Sham Peer Review

09/09/2025

The National Practitioner Data Bank ( NPDB)
By: Richard B. Willner

The National Practitioner Data Bank (NPDB) is a 20 year experiment created by an act of Congress along with the Health Care Quality Improvement Act of 1986 ( HCQIA). The experiment has failed. It is time to abolish this agency.

The NPDB is a black list reminiscent of the McCarthy blacklist of the 50s. Instead of targeting the Red Menace, or Communists, the target of this blacklist of the White Menace: “Bad Doctors.”

The problem is that too many good doctors’ names are submitted to this list. And it is disturbingly easy to do.

The perception is, if a doctor is included on this list, they must be a bad doctor, otherwise, why are they on the list?

The consequences of a listing are dire. As a result of a listing in this “data bank”, many doctors become unemployed and unemployable. For surgeons who must use a hospital Operating Room, the “data bank” is a permanent as a tattoo.

Clearly, a doctor has a “liberty interest” in his professional career and reputation. Also, plenty of hard work goes into becoming a doctor. A listing by this agency irreparably damages a doctor’s career and his reputation. A listing thus leads to a loss of liberty. Yet in the United States of America, we have this document called the Constitution. So, in examining the National Practitioner Data Bank, are doctors being deprived of liberty without due process of law?

When Congress created the NPDB, they created a highly unique agency. This is the only federal agency that has delegated publication power to corporations, corporations that have been granted the authority to publish whatever they please on federal stationary.

Not only does the federal government allow them to publish, they assist them with the distribution of the publication, and they also grant them immunity for what they publish. These publishers, private corporations, have thus been released from the confines of laws of libel. They can publish whatever they please without fear of reprisal and the federal government protects them behind a veil of immunity. This means that the victims of defamation by said corporations have no recourse against those corporations for various and sundry torts such as defamation.

Consider the scenario where an entry is made to the NPDB that is simply flat out defamation. I estimate that the entire process takes less than one hour. What recourse does the doctor have to combat this? In the real world, in the event of defamation, the doctor could sue for defamation to recover any resulting damages. When a defamatory statement is laundered thru the NPDB, there is no recourse. Any lawsuits will be dismissed under the veil of immunity defense. The doctor can then proceed with a time consuming and arduous formal “secretarial review” to obtain redress. That is assuming he, or his lawyer, has heard of this. Chances are, he has not. One doctor fought a defamatory listing for eight years before someone informed him of the secretarial review option. He had never heard of it. No lawyer advised him of it.

And the “secretarial review” option is not a de novo review of the facts of the case. The NPDB does not do that. In fact, no agency does. The chances of prevailing are remote. The NPDB is designed as the “roach motel” of medicine. Statements can be entered freely and rarely come out.

In addition to release of liability for defamation. Congress also released these private corporations from fear of an antitrust suit. But it is only reasonable that by granting such immunity, the federal government must assume responsibility for the wrongful action of these private corporations, let the victims of a wrongful publication be denied the equal protection of the law. And isn’t such protection also part of our Constitution?

Upon submission, these corporate publications are distributed on federal letterhead. There is no scrutiny by the federal government to verify the accuracy of these corporate publications. There is no oversight. They publish and thus endorse what is mailed to them in a government publication originated from Washington DC.

The publications are distributed widely. First, they are sent to the doctor’s employer, his licensing board, any secondary licensing agency, their certification board and every hospital he works at, or will work at in the future. The item is then sent to the DEA, the agency that issues the prescription powers.

With each publication, the doctor is inevitably subjected to a new “adverse action” which generations secondary “adverse action reports”. Other states he is licensed in will issue their own investigation and still another Data Bank. This is the multiplier effect, where one entry becomes 5 entries. Clearly there is a double jeopardy issue here.

And then there is a due process issue. If a hospital is publishing so called “data”, how exactly was such “data” arrived at? The reference to a data bank entry as “data” would suggest some sort of mathematical accuracy to the publication. Yet who guarantees it’s accuracy? Does false information become data upon typing it into a computerized “data bank”? When it comes to computer data entry, garbage in equals garbage out.

There are very serious consequences to a data bank entry. If the doctor loses his job, he loses his liberty. Is there any guarantee this loss of liberty if accompanied by the requisite “due process of law” that is guaranteed by the US Constitution? The answer to this question is a resounding no.. Congress did not mandate these hospitals comply with Constitutional due process standards before they submit what amounts to corporate verdicts of corporate trials. As such a trial, no appeal is allowed, no discovery is allowed and no confrontation is mandated.

Congress can only do what they are authorized to do . All congressional authority comes from the Constitution. The Constitution guarantees the right to constitutional due process before a man is deprived of his liberty. A listing leads to a loss of liberty, yet there is no guarantee of due process.

And that is where Congress failed. They failed to abide by the supreme law of the land. Congress created an agency that is in fundamental violation of the rules they are obligated to follow. Thus the NPDB must fail, as the McCarthy blacklist failed, lest we all lose more good doctors. That that is bad for all of us.

For further information on the Data Bank, please feel free to consult with The Center For Peer Review Justice at info@PeerReviewjustice.org or 504-621-1670

08/27/2025

Richard B. Willner received the Civic Leader Award from the Alliance for Good Government. Richard has enclosed his speech below:

"First of all, I would like to sincerely THANK the committee which granted me this enormous honor. You cannot know how much I appreciate it. Second, I would imagine many of you today are wondering who I am and why I am here. I stand among enormously talented people, in this room who have given far more to their community and our Parish, than they have taken.

I operated an emergency 24 hour hot line for physicians who are depressed and considering killing themselves. Unfortunately, and it may come as a surprise to you, a LOT of doctors commit su***de every year. I won’t burden you with the numbers, because as you realize… each one is a tremendous loss to our society.

I have been in a position to hear about many very sad events in the lives of doctors. Most of those occur among decent, hardworking people who have been improperly and unfairly INVESTIGATED and maligned by various committees and practice boards. Some have lost their licenses completely. Of course we acknowledge that some doctors need to be disciplined. Unfortunately, this process can also be perverted for financial reasons against competitors. I see it all the time.

You need to know that doctors give up their youth almost completely to become doctors. While their college friends were exploring Europe with a backpack, your doctor was slaving at 9 hour labs trying to make a few grains of aspirin. So, when a doctor sees his/her medical license under threat, it is so deep a loss as to be almost unimaginable.

I have had the honor to help doctors get their licenses back and stop unfair practices against them, even though I am not an attorney. It is a peculiar skill that I have. I know that a number of you are in authority positions and as part of your work, you create regulations.

Our society needs regulations in order to survive. I get that. But, I beg you, when it comes to making more regulations for doctors….please think twice. They have enough regulations/practice boards/hospital boards/pharmacy boards who watch them every day. Enough is enough.
I again express my deep appreciation for this honor and I wish you all GOOD health and GOOD luck!"

Richard B. Willner
The Center for Peer Review Justice

Center For Peer Review Justice Richard B. WillnerMore Center for Peer Review Justice Testimonials.Richard Willner InterviewsListen to Interviews by Richard Willner.Articles by Dr. Richard B WillnerRead the latest articles and information from Richard Willner.Contact Richard WillnerEmail and telephon...

08/26/2025

Sham Peer Review --Due Process Rights
By: Richard B Willner, Center for Peer Review Justice

Medical peer review is the process by which a committee of physicians investigates the medical care rendered by a colleague in order to determine whether accepted standards of care have been met. The professional or personal conduct of a physician may also be investigated. If the committee finds that the physician departed from accepted standards, it may recommend limiting or terminating the physician’s privileges at that institution. If the physician’s privileges are restricted for more than 30 days, federal law requires the peer review committee to report that fact to the National Practitioner Data Bank.

There is no federal statute that requires peer review committees to observe due process, which the Supreme Court has defined as (1) giving written notice of the actions contemplated, (2) convening a hearing, (3) allowing both sides to present evidence at the hearing, and (4) having an independent adjudicator (2). Prior to the Health Care Quality Improvement Act of 1986 (HCQIA) (3), the effects of an adverse peer review finding were restricted to the hospital involved. Because the HCQIA mandates the reporting of disciplinary actions of peer review committees to the National Practitioner Data Bank, such a report could harm a physician’s career throughout the nation.

Medical peer review is usually based on the screening of medical records, which places physicians with poor record-keeping skills at a disadvantage, and ignores the fact that medical records are often a poor indicator of the quality of care (5). Additionally, there is no requirement that the physician be given notice and an opportunity to be heard, and there is no requirement that members of the peer review committee be unbiased. The HCQIA recommends that the physician should get notice of the allegations, time to prepare for a hearing, a list of witnesses, the right to legal counsel, and an impartial fact finder. However, the act concludes “A professional review body’s failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of this act).” This failure of the HCQIA to require due process calls into question the fundamental fairness of the medical peer review system.

The reason that due process should be a part of any fact-finding endeavor was stated by Justice Goldberg in SILVER v NEW YORK STOCK EXCHANGE:

‘Experience teaches…that the affording of procedural safeguards, which by their nature serve to illuminate the underlying facts, in itself often operates to prevent erroneous decisions on the merits from occurring .’


The purpose of requiring due process is to ensure that the actions taken are not arbitrary, capricious, or unreasonable. Where there is no due process, the system invites abuse.

Peer review in its current form fails to protect an investigated physician from committee members having an economic or personal bias. Economic bias occurs when a committee member has a financial interest in the outcome. If the challenged physician is a partner or associate, any error that he may have made is likely to be considered to have been unavoidable. On the other hand, peer review has already been used to force a competing physician out of practice. Such economic bias denies due process . The United States Supreme Court struck down a decision from Ohio’s municipal court system in which the judge was partly paid from the fines he assessed. The Court found that the system gave an incentive to rule one way rather than the other.

Personal bias is inevitable when coworkers judge each other. Some people are very likable, and others illuminate the room by their absence.

Federal law prohibits a federal judge from hearing cases in which his impartiality might reasonably be questioned or in which he has a financial interest . The same standards should apply to member of a peer review committee. The potential for abuse when these suggested procedures are not followed would indicate the need for mandatory due process.
Due process, which is designed to limit these abuses, is not required by the Constitution of the United States unless there is government action that affects a liberty or property right. The case of PAUL v DAVIS illustrates the legal meaning of property rights as applied to employment. The police labeled the plaintiff as a shoplifter and advised local businesses to watch him carefully. The plaintiff sued, claiming that the government was injuring his reputation without due process. The Supreme Court ruled against the plaintiff, but stated that should there be an effect on employment, then such injury would invoke the constitutional protection .

The sole reason for reporting the results of peer reviews is to restrict the practices of incompetent physicians. Congress cited the following as the very reason for the act: ‘There is a national need to restrict the ability of incompetent physicians to move from state to state without disclosure or discovery of the physicians’. incompetent performance .’

The right to practice medicine without a governmental agency erroneously reporting that a physician has been deficient in his actions is a constitutional property right. Rights, even constitutional rights, can be waived by express agreement, or by the failure to assert those rights. State institutions, however, may not make waiver of a constitutional right a condition for employment .

In 1986, New York State enacted a system of physician discipline that includes a hearing presided over by an administrative law judge, to ensure due process. Although this system provides due process, it has the glaring problem of giving control of hospital privileges to lawyers. A far better solution is for peer review committees to be required to observe due process. Lawyers and other non-physicians may have a role as consultants, but should not be voting committee members.

The effects of an adverse peer review decision are no longer limited to the relationship between a physician and a hospital. The decision becomes part of the National Practitioner Data Bank. Medical peer review must provide physicians the protections of due process.

Tags: HCQIA, National Practitioner Data Bank, NPDB

02/28/2025