QUESTION:
A member of our Medical Staff recently had a significant skiing accident which included a concussion. When he returned to the hospital, staff noticed a change in his behavior and in his clinical performance. Last week, he had two significant surgical complications and there are concerns that he might not be safe to practice. The President of the Medical Staff and the Chief Medical Officer want to summarily suspend his privileges and then mandate a health evaluation – not as a punitive measure but to keep patients safe. Does that sound like a good plan?
ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Health concerns can be particularly challenging. There are several reasons why we don’t recommend the imposition of a summary suspension in a situation like this, except as a last resort. First, the standard for imposing a summary suspension is pretty high and typically requires a finding that “failure to take such an action may result in an imminent danger to the health of any individual.” (This is the standard built into the federal Health Care Quality Improvement Act.)
Second, most bylaws require that there be significant process after the imposition of a summary suspension. This process typically includes a meeting with the Medical Executive Committee and, if the Medical Executive Committee continues the suspension, the commencement of an investigation, which might lead to a recommendation for disciplinary action.
Third, just calling the action a suspension changes how it is perceived. A suspension sounds punitive even if you say it’s for patient safety concerns. Furthermore, the imposition of a suspension creates reporting obligations. A summary suspension that is in effect for more than 30 days must be reported to the National Practitioner Data Bank and the State Board. In fact, some state reporting statutes require any suspension to be reported regardless of the duration.
In our experience, in situations where there might be an injury leading to an impairment, the preferred approach, and the approach that is consistent with accreditation standards, is a more collegial one. For example, as a first step, the President of the Medical Staff and the Chief Medical Officer could meet with the physician, share their concerns, and discuss next steps and options. This discussion could include a request that the physician voluntarily refrain from exercising surgical privileges until the fitness for practice evaluation can be completed and reviewed by the Practitioner Health Committee.
A physician in this situation will almost always agree to get the evaluation even if they don’t necessarily think it’s needed. You can use this approach even if it is not expressly spelled out in your bylaws.
Better yet, build this approach into your Medical Staff bylaws documents. That way, Medical Staff leaders have the authority to require a fitness for practice evaluation by a physician approved by them and can get the necessary authorizations to share information with, and receive information from, the physician who performs the evaluation. It also helps to have bylaws language which states that if a physician refuses to get the fitness for practice evaluation that the result would be an automatic relinquishment of clinical privileges, not a suspension.
If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.