Question:

We now employ quite a few physicians.  With so many physicians, we cannot customize each employment agreement, but we want them to be aware of the conduct that we expect of each of our employed physicians.  Do you have any suggestions?

Answer:

Yes we do.  But first, an employer must begin its analysis with the employment agreement.  We recommend that you review your current employment agreements to make sure that they require each employed physician to comply with the employer’s policies.  Most do and, if not, this term should be included in all physician employment agreements.

Then we recommend that the employer adopt a Professionalism Policy that states that communication, collegiality and collaboration are essential for the provision of safe and competent care and that all employed physicians must treat anyone with whom they interact with respect, courtesy and dignity.  The Professionalism Policy should then provide examples of inappropriate conduct ranging from abusive or demeaning behavior or comments, to sexual harassment.

This policy is separate and apart from any Medical Staff policy.  The employer’s Professionalism Policy should be adopted and administered by the Physician Group.  The policy should be discussed with the physicians prior to its adoption and then, after adoption, made available on the employer’s intranet.  This process will provide the employed physicians clear notice as to the type of behavior that the employer expects of its employed physicians and the behavior that will not be tolerated.

The policy should then describe the collegial process that the employer will follow to address instances where the conduct of an employed physician fails to comply with the policy.  We have found that between the notice of what is expected and a physician-driven, collegial process, most instances of unacceptable behavior will be either avoided or corrected in an expeditious manner.  However, the policy should also make it clear that violating the policy, or not responding to the Group’s collegial efforts, will be grounds for termination of employment.  That said, just as we have found in the medical staff context, clear policies that are physician-centered and enforced in a reasonable manner will minimize the instances where an employer has to take the drastic step of terminating a physician’s employment.

Need guidance employing physicians? Join HortySpringer attorneys Henry Casale, Rachel Remaley & Charlie Chulack for the Institute on Employed Physicians and Their Impact on the Medical Staff.

Question: May one practitioner authenticate a verbal order that was issued by another practitioner?  If so, can an Allied Health Professional (“AHP”) be among those who authenticate verbal orders issued by someone else?

Answer: One practitioner may authenticate the verbal orders of another practitioner as long as the authenticating practitioner “has knowledge of the patient’s hospital course, medical plan of care, condition, and current status.”  Also, the bylaws, policies and rules and regulations of the hospital must not prohibit one practitioner from authenticating the verbal order of another practitioner.

A final regulation addressing this topic was published by the Centers for Medicare & Medicaid Services (“CMS”) on May 16, 2012.  This final regulation states:

All orders, including verbal orders, must be dated, timed, and authenticated promptly by the ordering practitioner or by another practitioner who is responsible for the care of the patient only if such a practitioner is acting in accordance with State law, including scope-of-practice laws, hospital policies, and medical staff bylaws, rules, and regulations.

 42 C.F.R. §482.24(c)(2) (emphasis added).  Thus, CMS allows one practitioner to authenticate verbal orders of another practitioner if the authenticating practitioner:  (1) is “responsible for the care of the patient” and (2) acts in accordance with law and hospital policy.

CMS has provided additional guidance about these issues in the Interpretive Guidelines to the Medicare Conditions of Participation, including guidance on AHPs.  CMS states:

In some instances, the ordering practitioner may not be able to authenticate his or her verbal order (e.g., the ordering practitioner gives a verbal order which is written and transcribed, and then is – off duty for the weekend or an extended period of time).  In such cases…it is acceptable for another practitioner who is responsible for the patient’s care to authenticate the verbal order of the ordering practitioner….

• All practitioners responsible for the patient’s care are expected to have knowledge of the patient’s hospital course, medical plan of care, condition, and current status.

• When a practitioner other than the ordering practitioner signs a verbal order, that practitioner assumes responsibility for the order as being complete, accurate and final.

• A qualified licensed practitioner, such as a physician assistant (PA) or nurse practitioner (NP), may authenticate a physician’s or other qualified licensed practitioner’s verbal order only if the order is within his/her scope of practice and the patient is under his/her care.

Medicare State Operations Manual, Appendix A (emphasis added).

Also, both state law and the Medical Staff Rules and Regulations and policies of the hospital should be consulted to determine if they permit one practitioner to authenticate the verbal orders of another according to the conditions outlined above.

Please join us at the Advanced Practice Clinicians Workshop on May 1-2, 2014 in Atlanta to discuss additional issues related to the evolving role of non-physician practitioners.

Question: A physician at our most recent Complete Course for Medical Staff leaders asked:  can mid-level professionals (PAs and APRNs) serve on peer review committees?

Answer:  Under most state peer review protection statutes, Advanced Practice Nurses and Physician Assistants may be appointed to serve on Medical Staff peer review committees, and their service would not waive the state peer review privilege.  They may be able to provide valuable insight.  For example, the Credentials Committee may benefit from their knowledge of training programs.  Of course, they are subject to the same confidentiality considerations as physician members.

Join us for our workshop in Atlanta on May 1 (Thursday afternoon) and May 2 (Friday morning) to discuss the expanding role of these Advanced Practice Clinicians and how physicians, as leaders of the team, can design how the care team will function, how these professionals can best be oriented to hospital practice and much more.

Question: We are struggling with how to do FPPE to confirm competence for members of our Medical Staff who have privileges solely for coverage purposes and thus have very little activity here.  We need them on the Medical Staff and they have to have privileges so a Medical Staff category with appointment only doesn’t work.  Any suggestions?

Answer: You are not alone!  Many Medical Staffs are grappling with the same issue.  The simplest, most effective solution we have found is to define the FPPE requirements for those members as 100% retrospective review of cases in which they are involved – providing care, consultations, etc. – up to a certain number per year (typically four or five).  That requirement does not prove to be burdensome to implement because the numbers are so small.

For practical, effective solutions to your FPPE, OPPE and peer review dilemmas, join Paul Verardi and Phil Zarone for The Peer Review Clinic in San Francisco, April 10-12.

Question: We have an applicant for initial appointment who is well known in the medical community and highly disliked.  Information that we received in the course of routine verification of this applicant’s hospital affiliations and peer references indicated that he has poor interpersonal skills, to say the least.  Thus far, we have communicated with five people, four of whom declined to recommend the applicant and described him as “manipulative” and “disruptive.”

We decided to follow up with the applicant to get his reflections on why his peers would speak so negatively about him.  We sent him a letter, to which he replied that he “has no idea why others would perceive me in this way” and believes that he is “collegial and respectful at all times, though I do hold others to the same high standards that I hold myself.”

We learned that shortly after receiving our inquiry, the applicant contacted the references he listed on his application, as well as the department chair where he currently maintains privileges, to accuse them of speaking poorly of him and to threaten to sue them for defamation.

Should we deny his application based on this retaliatory conduct?

Answer:

You certainly have a dilemma on your hands, but denying the application is not the only – or best – way of managing that dilemma.  We recommend the following steps to address this application:

1. Your situation highlights the importance of Bylaws language which defines when an application becomes complete.  We recommend language stating that every applicant has the burden of providing a complete application and that an application is complete only when all questions on the form have been answered, all supporting information has been verified (including responses from references), and all concerns have been resolved.  Incomplete applications should not be “denied,” but, instead, deemed ineligible for processing until such time as they are completed.

   In your case, the application is incomplete due to unresolved concerns raised by a number of references – concerns that were not adequately addressed by the applicant’s brief response.  We recommend that you treat the application as incomplete and do not move it forward to the next step of the credentialing process until it is completed.

2. We recommend that you inform the applicant that his application is incomplete (and why) and state that you will need to obtain additional information to resolve the concerns that have been raised before his application can be completed and, in turn, processed further.  You will probably want to follow up with those who have already provided negative information about the applicant and, in addition, contact a few others who would have experience working closely with him (e.g., a nurse supervisor and/or the department chair and administrator of a hospital where he has previously worked).  You may take this opportunity, while you are communicating with the applicant, to ask him to identify additional individuals who would have information bearing on his character and reputation.
3. Finally, the applicant’s actions – in contacting references about their statements and threatening them with defamation litigation – are disruptive and undermine the credentialing process.  You should follow up with the applicant to specifically address this conduct:

• Alert the applicant, in no uncertain terms and in writing, that his conduct is unprofessional, is disruptive, and undermines the efforts of the leadership to promote patient safety through vigorous credentialing.

• As appropriate, you may cite to your professionalism policy or code of conduct.  They should list as “disruptive” or “unprofessional” any retaliatory conduct against someone who has provided information about an applicant or a member of the medical staff.  If you do not already have such a policy, consider adopting one soon.  Of course, badgering and threatening references are disruptive even in the absence of such a policy, but it is nice to fall back on concrete policy language when trying to dissuade unprofessional behavior.

• You should also cite to your Bylaws or Credentialing Policy to make it clear that the applicant bears the burden of ensuring that his application becomes complete, including ensuring the response of any references who are contacted and the resolution of any concerns that have been raised.  The applicant should be informed that if any references refuse to respond to your requests for information, as a result of his retaliatory and threatening conduct, the application will remain incomplete and ineligible for processing.

• Further, you should also let the applicant know that even if his application is able to be completed, despite his conduct, his unprofessional behavior will be one of the factors taken into consideration when his credentials are reviewed (after all, adherence to ethical principles, good character, etc. are factors to be considered for all applicants for medical staff appointment).

Question: Recently, there have been two horrific cases involving brain dead hospital patients, and the enormous trauma they caused.  One matter involved a young teenager whose severe sleep apnea surgery went terribly wrong; the other, a brain?dead woman who was pregnant.  What is brain death and how is it different from the traditional understanding of death?  Given both patients were dead, what were the controversies about?  For my hospital, what kinds of difficulties might we encounter with families of brain dead patients?

Answer: The traditional definition of death involves the cessation of respiratory function, heartbeat, and perhaps some indications of a lack of central nervous system activity (lack of pain indicators, no dilation of pupils).  But medical technology produced respirators that kept the respiratory function going, and cardiac pumps that assisted heart activity.  While the body was being kept alive by these life-supporting measures, the individual also had irreversible cessation of all functions of the entire brain, including the brain stem.  If there was clear proof of an irreversible cessation of brain functions, was that also to be within the definition of “death,” even though traditional indicators of life are being artificially maintained?

That was the question wrestled with by physicians, ethicists, legislators and policy-makers and others many years ago.  The first widely publicized criteria for “brain death” as within the legal definition of death came from the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death back in 1968.  The next most significant report came from the President’s Commission for the Study of Ethical Problems and Medicine and Biomedical and Behavioral Research published back in 1981.  The President’s Commission released a set of guidelines on the diagnosis of death, including brain death.

Since then, all states have adopted brain death as part of the legal definition of death under their state law.  This was pioneered by a recommended uniform statute on the definition of death provided to every state to enact as presented or to make any modifications that the state saw fit.

In other words, the understanding in the legal and the health care field of brain death has been with us for several decades.  But it is still not uncommon for grieving families or loved ones to struggle with or even reject the concept of brain death.  For them, the patient is still breathing and her heart is still beating ? with the assistance of life support.

This can certainly create personal tragedy and trauma.  In one matter in which we assisted, a patient’s father literally would not allow hospital staff to enter the patient’s room – his daughter’s – if the staff were going to discontinue the life-supporting equipment and measures.

These can be very tragic cases.  But there are clear legal and ethical principles that once a patient is dead, there is no longer a duty or reason to maintain any type of life-sustaining treatment. The challenge for a hospital can be how to help loved ones accept the difficult situation and grieve for the person lost and loved.

While both of these brain death cases received national attention, hospitals today certainly experience far fewer patient brain death controversies than years ago.  Dilemmas concerning end-of-life care decision-making are more common in other areas:  the terminal patient who refuses care; the patient in a persistent vegetative state with a family of decision-makers torn as to continue or end the life-sustaining measures; a family directing that treatment be given for an end-of-life patient, but treatment that both the attending physician and the hospital feel would be futile.  All hospitals address these difficult situations at one time or another, and should have both policies and an understanding as to how to deal with these difficult patient situations on the legal, ethical and human fronts.

For a discussion of the legal principles involved in these situations, please join Alan Steinberg & Phil Zarone for an audio conference on February 26, End-of-Life Decision-Making: The Governing Legal Principles.

Question: Should employed physicians be allowed to serve on our health system board?

Answer: From the standpoint of governing a health care system, it is very important to have practicing physicians serve on the Board.  In the case of a highly integrated health care system, those physicians would inevitably be selected from the ranks of system-employed physicians.  The fact that such a physician trustee would also be employed would not, in and of itself, create an impermissible conflict.  However, if a physician (or any other employee) had administrative responsibilities, the physician would be confronted with a conflict of interest if he or she also served as a trustee.  As an employee, the individual would directly or indirectly report to the CEO.  However, as a trustee, the individual would also have fiduciary oversight responsibility that would include overseeing the performance of the CEO.  In such a case, the individual would either have to declare a conflict with respect to any Board activity relating to the CEO or, for that matter, any action based on the recommendation of the CEO, since the individual’s employment relationship could be affected by the decision.  In the alternative, the individual would take part in those activities and create a situation that could possibly undermine the CEO’s authority over other administrative employees.  Neither alternative would be good for the employee, the CEO, or the organization.  Therefore, in the interest of avoiding such a conflict and assuring better governance practices, we would recommend that only employed physicians in active full-time clinical practice who do not have any substantial administrative or executive responsibilities be eligible to serve on a health system board.

Question: Decriminalization of marijuana wasn’t the only topic of conversation in Naples last week!  There was also a lot of discussion about Patient Safety Organizations (“PSOs”) during The Credentialing Clinic, much of it focused on the importance of the privilege that applies to what is known as “patient safety work product.”  The benefit of this privilege was new to a lot of our registrants (as were the weaknesses in state peer review statutes, which are generally not recognized in federal courts), and led a number of individuals to ask us “how do we get this protection for our credentialing and peer review documents?”

Answer: Putting your hospital in a position to take advantage of the protections provided for under the Patient Safety and Quality Improvement Act (“PSQIA”) requires several steps.

First, your hospital must establish a relationship with an entity that has been certified and listed as a PSO by the Agency for Healthcare Research and Quality (“AHRQ”).  Under the PSQIA, such entities can accept quality and safety information from providers, aggregate and analyze that information, and then provide feedback and guidance to help improve quality and minimize patient harm.  Your hospital must also establish a Patient Safety Evaluation System.  Under the PSQIA, a Patient Safety Evaluation System is the protected space where your hospital collects and manages patient safety and quality information. Generally, the patient safety and quality information that is collected and managed in a Patient Safety Evaluation System and flows between your hospital and a PSO, as well as the deliberations or analysis related to the decision to report (or a decision not to report), is considered confidential and privileged Patient Safety Work Product.  It is important to develop a well-defined Patient Safety Evaluation System, as documentation of such a system will help provide supportive evidence to a court when claiming the privilege.

After the groundwork is laid for the Patient Safety Evaluation System, your organization can then begin to compile and analyze information under the protections of the PSQIA.  In most cases, the privilege for Patient Safety Work Product is much stronger than state peer review privileges.  For example, most employment discrimination claims are brought in federal court.  Since federal courts do not recognize state peer review privileges when a claim of discrimination is made under a federal law, a cardiologist who is challenging a professional review action based on a claim of discrimination could potentially obtain the credentialing and peer review files for every other cardiologist on your staff to support her argument of disparate treatment.  However, if this information qualified as Patient Safety Work Product, the confidentiality and privilege protections under the PSQIA may prevent any such information from being admitted as evidence in any state or federal proceeding.

This is great news for those engaged in credentialing and peer review and we invite you to join us at our next Credentialing Clinic in San Francisco to learn more about how a relationship with a PSO can help provide added protection to the credentialing and peer review information in your organization.

Question: In the movie It’s a Wonderful Life, a young George Bailey (Jimmy Stewart) personally delivered medications from Mr. Gower’s pharmacy to the customers at home.  Fast forward six plus decades, and a modern Mr. Gower III has contacted your hospital and proposed a similar arrangement.  For the convenience of the hospital’s patients, any e-prescriptions sent to Gower Pharmacy will be delivered by the pharmacy’s delivery man to the patient in the hospital.  Mr. Gower suggests that pleased patients will also think well of the hospital for allowing this service.  Does it make sense for the hospital to accept Mr. Gower’s offer?

Answer: This certainly could be very convenient for a hospital’s patients, and the hospital could enjoy the goodwill it generates.  Imagine, not having to stop off at the pharmacy at all; having all your medications in hand even before you leave the hospital.

But what starts out as a seemingly good idea quickly gets complicated by a number of concerns.  On the regulatory front, how do pharmacy licensing regulations and hospital licensing regulations (including for its own pharmacy) fit together here?  HIPAA questions arise, including that there are any number of incidental disclosures that would be seen by the delivery person.  Risk management probably creates the biggest concerns:  Is the hospital responsible to check the delivery bag, to make sure that the right medication is being delivered?  In the right amount and dosage?  Is the name of the right person on the container?  Do you have to see that the delivery person enters the correct patient room?  What if the patient takes too large a dose in her room, with a bad outcome?  What kind of protocol would have to be written to manage all of this?  The time, energy and staff needed?

Of course, there are other pharmacies in town, and they likely will not be happy with Mr. Gower’s arrangement with the hospital.  Is the hospital trying to steer its patients to Gower Pharmacy?  What’s the hospital getting for that?  Shouldn’t all of the pharmacies have the same delivery arrangement with the hospital?  That means the hospital will have to manage an increasingly large number of medication deliveries, not an easy thing given all the concerns involved.

What started out as a potentially good idea can’t make it over the legal/risk management analysis and implementation hurdles.  That happens sometimes, even to good ideas.