon requires that plaintiffs who file a medical malpractice claim go through mediation before the claim can proceed to litigation. According to Modern Healthcare:
Any case that generates "a written claim or written demand for payment" must be reported in the NPDB, HHS said. The Oregon law, however, states that a payment made to a patient under the measure’s mediation mechanism "is not a payment resulting from a written claim or demand for payment."
Following this line of reasoning, any claim resolved in mediation and resulting in payment would not be reported to the NPDB, essentially allowing health care providers to avoid accountability for their actions and obscure them from a national database intended to serve as a public tool to aid patients in their search for quality care.
After the HHS memo was issued, a spokesperson for the Oregon Patient Safety Commission stated that the state had not intended to create a situation in which mediated claims resulting in payment would not be reported to the NPDB, and that the state will follow the NPDB guidelines. As such, the only claims that will not be reported to the NPDB are those resolved in mediation in which no payment is issued. Claims paid in mediation will be reported.