HCQIA

March 27, 2025

Posted on by Courtney Patterson

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.

August 1, 2024

Posted on by jwilbert

QUESTION:
Our Medical Staff Bylaws allow the MEC or Board to be represented by a lawyer at a medical staff hearing only if the practitioner who requested the hearing is also planning to be represented by a lawyer. We recently went through a hearing where this caused some issues, because the physician who was the chair of the MEC at the time the Committee made its adverse recommendation was not available to present the MEC’s case at the hearing. No one else wanted to step up to advocate the MEC’s position at the hearing. Since the practitioner did not choose to be represented by his lawyer, we had to scramble to find someone to represent the MEC at the hearing. We wish we could have used our lawyer. Is there a better way to handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
There is a better way to handle this! You will be glad to know that neither the Medicare Conditions of Participation for Hospitals nor the accreditation standards prohibit hospitals or their medical staffs from being represented by a lawyer at a hearing, even if the practitioner is not represented. Additionally, the Health Care Quality Improvement Act (“HCQIA”), which grants a safe harbor for immunity for the hospital and those who engage in peer review activities on behalf of the hospital, does not prohibit the hospital or its MEC from having legal representation. The HCQIA does require you to permit the physician who requested the hearing to have legal representation at the hearing, and to provide notice to the physician of that (and other) rights to which he is entitled at the hearing. But if the physician fails to take advantage of those rights – including the right to be represented – there is no obligation on the part of the hospital or MEC to make the same sacrifice. So, it is completely within your discretion to amend the Medical Staff Bylaws to make representation at hearings a right of both parties (without regard to whether the opposing party decides to be represented). Of course, you should always check with your counsel first, so that any applicable state laws and regulations can be consulted (just in case those include more stringent hearing provisions).

While you are free to (and probably should) adopt Bylaws language that provides for a universal right to legal representation at medical staff hearings, you should consider a different course of action when conducting professional review activities that are part of the collegial, progressive steps of the peer review/professional practice evaluation processes. We have long recommended that the peer review process be conducted as it was originally intended: peer-to-peer, without the meddling of legal counsel. After all, the whole point of “peer” review has always been to ensure that those who have the clinical expertise and ethical/professional obligations of the medical profession are at the forefront of reviewing their colleagues’ work and assisting with continuous performance improvement. Lawyers play no role in this process. Having lawyers present at collegial conversations and interventions can only hamper conversation and increase defensiveness. It is sure to stifle the process.

For this reason, we have always recommended that Bylaws documents and peer review policies state that no lawyers are allowed (both for the peer reviewers and for those subject to the review process) at these types of meetings. Your policy might allow for rare exceptions to this general rule, where requested by the practitioner subject to review and for good reason, but only if the exception is agreed to by the committee/body conducting the peer review activity. Further, we recommend that such exceptions rarely be made. Importantly, however, if an exception is made to allow the practitioner to bring a lawyer to a meeting, the peer review body should also be granted the same exception (allowing its legal counsel to be present, if it so desired).

In sum, at a medical staff hearing, the practitioner will always be entitled to be represented by counsel if he or she wishes. Therefore, the MEC and Board are not in any way compromising the interests of the physician if the Bylaws provide them with the unqualified right to utilize counsel for representation at the hearing (regardless of whether the physician chooses to have legal representation). By contrast, in routine peer review activities at the Hospital, the practitioner will almost never be entitled to be represented by counsel and, in turn, it would be unfair to allow the MEC and Board to utilize legal representation at meetings that are held pursuant to that process – unless an exception has been made to the general rule, permitting the practitioner to bring counsel to a meeting.

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

January 4, 2024

Posted on by Courtney Patterson

QUESTION:
Are Medical Staff Professionals protected under the Health Care Quality Improvement Act (“HCQIA”)?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
While it is rare for a Medical Staff Professional to be named individually in a lawsuit brought by a physician subject to a professional review action, the protections under the HCQIA should be available.  The HCQIA’s protections are available for “professional review bodies,” “any person acting as a member or staff to the body,” and “any person who participates with or assists the body with respect to the [professional review] action.”  Typically, Medical Staff Professionals are not appointed as members of professional review bodies, but the immunity under the HCQIA, as noted above, is also available for those who participate or assist the body with respect to a professional review action.  This provision could apply to duties that Medical Staff Professionals perform, including preparing materials for review by, for example, the Medical Executive Committee.  But keep in mind, for the immunity to apply when a professional review action is taken, certain enumerated standards in the law must be met.  The HCQIA also provides immunity from damages for those providing information to professional review bodies regarding the competence or professional conduct of a physician.  Again, this would most likely cover the tasks performed by Medical Staff Professionals if they are playing a supporting role for Medical Staff committees.

If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.

September 3, 2020

Posted on by hortyspringer

QUESTION:        In the Davidson v. Glenny case described in this week’s Health Law Express, the appellate court did not apply statutory immunity to the faculty members involved in the reappointment process because the immunity was conditioned on “good faith.”  Are there other, stronger protections for our medical staff leaders when they are engaged in credentialing and peer review?

ANSWER:            Yes, while many state statutes providing immunity for those involved in the medical staff processes, such as credentialing and peer review are conditioned on “good faith” or “lack of malice,” the federal Health Care Quality Improvement Act (“HCQIA”) provides stronger protections for medical staff leaders.  Before we tell you about those protections, the reason that the “good faith” and “absence of malice” conditions are concerning is because they are factual issues.  Whether someone acted in good faith, for example, is an issue that usually is determined by a jury.  When a physician files a suit claiming they were wronged by an adverse action, the physician generally has their own side of the story, typically involving allegations of unfair treatment or instances of medical staff leaders acting in bad faith.  If that is the case, the jury weighs the evidence of the physician against the evidence of the hospital and/or medical staff leaders and concludes whether the action was taken in good faith and the immunity should apply.  The bottom line is that this makes it more difficult for medical staff leaders who are named in a suit to be dismissed from the suit at an earlier stage.

The immunity under the HCQIA is different.  The courts, generally, recognize this.  For example, the Supreme Court of Pennsylvania, in a case called Manzetti v. Mercy Hospital of Pittsburgh instructed that “In an HCQIA action, plaintiffs are not permitted to introduce evidence of bad faith of the participants in the peer review process…the alleged bad faith of the participants in the peer review process is immaterial to determining whether these participants are entitled to immunity under the HCQIA.”  That being said, there are requirements embedded in the HCQIA that have to be met for immunity to apply.  Nonetheless, the distinction described in the Manzetti case makes the federal law stronger than most state immunity laws.

Another tool to enhance protections for your Medical Staff leaders is to include solid immunity language in your application form and Medical Staff documents.  By way of example, your application should provide as follows:

As a condition of applying for appointment, to the fullest extent permitted by law, the individual releases from any and all liability, extends immunity to, and agrees not to sue the Hospital, the Board, and the Medical Staff, their authorized representatives, any members of the Medical Staff or the Advanced Practice Clinician Staff, or Board, and any third party who provides information.

This immunity covers any actions, recommendations, reports, statements, communications, or disclosures that are made, taken, or received by the Hospital, its representatives, or third parties in the course of credentialing and peer review activities or when using or disclosing information.  Nothing herein will be deemed to waive any other immunity or privilege provided by federal or state law.

For more information on the legal protections available to Medical Staff leaders, join Lauren Massucci and Charlie Chulack for the Horty, Springer & Mattern virtual seminar, Credentialing for Excellence on November 19 & 20, 2020.