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No requirement to erase temporary ban on doctor’s treating female patients from federal Data Bank


A Texas case centered on the question of whether a temporary restriction of a physician’s license should remain in the National Practitioner Data Bank, when the discipline against the physician was later dismissed.

source: National Practitioner Data Bank

A Texas appeals court said yes, ruling January 9 that the Texas Medical Board only needed to “modify”—not erase—a 2016 report it made to the National Practitioner Data Bank about a temporary license restriction against a doctor after the complaint leading to the discipline was dismissed (Freshour v. Van Boven).

The report to the Data Bank, the Texas Court of Appeals for the Third District at Austin found, did not have to be “voided.”

The suit against the board, filed by physician Robert W. Van Boven, concerned two separate complaints submitted by patients in 2015, alleging that he had engaged in inappropriate conduct while performing a medical examination. Following an expedited hearing, a disciplinary panel of the board placed a temporary restriction on Van Boven’s medical license, prohibiting him from treating female patients; the order was set to remain in effect until superseded by a subsequent order of the board.

As a temporary suspension or restriction on his license, the February 29, 2016, action was reported to the federal National Practitioner Data Bank (NPDB), which collects and maintains information relating to health professionals’ competence and conduct.

The NPDB was authorized in 1986 to prevent “incompetent physicians” from “moving state to state without disclosure or discovery of the physician’s previous damaging or incompetent performance.”

Four types of actions must be filed with the NPDB: initial adverse actions, revisions to actions, a correction report, and a void report. In Van Boven’s case, an administrative law judge found the board had failed to prove Van Boven was subject to sanction. Following a four-day hearing, the board’s Final Order, stating that it superseded the Order of Temporary Restriction, lifted the restriction on his license.

The board submitted a “Revision-to-Action” Report to the NPDB. But Van Boven disagreed, arguing that a Void Report should be submitted instead. He asserted he was completely exonerated by the ALJ’s decision and the Board’s final order; thus any record of the underlying disciplinary proceeding against him should be removed from his disclosable record in the Data Bank and had to be voided to erase any record of the temporary restriction. Van Boven invoked the Data Bank’s dispute resolution process to make the same argument to the Data bank.

But the Data Bank notified the Board that correction was needed to reflect the complete record; it did not require a Void Report. Answering Van Boven’s argument, the Data Bank said a Void Report is suitable when an action is overturned or vacated and effectively acts as a withdrawal of the report in its entirety.

Van Boven turned to state court requesting mandamus and injunctive relief requiring the board to withdraw the Revision to Action report and submit a Void report, but the trial court denied his request. He contended the decision to use a Revision to Action report was not only erroneous but intentionally vindictive and damaging to his professional reputation.

Van Boven also argued that board staff made false assertions and failed to investigate unlawful bad-faith reporting, and that he was denied the right to present exculpatory evidence and photographs; the appeals court dismissed those arguments. The court found that state law placed no express limitation on the board’s authority to report to the NPDB or on what information It must report. So it found no duty, on the board’s part, to submit a Void Report to the NPDB.