Peer Review

December 12, 2024

Posted on by Courtney Patterson

QUESTION:
The MEC recently learned that a department chair placed a physician on a “period of FPPE to include proctoring until such time as the requirement for supervision is lifted.”  This has raised some red flags within the Medical Staff leadership.  We are a bit worried about the use of the word “supervision” here.  Also, another main concern is that we revised our peer review process several years ago and, while our policy allows department chairs to perform clinical case reviews, send letters of guidance, and conduct informal collegial conversations with practitioners, the policy pretty clearly states that if something more intensive/intrusive – like a formal, planned collegial intervention meeting or performance improvement plan – is envisioned, the matter should be referred to the multi-specialty peer review committee or MEC for management.

Should we “undo” the actions of the department chair and “redo” the peer review according to our policy?  Since it’s already in progress (the practitioner has already been notified of the requirement) should we just let it ride out? This feels like quite a mess.

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
You know the saying, “An ounce of prevention is worth a pound of cure”?  Well, right now you need a pound of cure.  It happens!  You are right to have some concerns about the process that has been followed thus far in reviewing this matter.  And the concerns you articulated in your question are astute.  The use of the word “supervision” probably is inappropriate and inapplicable here.  Most proctoring that is performed in the peer review world is observational only and does not involve true supervision by the proctor.  The role of the proctor is to observe and report back to the peer reviewers his/her opinions about the performance of the individual subject to review.  The proctor often consults with the practitioner collegially during that process, but the consultation does not generally rise to the level of supervision and the proctor generally does not have any authority to dictate how the practitioner provides the medical care in question.  Using the word “supervision” to describe the proctoring could give the wrong impression about these matters.  And just as importantly, it could set a negative tone, making this practitioner (and others, in the future) more defensive and less likely to be cooperative with the proctoring process.

It would also appear that the department chair overstepped his role in the process by implementing an activity (proctoring) that is generally reserved for performance improvement plans.  To the best of our knowledge, there are no legal or accreditation standards that dictate “who does what” in peer review.  But, your policy should serve as the guide for peer review activities within your hospital and medical staff.  And the way your policy has been drafted – to divvy up responsibility for certain interventions such that lower-level interventions are within the authority of individual leaders, but more intrusive interventions require committee action – are “best practice” within the industry.  Relying on multi-disciplinary committees to implement performance improvement plans provides a check and balance, helping to eliminate personal variation, as well as alleviate any concerns that competitive motives formed even part of the motivation for the action.

Now, for your real question:  Should you undo the action of the department chair?

In this case, that is probably the best course of action.  Of course, diplomacy is key.  As a first step, the MEC might simply ask a few individuals (the officers?  A Leadership Council?) to meet with the department chair and ask him to reconsider his decision.  Those leaders can also work with the department chair to notify the practitioner that the previous determination has been rescinded and, upon further consideration, it has been determined that the matter should be forwarded to the multi-specialty peer review committee for further consideration and determination of next steps.

With that done, you can then focus on the “ounce of prevention.”  Leadership roles turn over very frequently – and Medical Staff leaders are usually not provided any training in advance of their leadership terms.  Methodically providing an orientation letter to new leaders and regularly providing leadership education and training is a great way to help leaders navigate their many (and sometimes complex) roles.

An orientation letter can be used to summarize duties and make leaders aware of the Bylaws and policies that apply to them (and should be consulted when performing duties).  It does not need to be a “manual.”  A few pages often does the trick.  For example, the department chair’s role in peer review (as outlined in the policy you describe in your scenario) could be summarized as follows:

As department chair, you are also an important part of implementing the Medical Staff’s professional practice evaluation/ clinical peer review process.  Cases may be referred to you for clinical review, with a request that you report your opinions (on the forms provided).  You may conduct clinical reviews yourself or, where you lack expertise, assign the review to another clinical specialty reviewer within your department (to be reported back to you by the deadline that you set).  If your review reveals new or lower-level concerns that might be best managed through brief, informal collegial counseling or guidance, you may address the matter directly with the practitioner (reporting that outcome to the PPE Professional so that it can be recorded in the hospital’s files and reported to the multi-specialty peer review committee for oversight purposes).  More significant concerns and/or more significant interventions are generally referred to the multi-specialty peer review committee for review and management.  For more details, please refer to the Medical Staff Professional Practice Evaluation Policy.  A copy can be obtained…[describe where/how to obtain the policy]…

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

November 21, 2024

Posted on by Courtney Patterson

QUESTION:
During our Peer Review Clinic Seminar in Las Vegas last week, several attendees asked if they should request input from a physician as soon as a case “falls out,” or if they should wait until later in the process. So, what do we think?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
We see different opinions on this when we work with Medical Staffs on new peer review policies. Some physician leaders want to obtain input as soon as a case is identified for review, believing it will expedite the review process (i.e., there won’t be a need for the reviewer to later pause the process to stop and obtain the physician’s input if they already have that information from the start).  Also, obtaining input right away can emphasize to Medical Staff members that the process is transparent and their input will always be considered.

However, we also hear the counterpoint that sending a request for input before the case is even sent for initial screening can cause undue stress if the case is ultimately closed with no issues.  In addition, the physician will have spent time preparing comments that weren’t needed.

Both of these arguments have validity, and there is probably not a right or wrong answer.  Some organizations we work with have incorporated a triage step in their review process, whereby cases are screened to help identify those where input would be helpful right off the bat (keeping the option to ask for input later on for all other cases).

Another option would be to get input from the physician right away if a case is identified due to a reported concern, referral from a sentinel event, referral from risk management, or some other source that makes it more likely that the individual or committee reviewing the case will want to hear from the physician under review.  But input might not be obtained right away for cases identified by a pre-determined trigger (because sometimes triggers can be more sensitive and identify cases that don’t raise a concern).

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

October 24, 2024

Posted on by Courtney Patterson

QUESTION:
After attending HortySpringer’s Peer Review Clinic in Amelia Island earlier this year, we decided to ramp up a multi-specialty peer review committee to provide oversight over what has traditionally been a department-based process at our hospital.  We are struggling with what kind of information that new committee should share with our MEC.  Any tips or suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
First off, thanks for attending the PRC! We are glad to hear our recommendations were helpful!

As it relates to your question, we recommend that your MEC not be given detailed, practitioner-specific information about individual cases that the multi-specialty peer review committee is reviewing.  There are several reasons for this recommendation:

  • If a peer review matter cannot be successfully resolved by the peer review committee, the matter may end up on the MEC’s agenda. If the MEC has been receiving detailed, practitioner-specific reports throughout the review process leading up to that referral, the physician under review may allege that the MEC has already “pre-judged” the matter and were biased by all the sound bites it received from the peer review committee.
  • The MEC is the only Medical Staff body that can recommend or take disciplinary action with respect to a physician, so to promote positive engagement with the peer review process, we like to keep the MEC out of day-to-day “routine” peer review matters. We have found this can help change the perception of peer review from one that has traditionally been viewed as punitive to one that is educational and constructive.
  • Providing practitioner-specific details to the 20 or 30 people who are in the room at your MEC meetings can undermine the principle that the peer review process is confidential.

All of the above has led us to believe that the MEC can satisfy its legal responsibilities to oversee the peer review process by reviewing aggregate, anonymized reports regarding the activities of the peer review committee, without having to give practitioner-specific details.

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

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.

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.

November 30, 2023

Posted on by Courtney Patterson

QUESTION:
Our hospital is part of a regional system, and while there had been some low-level discussions about whether we may want to have a unified medical staff, the consensus was that we aren’t there yet – however, there is a strong desire for our medical staff processes to become more integrated even if unification isn’t our ultimate outcome.  Are there options short of formally becoming one unified medical staff?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Absolutely!  While one of the main objectives of medical staff unification is consistency in core processes such as credentialing, privileging and peer review – with the goal towards promoting a single standard of care and reducing the administrative burden for the medical staffs and their leaders – many of these benefits can be obtained even in the absence of a unified medical staff.

A good first step is having similar (or identical) policies for credentialing, privileging and peer review at each system hospital that use the same eligibility criteria for appointment and privileges and the same process for evaluating applications among similar types of hospitals.  The same is true for policies governing clinical peer review, professionalism and health.  Consistent bylaws, policies and procedures across the system help the medical staff leaders to do their jobs, and are also helpful for members of the medical staffs who may practice at more than one system hospital to know what the rules are.

Even if a system has the same process for credentialing, privileging and peer review and has adopted the same standards for these activities, there remains the potential for different outcomes when different committees are making decisions.  Steps that the system and its medical staffs can take to address this concern – short of unification – include things such as:

  • Utilizing a central Credentials Verification Office to ensure each medical staff gets the same information about applicants;
  • Utilizing a system (or regional) Credentials Committee, which includes representation from all relevant hospitals, to avoid inconsistent recommendations being made by individual Credentials Committees on practitioners who are applying to more than one system hospital. The same goal can be accomplished in the peer review process by utilizing a system Peer Review Committee – a process that can be even more helpful when system hospitals include much smaller facilities that may have fewer individuals able to serve on such committees; and
  • Incorporating provisions into the medical staff bylaws/credentials policies for each system hospital which state that certain types of significant actions that directly implicate a practitioner’s qualifications to practice – such as performance improvement plans, precautionary suspensions, automatic relinquishments and final actions by the board – become effective immediately at each system hospital where the individual practices, unless the automatic action is waived by the “receiving” hospital’s MEC and the Board.

While these steps don’t achieve the same level of consistency that a unified medical staff would, they are definite steps along the “continuum of integration” that most systems are exploring and implementing.  Also, as the medical staff sees these integration steps in action, they can also help to quell the concerns that are sometimes voiced about possible unification and can be good first steps towards that goal.

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

October 19, 2023

Posted on by Courtney Patterson

QUESTION:
Our hospital is in the process of refining our peer review process.  Our existing framework involves a multi-tiered review where cases are evaluated and assigned a level of complexity or concern, ranging from Level 1 to Level 4.  We are actively exploring enhancements to our current process.  Any suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
The peer review process is one of the most essential processes a hospital has in its toolbelt.  While a hospital’s peer review process should be tailored to fit its culture and needs, we do have some general guidelines that we suggest for everyone.

(1)        Ditch Numbering Systems
Reviewers should be assessing whether there was a concern with the care provided and how that concern could be addressed.  The problem with numbering is that no case ever fits neatly into one category.  So, more energy is put into deciding if a case is a 2 or 3 than what really matters in the review process (i.e., how to help a practitioner improve).

(2)        Incorporate Progressive Steps
Only rarely does peer review need to result in disciplinary action.  Some events can be addressed through a simple conversation or a letter educating the provider on what went wrong.  Other times, tools like performance improvement plans (for example, additional training) might do the trick.  Whatever you choose, your process should emphasize educational, collegial options with disciplinary action being the rare last resort.

(3)        Be Flexible
Do not create such a strict peer review policy that you box yourself in.  It’s not reasonable to create a rigid structure (i.e., first offenses will receive an educational letter, second offenses will receive a collegial conversation, etc.).  Make sure your process is constructed in a way that gives your peer review committee flexibility to identify the most effective performance improvement option under the circumstances.  A fundamental tenet should be to use the least restrictive option that will keep patients safe and help the practitioner to improve.  On the other hand, if a real red flag case comes through, you want to make sure your policy clearly states you can handle the case appropriately (by taking more significant action right away, if needed) instead of being required to work your way through each of the steps in the policy.

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

April 20, 2023

Posted on by Courtney Patterson

QUESTION:
Our peer review committee recently developed a plan for a physician that involved proctoring of a number of the physician’s cases.  It came up in our meeting as to whether patients had to be informed that their physician is being proctored.  Is this required?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Proctoring is part of the confidential peer review/professional practice evaluation process.  But, as a practical matter, patients may need to be made aware of the fact that another physician may be involved in their care.  Proctoring – whether in surgical or non-surgical situations – often includes not only review of the patient’s medical record but also an examination of the patient, which means that some explanation regarding that individual’s presence must be provided.  While not always the case, if proctors are instructed to intervene in a surgical procedure if necessary, the patient should be in­formed that the proctor may participate in the procedure and that information should be included in the patient’s written consent to the procedure.

While it is the proctored physician’s responsibility to inform his or her patients about the proctoring, the patient does not have to be informed of the reason for the proctoring.  A simple statement will suffice, such as:  “The hospital and our team are committed to providing appropriate care.  Dr. Proctor will also be [working with me/may examine you/review your medical record/scrub in and be ready to assist in your procedure if necessary].”

Finally, documentation completed by the proctor should not be included in the patient’s medical record.  We recommend that proctors be provided with “proctoring forms” that elicit information in as objective a format as possible about the issues that are being assessed, and that these forms be maintained as part of the hospital’s peer review/professional practice evaluation process – not as clinical records maintained in the medical record.