Federal law requires, for example, that hospitals and medical boards be penalized if they don't report to the data bank. But no fine or penalty has ever been levied, federal government officials acknowledged .
Hospitals sometimes agree not to report doctors they are forcing from their staffs. This concession may smooth the way for a physician to leave without a fight, but it also mistakenly signals to other states and medical facilities that the doctor has a clean history.
Monia Thomas sued Pamela Johnson and Duke University Medical Center after her intestine was nicked during a tubal ligation.
(Karen Tam For The Washington Post)
In some instances, physicians' names are removed from malpractice settlements to keep them out of the data bank. Only those who are named in the final settlement must be reported.
In Johnson's case, no one told the data bank that she had been forced to leave her job at Duke, according to records and interviews. Her false statement on her New Mexico application went undetected by the medical board for more than a year, records show.
Johnson's history "appeared in none of the routine investigations we did into her background," said Jenny Felmley, a spokeswoman for the New Mexico Medical Board.
Vives's husband and two other patients in New Mexico alleged in lawsuits that, during that time, Johnson was negligent or botched surgical procedures, accusations she denies. In the Vives case, Johnson denied that she contributed to the death and has said that the cause was an unpreventable embolism that was cited in the autopsy, according to court documents.
Like the state, officials at Los Alamos Medical Center knew nothing of her problems at Duke, according to Dan Green, a spokesman for Banner Health, which owned the hospital at the time. He said Johnson's record at Duke didn't surface when the medical center checked her out before granting her privileges.
Johnson, 46, said she did not knowingly break the rules. "I didn't think I was lying," she said in an interview from Michigan. "My attorney told me because there was nothing in writing [from Duke] that I didn't have to report that I had withdrawn privileges. I understand now that it should have all been reported."
Three Duke University officials, including the general counsel, would not comment on why the medical center did not report Johnson to the data bank. "It's not Duke's policy to discuss personnel issues," medical center spokesman Richard Puff said.
Data Bank's Loopholes
When the National Practitioner Data Bank began collecting reports in 1990, the goal was to stop doctors and some other licensed health care workers from escaping troubled histories by having a central location where any sanctions or malpractice payments could be recorded. Although the names would not be public, they would be available to state licensing boards, hospitals and other health care entities, including federal agencies.
Mark Pincus, who oversees the data bank, said it has "fulfilled its intent" and "does exactly what Congress intended it to do."
But others say that the federal government has done little to ensure that hospitals and others comply with the regulations.
"We have seen efforts to get around it, many of them successful," said Sen. Ron Wyden (D-Ore.), who co-authored the legislation that created the data bank. "There are significant loopholes that need to be closed."
Thomas Croft, who oversaw the data bank from 1991 to 2000, agreed that loopholes exist but said that the system has "added a degree of honesty to the environment." Knowing they've been reported, doctors are less likely to lie about their pasts, he said.