Feds Put Brakes On Some States Medical Malpractice Reporting Loopholes

162017_132140396847214_292624_nIn a decision issued on May 22, 2014, the Secretary of the U.S. Department of Health and Human Services, Kathleen Sebelius, formally determined that the efforts by Oregon and Massachusetts to circumvent requirements to report medical malpractice payments to the National Practitioner Data Bank (NPDB) would be in violation of federal law.

Under current federal law, a payment made by an insurance company, hospital, or other third party, on behalf of a health care provider in settlement of a claim or judgment made against that health care provider, must be reported to the NPDB, regardless whether the health care provider is found to have breached the standard of care. A medical malpractice claim is defined under the law as “a written claim or demand for payment based on a health care provider’s furnishing (or failure to furnish) health care services, and includes the filing of a cause of action, based on the law of tort, brought in any court of any State or the United States seeking monetary damages.”

Massachusetts Law

Under the Massachusetts Disclosure, Apology, and Offer (DA&O) medical malpractice tort reform law that became effective on November 5, 2012, medical malpractice victims are required to file a notice with the health care provider and engage in resolution discussions for a mandatory six-month period before a medical malpractice case can be filed. Some in Massachusetts have argued that the “notice” is not a reportable medical malpractice claim where the notice does not contain a written demand for payment since Massachusetts medical malpractice victims are required to wait six months before filing a medical malpractice “claim,” and therefore any medical malpractice payments made pursuant to the notice are not reportable to the NPDB.

Oregon Law

Orgeon’s medical malpractice tort reform that was signed into law on March 18, 2013 creates an “Early Discussion and Resolution” pre-lawsuit process that involves a voluntary and confidential structured program whereby medical malpractice victims and health care practitioners and providers may file a notice of adverse event after which the parties engage in discussions and possibly mediation that may result in an offer of compensation being made. The intent of the Oregon law is to define the compensation paid as a result of a notice of adverse event as not being a written claim or demand for payment that must be reported to the NPDB.

Some consumer groups have pushed to change the NPDB regulations so that all demands for payment, whether written or verbal, that result in a medical malpractice payment must be reported to the NPDB, thereby expanding the reporting requirement from only written claims to just about all claims.

The Secretary’s Decision

The Secretary of the U.S. Department of Health and Human Services decided that all payments that include a written claim or demand for payment under Massachusetts’ DA&O model and under Oregon’s early discussion and resolution model are reportable to the NPDB, without expanding the reporting requirement to verbal demands for payment.


If you or a family member may have been seriously injured or suffered other harms as a result of medical malpractice in Massachusetts, in Oregon, or in another U.S. state, you should promptly consult with a Massachusetts medical malpractice attorney, an Oregon medical malpractice attorney, or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Saturday, August 16th, 2014 at 6:48 am. Both comments and pings are currently closed.


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