Each year, it is estimated that 800,000 patients are permanently injured or killed by medical mistakes1. With some level of patient and plaintiff attorney activism, all of these could be the subject of a lawsuit.
Many patients believe that medical errors and adverse events are the result of clinician incompetence. While individual mistakes do occur, a label of “incompetence” oversimplifies the complexity of healthcare delivery. Many cases of patient harm stem from systemic issues like chronic understaffing, inefficient or incomplete workflows, and faulty technology.
When healthcare organizations neglect the principles of safe system design, human factors engineering, and a safety culture for the workforce, the risk of preventable harm increases. To make healthcare safer, we must address the system as a whole—not just focus on individual performance.
National Practitioner Data Bank
When the National Practitioner Data Bank (NPDB) was founded in 1996, Congress was attempting to track what it defined as “undiscovered incompetence,” which Congress considered a threat to public health at the time. Specifically, Congress declared, “There is a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician’s previous damaging or incompetent performance.”2
Incompetence is itself an elusive and slippery concept. What, exactly, is the mark of an incompetent provider? Through the Healthcare Quality Improvement Act of 1986, Congress laid out its two principal strategies:
- The judgment of regulators and peers: The first measure of incompetence would be the judgment of peers or the Board of Medicine itself. If your actions were compelling enough to warrant the sanction of a licensing board, or sanction from your peers resulting in more than 30 days of privileging action, that should surely be enough to warrant your inclusion on the list.
- Malpractice claims brought by patients: The second measure was a payment made on behalf of your involvement in a medical malpractice lawsuit. If a patient demanded money as a remedy to your inaction or incorrect action, and you or someone on your behalf made that payment, surely that’s another reason warranting your inclusion on the list, Congress asserted.
So how has it worked? Since its inception, over 1.1 million reports have been submitted that involve sanction by a provider’s peers (including professional boards) for less-than-desired behavior. Forty-four thousand reports involve criminal convictions or civil judgements. An additional 520,000 reports involve medical malpractice payouts3. All of these reports are intended to identify so-called incompetent practitioners.
As a systems engineer, human factors engineer, and a lawyer, I hate the word incompetence. Yes, I understand its emotional pull, but I despise its lack of precision. If I as a prospective employer seek to avoid incompetent physicians, how precisely do I determine who they are? Relying on the presence of a lawsuit paid to make that determination is a questionable approach.
To me, the fact that a clinician has a report in the NPDB because they’ve been sued and a payment has been made is just one factor of many to consider. We humans make mistakes, and if you are a healthcare provider, those mistakes might someday lead to patient harm and a resulting lawsuit. Even well-intentioned attestations to “do no harm” do not exempt physicians from being inescapably fallible human beings.
What is “Just Culture”?
For the past 30 years, the healthcare industry has been slowly adopting notions of a “just culture.” It is a progressive form of workplace justice, one that gives recognition to our fallible nature while simultaneously not turning a blind eye to risky choices simply because no harm has occurred. It is intended to foster a learning culture, where providers can admit to, and learn from, mistakes before harm has occurred.
It is a system of justice that differentiates the inadvertent human error from the at-risk procedural deviations that occur every day in healthcare as the result of a reckless choice when a provider understands the substantial and unjustifiable risk they take yet chooses to proceed. Inside an organization implementing a just culture, errors would be accepted, at-risk choices would be coached, and reckless choices would put the providers in the crosshairs of a corporate disciplinary system. And all of this would occur independent of any patient harm, as the organization would judge the quality of their employees’ actions, not the triumph or tragedy those choices produced.
Simply put: The organization owns the outcomes; the individual providers own the quality of their choices. Human error is just the byproduct of those two inputs—the design of the system and the collective choices of people within those systems. If we want to reduce medical malpractice, then we must design better systems around providers, and help providers make the best choices they can along the way.
Applying Just Culture to NPDB
Consider a hypothetical scenario in which just culture principles are applied to the NPDB. Tort liability claims where the provider acted recklessly toward the patient, or acted knowingly or with an intent to harm, would be reportable to the NPDB. This would differentiate the “bad actor” from the doctor who, committed to the safety of their patient, unintentionally harms their patient. If every doctor is a bad actor, then in effect, no doctor is a bad actor.
Through its use of the term “incompetence,” Congress must have intended to identify what was a small subset of bad actors among a vast population of professionals dedicated to their craft. Differentiation must be the goal of the NPDB. The mere presence of a medical malpractice claim, in itself, is not enough to make that differentiation.
Short of recklessness, are there doctors who make uncorrectable repetitive errors, or who are not responsive to non-punitive coaching when they begin to drift into at-risk behaviors? Yes, but that is why individual facilities and medical staff leadership conduct oversight of their providers.
We’ve all seen the outrageous, but rare, scenarios in which an incompetent or unprofessional doctor has managed to move from hospital to hospital, harming patients as they continued their practice. Dallas’s Dr. Death is one recent notable example. Clearly, Congress has good cause for creating a national database of less-than-professional “incompetent” doctors. But to use a medical malpractice claim as the differentiator is insufficient.
We owe it to our healthcare providers who have committed themselves to a life of service to not make their inescapable fallibility the mark of professional incompetence.
References
1 Newman-Toker DE, Nassery N, Schaffer AC, et al Burden of serious harms from diagnostic error in the USA BMJ Quality & Safety 2024;33:109-120.
2 Healthcare Quality Improvement Act of 1986, 42 USC117, 11101 (2).
3 Division of Practitioner Data Bank, Bureau of Health Workforce, Health Resources and Services Administration. Generated using the Data Analysis Tool at https://www.npdb.hrsa.gov/analysistool.