Physicians often have a legal obligation to report conduct which they believe may constitute negligence, or demonstrate an individual’s inability to practice medicine competently, safely, or within the bounds of the relevant code of medical ethics. Because of the nature of the information required to be reported, it is not unusual for the physician (or other medical provider) who is the subject of the report to contend the information is inaccurate or defamatory. In a decision earlier this year, the Iowa Supreme Court ruled that a hospital did not defame a surgeon when it reported suspected physician misconduct to the state licensing board or to the National Practitioner Data Bank (NPDB). The decision, Andrew v. Hamilton Cnty. Pub. Hosp., 960 N.W.2d 481 (Iowa 2021), highlights how hospitals and individuals can avoid defamation claims when engaging in mandatory reporting.
In Iowa, licensed physicians are legally required to notify the Iowa Board of Medicine if they know of another physician’s “careless acts or omissions that demonstrate a licensee’s inability to practice medicine competently, safely, or within the bounds of medical ethics.” Iowa Admin. Code r. 653-22.2(l).
Here, Hamilton County’s public hospital terminated Dr. Mark Andrew’s employment in 2006 pursuant to a “cause” provision in his employment agreement. The decision to end employment was made after the hospital conducted an internal investigation prompted by an inquiry from a pharmacy expressing concerns about large quantities of narcotics Dr. Andrew prescribed for one patient, and the frequency of refills to that same patient.
An outside physician, who served as a consultant for the hospital on various personnel issues and assisted with its peer review process, filed a report with the Iowa Board of Medicine at the conclusion of the hospital’s internal investigation. The report recited facts surrounding the hospital’s investigation, including a suggestion that the state board investigate Dr. Andrew’s surgical competency. Dr. Andrew sued the hospital for defamation.
The Iowa Supreme Court determined the consulting physician’s statements were opinions that did not amount to a defamation claim, especially since Dr. Andrew did not allege that the report was false. In reaching this decision, the Court noted “[p]rotecting physicians’ ability to identify the concerns raised by specific information they are required to report is a significant public good that supports precluding a defamation action here.” While the hospital also claimed they were not otherwise liable for defamation because the statements were made to the NPDB and otherwise entitled a privilege typically afforded when making statements as part of official proceedings, the Iowa Supreme Court declined to rule on this issue.
Many hospitals and physicians are legally required to report suspected physician misconduct to state licensing officials or to the NPDB. Where appropriate, the reporting party should express concerns in the form of opinions that reflect specific, undisputed facts aimed at protecting the public. All reports should be accurate, factual, and void of any conclusory accusations in order to best avoid liability for a defamation claim.
(Law clerk Ariel Rothfield contributed significantly to this article.)