George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On February 8, 2017, the U.S. District Court for the Eastern District of Texas, issued a Memorandum Opinion and Order directing Memorial Health System of East Texas (Memorial Health) to submit a Void Report to the National Practitioner Data Bank (NPDB). In the case Walker v. Memorial Health System, the court found the initial report, submitted after 30 days of an uncompleted proctoring requirement, to be improperly submitted because the Hospital had not specified that the proctoring take not less than 30 days.

Following a peer review process, Memorial Health ordered Dr. Walker to “have five bowel surgery cases proctored,” specifying no time limit. After a month, when the surgeon hadn’t met the five-case requirement, the hospital filed an adverse report with the NPDB. Dr. Walker filed suit and requested a preliminary injunction mandating that the Data Bank report be voided.

Was the Proctoring Requirement Reportable?

Memorial Health argued that because there is no private right of action under the Health Care Quality Improvement Act (HCQIA), the court was without authority to issue injunctive relief as to the Data Bank report. The court disagreed, finding “the premise that Dr. Walker is asserting a private right of action under HCQIA is not supported by the complaint.” Dr. Walker sought a preliminary injunction requiring the hospital to submit a retraction—a “Void Report”—to the Data Bank, on the grounds that his proctoring requirement wasn’t reportable.

The court ruled that because the duration of the proctoring was not specified, the action was not reportable. The proctoring requirements are reportable only if affirmatively imposed for more than 30 days. There is no such explicit requirement in the statute: section 11133(a)(1)(A) requires a report from an entity which “takes a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days.”

Responding to Memorial Health’s argument that the injunction would cause it to violate NPDB rules requiring reporting after 30 days, the court disagreed, stating “It is the province of the federal courts – not the Hospital – to determine the requirements of HCQIA, a federal statute.” The court concluded that while the proctoring requirement was necessary, the Hospital could have easily drafted a sanction against Dr. Walker which required that proctoring “shall not be completed within less than 30 days.”

Although the order for injunctive relief is still pending the outcome of trial, the ruling raises issues of interest to lawyers working with hospitals and physicians about reportable proctoring requirements. To see the Memorandum Opinion and Order in full, click here.

Editor’s Comments.

This is certainly a precedential case of great interest to those of us who represent physicians, Nurse practitioners, dentists and other licensed health professionals who may get reported to the NPDB. Unless this case is appealed and reversed, it gives some hope to the many licensed health practitioners who find themselves wrongfully reported to the NPDB by a health institution. We have found this most frequently to have occurred with military physicians (Army, Navy, Air Force) and with Veterans Administration (VA) physicians who are given little or no due process of law before such reports are made.

For more information on the NPDB and how The Health Law Firm can help you, click here to visit our webpage.

Contact Experienced Health Law Attorneys.

The Health Law Firm attorneys routinely represent physicians, physician assistants (PAs), nurses, nurse practitioners (NPs), dentists and other health professionals in dealing with reports being made to the NPDB, disputing NPDB reports and appealing NPDB reports, hospital clinical privileges hearings, medical staff fair hearings, medical staff peer reviews. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at


Harrison, Robert. “Texas Court Orders Hospital to Void National Practitioner Data Bank Report.” AHLA. (February 8, 2017). Web.

Tabler Jr., Norman. “When 30 Days is not 30 Days.” Faegre Baker Daniels. (February 20, 2017). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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