QUESTION:        We have an orthopedic surgeon who is applying for appointment and clinical privileges at our system who has a troubling malpractice history.  Within the past five years, he has settled three malpractice claims ($190,000, $100,000, and $75,000).  He also has two other cases that are pending.  We are reluctant to grant him appointment.  At the same time, we are not sure if we have enough to deny his application. What should we do?

ANSWER:            Malpractice claims can be tough sometimes.  A single claim, standing alone, does not necessarily indicate a problem. However, multiple malpractice claims may reflect underlying issues pertaining to judgment, skill, communication, or behavior, all of which are relevant considerations for appointment and clinical privileges.

Furthermore, according to a study by the New England Journal of Medicine, only 4% of physicians had three or more malpractice claims.  The risk of recurrence of a malpractice claim increases with the number of previous paid claims.  Physicians who have three paid claims had three times the risk, or a 24% chance, of another paid claim within two years.  According to a Vanderbilt University study, physicians with past records of malpractice claims can be expected to have “appreciably worse claims experience” than other physicians in future years.

You can also review relevant data available from the National Practitioner Data Bank, which includes medical malpractice payments by practitioner type and state.  This may help to put your applicant’s malpractice history in perspective.  Malpractice history, including judgments and settlements, is also important because it could be used against the hospital in a negligent credentialing case if the physician were appointed and then subsequently was sued.

Therefore, before you move forward with the application, you should require the applicant to resolve the concerns raised by his malpractice history.  One way to review and assess the concerns would be to review the underlying malpractice cases through your peer review process or to use an expert from an external peer review organization for this purpose.  Since the burden of resolving questions about qualifications is on the applicant, the applicant should be responsible for providing a copy of the medical records from the malpractice claims.  The applicant would also be responsible for any costs associated with this review.

Remember to keep the burden on the applicant to resolve your concerns.  If the concerns cannot be resolved, you may determine that the application is incomplete and should not be processed.  Denying the application is a last resort that is almost never needed.