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Part 2: Malpractice Investigation Has Unintended Consequence

Clair Chase sits at a coffee shop in Lenexa, near the apartment where her mom used to live.
Elana Gordon
Clair Chase sits at a coffee shop in Lenexa, near the apartment where her mom used to live.


KANSAS CITY, Mo. – When the Kansas City Star used a federal database this summer to investigate the way doctors are monitored in the region, and matched anonymous records from the database to a specific doctor, the U.S. Department of Health and Human Services responded by, among other things, restricting access to the entire public database. The move sparked a storm of protests. And late yesterday, two months after taking down the database, HHS restored it...with some catches. In the second and final part of this series, KCUR's Elana Gordon brings us the story of how one physician complaint triggered these changes and how one U.S. Senator is leading the push back.


On September 4, 2011, the Kansas City Star published a story calling into question the way licensing boards in Kansas and Missouri discipline doctors with extensive histories of alleged malpractice. The story included some details about a Johnson County neurosurgeon that reporter Alan Bavley extracted from National Practitioner Data Bank's public file.

Days before the story went to print, the U.S. Department of Health and Human Services took down the databank's entire public file from its website.

On a recent visit to Kansas City, HHS Secretary Kathleen Sebelius emphasized the databank is still available to hospitals and licensing boards for regulating purposes. But she said her agency restricted the databank's public portion to ensure that what the Kansas City Star did can't be repeated.

"Once an individual is able to be identified, then clearly it is not as anonymous as it needs to be to follow the law," Sebelius said.

Journalists have matched doctors to the databank for at least a decade, but Sebelius said her legal team had reviewed the data bank's policy, reiterating that information must be put forward in a way where individuals cannot be identified.

Allegations of malpractice, which can be found in physician records in the federal databank, is a sensitive and complex issue. Sometimes insurance companies settle lawsuits whether a doctor wants to or not. Sometimes settlements happen regardless of who's at fault. Certain specialties get sued more. The licensing boards in Kansas and Missouri both say malpractice allegations aren't necessarily grounds for discipline.

But nationwide, malpractice payouts are rare - about 15,000 a year. And it's rarer - even suspicious - for a doctor like the one the Kansas City Star investigated, to accumulate several payments. That's according to Topeka native, Robert Oshel. Oshel now volunteers for the consumer group, Public Citizen, but he was an associate director of the National Practitioner Data Bank until retiring three years ago.

"I actually created the first public-use file," says Oshel.

Oshel developed the databank's file in the early 90s. He says the removal of the file after the Star identified a doctor in it is contrary to public interest and represents an unprecedented misreading of the law.

"We always considered that law prevented the public use file from disclosing the identity of practitioners. But the law did not mean to prevent somebody who already had a lot of information about a practitioner from going back to the file and trying to figure out which records pertain to that person," says Oshel.

A coalition of journalism groups led by the Association of Health Care Journalists [which by the way, KCUR's Elana Gordon is a member of], academics, consumer organizations, and others issued letters to HHS, calling for the databank to be restored.

The groups picked up a powerful ally: U.S. Senator Chuck Grassley, of Iowa.

"It's just unimaginable that the government could try to keep this information about good and bad practitioners from the public," says Grassley. "We're always talking about enhancing quality of care, and so you want intelligent consumers, you want to save money, you want a health care system instead of a sick care system. This information needs to be available."

Grassley has been leading an inquiry into HHS's removal of the public file. Last week, his office released a series of redacted emails from HHS, showing that the neurosurgeon featured in The Kansas City Star's story had complained to HHS about the Star's investigation before and after it went to print.

The pressure seems to have worked.

Yesterday afternoon, HHS put the entire public file back online, with updates, in the same format as before.

But the data comes with a new catch. Any user must agree not to share raw data or combine the anonymous physician files with other information, so as to identify a doctor.

"I think this is unacceptable and unworkable," says Charles Ornstein, a reporter at Pro-Publica and President of the Association of Health Care Journalists.

Ornstein says he's glad HHS is working with those concerned about access to the data bank, but he doesn't understand how the agency can attach strings to a public database.

"I'm really troubled with the restrictions they've put in place on it, and I think it will a have chilling effect on reporters' ability to write good stories based on it."

In a statement issued shortly after HHS restored the data bank, Senator Grassley said the changes overstep the law by restricting the data's use and ignore what's good for the public.

This saga over the public database, however, is not the main concern for Claire Chase, who only learned of Dr. Robert Tenny's extensive malpractice history after he operated on her mother, after surgery went wrong.

"That's something people should be able to find out about before they allow him to treat them or their loved ones," Chase says as she sits on the patio of a Lenexa coffee shop, near the apartments where her mom used to live.

Nearly five years after her mom died, after settling a lawsuit over the incident, Chase says she's lost some faith in the region's health system. The neurosurgeon who operated on her mom, who was featured in the Kansas City Star, and whose complaint brought policy changes to the national data bank, still has a clean medical license.

The Kansas Board of Healing Arts has scheduled a hearing for April.

Click here to read & listen to Part 1 of this story


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