QUESTION:
We are trying to implement care guidelines for hip and knee replacements across the system.  The leadership has agreed on the guidelines generally and is now discussing implementation and enforcement.  They want to monitor the established metrics through the OPPE process and, if a practitioner is outside the metrics, have them automatically referred for FPPE (the matter would be referred to the Medical Staff peer review committee for further review and a determination of what collegial measures, if any, could be taken to get the practitioner into compliance).  If the practitioner remains outside the metrics cutoff after 90 days, the leadership has recommended that the practitioner’s joint replacement privileges be deemed automatically relinquished for failure to comply.  This method of enforcement does seem a whole lot easier than conducting an investigation and going through all of the procedures that are necessary to revoke privileges.  What do you think?

ANSWER:
While it is true that implementing an automatic relinquishment is easier than conducting an investigation, making an adverse professional review recommendation, and/or conducting a hearing and appeal process, not every situation is well suited to automatic relinquishment.

The situations where automatic relinquishment is most appropriate are those that are objectively assessed, require little to no evaluation of the practitioner’s competence or conduct, and tend to be focused on administrative requirements.  For example, failure to comply with documentation requirements, failure to attend a meeting when requested by the Medical Staff leadership, or loss of licensure are all matters that routinely lead to automatic relinquishment within hospitals/medical staffs all across the country.

There are some situations where failure to follow a protocol or guideline could appropriately lead to implementation of automatic relinquishment.  For example, consider the scenario where a hospital and medical staff establish a clinical protocol requiring a practitioner to either comply with the protocol or, alternatively, document contemporaneously in the file the reason why he or she is not following the protocol.  Automatic relinquishment of privileges for failure to comply with the administrative requirement of documenting the reasons for non-compliance would be acceptable, since the evaluation of the matter would be objective (e.g. did the practitioner comply?  If not, was there documentation of why in the chart?).  Further, the relinquishment would be related to an administrative matter (failure to comply with a documentation requirement applicable when not complying with a protocol).

However, if the practitioner were being reviewed because, although he or she was documenting the reasons for not following the protocol, the Medical Staff leadership felt those reasons were not good – that would be a different matter.  That would involve evaluation of the practitioner’s clinical judgment (e.g., the explanations for why the protocol was not followed), which would require subjective evaluation, clinical expertise, and a judgment about the practitioner’s clinical competence and/or conduct. Because of that, the consideration of whether the practitioner was justified in not following the protocol would better lend itself to review under the Medical Staff professional practice evaluation process (which is specifically designed to evaluate performance issues utilizing the expertise of the Medical Staff leaders and, afterwards, implement collegial solutions to help practitioners improve).

The situation you describe sounds like it may be more akin to the latter situation described above, in which case automatic relinquishment would not be the best solution.  It’s true that words like “guidelines” and “metrics” give the initial impression that a matter is being objectively evaluated – and that can lead many to believe that automatic relinquishment is a viable option for all situations involving failure to comply.  Our suggestion is to focus more on the actual metrics that are under consideration.  Is non-compliance with those metrics measured objectively, without the need to consider the explanation of the practitioner (e.g. H&P was on the chart prior to surgery, surgical note was on the chart prior to surgeon leaving the OR)?  If the metrics are “administrative” in nature, like these, then automatic relinquishment may be the right enforcement method.

But, if non-compliance with metrics is measured objectively at first –and then requires subjective evaluation to verify whether non-compliance was justified (e.g. patient was an appropriate candidate for the procedure, diagnostic tests were appropriate, appropriate medications were given), then review through the peer review process may be a better option than resorting to automatic relinquishment.  In your scenario, since the original plan is to refer matters of non-compliance into the FPPE process, it sounds like your guidelines may require subjective evaluation and be less “administrative” and, in turn, less suited to automatic relinquishment.

Of course, as always, the best option is to consult with your in-house or Medical Staff counsel, as the best answer depends on the specific protocols/guidelines you are looking to implement and enforce, as well as the language of your Medical Staff Bylaws and related governance documents.