QUESTION:        A physician employed by a nearby Federally Qualified Health Center recently applied for medical staff appointment at our hospital. Our medical staff bylaws require malpractice insurance coverage as a condition of appointment.  This physician does not carry insurance but says she has coverage under the Federal Tort Claim Act.  Should we make an exception for this physician?

ANSWER:          Yes. Hospitals are prohibited by federal law from denying appointment or privileges to physicians who have coverage under the FTCA.  The Public Health Service Act, at 42 U.S.C. §233(j) says:  “In the case of a health care provider who is an officer, employee, or contractor of [a public or non-profit private entity receiving federal funds under National Health Services Corps programs], section 254h(e) of this title shall apply with respect to the provider to the same extent and in the same manner as such section applies to any member of the National Health Service Corps.”  Section 254h(e) says:  “It shall be unlawful for any hospital to deny an authorized Corps member admitting privileges when such Corps member otherwise meets the professional qualifications established by the hospital for granting such privileges and agrees to abide by the published bylaws of the hospital and the published bylaws, rules, and regulations of its medical staff.”  The penalty for violating this section is denial of the hospital’s eligibility to receive Medicare and Medicaid funds.

Therefore, a waiver of the malpractice insurance eligibility criterion would be advisable for this physician so long as she continues to have FTCA coverage.  You may also want to consider amending your bylaws to provide exceptions for providers who fall into this category as long as they continue to have FTCA coverage.