March 7, 2024

Posted on March 7, 2024 by Courtney Patterson

QUESTION:
A physician was invited to attend a collegial counseling meeting with the Chief of Staff and CMO, to discuss a recent case where his management of a patient’s care had been called into question. The physician came to the meeting, but once he learned what we were going to talk about, he refused to proceed unless he could record the meeting on his cell phone. He said that it was his intention to fully comply with the review, but that he’d been treated unprofessionally at similar, previous meetings and felt that he needed to take steps to protect himself. What’s the right response to this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
I’m glad to hear that the physician you are dealing with intends to fully comply with your review process. That’s a good starting point and may give you room to salvage this process, even though you have experienced an initial setback. A few tips to consider:

First, it is a good idea to inform a practitioner about the general nature of the issue(s) that will be discussed at a collegial counseling session before the meeting. In other words, inform the practitioner of the concern in the invitation to the meeting. In some cases, it may even make sense to inform the physician of the concern and ask for specific information in writing. This approach gives the practitioner a chance to learn about the concerns, work through initial feelings of surprise and defensiveness, gather thoughts, refresh memories, and prepare a thoughtful response. And all of those things can set you up for a better (and more effective, in the long run) review process. Even if you don’t intend to ask for the practitioner’s written comments, letting the practitioner know about the leadership’s concerns prior to a meeting almost always makes sense – so that they can arrive at the meeting fully prepared to discuss the matter at hand. When would you not give advance notice of your concerns? It can make sense to withhold that information if the leadership wants to see the practitioner’s reaction when informed about the matter under review (and use that observation to help weigh the practitioner’s credibility). Also, if the practitioner has a long history of retaliatory behavior – or retaliation is a significant concern for some other reason – you may wish to withhold information about the nature of the matter under review until you get to the meeting itself. That way, the leadership can give an in-person reminder to the practitioner about the importance of avoiding retaliatory behavior (and even have the practitioner sign an anti-retaliation agreement, if that is deemed necessary).

Even with advance notice of the issues of concern, some practitioners are going to be uncomfortable with the peer review process (after all, if you’ve never been in a leadership position, the process likely feels very foreign, and no one likes to receive criticism). So, how can you deescalate a situation where the physician feels the need to record the process to protect his rights? Consider stating in the notice/invitation who will be present at the meeting. In other words, if the practitioner is being asked to meet with just the Chief of Staff and CMO, say so in the invitation. And if they are acting on behalf of a committee (e.g., a Leadership Council or MEC), state that as well. If the committee is one charged with implementing the Medical Staff’s collegial, progressive steps of peer review – and does not manage disciplinary matters – consider stating that as well. That way, the physician knows early on that he is meeting with a committee for a collegial discussion that is not intended to result in any disciplinary recommendation or action.

Make sure that your Medical Staff Bylaws (or related Medical Staff governance documents/policies) include provisions stating that attorneys are not permitted to be present at any meetings between hospital/medical staff leaders and practitioners, nor are any recordings of such meetings permitted to be made (instead, legal counsel and recordings are permitted only during medical staff hearings and appeals). Consider informing practitioners of the rules against lawyers/recordings in the invitation to meetings. Doing so can prevent the physician from spending the time and money to arrange to have a lawyer present, only to find that you have no intention of letting the person into the room. And, if you have communicated your “no recording” rule to the practitioner prior to the meeting, you won’t have to feel so awkward if you feel that you must ask for mobile phones and/or other recording devices to be left outside the room (to prevent surreptitious recording). Nor will you have to feel bad canceling the meeting if the physician refuses to proceed without making a recording (or having a lawyer present).

Finally, while the above steps are likely to help avoid misunderstandings and disagreements about the procedures that will be followed, it is important that leaders have enforcement tools they can call upon if necessary. So, your Medical Staff Bylaws (or related Medical Staff governance documents/policies) should specify that if the physician refuses to attend and participate in the meeting without making a recording, then this will constitute his refusal to attend a mandatory meeting. Your Bylaws should go on to state that the failure to attend a mandatory meeting will result in the automatic/administrative relinquishment of medical staff membership and all clinical privileges until such time as the practitioner attends a rescheduled meeting. We would suggest setting a time limit for compliance – for example, by stating that if the practitioner has not resolved the automatic/administrative relinquishment (by attending the meeting) within 30 days, that will be deemed to constitute his automatic resignation of medical staff membership and privileges (meaning that any future request to practice at the hospital would not occur via reinstatement from automatic/administrative relinquishment but would, instead, require an application for initial appointment). If this all seems like “a big to do” over not attending a meeting, know that the intention of this sort of Bylaws language is to never have to invoke it. It is reasonable for medical staff leaders to expect that when they volunteer to take on leadership roles (often without any pay) and agree to spend their free time furthering patient safety, quality, and standards of professionalism in the hospital, they have every right to expect that their colleagues will meet them half-way. And that includes attending meetings when requested and given adequate notice – and also complying with the rules that have been established by the medical staff to promote an informal, peer-led review process. So, the great hope is that the automatic/administrative relinquishment language can be used, if necessary, to remind practitioners of their obligations to be involved in the review process (in hopes that leaders never have to actually enforce it).

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com.

June 21, 2018

Posted on June 21, 2018June 21, 2018 by hortyspringer

QUESTION: A physician who has been on our staff for only a few months has been experiencing complications, with several cases falling out. So, as part of the initial FPPE, I (as the new Service Line Chief) called this physician into a collegial intervention meeting. He showed up with the head of his group practice, who is not a member of any medical staff committees. When I said that the meeting was a confidential peer review meeting, both physicians left. Now what? Was I right or did I miss an opportunity?

ANSWER: You are correct that collegial intervention meetings are confidential and that individuals who are not members of an authorized peer review committee should generally not be present. All medical staff members have an obligation to work constructively and cooperatively in the peer review process. This should be covered in new physician orientation, as well as in a statement of expectations that is provided to applicants (and also sent along with the letter of appointment, to be signed by the newly appointed physician).

However, a new medical staff member, especially one who is right out of training, may not be aware of or understand the requirements for Focused Professional Practice Evaluation for all new privileges and may be fearful that collegial intervention is actually a disciplinary step. That’s why it’s important for leaders to emphasize the nature of collegial intervention and performance improvement. Of course, leaders engaging in collegial intervention must be authorized by a peer review committee structured in a manner to fall within the protections of the applicable state peer review law.

There may be times when participation of a respected physician mentor who could serve as moral support for a new physician might make sense, with certain safeguards. You could consider telling the new staff member that he may be accompanied by the head of his group, so long as the head of the group signs a peer review confidentiality agreement. Some state peer review laws explicitly cover group practices as well as hospital medical staff committees; and, in some health systems, information sharing policies encompass affiliated group practices. This would offer added protection. (You may also want to be accompanied by another authorized leader, perhaps a vice chief or chair of the peer review committee.)

The purpose of a collegial intervention meeting is to emphasize that the medical staff leadership strives to help all physicians be successful so long as they are willing and able to do what it takes. Leaders may need to remind the head of the group of the expectations for all members, and educate the head of the group who may have had no leadership experience, about the peer review process and the applicable regulatory and accreditation standards. If both are willing to participate constructively, this approach may help de-escalate the situation.

Join us for The Complete Course for Medical Staff Leaders in San Francisco, as we help new leaders understand their roles and prepare for success.

May 12, 2016

Posted on May 12, 2016 by hortyspringer

QUESTION: Several registrants at our recent Complete Course for Medical Staff Leaders in San Antonio asked related questions: Where should quality concerns expressed by a Medical Staff member be documented (particularly when the physician who has been counseled about behavior that undermines a culture of safety has alleged that the counseling is retaliatory)? And, how should collegial interventions be followed up?

ANSWER: All quality concerns should be assessed and followed up. Where the assessment and follow-up documentation is placed depends on the nature of the concerns. Allegations of retaliation are becoming very common, and likely to be used in the event of a professional review action in a hearing or litigation by an attorney for the physician. Documenting that the concerns have been reviewed and, if there is merit to them, addressed may be critical to the defense of a professional review action.

No one – even a Medical Staff member – is entitled to confidential peer review information about how another professional may have been counseled or how a particular issue has been resolved if the resolution involves confidential information. Anyone reporting a concern should be advised that all concerns are taken seriously, but that confidentiality must be respected.

Documentation submitted by a physician who raised a concern can be maintained in that physician’s file along with brief documentation as to whom the concern was directed appropriately, depending on the nature of the concern. If the concern led to changes in policy, and if that policy change is not a confidential peer review matter, that resolution could be maintained in several places, including in the physician’s file, and the physician informed of the outcome. However, raising a concern does not justify behavior that is disrespectful of others or interferes with the delivery of care. It is also important to document collegial interventions in a constructive way, thanking the physician for meeting, summarizing the key points of any meeting and expectations for behavior going forward, and inviting the physician to respond in writing for the file. If the behavior continues, documentation of progressive steps, perhaps leading to conditional reappointment, is important.

If a physician raises multiple concerns over time, that pattern in itself may become disruptive. It can be tempting to “consider the source” and not take a complaint seriously if the concerns are raised by a physician whose behavior has been the subject of many reports by team members, and if that physician has a pattern of attributing leaders’ interventions as retaliatory. Don’t succumb to that temptation! Rise above it and remember that someday a hearing panel, the Board or even a judge may be reviewing your documentation.