March 15, 2018

Posted on March 15, 2018March 15, 2018 by hortyspringer

QUESTION: At one of our recent physician leadership courses, a registrant said that they were struggling with an applicant who refused to answer one of the questions on their application form, telling them that her lawyer told her it could violate a settlement agreement that she has with another hospital. Their Medical Staff leaders think that information is relevant to her request for appointment and want to know if they can still ask for the information and hold the application incomplete?

ANSWER: Yes! Credentialers have a duty to review all of the relevant qualifications of each applicant for Medical Staff appointment and clinical privileges and cannot allow the legal interests of an applicant, in an unrelated matter, to interfere with that duty. Accordingly, the Medical Staff Bylaws or Credentials Policy should state very clearly that every applicant bears the burden of submitting a complete application and of producing information deemed adequate by the hospital for a proper evaluation of current competence, character, ethics, and other qualifications and for resolving any doubts.

A similar issue arose in a 1997 case, Eyring v. East Tennessee Baptist Hospital, 950 S.W.2d 354 (Tenn. Ct. App. 1997), in which a physician applicant refused to sign a release form authorizing a hospital where he had previously practiced to send information to another hospital where he had made an application. The physician argued that he received legal advice that signing the release could compromise his lawsuit against the hospital, which had revoked his privileges. The court held that because the physician had not provided the additional information that the hospital requested, regardless of the fact that a settlement agreement was in place, he had not submitted a complete application and, thus, under its Bylaws, the hospital was not required to process his application further.

April 20, 2017

Posted on April 20, 2017 by hortyspringer

QUESTION OF THE WEEK

QUESTION: Our current Medical Staff Bylaws state that in order to be eligible for reappointment and renewal of clinical privileges, an individual must have “completed all medical records” during the previous appointment term. However, even if an individual was compliant 100% of the time, on the date the application was filed, not all of the individual’s medical records would be complete, as some would be outstanding. How do you resolve that issue?

ANSWER: We have had several hospitals that we have worked with on Medical Staff Bylaws projects raise the issue that no one is, in fact, compliant with medical records all of the time. Therefore, no one would truly be eligible for reappointment if eligibility required that an individual have completed all medical records during the previous appointment term. As referenced in the question, even if an individual was compliant with medical records requirements 100% of the time, on the date the application was filed, not all of the individual’s medical records would be complete (some would be outstanding, but not delinquent).

So, we recommend expanding on the “completed medical records” language by having the Medical Staff Bylaws state that in order to eligible for reappointment, an individual must have:

completed all medical records such that he or she is not delinquent, as per the Medical Staff Rules and Regulations and Hospital policy, at the time he or she submits the application for reappointment or renewal of clinical privileges and, further, was not deemed delinquent (sufficient to result in the relinquishment of privileges) more than _____ time(s) during the prior appointment term.

March 16, 2017

Posted on March 16, 2017March 16, 2017 by hortyspringer

QUESTION: A local long-standing cardiology group in town, not affiliated with our hospital, is going through a pretty messy divorce. The three current members of the group are all members of our Active Staff. One of those cardiologists, Dr. X, will be leaving, and apparently the contentious separation process is almost finalized. We had known that this was going on in the informal, “through the grapevine” kind of way that this type of news typically passes through the hospital. However, yesterday, one of the two remaining cardiologists called the Medical Staff Office to tell us that the hospital had to “take away” Dr. X’s clinical privileges as of next week because once he signs his separation agreement, there is a restrictive covenant in place that keeps Dr. X from practicing at our hospital. Our Credentials Committee Chair is uncomfortable with this and doesn’t think we should resign the physician, but some of our other leaders aren’t so sure?

ANSWER: Your Credentials Committee Chair is correct to be concerned! This is a private group and the manner in which the group functions does not involve the hospital. As such, the hospital has no obligation – or, more importantly, any legal right – to take action on a physician’s privileges on the basis of that physician’s relationship to his private group. As a practical matter, the restrictive covenant may keep that physician from being able to exercise his clinical privileges at the hospital, but its existence does not trigger any obligation on behalf of the hospital, and enforcement of the covenant is up to the group.

It is possible that a physician’s departure from a group could ultimately lead to a determination that the physician is ineligible for continued appointment at the hospital – particularly if the bylaws require individuals to provide documentation of adequate professional liability insurance, to have an office within a certain defined response time to the hospital, or to have a cross-coverage arrangement by an appropriate member of the medical staff, requirements that were likely satisfied by the group practice and other members of the group and may not be quickly replicated. However, these things would first need to be verified with the physician and handled in accordance with the bylaws process – not triggered merely because the group has a restrictive covenant with former members.

This situation is different from the more common situation where the hospital or an affiliated physician group employs a physician AND the employment agreement includes language that makes the physician’s medical staff appointment and clinical privileges “coterminous” with the employment contract. In that situation, when the employment agreement is terminated, the physician’s appointment and privileges will also expire. It’s important to understand, however, that in the absence of such a contract provision, even an employed physician’s appointment and privileges would survive a contract termination.

December 8, 2016

Posted on December 8, 2016 by hortyspringer

QUESTION: Our medical staff bylaws contain a provision stating that physicians automatically relinquish their appointment and clinical privileges if their license to practice medicine is suspended or revoked. Do we have to report such automatic relinquishments to the National Practitioner Data Bank?

ANSWER: No. By way of background, we generally recommend that medical staff bylaws documents identify certain events that will lead to the automatic relinquishment of appointment and clinical privileges. Typically, this occurs if a member: (1) loses his or her license or insurance coverage; (2) is excluded from Medicare; (3) is arrested, charged, indicted, convicted, or pled no contest to certain crimes; (4) fails to complete his or her medical records; or (5) fails to provide certain information or attend a special meeting requested by the Medical Executive Committee or a similar committee.

When a member’s appointment and privileges are automatically relinquished pursuant to a provision in the medical staff bylaws documents, the action is considered to be administrative in nature. That means there is no “professional review action” as defined by the Health Care Quality Improvement Act, so there is no need for a report to the NPDB. The latest edition of the NPDB Guidebook includes the following question and answer to clarify these situations:

Question: A hospital automatically revoked a physician’s clinical privileges when the physician lost her license. Should this action be reported?

Answer: No. Administrative actions that do not involve a professional review action are not reportable to the NPDB. The revocation of clinical privileges is automatic because the practitioner no longer holds a license. Regardless of the reason for the State medical board’s licensure action, the hospital’s revocation of privileges was not the result of a professional review action. Therefore, the hospital’s action should not be reported to the NPDB.

November 10, 2016

Posted on November 10, 2016November 10, 2016 by hortyspringer

QUESTION: During a recent on-site presentation, an attendee asked whether a hospital could impose requirements on physicians for medical staff appointment and clinical privileges that are more rigorous than the state requirements for licensing.

ANSWER: The answer to this question is a resounding “yes.” In fact, not only can a hospital do this, it most definitely should do this. The requirements for licensing by a state board of medicine often establish a floor from which the hospital should begin in establishing its criteria for medical staff appointment and clinical privileges. Medical staff policies should set the bar higher when it comes to threshold eligibility criteria so that you are only attracting, and granting medical staff membership to, highly qualified individuals.

For example, Florida law permits physicians who meet certain criteria to practice without medical malpractice coverage. To be eligible for this exemption, some of the criteria a physician must meet include:

The physician has held an active license to practice in Florida or another state or some combination thereof for more than 15 years.

The physician maintains a part-time practice of no more than 1,000 patient contact hours per year.

The physician had no more than two claims for medical malpractice resulting in an indemnity exceeding $25,000 within the previous five-year period.

Under the Florida law, the physician must also post a sign in his or her office reception area which provides as follows: “Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. However, certain part-time physicians who meet state requirements are exempt from the financial responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This notice is provided pursuant to Florida law.”

Even though the law permits part-time physicians to practice without medical malpractice insurance if the criteria are met, nothing prohibits the hospital from requiring a certain level of malpractice insurance for any physician who is appointed to the medical staff and provides clinical care to patients in the hospital. Indeed, it would be imprudent not to require such coverage because it would expose the hospital to more risk and could result in a patient injured by proven negligence to not be compensated for his or her injuries.

July 21, 2016

Posted on July 21, 2016July 21, 2016 by hortyspringer

QUESTION: We have an applicant for appointment and clinical privileges who seems to have an unusual number of malpractice cases in his history. Do we need to do anything with this information if everything else about the applicant checks out?

ANSWER: Every application for appointment and reappointment asks applicants about their malpractice history. But many hospitals don’t know what to do with the information they receive. The Joint Commission requires hospitals to consider “any evidence of an unusual pattern or an excessive number of professional liability actions resulting in a final judgment against the applicant” in granting privileges. But what is “an unusual pattern or an excessive number”?

A physician’s malpractice history cannot be ignored. Unfortunately, there is no hard and fast rule on what constitutes reasonable due diligence when it comes to reviewing these types of disclosures. The key is to know what to look for:

Not all malpractice claims are created equal, so information should be obtained to understand the nature of the claims.

The number of claims may not tell the whole story, but patterns or trends do.

Don’t compare apples to oranges – know which states and which specialties are more “at risk” for malpractice claims.

There is a big difference between malpractice claims and malpractice verdicts.

To learn more about how to consider an applicant’s malpractice claims history, as well as other hot topics in the world of credentialing, please join LeeAnne Mitchell and Ian Donaldson this fall at The Credentialing Clinic in Las Vegas, Nevada.