medical staff

May 23, 2024

Posted on by Courtney Patterson

QUESTION:
Recently, as part of our routine peer review process, a physician was asked to provide a written response to a behavioral concern that had been reported by one of our nurses.  The physician now wants to know who filed the report.  Should we disclose the identity of the nurse?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZZAFAR:
No.  At this stage in the peer review process, we strongly recommend protecting the identity of any individual willing to come forward and raise a concern.

In most cases, who raised the concern is irrelevant.  For clinical concerns, the matter will be evaluated based on what is in the medical record, so whoever reported the matter is unrelated to the concern.  For behavioral concerns, assuming that witnesses are interviewed, and they corroborate the original reported concern, the individual’s identity is also irrelevant.

However, even if you do not disclose the identity of the nurse, that does not mean that the physician under review cannot guess who filed the report.  Accordingly, it is useful to gently remind physicians to avoid any action that could be perceived as retaliatory, even if retaliation isn’t the intent.

Depending on how far into the peer review process this matter gets, it is possible that you will eventually disclose the reporter’s identity.  For instance, if you get to the point that a Medical Staff hearing is going to be held to consider restricting the physician’s clinical privileges, the physician should be provided access to the same documents considered by the hearing committee.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

April 25, 2024

Posted on by Courtney Patterson

QUESTION:
We caught wind of the fact that one of our surgeons was cited for boating under the influence (or “BUI” – yes, this is a thing in our state) last weekend.  Does our Medical Staff leadership need to take any action, or do we only need to act if we’ve observed problems in the hospital?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
A BUI or (more commonly) a DUI may reflect a momentary lapse in judgment or be the sign of a more significant problem.  Given this uncertainty and the potential risks to patients, we think it makes sense to speak with the individual about the BUI/DUI, gather any additional information that may be relevant, and decide if any further action is needed.  This approach should give you the information you need to make sure patients are kept safe.  It will also help you to determine if any steps should be taken in regard to your Medical Staff colleague.

Ideally, you have processes in place through your Medical Staff Bylaws and policies to help your physician leaders navigate these issues in a supportive, non-punitive manner.  If you do not, a practitioner health policy should be on your Medical Staff leadership’s “to do” list for this year, as impairment of all kinds (substance abuse, mental and physical health, disease, etc.) can occur at any time.

If you have a quick question about this, e-mail Ian Donaldson at IDonaldson@hortyspringer.com.

April 4, 2024

Posted on by Courtney Patterson

QUESTION:
We have a podiatrist who practiced at our hospital.  There were a number of serious complaints about her behavior and her ability to work well with others which we tried to address through our Professionalism Policy.  Ultimately, we developed a rigorous Performance Improvement Plan for Behavior, which she signed.  She resigned almost immediately thereafter.  Now, she wants to come back.  What do we do?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Many medical staffs have stringent threshold requirements that applicants must meet in order to be eligible for appointment.  While those criteria might render a physician ineligible if they resigned while under investigation, the criteria probably don’t include a resignation while under a Performance Improvement Plan.  You should check your threshold criteria just in case.

Remember, the burden is always on the applicant.  Even if your criteria do not render the podiatrist ineligible for appointment, that does not mean that, as part of your credentialing process, you should appoint her to your medical staff (of course, denial of appointment is always a last option).  You can require her to demonstrate that she meets your standards, including your standard to work harmoniously with others.  You can require her to address and resolve the questions that had been raised about her conduct before she resigned.

Furthermore, you could inquire about whether she completed the relevant elements of the Performance Improvement Plan.  For instance, if the Performance Improvement Plan included anger management, CME, and/or coaching elements, you could ask for confirmation (and evidence) that she satisfied those elements.  Additionally, you could ask about her practice history since she resigned, including whether she has ever been subject to any collegial efforts or progressive steps at any other facility since she resigned.

Just like with any problem applicant, you should tell her that no further action will be taken until she fully resolves the questions and concerns about her behavior.  It is usually a good idea to give an individual like this a set time frame to respond, as reflected in your bylaws documents and notice that “If you do not fully and completely respond to our questions in the next 60 days, we will deem your request to be withdrawn and no further action will be taken.”

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

February 15, 2024

Posted on by Courtney Patterson

QUESTION:
We recently received a complaint that a Medical Staff member may have been inappropriately accessing medical records.  Do we handle this as a Medical Staff matter or should we refer this to our HIPAA Privacy Officer?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Given the Privacy Officer is responsible for implementing the hospital’s HIPAA policies, they should be made aware of any potential violations by a Medical Staff member.  In addition, Privacy Officers have significant experience investigating and responding to privacy violations and they will understand the law’s regulatory requirements, including if breach notifications are required.

At the same time, there are good reasons for using the Medical Staff process to review HIPAA complaints involving physicians:

  • Physicians may be more likely to listen to other physicians.
  • Hospital licensing regulations generally require the Medical Staff to review the actions of its members.
  • The Medical Staff process is protected by a statutory peer review privilege, which results in confidentiality and candid discussion.
  • Violations of HIPAA (or any regulation) may include a behavioral component that will be of interest to the Medical Staff leadership.

This is why we recommend that the Medical Staff’s professionalism policy or code of conduct include a provision describing how individuals responsible for other hospital policies (such as the HIPAA Privacy Officer or the Corporate Compliance Officer) will be notified of concerns that involve their area of responsibility.  This allows for coordination between the Medical Staff leadership and the individual responsible for the other policy.

If you have a quick question about this, e-mail Ian Donaldson at idonaldson@hortyspringer.com.

February 8, 2024

Posted on by Courtney Patterson

QUESTION:
This question was raised by a registrant at our Complete Course for Medical Staff Leaders last week – should we notify Medical Staff members immediately, as soon as a case “falls out” in our peer review process?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
No!  There are so many different indicators that hospitals track – some required by Medicare, some by accreditation standards, some based upon specialty-specific evidence-based medicine – and the mere fact that a case “tripped” one of these many indicators does not mean that there are specific concerns that need to be addressed.  We hear that Medical Staff members already tend to view the peer review process as something that can feel more punitive than performance improvement based, and if we start sending letters out to individuals the minute that a case has met a specific indicator, we risk making that perception even worse.  Professional practice evaluation/peer review policies should clearly state that cases that make their way into the process can be closed at the earliest, most initial stage of review, and that practitioners need to be notified of cases only once questions or concerns about the care provided by the practitioner have been identified.

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

February 1, 2024

Posted on by Courtney Patterson

QUESTION:
Recently, we have had several physicians on our medical staff refuse to consult on a case because the patient was covered by Medicaid.  The patient had been admitted to the hospital, so we knew it wasn’t an EMTALA issue, but they still needed to be seen by a specialist.  Have you seen this at other hospitals, and do you have any suggestions on how to handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Perhaps not surprisingly, this issue has come up before.  In an effort to address it, we recommend including language in your Medical Staff Governance Documents to make it clear that, not only do physicians have an obligation to see all patients in the ED, but they also have an obligation to respond to requests for consult (regardless of the patient’s payor status) when they are on call.

For instance, you might spell out in the Bylaws that Active Staff members have a responsibility to serve on the ED on-call schedule, and to “accept inpatient consultations, when on call for the ED.”  Similar language could be added to the Bylaws with respect to other staff categories.

Additionally, the threshold criteria for appointment and clinical privileges could require individuals to “agree to fulfill all responsibilities regarding inpatients, including responding to requests for consult when serving on the ED on‑call schedule.”  The basic responsibilities and requirements of appointment should also include an agreement “to provide emergency call coverage, consultations, and care for unassigned patients.”  This language will help ensure appropriate coverage not only for the ED but also for inpatients who require specialty consultations.

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

November 9, 2023

Posted on by Courtney Patterson

QUESTION:
As a part of the threshold eligibility criteria in our Credentials Policy, physicians are required to be board certified by a board approved by the ABMS or AOA.  Can we accept certification by a foreign board from a physician who has applied for Medical Staff appointment and clinical privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
This is a complex question since it may implicate other threshold eligibility criteria in your Credentials Policy.  For example, many medical staffs and hospitals also require a physician to have successfully completed a residency and, if applicable, a fellowship training program approved by the ACGME or AOA.  Thus, if a physician is board certified by a foreign board, it may also mean they did not receive their training in a residency approved by the ACGME or AOA and, consequently, do not meet that criterion as well.

Nonetheless, assuming all other threshold eligibility criteria are met, you may accept certification by a foreign board even though your Credentials Policy requires physicians to be board certified by an ABMS or AOA board.  However, you would first have to go through the waiver of threshold eligibility criteria process outlined in your Credentials Policy.  As an alternative, some hospitals with which we work that repeatedly come across this issue have incorporated a process in their Credentials Policy to use when evaluating whether a foreign board meets the standards of their hospital.  They consider whether the foreign board has comparable certification requirements, including those related to: (1) education and training; (2) letters of attestation or reference; (3) licensing; and (4) written and oral examinations.  A hospital may also give consideration to whether the foreign board is accepted by, for example, the relevant board of the American Board of Medical Specialties for purposes of qualifying for board certification in the United States (e.g., members of The Royal Australian College of General Practitioners are eligible to receive initial board certification through the American Board of Family Medicine) and if the Medical Executive Committee has previously determined that the foreign board meets the standards of the hospital.

It is also important to remember that the burden of demonstrating and producing information to support an applicant’s qualifications lies with the applicant.  This should be specifically stated in your Credentials Policy.  Therefore, if an applicant has certification by a foreign board, the burden is on them to provide information related to the factors described above for evaluating whether the foreign board meets the standards of the hospital.  If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.

September 28, 2023

Posted on by Courtney Patterson

QUESTION:
Do hospital-employed physicians have a conflict of interest with respect to private practice physicians in matters involving credentialing, privileging, and peer review?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Some independent physicians may feel that employed physicians should not be involved in leadership positions for fear that their employment relationships could influence their actions as Medical Staff leaders. Legally, there is no support for viewing an employment relationship as a disqualifying factor when it comes to participating in these activities. And we have rarely seen the type of political pressure from management that independent physicians worry about being brought down on employed physicians who do.

Of course, if a specific concern is raised about an individual’s participation in any given process, it always makes sense to consider whether an individual’s employment would result in a conflict of interest under the guidelines that have been adopted by the Medical Staff.  But, practically, it seems difficult to imagine a Medical Staff adopting bylaws documents that would exclude an employed physician from serving in a leadership position – or from otherwise participating in credentialing and peer review activities – given the large number of physicians who are now employed by hospitals and/or their affiliates.

If you have additional questions about this, please contact Ian Donaldson at IDonaldson@hortyspringer.com.

September 14, 2023

Posted on by Courtney Patterson

QUESTION:
Our Medical Staff Leadership Council intends to ask a physician to agree to a voluntary Performance Improvement Plan (“PIP”) to address behavioral concerns. Do you have any tips for drafting the PIP?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes!  A PIP is much more likely to be successful if the letter to the physician describing the PIP is carefully drafted and addresses certain issues.  Here are a few thoughts:

  1. Details matter.  The Leadership Council should identify exactly what it wants the physician to do and then include those specific expectations in the PIP.  For example, it’s not enough to say “complete additional EMR training.”  The PIP should identify what type of EMR training, how many hours, the deadline for completion, and how completion will be documented.  The key point is that the requirements should be clear so everyone knows what’s expected.
  1. Identify appropriate PIP elements to address the behavioral concern. Different types of concerns benefit from different types of training.  For example, a physician who has difficulty interacting with patients may benefit from different training than a physician who is abrasive to staff.  Fortunately, the number of training options has increased significantly in recent years, so it’s generally possible to find a program that fits your specific needs.  Here’s a link to a 45-page document from the Federation of State Medical Boards that describes various training options:  https://www.fsmb.org/siteassets/spex/pdfs/remedprog.pdf.  If your hospital is a member of a health system, you could also touch base with other hospitals and ask for their experience with different training options.
  1. Identify a process for reviewing and addressing subsequent instances of inappropriate behavior, especially if there is a pattern of concerns with the physician. The PIP could identify the fact-finding that will occur (which will always include obtaining the physician’s input about any future allegations) and then describe the options the Leadership Council has for dealing with violations of the PIP.  You want to give the Leadership Council flexibility to deal with less significant violations of the PIP; for example, through a collegial discussion.  But if a “Formal Violation” of the PIP occurs, you could outline the progressive steps that will be used for the first, second, and third Formal Violations (for example, final letter of warning, three days of off-site training at the physician’s expense, 360 degree review, agreement to not exercise privileges for 10 days, referral to the Medical Executive Committee for review under the Medical Staff Bylaws, etc.).
  1. Think about the duration of the PIP. Particularly if it describes specific consequences for inappropriate behavior, will those consequences be in effect for six months, 12 months, or indefinitely?  Will the number of “Formal Violations” be re-set to zero after a certain amount of time has passed without a violation?
  1. Use a proper tone, one that is as positive as possible. A PIP for behavior may need to be firm to convey the expectations for behavior going forward.  Still, the PIP should be collegial and explain why appropriate behavior benefits patient care.  The PIP should not sound scolding or punitive.

If you have a quick question about this topic, feel free to e-mail Phil Zarone at pzarone@hortyspringer.com.  For more information, join us at the Peer Review Clinic in Phoenix from November 16-18, 2023.