Janet Jenson: We’ve traced bad doctors for 34 years

FILE - In this July 26, 2017, frame grab from video taken from a police body camera and provided by attorney Karra Porter, nurse Alex Wubbels is arrested by a Salt Lake City police officer at University Hospital in Salt Lake City. Utah Police Detective Jeff Payne was fired Tuesday, Oct. 10, 2017, in a case that became a flashpoint in the ongoing national conversation about police use of force. (Salt Lake City Police Department/Courtesy of Karra Porter via AP, File)

We have a national problem with police departments rehiring officers who have a history of brutality, discrimination or aggression.

We all remember Salt Lake City Police Detective Jeff Payne who roughed up University of Utah nurse Alex Wubbels on July 17, 2017, while wrongfully arresting and handcuffing her. Despite being fired by Salt Lake City later that year, Payne was hired by the Weber County Sheriff to work in the county jail. Nationally, this rehiring of bad cops goes on all the time everywhere.

One proposal to address this repeated police brutality is to create and maintain a national registry for all police who are involved in shootings, unjustified aggression, discrimination or other malfeasance. Then all police departments would be able to look up and be fully informed of an applicant’s history of discipline before they decide whether to hire him.

Such proposals for a national data bank to track police misbehavior is not radical. It’s not even new. The federal government has operated exactly this type of national data bank for all doctors for more than 34 years.

Called the Health Care Quality Improvement Act of 1986 (“HCQIA”), it established the National Practitioner Data Bank. Congress enacted it out of concern that doctors who committed malpractice or were addicts or sexual deviants would be sued or disciplined or have their medical licenses revoked or suspended in one state, but they would just move to another state and open a new practice with impunity because the new state’s licensure agency and hospitals had no way to know the doctor’s history.

“To improve the quality of medical care,” Congress saw 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,” and established the National Practitioner Data Bank.

Under HCQIA, all state licensure agencies who discipline a doctor in any way – by revoking or limiting a doctor’s professional license – must report such actions to the National Data Bank. Similarly, every hospital that revokes or restricts a physician’s admitting or practice privileges must also report such disciplinary actions to the National Data Bank.

And any time a doctor is sued for malpractice or settles a malpractice action against him, these lawsuits and settlements must all be reported to the National Practitioner Data Bank. All such reports by any health care entity are maintained indefinitely, and any health care entities are required to comply. In return, those who file such reports are granted immunity from liability or damages for doing so.

Importantly, the federal law requires that every hospital check every doctor’s history in the National Data Bank every two years, and again whenever a physician applies to be on the hospital’s medical staff. The National Data Bank also must provide all information about a physician’s history whenever it is requested by a state licensing agency, a hospital or by any other health care entity considering employing a physician. These entities can still employ a physician with a history of misconduct, malpractice or incompetence, but they do so knowing that they are employing a really bad apple who might injure or damage their patients.

It would be a reasonable step to require the establishment of such a nationwide registry for all law enforcement personnel, and to require that all law enforcement agencies check the history of any officers they are considering hiring. In this way, we could as a society weed out really bad actors who are too mean or aggressive to serve and protect us.

The Washington Post reports that, since 2015, police in America have shot and killed more than 5,400 people – and this doesn’t include countless other unwarranted acts of aggression and discrimination. Law enforcement agencies need to have a meaningful opportunity at learning whether a candidate has a history of such misconduct and violence before they hire him. And before they turn him loose on innocent civilians.

Janet Jenson is a Salt Lake City lawyer who specializes in the representation of physicians and other health care providers.

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