The action taken by the U.S. Health Resources and Services Administration to remove the public version of the National Practitioner Data Bank came only after the urging of a Kansas neurosurgeon with a long history of malpractice payouts, according to records released Thursday by U.S. Sen. Charles Grassley.
The doctor, Robert Tenny, sent six letters to HRSA both before and after the Kansas City Star wrote a story that said he had been sued at least 16 times for malpractice and had paid out roughly $3.7 million since the early 1990s.
Grassley blasted HRSA for making a hasty decision to remove the data bank’s Public Use File from its website without doing independent research and he called for its immediate restoration.
“Instead of conducting its own research into the professional conduct of Dr. Tenny, HRSA appears to have over reacted to the complaint of a single physician based on no evidence other than that he received a call from the press,” Grassley wrote Thursday in a letter to Health and Human Services Secretary Kathleen Sebelius.
The documents released by Grassley also show that HRSA warned 28 hospitals and health plans throughout Kansas about discussing the data bank records of Tenny following the doctor’s allegation that a hospital must have leaked information about him to Star reporter Alan Bavley.
The National Practitioner Data Bank is a confidential system that compiles malpractice payouts, hospital discipline and regulatory sanctions against doctors and other health professionals. For years, HRSA has posted aggregate information from the data bank in a Public Use File that did not identify individual providers.
HRSA officials removed the public file from the data bank website on September 1 because a spokesman said they believe it was used to identify physicians inappropriately. The Association of Health Care Journalists has protested the action, along with Investigative Reporters and Editors, Society of Professional Journalists, National Association of Science Writers, Reporters Committee for Freedom of the Press, and National Freedom of Information Coalition.
Grassley released the documents Thursday in response to a letter he received from HRSA administrator Mary Wakefield.
Among them was an email showing that the data bank’s director quickly notified Tenny’s lawyer about a letter she sent to Bavley threatening the reporter with civil penalties if he ran a story based on information from the data bank. Cynthia Grubbs, director of HRSA’s division of practitioner data banks, forwarded the letter to Tenny’s lawyer, Charles R. Hay, less than three hours after sending the warning to Bavley. (HRSA subsequently backed off its threat against Bavley.)
“HRSA’s response makes it apparent that HRSA simply accepted the complaint of the physician involved at face value and jumped to conclusions about how Mr. Bavley obtained the information,” Grassley wrote. “Once HRSA learned of its mistake, it then compounded the error by shutting down access to information that Congress intended to be public” through the Public Use File.
“All Mr. Bavley did was use publicly available data, and HRSA’s response to that was to shut down access to that data for everyone,” Grassley wrote.
AHCJ President Charles Ornstein, responding to the documents Grassley released Thursday, reiterated his call for HRSA to republish the Public Use File immediately.
“We are past due for HRSA to acknowledge its mistake, apologize and restore access to this file on its website,” he said. “Journalists have used this information responsibly for years to write about questionable physicians, and their stories have led to new laws and regulations that have improved patient protections.”
Ornstein also said the documents released by Grassley “raise troubling questions about HRSA’s due diligence before taking this major action.”
According to the documents, Tenny repeatedly wrote Grubbs, questioning the motives of a hospital that he contends hired a publicist to try to destroy his career and impugning Bavley.
In another letter, he alleged a “coordinated attack.” And in another, he told Grubbs to “stay strong and keep up the good work!”
In response, Grubbs wrote Tenny on Sept. 26, saying, “We have contacted the hospitals and health centers…who have queried on you in the past 6 years to remind them of the confidentiality requirements and the sanctions for violations of confidentiality. We instructed the hospitals to examine their records and report back to us with any potential confidentiality breaches. We will act swiftly to investigate any potential violations of confidentiality.”
In her letter to Grassley, dated Tuesday, Wakefield said HRSA is working toward “a solution that meets its responsibilities regarding confidentiality under the Data Bank statute while reflecting its commitment to facilitating important research.”
“Our goal is to make as much information available as soon as we can, but we do not have a specific timeline at this point,” she wrote.
In addition to calling for restoration of the public file, Grassley asked for an immediate briefing by the HRSA official responsible for the decision to remove it in the first place.