peer review committee

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 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.

February 2, 2023

Posted on by Courtney Patterson

QUESTION:
We have a physician who has been working his way through our peer review process with very little sustained success.  Recently, there were several significant clinical events that caused Medical Staff Leaders to escalate the matter to the Medical Executive Committee which decided to commence an investigation.

Our question is “do we have to re-do all the great work done by our Peer Review Committee, or can we use that as part of our investigation?”

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is an excellent question and one that we hear quite frequently.  We know from experience Medical Staff Leaders will be able to address and resolve most issues that come to their attention, whether they are of a clinical or behavioral nature, using collegial and progressive steps.  However, every once in a while, a practitioner can’t or won’t change and Medical Staff Leaders will need to escalate concerns to the Medical Executive Committee for a formal, capital “I” investigation.

The procedure for conducting an investigation is laid out in your credentials policy, bylaws or investigation manual.  Once you get to an investigation, the stakes are high for everyone, so it is very important to follow the procedures outlined in your documents.

It is also important that the investigation is thorough, fair, and objective.  However, that does not mean that you have to re-do all the work done by the Peer Review Committee.  That would simply make no sense.  The Medical Executive Committee, or more likely an investigating committee appointed by the Medical Executive Committee, should have access to any documents that it deems relevant, including documents from the practitioner’s credentials file and quality file.  The investigating committee can and should review and rely on informational and educational letters along with letters of awareness, and letters of counsel or guidance.  It can and should review and rely on prior performance improvement plans (aka voluntary enhancement plans).  The investigating committee can and should rely on case reviews and reports from external experts.

If you have worked your professional practice evaluation process, once you get to the investigation phase, you may have already done most of the heavy lifting.  The role of the investigating committee may be primarily to pull together all prior progressive actions that had been taken and consider potential patterns and trends.  Additionally, the investigating committee may want to conduct interviews of individuals with relevant information including staff, the department chair and members of the Peer Review Committee.  Critically, even if your governing documents don’t expressly require it, the investigating committee will want to provide the subject physician with notice of the concerns that have been identified and an opportunity to discuss, explain or refute those concerns.

So, the bottom line is you can and should consider information reviewed by and generated for the Peer Review Committee at part of an investigation.  But you should also use the investigation to answer any outstanding questions and to meet with the subject physician.

October 13, 2022

Posted on by Courtney Patterson

QUESTION:
As part of our peer review process, we want to develop a plan requiring a physician to obtain 15 hours of CME (to improve performance in a couple of identified areas).  Our peer review committee has always forwarded these types of recommendations to the MEC and Board for approval prior to implementing them.  I recently heard that this is no longer recommended.  Can you explain why?  Did something change about MEC and Board oversight of Medical Staff activities?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Medical Staffs have come a long way in the past 20 years.  As the roles and responsibilities of Medical Staff leaders have multiplied, many Medical Staffs have decided to dedicate the MEC to matters of oversight and strategy, while delegating the detailed, day-to-day work of the Medical Staff to other committees.  This is how the Credentials Committee first came into fashion.  More recently, the Leadership Council and Multispecialty Peer Review Committee have begun to assume greater roles within the Medical Staff.  This means not limiting the work of the committee to conducting clinical case reviews and reporting those results to the MEC.  Most modern peer review committees are responsible for so much more.

For example, multispecialty peer review committees are commonly responsible for all of the following:

  • Taking full responsibility for implementing the Medical Staff peer review policy
  • Recommending revisions to the peer review policy and process
  • Reviewing and approving the OPPE and FPPE indicators recommended by the departments for each specialty
  • Keeping track of system issues that are identified through the peer review process, to ensure that they are addressed and do not fall through the cracks
  • Reviewing cases referred to the committee for peer review (which includes developing performance improvement plans for practitioners, where appropriate)

Any peer review committee that is performing all of the above functions must be engaged, educated, and savvy about peer review (so it’s important to make good choices about committee composition and to provide periodic training).  So, it only makes sense a hospital and medical staff would honor the commitment of the committee’s members by letting go of micromanagement and embracing a pure oversight role.

Oversight does not mean abdication of all responsibility.  But oversight does not require detailed information.  All the MEC and governing board need is enough information to be sure that good policies are in place and that the responsible individuals are following them.  This means summary/aggregate data reports work well.  For example, it should suffice if reports to the MEC and Board list the total number of cases reviewed through the peer review process within a specified period of time, with that data then broken down by department or specialty, with information about how those cases were addressed – e.g., through a letter to the practitioner, a collegial intervention, a performance improvement plan, or otherwise).

Empowering the multispecialty peer review committee to implement the peer review process has other benefits, in addition to demonstrating honor and respect for the committee’s members.  For one, by giving primary authority over the peer review process to a non-disciplinary committee, the Medical Staff promotes a peer review process grounded in collegial, progressive steps – rather than a punitive, threatening process.

Further, if collegial steps are unsuccessful in managing a practitioner’s performance issues, the MEC and/or Board may eventually need to get involved.  By keeping those bodies out of the initial collegial efforts of the Medical Staff peer review process, the hospital and Medical Staff preserve the members as disinterested individuals, allowing the MEC and/or Board to review matters with a fresh set of eyes when a practitioner comes before them.  This promotes fairness in the process, since practitioners who are subject to review can rest assured that there will be multiple layers of review – before committees/bodies that are for the most part disinterested – before any “disciplinary” action were to be imposed.

To conclude – we absolutely do recommend that hospitals and Medical Staffs empower their peer review committees to implement CME requirements, as well as other performance improvement measures, without first having those measures taken to the MEC or Board for approval.  It’s efficient, it shows trust in those leaders doing the legwork on peer review, and it is an important part of a collegial, fair process.

June 23, 2022

Posted on by Courtney Patterson

QUESTION:
We’re updating our process for peer review of clinical concerns. We want it to be more effective and less feared by Medical Staff members. Any tips?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes!  Here are a few:

  1. Create a Multi-Specialty Committee. Create a multi-specialty committee that works with practitioners on a voluntary basis to address clinical concerns.  If the multi-specialty committee believes there’s an opportunity for improvement with the care provided by a practitioner, the committee presents an improvement plan to the practitioner and asks the individual to voluntarily participate.  If the practitioner disagrees with the need for the improvement plan, the matter would be referred to the Medical Executive Committee for its independent review under the Medical Staff Bylaws/Credentials Policy.  This approach allows the multi-specialty committee to remain a supportive committee with no disciplinary authority, while the MEC is a second layer of review when needed.
  1. Obtain Specialty Expertise. Identify small committees or individuals (depending on state law) for each specialty that provide the specialty expertise that informs the decisions of the multi-specialty committee.  In larger hospitals with more volume, these committees/individuals can be authorized to take certain performance improvement actions (such as sending educational letters or engaging in collegial counseling discussions) while more significant concerns are sent to the multi-specialty committee for its review.
  1. Get Input from the Practitioner. A process will be perceived as more fair and credible if the practitioner under review has been provided notice of any concerns and an opportunity to provide input about those issues.  No performance improvement action should occur until the practitioner’s input has been obtained.
  1. Adopt Mechanisms to Identify “Lessons Learned” and “System/Process Issues.” Peer review should help everyone get better.  Case review forms and committee minutes should specifically ask if a review identified a lesson that would be of value to others in the specialty, or a system/process issue that needs to be fixed.  There should be mechanisms to ensure that such lessons learned or system/process issues are shared with the appropriate individuals or committees for follow-up action, and the multi-specialty committee should keep these items on its agenda until it receives word that they have been addressed.
  1. Stop Scoring. Rather than asking reviewers to assign a numerical value or category to a case, the reviewer should simply assess whether there was a concern with the care provided.  If so, how could that concern be addressed?  Scoring causes practitioners to be defensive and diverts energy away from what really matters in the review process (i.e., how to help a practitioner improve).
  1. Words Matter! The term “peer review” is viewed negatively by most practitioners.  Using new terminology will help to emphasize that a new process has been created that is educational and not focused on restrictions of privileges.  Consider creating a “Committee for Professional Enhancement” or “Performance Improvement Committee” rather than a more traditional “Peer Review Committee.”  Similarly, refer to the process as the “professional practice evaluation” process rather than “peer review” process.

For more information about creating an effective peer review process for clinical concerns, please join us this season at The Peer Review Clinic in Las Vegas, Orlando, or Nashville!

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.

January 6, 2022

Posted on by Courtney Patterson

QUESTION:
Our peer review committee is wondering if the name of the physician under review should be redacted so that committee members are not aware of the physician’s identity.  Would this promote a fair review process?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:

While at first blush it might seem like a good idea, we do not recommend that the “blinding” of reviews be part of the peer review/professional practice evaluation (“PPE”) process.  Here’s why:

  • This practice could actually create unnecessary legal risk because it makes it more difficult to manage conflicts of interest. If a disqualifying conflict of interest exists between a committee member and the physician under review, the blinding of information might prevent this from being identified early on.  As such, there could be an allegation later that the committee member actually knew the identity of the subject physician but was deliberately not recused.
  • Obtaining input from the physician under review is an essential component of a fair and effective process. While this input is generally written, there are times a meeting is beneficial as well.  While you could probably shield the identity of physicians when they submit written comments, of course it would be impossible to do so for meetings.  Thus, physicians would be treated differently depending on whether a meeting was held or not.
  • If blinding of information is a component of the peer review process but members of the committee determine the identity of the physician in some cases (e.g., because they heard of a certain case or because there is only one physician in a certain subspecialty), it could lead to allegations by an unhappy physician that the committee violated its policy/practice because the committee knew the identity of that individual. It could be alleged this is “proof” that the committee members were biased in their review.
  • It would take a tremendous amount of careful work to attempt to blind reviews consistently and we think it is impractical on a day-to-day basis. It would stress the PPE specialists (i.e., those who support the review process) more than is necessary, distract them from assisting the process in other and better ways, and all for no great gain.
  • Despite everyone’s best efforts, it is exceedingly difficult to do this completely and ensure anonymity. In many cases, committee members will still know the identity of the physician subject to review.
  • There may be times when the committee members want to access a portion of the EHR during deliberations, which would clearly reveal the identity of the physician.

•   Once the case at issue is assessed, it is then critical for the committee members to know the physician’s history, personality, circumstances, etc.  This information will help the committee identify the most appropriate performance improvement tool (e.g., collegial counseling, educational letter, etc.) and who should be involved.

May 27, 2021

Posted on by Courtney Patterson

QUESTION:   “When a hospital receives a peer review incident report on a practitioner, is the medical director of an affiliated physician group practice that employs the practitioner allowed to see the occurrence?”

ANSWER:      This is a question that we receive quite frequently and one in which most hospitals are having to answer because they are part of a system with affiliated groups that employ physicians practicing at one or more hospitals within the system.  The bottom line is that information sharing among relevant entities within a system is an important part of credentialing, privileging, and peer review.  Information sharing ensures patient safety and the quality of care across the system.  However, before any information sharing occurs, there should be a process outlined in your Medical Staff policies so that you don’t inadvertently violate your state’s peer review privilege.

While the details of the process for information sharing in your policies is too detailed to fully outline in an answer to the Question of the Week, below are some important points you should consider addressing in your Peer Review Policy.

If the practitioner involved is employed by the hospital, the Peer Review Committee (or “Professional Practice Evaluation Committee” or “Committee for Professional Enhancement” depending on the terminology you use) may notify an appropriate hospital representative with employment responsibilities (such as the medical director of the group) of the review of the incident report and request assistance in addressing the matter.

Whether notification occurs may depend on the circumstances underlying the incident report and the contemplated intervention by the Peer Review Committee.  For example, the medical director of the group should generally be notified when the concern is more significant and an intervention such as a Performance Improvement Plan/Voluntary Enhancement Plan is being considered.  On the other hand, if a practitioner simply receives an educational letter (e.g., on the need to round daily on patients and record progress notes consistent with the Medical Staff Rules and Regulations), the Peer Review Committee may choose not to notify the group.

Nonetheless, if the group is notified, a representative may be invited to attend meetings of the Peer Review Committee, participate in discussions and deliberations, and participate in any interventions to make sure that the group and Peer Review Committee are on the same page.

You want to make sure you consult your state’s peer review statute because it could affect the way that this process is structured and carried out.  Some state laws specifically address the sharing of peer review information with physician group practices while others are silent.  You also want to be mindful of the fact that some state courts have interpreted peer review statutes to limit what you can do with peer review information.  For example, in a case called Yedidag v. Roswell Clinic Corporation, the New Mexico Supreme Court concluded that “the acquisition and use of confidential peer review information for purposes of employee discipline is not a statutorily permissible use of peer review information.”

Finally, it is helpful also to have an Information Sharing Policy in place that, among other things, spells out the rationale for the Policy, the types of information sharing that will occur, the entities that will be subject to the Policy, and an explicit statement that the Policy has been drafted to comply with the state peer review law and is not intended to waive any applicable peer review privilege.

January 14, 2021

Posted on by hortyspringer

QUESTION:        We have a multi-specialty peer review committee that handles day-to-day peer review activities.  What kind of reports and information should that committee provide to the Medical Executive Committee (“MEC”)?  Specifically, should the multi-specialty peer review committee provide practitioner-specific details of its reviews to the MEC?

 

ANSWER:          We recommend that the MEC (and the Board) not be provided detailed, practitioner-specific information about individual cases that the multi-specialty peer review committee is handling.  There are several reasons for this recommendation:

  • If a performance concern cannot be successfully resolved by the peer review committee, the matter will be referred to the MEC (and possibly from there to the Board). The role of the MEC and Board would be to conduct a meaningful, non-biased review of the matter.  Essentially, they serve as appeal bodies.  If they have been receiving detailed, practitioner-specific reports throughout the review process, the physician under review will allege that the MEC and Board have “pre-judged” the matter and were biased by receiving one-sided reports from the peer review committee.
  • The MEC and Board are the only bodies who may recommend or take disciplinary action with respect to a physician (i.e., an action that leads to a hearing and a report to the state board of medicine and the National Practitioner Data Bank). To change the perception of peer review from “disciplinary and punitive” to “educational and constructive,” it makes sense to keep practitioner-specific details away from the two bodies who are responsible for potential discipline.  Physicians who are being reviewed may be more collegial and willing to participate in performance improvement efforts if the details of these efforts are not routinely shared with the MEC and Board – especially when there is nothing for the MEC or Board to approve or act upon.
  • Using the multi-specialty peer review committee to handle performance issues makes clear that the effort is part of the hospital’s routine peer review process. It is not a “precursor” to disciplinary action, which helps to clarify NPDB reporting obligations.
  • Providing practitioner-specific details to 20 – 30 MEC and Board members undermines assurances to Medical Staff members that the peer review process is confidential, and that information will only be shared with those who have a “need to know.”
  • The MEC and Board can satisfy their legal responsibilities to oversee the peer review process by reviewing aggregate, anonymized reports regarding the activities of the peer review committee. No practitioner-specific details are required.

Join Paul Verardi and Phil Zarone on March 2, 2021 as they discuss this issue during Building an Effective PPE/Peer Review Process:  “Survey Says…”