Peer Review

April 14, 2022

Posted on by Courtney Patterson

QUESTION:
A few weeks ago, a nephrologist resigned from our medical staff to take an opportunity out of state.  It’s been brought to my attention that one of the nephrologist’s cases had been flagged for review by our peer review specialist.  The specialist sent me an email asking whether we should continue with our standard peer review process.  Do you have any guidance?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
This situation is more common than you would think.  Because the nephrologist is no longer a member of your medical staff, we would advise that specific peer review of that physician’s medical services should be discontinued.  The purpose of peer reviewing that physician is to ensure and improve quality; this purpose can no longer be effectuated if the physician has left the medical staff.  Among other things, many of the tools that could be used to improve care would no longer be available (such as having the physician complete additional training and then monitoring a few of the physician’s cases at the hospital).  Also, a malpractice attorney may argue that the peer review privilege doesn’t apply to reviews conducted after a physician has left the medical staff.  Finally, continuing peer review of a physician no longer on your medical staff may give an eager plaintiff’s attorney something to squawk about (e.g., allegations that the purpose of the review is to harm the physician).

March 24, 2022

Posted on by Courtney Patterson

QUESTION:
I am the chief of the division of family medicine at my hospital.  I recently learned that a nurse’s aide complained to her supervisor about my tone when speaking with the mother of a patient in our clinic.  The complaint made its way into the peer review system, and I was sent a “letter of guidance” referencing the organization’s Code of Conduct and encouraging me, for lack of a better explanation, to be on my best behavior and be mindful of my reputation and that of the health system.

To be honest, although I am involved in leadership and understand the underlying motivation for the Code of Conduct, I found this to be a really patronizing experience.  The aide who made the complaint knows nothing about my history with this patient and his mother, nor the practical or clinical reasons why I might take a serious tone with her.  My treatment of this patient and his mother was appropriate, given the circumstances and I feel pretty strongly that the aide should have stayed out of it or at least raised her concerns with me before reporting me to her supervisor.

I would like to take this opportunity to discuss this situation with the aide and her supervisor.  It’s important for the aide to understand that some patients of the clinic are well known by clinic staff to require more intense interactions regarding appropriate treatment options and the importance of compliance with the treatment plan.  I am not expecting an apology from the aide as a result of this conversation but, instead, see this conversation as an opportunity to improve how the clinic team operates and, hopefully, prevent frivolous reports in the future.

Last week, I approached the supervisor regarding this, to schedule a time for all three of us to sit down to talk (me, the supervisor, and the aide).  The supervisor told me that my plan was not appropriate and could be viewed as intimidation.  She refused to schedule the session and said I’d better run my plan past the Chief of Staff first.  I did and she said it’s better to “leave it alone.”

Has the whole world gone crazy?  Can’t professionals talk to each other anymore?  How is this supposed to improve the patient care environment?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
It’s easy to see why you might be frustrated, given the scenario you have described.  A key component of any peer review process should be transparency.  This means all practitioners who are subject to the process should understand that it exists and how it works.  Information should, ideally, be periodically pushed out to members of the Medical Staff to help them understand the many moving parts to the peer review process.  When the process is better understood, practitioners are less likely to feel targeted when their own practices come under scrutiny.

Transparency requires more than knowledge of the process, however.  It also requires practitioner involvement in their own peer review.  In your case, it appears as though the peer review of the concern involving your conduct was concluded without anyone ever asking for your input and getting your side of the story.  How can practitioners be expected to buy-in to a process that does not include their input?  As you describe it, that input may have been vital in deciding the appropriate outcome.  Maybe if you had been given a chance to discuss the facts with those conducting the review, they would have concluded that rather than sending you a letter of education, they should provide additional information and training to clinic personnel regarding tough, non-compliant patient management.

At this point, what’s done is done.  Your best bet may be to respond to the letter of education explaining your side of the story and requesting that consideration be given to obtaining your input should any future, similar concerns be reported.  Further, you might consider recommending that clinic personnel receive additional training to help them understand and manage situations like this.  Don’t worry that your response will be seen as controversial or adversarial.  A professionally-worded response, sent through appropriate channels, is part of the review process and is completely appropriate.  After all, the aim of the peer review process should not only be to work with privileged practitioners to address concerns that are under their control, but also to bring to light related, systemic concerns that should be addressed to improve patient care overall.

With that said, we agree with the aide’s supervisor that it is not a good idea for you to sit down with the aide to discuss this matter.  While doing so might be the fastest, most efficient way to get from point A to point B, the supervisor is right – your actions could intimidate the aide.  And, in the long run, that could lead to aides (and other personnel) being reluctant to report meaningful concerns about practitioners due to fear of retaliation.

This advice may be frustrating, because your intentions may be good.  Instead of focusing on your intentions, though, try to think about process.  Can an effective peer review process rely on the good intentions of every physician whose conduct is reported?  If practitioners are given free rein to “confront” those who report concerns about that, would that have a chilling effect on future reports?  Would that promote advancements in quality?

You can see where we are going with this.

Ideally, this issue would have been addressed with you earlier (when your input was first sought by the leadership reviewing this matter) and, at that time, the organizational definition of retaliation could have been provided, along with a caution about engaging in any conduct that could be viewed as retaliatory.  Our recommendation is that a professionalism policy include any contact with the individual who filed a report, in an attempt to discuss the matter, as retaliatory – no matter the intention.  Letting practitioners know this early in the process avoids any embarrassment or confusion later.  Further, bringing it up early in the process avoids an implication that the practitioner is pursuing retaliatory conduct and allows it to serve as a generalized, non-confrontational FYI.  In most organizations, it works well and keeps disputes (and retaliation) to a minimum.

Peer review is tough and imperfect. Organizations are constantly tweaking their processes to correct deficiencies and improve the experience for the practitioners who are subject to review.  We hope you can take the flaws you perceived in this review of your conduct and work through available channels at your organization to suggest appropriate changes (e.g., earlier, methodical request for the practitioner’s input and guidance to practitioners of who they can contact to discuss the matter).

February 10, 2022

Posted on by Courtney Patterson

QUESTION:
We have a physician who was brought in through a contract with a locum tenens company.  Within the first couple of weeks, he had several horrible outcomes in cases.  We started to review his cases through our peer review process and we are considering a precautionary suspension.  Our CMO just told us that the hospital has instructed the company that the physician can no longer be scheduled at our hospital.  This will result in the termination of his clinical privileges.  Should we suspend his privileges anyway, continue with our peer review process, and then report him to the National Practitioner Data Bank?  We are concerned that he is just going to go someplace else and hurt patients again.

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
We understand the desire to follow your peer review process, especially when there are serious concerns about the clinical care provided by a physician.  The peer review process is, by design, thoughtful, deliberative, and educational with built-in collegial efforts, progressive steps, and, when needed, opportunities for improvement.  As successful as the peer review process can be, it is not well suited to address concerns about physicians who are brought into practice on a temporary basis.

That does not mean you should ignore those concerns.  However, your medical staff may not be in the best position to evaluate, address, and resolve the concerns identified in a physician who is practicing at your hospital on a temporary basis.  In fact, once the hospital has exercised its rights under the contract with the locum company and instructed the company not to schedule the physician again, there is not much left for the medical staff to do through its peer review process.  It difficult to review a physician’s care when the physician is no longer practicing at the hospital and there is no action left to take after the physician’s appointment and privileges have been terminated through the contract with the locum company.

In fact, this is an area where the National Practitioner Data Bank, through its Guidebook, has been very clear.  If a physician’s clinical privileges are terminated as a result of a contract, that termination is not an adverse professional review action and should not be reported to the Data Bank.

If you are concerned that the locum company is going to turn around and place the physician in another hospital, you may want to put the company on notice of your specific concerns.  The company should have a process for evaluating the care and competence of the physicians and other practitioners it is placing.  But be careful what you say to the locum company.  Your communication with the company may not be protected under your bylaws, or state or federal law.

To protect yourself, request the locum company to have the physician sign an authorization and release so that information about the physician’s practice can be shared.  Additionally, if you receive a request from another hospital who is seeking to privilege this physician, you can request an authorization and release before providing any information, including the standard “name, rank, and serial number.”  A request for an authorization should send a message that there are issues that require further review and evaluation.

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.

October 21, 2021

Posted on by Courtney Patterson

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.

September 16, 2021

Posted on by Courtney Patterson

QUESTION:
We’re developing new case review forms for our peer review process and wondered whether we should ask reviewers to assign a numerical score to various aspects of care.  Do you recommend scoring cases in this way?

ANSWER:

No!  In our experience, scoring has the following drawbacks:

(1)        Too much energy is spent assigning the score, which distracts from the most important questions:  Is there a concern with the care provided, and if so, how can that concern be addressed?

(2)        Numerical scores can’t capture the complexity of a case in the same way as a longer narrative.

(3)        Physician reviewers may be uncomfortable assigning low scores which indicate that care was “inappropriate” or “below the standard,” especially if those scores are accompanied only by short statements such as “care below the standard.”  As a result, they choose higher scores indicated “care appropriate” even if there are concerns.

(4)        Scores may put physicians on the defensive, especially since most scoring systems don’t allow for the provision of nuanced information.

These characteristics of scoring can undermine efforts to make the peer review process educational rather than punitive.  Accordingly, we recommend having a peer review/professional practice evaluation (“PPE”) system that focuses on actions and performance improvements rather than scoring.

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.

May 20, 2021

Posted on by Courtney Patterson

QUESTION:   “It’s been a long time since we first adopted our bylaws. Some leaders are hoping for a clean slate with a total rewrite, others want to continue to tweak the bylaws we have. What’s the best approach?”

ANSWER:     There is no single right answer to this question but it is a question we get quite a bit.  We have found that if you have done a major revision of your bylaws documents (including your related credentialing, peer review, health and professionalism policies) within the last five years or so, you should be able to tweak the existing documents to reflect any changes in the law and recommended best practices.

Even if it’s been ten years or so since you totally revised your bylaws, you can probably stick with the current documents.  There are a couple of critical qualifications.  First, it’s important that you are starting with an excellent set of bylaws.  This means that the bylaws you have in place are easy to read and follow, the bylaws do not contain lots of internal cross-references (these are almost impossible to keep up-to-date), and the bylaws reflect best practices.  And second, it’s also important that you have been careful, thorough, and diligent in updating the bylaws every two years or so.  In our experience, updating a mediocre set of bylaws only takes you from a bad situation to one that is worse.

If it’s been more than ten years since you’ve done a major overhaul of your bylaws, it’s time to do so.  Just about everything has changed in the medical staff world in the last decade.  Whether it’s the role of APPs, the use of telemedicine, the need for consistency between and among sister hospitals, the focus on collegial efforts and progressive steps in the peer review process, or the non-punitive approach to dealing with health issues, the list of issues that have substantially changed is almost endless.

It’s so important to have modern, up-to-date bylaws, and related policies, to reflect the world in which you are practicing and to provide the necessary tools to solve the challenges you are likely to face.  A major overhaul of your bylaws documents might seem like a daunting task, but we can assure you the time you devote to the project on the front end, will be time well spent.  And you and your colleagues will reap the rewards for many years to come.

For more information on developing BFB (aka Best Friend Bylaws), join us live for The Complete Course for Medical Staff Leaders in Disney (September 19-21), Phoenix (November 18-20), Naples (January 27-29) or New Orleans (April 7-9).

 

 

April 29, 2021

Posted on by Courtney Patterson

QUESTION:    “What is the history of the peer review process in the United States?”

ANSWER:       In the United States, the evolution of the peer review process was pioneered by the American College of Surgeons (“ACOS”).  In 1913, the year of its founding, the ACOS appointed a man named Ernest A. Codman to chair a committee on hospital standardization.  Codman was an outspoken critic of contemporary hospital recordkeeping practices and made public appearances speaking on the importance of adequate medical records, which he believed were essential for studying patient outcomes.

By 1919, the ACOS had created and adopted a document on hospital standardization.  The 1924 version of the ACOS “Minimum Standard” for hospitals is archived and easily accessible online.  In the 1924 Minimum Standard, the ACOS set forth the following mandates:

  1. That membership upon the staff be restricted to physicians and surgeons who are (a) full graduates of medicine in good standing and legally licensed to practice in their respective states or provinces; (b) competent in their respective fields and (c) worthy in character and in matters of professional ethics…
  1. That the staff initiate and, with the approval of the governing board of the hospital, adopt rules, regulations, and policies governing the professional work of the hospital; that these rules, regulations, and policies specifically provide…[t]hat the staff review and analyze at regular intervals their clinical experience in the various departments of the hospital, such as medicine, surgery, obstetrics, and the other specialties; the clinical records of patients, free and pay, to be the basis for such review and analysis.

These efforts by the ACOS continued for several decades until they eventually evolved into the Joint Commission on Accreditation of Hospitals in 1951.  Since its inception, The Joint Commission has promoted and surveyed the use of peer review (sometimes called “medical audits”) on hospital medical staffs.

You can find more information on the website of the American College of Surgeons, available here.

December 5, 2019

Posted on by hortyspringer

QUESTION:        Our hospital recently received a request from a former Medical Staff member for a complete copy of his credentials and peer review files.  The files are thick – he had a fair number of clinical and behavioral concerns while on our staff.  Are we required to provide the copies as requested?

 

ANSWER:           State law needs to be reviewed.  However, in most states, hospitals are not required to provide former Medical Staff members (or even current members) copies of their credentials and peer review files.  (In contrast, state law often does require that employees be granted access to personnel files maintained by Human Resources.)

Assuming state law is silent, the next question is whether the hospital has a policy addressing such requests.  Naturally, if a policy exists, it should be followed.

If there is no such policy, the hospital should consider how such requests from former Medical Staff members for copies have been handled in the past.  While a hospital is not bound by the past and is always free to adopt new procedures, it should be careful to avoid allegations that individuals are being treated differently for a discriminatory reason.

The best practice, of course, is to adopt a policy that governs Medical Staff members’ access to their credentialing and peer review files.  For existing Medical Staff members, the policy might describe the rules for accessing “routine” and “sensitive” documents, with sensitive documents receiving special protection (for example, names of those who raised a concern will be redacted).  For former Medical Staff members, the policy could state simply that copies will not be provided, but that the hospital will provide information upon request to other hospitals as directed by the former Medical Staff member for credentialing and peer review purposes.