Q&A with Journalist Alan Bavley: Keeping Track of Medical Malpractice Frequent Fliers

When Alan Bavley, a veteran health care reporter at the Kansas City Star, received a letter from the U.S. Department of Health and Human Services (HHS), he had to wonder whether his office was bugged.

Cynthia Grubbs, the director of the Division of Practitioner Data Banks, was putting him on notice that she and her agency knew that Bavley had been working on a story that made use of the National Practitioner Data Bank. The letter said that HHS “has been informed that you may be writing an article for publication in the Kansas City Star which potentially involved the republication of information obtained from the National Practitioner Data Bank (NPDB).”

The NPDB, as the letter pointed out, “is a flagging system intended to assist health care entities in evaluating health care practitioner’s licensure, professional society memberships, medical malpractice payment history, and clinical privileging history. The information reported to the NPDB is confidential and is not to be disclosed or redisclosed outside of HHS except in furtherance of professional review activities.”

Bavley has been a reporter long enough to not be easily spooked. He graduated from the University of Missouri’s storied journalism school with a master’s degree in 1977 and has worked at the Morris County, N.J., Daily Record, where he covered several beats, and at the South Florida Sun-Sentinel, where he was a general assignment and health care reporter.

Still, it is rare in any reporter’s career to receive a letter from the feds. This one was especially troubling because it went so far as to say that, in essence, reporters don’t have a right to use data from the NPBD. It said that anyone using the NPBD could only do so “with respect to the purpose for which it was disclosed by HHS.” Cryptic, to be sure. It also said, “Any individuals who violate the confidentiality provision could be subject to a civil monetary penalty.” How big a fine? $11,000. For some reporters, that could be a third of a year’s wages.

But this did not stop Bavley or the Star. They went to press with a blockbuster story that showed how state regulators in Missouri and Kansas were ignoring serious histories of medical malpractice by doctors.

His main example, Dr. Robert Tenny, had recently settled a “wrongful death suit for $1,010,000. The settlement brought total malpractice payments made on Tenny’s behalf since the early 1990s to roughly $3.7 million, federal records indicate.” Bavley’s story was cautious and comprehensive, but the Health Resources and Services Administration (HRSA) – the agency within HHS that runs oversees the NPDB – did not even wait to see the story before it acted. Two days before the story was published, on Sept. 1 HRSA pulled the Public Use File – the version of the NPDB that Bavley used and that does not include doctors’ names – from its website.

The agency’s move, and its threat of an $11,000 fine, prompted journalism organizations and patient safety advocates across the country to write HRSA demanding that the Public Use File be brought back. Antidote launched a mini-campaign to ask people to post pictures of themselves with signs saying, “I Am Alan B.” in protest of the HRSA action. All of this seems to make Bavley himself feel a bit awkward. He was, after all, just doing his job and not asking for any attention.

I reached him via email last week. The first part of the interview is below. The second part will run Friday.

Q: What first prompted you to look into the way Missouri and Kansas handle malpractice information and what was your plan for how you wanted to report the story?

A: I had wanted to do a story of this kind for many, many years. I monitor medical board disciplinary actions and slowly developed the impression that the boards took serious and frequent action when doctors had substance abuse or legal problems or had been disciplined in other states. But in the rare cases where doctors were disciplined for their patient care, the boards often gave simple reprimands. I wanted to find doctors who were malpractice “frequent fliers” and check to see if they had been disciplined, but I never had enough time to develop a viable strategy. So the story languished on my bucket list.

Then lightning struck twice. Early this year, Public Citizen came out with a report that employed the National Practitioner Data Bank public use file. Its primary purpose was to show that doctors who lose hospital staff privileges often go undisciplined by medical boards, but it also included data on undisciplined doctors who had multiple malpractice payouts. Among the top states for undisciplined doctors with large numbers of payouts were Kansas and Missouri, the states the Kansas City Star covers. From this, I knew there was good data out there that validated the hunch I had all along. I mentally reshuffled the story to a higher position on my bucket list.

Q: How did you decide to focus on Tenny?

A: A few weeks after reading the Public Citizen report, I received a call from the attorney who represented the family that sued Robert Tenny. He was frustrated that the family had complained to the Kansas medical board years ago about Tenny, the doctor had a long history of malpractice suits yet he had not been disciplined. The lawyer was willing to share discovery materials filed with the court and the family was willing to talk. So, now I knew I had access to a compelling personal story with names and documentation and also to data that could put the story in context and broaden its significance. All that was left to do was the reporting.

Q: How did Tenny react to your questions?

A: At first, no reaction. I called and emailed his attorney frequently for weeks. Then I called Tenny’s office repeatedly. I finally received an email from the attorney telling me that Tenny was bound by HIPAA rules against discussing patients and would only consider speaking if I got a waiver from the patient’s executor. The executor declined. I tried several more times to get comment from the attorney, but never received another reply.

Q: What about the medical boards? Did Missouri and Kansas react differently?

A: The two boards gave similar answers. The main difference was that in Kansas, the board’s executive director did the interview. In Missouri, it was a PIO who did the talking. The reason may have been that there is no PIO assigned to the board in Kansas.

Q: How have readers reacted to the story?

A: The reaction has been overwhelming, and overwhelmingly positive. I have heard many heartbreaking stories from patients and their families who believe they have been victims of medical malpractice. I think this is an issue many people have felt strongly about, but never had their feelings validated until they read this story.

Next: What did Bavley do when he received the letter from the feds?

Related Posts:

Q&A with Alan Bavley, Part 2: Finding Gold in the National Practitioner Data Bank

We Are All Alan Bavley: How to Get HRSA's Attention on Doctor Database

The Reporter Who Kicked the Doctor's Nest

Secret History: Five Tips from the Kansas City Star's Malpractice Investigation

Photo credit: Clever Cupcakes via Flickr