Reforming the National Practitioner Data Bank to Promote Fair Med-Mal Outcomes

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 5, Issue 1 along with a link to an electronic copy of the full form of the piece. 

In 1990, the federal government created a clearinghouse to track, among other things, all medical malpractice payments made in the United States. Congress created the National Practitioner Data Bank (NPDB) as a repository to hold information about individual doctors’ malpractice and disciplinary histories. Doctors’ NPDB files, while not visible to the public, are available to medical organizations. The availability of doctors’ NPDB files aid medical organizations in making better hiring decisions, as well as preventing incompetent doctors from moving from state to state in the hope of escaping local regulators.

The NPDB’s existence, though, has become a significant barrier to malpractice claims settlement. Many doctors fear being listed in the NPDB and this has significantly diminished the likelihood of payment when a claim is made (a claim made post-NPDB is only 59% as likely to attract a settlement as a pre-NPDB claim). Fear of being listed in the NPDB has resulted in a culture of evasion and exploitation of reporting loopholes that weaken the NPDB’s data collection efforts.

This Article argues that, while the NPDB seeks to protect potential malpractice victims from inept doctors, part of the cost has been borne by actual malpractice victims. These patients are now more likely to go without compensation because payments would create a paper trail of past performance that some doctors are unwilling to allow to exist. This article tells the story of the NPDB – and organized medicine’s response to it – and argues for improvements to remove barriers to fair compensation and to improve the NPDB’s ability to track malpractice data.

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Gabriel H. Teninbaum is a Professor of Legal Writing, Suffolk University Law School.

Economists are from Mercury, Policymakers are from Saturn: The Tax Policy Implications of Communication Failure

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 5, Issue 1 along with a link to an electronic copy of the full form of the piece. 

It is curious how often you humans manage to obtain that which you do not want.

Policymaking lawyers and economists are different types of people who come together in the policymaking realm. Sometimes policymakers rely on economic analysis to make decisions. Sometimes policymakers use economic analysis to support decisions already made. In particular, economic analysis has played a large role in the formation of tax and budgetary policy. However, there is a problem. Not only do economists and lawyers communicate differently, they think, perceive, react, and respond differently. They almost seem to be from different planets, speaking different languages. While both lawyers and economists use “stories” to persuade, economic analysis cloaks the story in a complex mathematical model, opaque to those without training in economic theory. The results of economic modeling can obscure the decisions that policymakers and the public need to make—about the direction of the tax system, the nation, and the economy. This article examines the roles economists and lawyers play in the development and implementation of the income tax system.

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Roberta Mann is Mr. & Mrs. L.L. Stewart Professor of Business Law at University of Oregon School of Law.

In Defense of Circular Reasoning: The Affordable Care Act and the Resilience of Law and Self-Reference

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 5, Issue 1 along with a link to an electronic copy of the full form of the piece. 

Self-referential, circular phenomena abound in modern life. Markets plunge based on investors’ fear of a bear market. When a song is declared a hit, it is played on heavy rotation and therefore becomes well-known and popular. Broken windows beget more community disorder. In not only these but many other examples, self-reference rears its head. In each instance, the input generates the output which then itself constitutes an input. This paper looks specifically at self-referential phenomena in the health system as a means of understanding the functions self-reference may serve, and how law, itself a self-referential system, interacts with social ordering of a circular nature. This article examines two examples of circular decisions in the health system, and the two corresponding provisions of a particular legal regime, the health reform enacted by the Affordable Care Act of 2010 (ACA), that address these recursive patterns.

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Christina Ho is an Associate Professor of Law at Rutgers University.