medical executive committee

August 29, 2024

Posted on by Courtney Patterson

QUESTION:
Our Credentials Committee is reviewing a reappointment application for a medical staff member who has had some pretty significant behavioral issues over the past year.  We want to recommend that she be reappointed for less than a full two-year appointment term to reinforce the need to change her behavior, but some members of the committee think that it would be an “adverse recommendation” and give her the right to a hearing. Is it?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
The short answer is that whether or not a recommendation to grant appointment for less than two years (or three years for those hospitals that have made the switch to longer terms) is governed solely by the existing medical staff bylaws.  If your bylaws do not guarantee two-year appointment terms, and the grant of appointment for less than two years is not specifically listed as one of the things that gives an individual the right to request a hearing in the pertinent section of the bylaws, then no, it would not be considered adverse.

Arriving at this conclusion can be more challenging if, rather than listing specific, clear recommendations that trigger the right to a hearing, the bylaws instead provide that “any recommendation that adversely affects an applicant or member” gives the right to request a hearing.  Whether the hospital views a less than two-year appointment term as adversely affecting an individual or not could very well differ from the viewpoint of the medical staff member at issue.

Bottom line, medical staff bylaws should affirmatively state that medical staff appointment will be granted for “not more” than two (or three) years and should give the Credentials Committee and the Medical Executive Committee the clear ability to grant appointment terms of less than the relevant time period – without concerns that it constitutes an adverse recommendation.  A short-term appointment can be a helpful tool in the exact situation posed above – when medical staff leaders are trying to get someone’s attention, emphasizing the need to make changes during a shortened time period of more focused review.  It can also be helpful when a medical staff member is in the midst of a review process that will not be fully concluded before the current term expires, giving the ability to reappoint that individual on a short-term basis, pending the outcome of the relevant review process.

If you have a quick question about this, e-mail LeeAnne Mitchell at LMitchell@hortyspringer.com.

March 7, 2024

Posted on 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.

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.

December 14, 2023

Posted on by Courtney Patterson

QUESTION:
Some of the physicians in our department are throwing a holiday party for staff.  It’s been a stressful year, and we are looking for a way to relax and have a little fun together.  We are planning on serving alcoholic beverages.  Is that a problem?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
We appreciate your good intentions, and we don’t want to be the Scrooge who shuts down the party, but you do want to be careful.

We can’t count the number of times we’ve fielded calls from hospitals about work parties that turned into life-altering disasters with referrals to HR, Administration, Medical Executive Committee, Board, and the police.  Go ahead with the party (you might want to clear it with HR) but be careful and consider these practical tips:

  1. Make sure there is lots of food, so no one is drinking on an empty stomach.
  1. Make sure there are plenty of soft drinks, water, and coffee.
  1. Limit high-alcohol-content drinks and stop serving them in time for everyone to sober up for the drive home.
  1. Ask someone to serve as the equivalent of a designated driver to help make sure the drinking doesn’t get out of hand. No one expects the worst, but you should plan ahead.  Remember, calling an Uber is cheaper than the consequences by ten-fold.

Even parties that are held off-site could have serious work implications.  So, have some fun, enjoy yourself and your colleagues, and remember this sage advice: “everything in moderation.”

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

December 7, 2023

Posted on by Courtney Patterson

QUESTION:
I recently finished reading the equivalent of “War and Peace” also known as the minutes of our regular Medical Executive Committee meeting.  Do you have any tips for what to include in minutes?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
We love a good novel, too, and apologies to Mr. Tolstoy, but, meeting minutes don’t have to be akin to a 1,225-page novel set during the Napoleonic Wars.  Here are the Top Ten Tips for what to include in minutes:

  1. DO – write down the name of the committee that’s meeting.
  1. DO – write down the date of the meeting.
  1. DO – list who’s in attendance, and who’s absent.
  1. DO – list if there are any guests or visitors at the meeting.
  1. DO – note the time the meeting was called to order, who called it to order, and the time it was adjourned.
  1. DO – note whether it’s a regular or special meeting of the committee.
  1. DO – note that if it’s a special meeting, that notice was given to the committee members, and the way notice was given.
  1. DO – note whether a quorum was present.
  1. DO – note whether the previous minutes were read and approved.
  1. DO – note the result of the votes, for example, 7‑1

And, here’s a bonus tip that was developed due to the pandemic:

  1. DO – record whether a meeting was a virtual meeting. Also, for this tip, reflect that all participants were reminded of the confidentiality, privacy and security provisions of policies.

If you have a quick question about this, e-mail Nick Calabrese at ncalabrese@hortyspringer.com.

June 8, 2023

Posted on by Courtney Patterson

QUESTION:
An independent member of our Medical Staff has a long history of unprofessional conduct.  Our Leadership Council addressed various complaints using progressive steps under the Professionalism Policy, such as educational letters and collegial meetings.  We even tried sending the physician to an on-site educational course on behavior with no success.  Before we refer him to the Medical Executive Committee for its review under the Bylaws, are there any other options we could try?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes.  A “personal code of conduct” might be successful where other efforts have failed.  A personal code of conduct outlines specific expectations for behavior and, more importantly, specific consequences for failing to meet those expectations.

With respect to expectations, a personal code of conduct may simply require compliance with the standards for behavior set forth in the Professionalism Policy.  (To assist with enforcement of the personal code of conduct, it’s very helpful if the Professionalism Policy includes specific examples of inappropriate behavior.)  Additional expectations might include periodic mentoring meetings with Medical Staff leaders, 360 reviews, or additional training.

The personal code of conduct could then describe the process that will be followed to review the facts if an additional concern is raised about the physician’s behavior.  This fact-finding process may include steps in addition to those set forth in the Professionalism Policy.

The personal code of conduct could then outline the consequences if the Leadership Council determines that there has been a “formal violation.”  The Leadership Council has the flexibility to define these consequences in any reasonable manner.  For example, the first confirmed violation could result in a final letter of warning, the second could result in the physician not exercising his or her clinical privileges for five or 10 days, and the third could result in a referral to the Medical Executive Committee for a formal investigation under the Medical Staff Bylaws.  The personal code of conduct could be indefinite or have a fixed term, and the number of formal violations could be re-set to zero if the physician goes “x” months/years without a violation.

It’s important to include other language in the personal code of conduct, such as a statement that truly egregious behavior can be referred immediately to the Medical Executive Committee.

In our experience, two formal violations are not common and three formal violations are very rare.  As long as the Leadership Council is willing to enforce personal codes of conduct, they can be an effective tool for physician leaders who are attempting to deal with long-term inappropriate behavior.

If you have a quick question about this, e-mail Phil Zarone at PZarone@hortyspringer.com.

July 7, 2022

Posted on by Courtney Patterson

QUESTION:
We have several clinical departments that either have weak chairs or chairs who are there entirely by default because “it was their turn!”  These individuals are relied upon to perform a really important role. How can we get stronger leaders interested?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
In many hospitals, it has been traditional to rotate the department chair position so that everyone in the department gets his or her turn. However, not every physician has an aptitude for, or interest in, medical staff leadership. And to be perfectly honest, many do not even know what the role will require of them before they assume the position.  One answer may be to develop stronger qualifications for serving in medical staff leadership roles, including officers and department chairs, and to provide compensation for department chairs.  Another question to ask is if there are too many departments. Consider including guidelines in the governance documents that provide factors for the Medical Executive Committee to consider when deciding whether to eliminate (or establish) clinical departments that clearly explain the functions that the individuals within such a department have to fulfill. On that basis, you might consider consolidating departments or doing what many hospitals have done, which is moving to a service line model. By having fewer positions to fill, you then have a larger pool of qualified people who want to serve!

May 5, 2022

Posted on by Courtney Patterson

QUESTION:
We’ve got a debate going on at the MEC.  Does the Chief of Staff vote, not vote, or vote only when needed as a tie-breaker?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:

No need to debate any longer!  The good news is that, for the most part, Medical Staffs and their leaders are free to conduct their meetings however they wish.  You are not bound by any sort of formal parliamentary procedure (e.g. “Robert’s Rules of Order”) and, in turn, can set your own rules.  So – the answer to your question is that your Chief of Staff, who chairs the MEC, can vote if your Bylaws and related Medical Staff documents say so.  If the documents are silent, as a general rule, the chair decides procedural matters for the committee.  Since the chair, in this case, has a bit of a conflict of interest, the committee itself may wish to weigh in and make a determination (or develop a policy/guideline for how it will conduct meetings/voting).

If you are wondering how other organizations do it, note that there is not one, “right” position on this matter.  We see some Medical Staff committees that lean toward inclusivity and let all members of the committee vote, whether or not they are the chair, whether or not they are an administrator (e.g. CMO, Medical Director, Service Line Director), and whether or not they are physicians.  I tend to prefer this type of organizational structuring, since I believe providing voting rights to each member of the committee honors the time and energy that they commit to the committee’s work.

We also see Medical Staff committees that only allow physician members to vote (including any chairs, employed physicians, administrators).

Finally, we sometimes see Medical Staff committees that only allow voting by specified, physician members (sometimes limited to physicians who are members of the Active Staff category).

Again, as a general rule, it is up to each organization to establish its own culture and rules regarding meetings and voting.  Note, however, that you should always check with your medical staff counsel before making changes to committee membership and/or voting, since counsel can verify that any changes are consistent with the statutes and other laws in your state that exist to protect (through immunities and privileges) the peer review activities that your Medical Staff conducts through its committees.  Some states have a more narrow definition of a “peer review committee” or “quality assurance committee” that requires membership to be all or mostly physicians, etc.  Counsel can help to make sure you stay within the confines of applicable law and maximize your protections.

April 28, 2022

Posted on by Courtney Patterson

QUESTION:
We are preparing for a medical staff hearing and a member of our Medical Executive Committee asked why our Medical Staff Bylaws say that the CEO appoints the hearing panel and not the Chief of Staff since it’s the Chief of Staff who knows most of the members of the medical staff.  We are trying to figure out whether this was a typo or not.  Should the Chief of Staff appoint the panel?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
No – that’s not a typo!  While we do still sometimes see bylaws which assign the Chief of Staff the responsibility to appoint the hearing panel (and worse yet, occasionally it’s the whole Medical Executive Committee that does so), it’s long been our recommendation that the CEO or the CMO fulfill that responsibility – in consultation with the Chief of Staff.

This is because, generally speaking, the Chief of Staff, both in his/her role as a Medical Staff officer as well as a member of the MEC (the body that will most often be making the adverse recommendation that triggers a hearing) tends to be someone who is very intimately involved in the underlying matter that led to the hearing.  The Chief of Staff will frequently be the individual who engaged in collegial intervention and other progressive steps with the affected physician, who was involved in the development of any conditions or restrictions and, ultimately, is involved in the adverse recommendation made by the MEC as the chair of that committee that led to the hearing.  When an involved Chief of Staff is then responsible for appointing the hearing panel and presiding officer, it makes it easy for the argument to be made that the selections were biased in favor of the MEC and are not neutral – which can lead to objections and legal challenges (both before and after the hearing) to the appointment of the panel.

While we know that these claims are largely groundless, it is very important to manage the appearance of fairness at all steps of the hearing process.  The goal is to isolate the volunteer physician leaders – like the Chief of Staff – from these types of claims and allegations as much as possible, which is why the CEO or CMO should appoint the panel after consulting with the Chief of Staff.

March 17, 2022

Posted on by Courtney Patterson

QUESTION:
Our hospital’s medical staff is working on a policy to screen older practitioners at reappointment for health issues that may affect their clinical ability.  A member of the MEC was previously at a hospital with a similar policy in place. She has spearheaded the effort and noted that her previous hospital’s policy was able to detect health issues with three elderly physicians.  While the preliminary discussions have been overwhelmingly positive, a couple of our physicians in their 70s voiced dissent with the policy at the last full medical staff meeting because they feel singled out.  Should we be worried about them suing the hospital if the policy is put in place?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
The current legal status of these types of “late career practitioner policies” is in flux.  Late career practitioner policies which screen older physicians at reappointment have been around for decades.  There are published articles detailing the various methods for implementing a late career practitioner policy and how effective those policies were. The rationale for the policies makes sense – catch any potential problems proactively before any patient harm or clinical trends appear.

However, in early 2020 the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against Yale New Haven Hospital based on its late career practitioner policy.  The EEOC alleged that Yale New Haven was violating both the Age Discrimination in Employment Act (“ADEA”) and Americans with Disabilities Act (“ADA”) by singling out physicians solely on the basis of their age.  While Yale New Haven is fighting the still-pending lawsuit, certain other hospitals and health systems have withdrawn their policies and paid damages to older physicians after being targeted by the EEOC.

Therefore, creating a new late career practitioner policy or continued enforcement of an old policy creates some legal risk, at least while the EEOC lawsuit against Yale is still pending.  Ultimately, the decision to move forward with such a policy needs to be deliberate, with buy-in from both the hospital’s medical staff and administration, and the knowledge that an adverse court opinion in the EEOC lawsuit will immediately put the brakes on such a policy.

For follow-up questions, please contact John Wieczorek at jwieczorek@hortyspringer.com.