In order to highlight the problems with the NPDB [National Practitioner Data Bank], this Article compares physician blacklisting with other forms of blacklisting. For example, both physician and sexual predator blacklisting programs have the same goals: allowing the public to engage in self-protection by preventing “predators” from traveling to new locations to prey on a new group of unsuspecting victims. And both sexual predators and physicians suffer similar stigmatization as the result of the “badge of infamy” that comes with being blacklisted. But this is where the similarities end. Accused sex offenders get all of the trappings of due process to avoid being wrongfully convicted and incorrectly placed on sexual predator blacklists. In contrast, most physicians, who are serving the community, get very few due process protections before being blacklisted. And some physicians are provided no due process rights at all. On the whole, the NPDB fails to fairly protect the liberty and property rights of targeted physicians.
The problems with the NPDB can be resolved by providing physicians, and other healthcare providers, with the same kind of due process protections that are provided to alleged sexual offenders before they are blacklisted. Adding these procedural protections will protect competent physicians from the erroneous destruction of their careers while also increasing the accuracy of the NPDB, which will protect patients from incompetent providers. Overall, the very specific due process protections suggested by this Article will improve healthcare quality, cost, and access.
This Article first provides a brief summary of the history of blacklisting in the United States. Then a comparison is made between physician blacklisting and other forms of blacklisting. This comparison reveals that physicians receive far fewer procedural safeguards than other targeted populations that pose a much greater risk of harm. The next Section explains the NPDB reporting and publishing system in order to then explore its constitutionality by applying the three-part test of Mathews v. Eldridge. The Mathews test suggests that the NPDB unconstitutionally impacts both the property and liberty rights of the targeted physicians. This exercise also raises startling questions regarding the overall negative impact of the NPDB reporting system on the quality and cost of healthcare, issues of current and pressing national importance. The NPDB reporting system appears to encourage the perpetuation of custom-based practices undermining efforts to improve the quality and cost of healthcare through the practice of evidence-based treatment choices. The NPDB system is also being used to silence physician whistleblowers, negatively impacting quality of care. The last Part of the Article suggests that the problems with the NPDB can be resolved by providing physicians, and other healthcare providers, with the same kind of due process protections that are provided to alleged sexual offenders before they are blacklisted. Adding the specific procedural protections suggested by this Article will protect physicians from the erroneous destruction of their careers while also increasing the accuracy of the NPDB and improving healthcare quality, cost, and access. [excerpt]
Katharine A. Van Tassel, Blacklisted: The Constitutionality of the Federal System for Publishing Reports of "Bad" Doctors in the National Practitioner Data Bank, 33 Cardozo L. Rev. 2031, 2096 (2012).