Peer Review

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.

September 5, 2019

Posted on by hortyspringer

QUESTION:        How do we handle a situation when there is a physician on the Credentials Committee who is married to another physician, and the spouse’s application is up for consideration?

ANSWER:           Every so often we run across physician couples.  In those instances, there may be a situation in which the conflict of interest rules for credentialing or peer review activities are implicated.  For example, imagine that Dr. Wright is appointed to the Medical Staff, is recognized as having good leadership qualities, and is appointed to the Credentials Committee.  Then, his spouse applies for Medical Staff appointment.  The application comes before the Credentials Committee and Dr. Wright is told “You can’t vote on the application” but Dr. Wright insists on voting, because  “I know this applicant better than any other applicant that has been before this committee!”

Well, that may be so, but Dr. Wright can’t vote!  Going back to compliance training and basic conflict of interest rules, Dr. Wright has a conflict of interest regarding his spouse’s application.  He is emotionally involved in the outcome, and probably financially involved too.  Of course, Dr. Wright can provide any relevant information he may have regarding his spouse and can answer any questions the Credentials Committee may have about her.  But, after doing so, it’s prudent for him to leave the Credentials Committee meeting, and not participate in the discussion of his spouse’s credentials or the vote on the application.  Also, the minutes should reflect that he left the meeting, the vote occurring after he left, and his return to the meeting.

March 14, 2019

Posted on by hortyspringer

QUESTION:        We are part of a five-hospital system.  Many of our physicians practice at multiple hospitals in our system.  We’ve had a couple of occasions lately where one hospital addressed a problem applicant or a problem physician, but the physician just moved to another hospital in our system.  We are separate hospitals and separate medical staffs.  We have an information sharing agreement and that helps, but we’re not sure it’s enough.  Can you help?

 

ANSWER:            You’re off to a good start with an information sharing agreement.  That should allow you to share confidential peer review information between and among your sister organizations.  There is also language you can add to your bylaws or credentials policy (bylaws documents) that can help.  For instance, we recommend threshold eligibility criteria that would render someone ineligible if he or she had staff appointment or privileges “denied, revoked, or terminated” for reasons related to clinical competence or professional conduct at any hospital or health care facility, or had resigned appointment during an investigation, or had an application for appointment not processed due to an omission or misrepresentation.  These threshold eligibility criteria apply not only at appointment and reappointment but during the term of appointment and your bylaws documents should make it clear that failure to satisfy these criteria during appointment will result in an automatic relinquishment.

It is also helpful to have language in your bylaws documents that makes it clear that certain actions, such as a performance improvement plan, automatic relinquishment, or professional review action, when taken at one hospital in the system will be automatically effective at all of the other hospitals in the system.  The bylaws language should allow for a waiver by the Board, upon the recommendation of the appropriate Medical Executive Committee, when it would not be necessary or appropriate for the action to be effective at any given hospital.  This language gives you some wiggle room and some discretion, but it also helps ensure that you are not caught up in redoing peer review efforts, including investigations and hearings, at multiple hospitals in the system.  Fortunately, there is helpful language in the National Practitioner Data Bank Guidebook which makes it clear that administrative actions taken by hospitals in a system based exclusively on the action taken at a sister hospital should not be reported to the NPDB.

January 31, 2019

Posted on by hortyspringer

QUESTION:        When a concern is raised about the behavior of a Medical Staff member, we’ve typically referred it to our department chairs. The chairs give it their best shot, but we were wondering if there’s a better way?

ANSWER:            Yes! There are many drawbacks to asking a single individual — regardless of who that person is — to deal with difficult behavioral matters.

First, the department chair is often either a competitor or partner of the physician under review. This can make it difficult for the department chair regardless of whether an actual “conflict of interest” exists.

Also, depending on the size of a department, the department chair may not deal with many behavioral concerns. As a result, the chair never obtains enough experience to become truly comfortable addressing behavioral issues.

Individual department chairs have no built-in opportunity to brainstorm about the issues under review. If they want to seek assistance, they have to find another physician leader and bring that person up to speed.

Thus, we recommend that a core group of physician leaders — referred to as a Leadership Council — handle behavioral concerns. The Leadership Council might be comprised of the Chief of Staff, Chair of the Professional Practice Evaluation/Peer Review Committee, and Chief Medical Officer. The advantages of using a Leadership Council to handle behavioral concerns include:

  • consistency across departments (no more variability based on the personality of individual department chairs);
  • easier to avoid conflicts of interest;
  • permits department chairs to preserve their working relationships with physicians under review;
  • expertise through experience;
  • emphasizes the importance of the issue and enhances the credibility of the physician leadership because a group of leaders – not a single person – is speaking with the physician under review; and
  • problems are discussed by a small group, which promotes the exchange and development of ideas.

For more information on Leadership Councils and other important topics, please join us at Disney’s Yacht and Beach Club Resort in Orlando, FL on March 7-9, 2019 for The Peer Review Clinic.

August 23, 2018

Posted on by hortyspringer

QUESTION:        I have always been told that peer review is conducted by peers — so representatives from legal should not be present at peer review meetings.  But, recently, I heard a Horty Springer attorney suggest that legal should be called “early and often.”  Which is it?

ANSWER:            Both!  Well, sort of.  We have long recommended that collegial meetings between Medical Staff leaders and their colleagues should be “informal” and not include lawyers.  “Informal” does not mean that you should not prepare for those meetings (you should have talking points and an objective when you walk into the meeting).  However, it does mean that if peer review is going to work best, and practitioners are going to buy-in to the process and believe that it is truly oriented towards helping them succeed, then it has to be conducted with finesse and sensitivity to how interventions will be perceived by those under review.  Lawyers do not belong in those meetings.  Lawyers add an air of formality, tend to talk when they should remain quiet, and their mere presence can give the impression that the process is adversarial.  Any conversation that occurs between doctors will look MUCH different if their lawyers are sitting by their sides.  It is for this reason that we have long recommended that the Medical Staff Bylaws and peer review policies of hospitals and medical staffs specifically state that lawyers cannot attend meetings with the practitioner under review (and by the same token, have long told our clients that it would not be advisable for us to be present either).

This does not mean that Medical Staff leaders should not consult counsel early and often throughout the peer review process.  Too often, legal is called to assist an MEC after it has just voted to revoke a practitioner’s privileges or the day after a precautionary suspension has been imposed by the Chief of Staff.  It can be very difficult for your legal counsel to help you follow your processes precisely — and document your actions in a way that will create the best defense — if called after-the-fact.  And waiting to seek advice can result in the leadership sacrificing the chance to pursue additional avenues for resolving the issue (such as automatic relinquishment or a formal performance improvement plan) that may have avoided the need for “disciplinary” action and its attendant costs (such as hearings, appeals, NPDB reports, and litigation).

In an ideal scenario, the Medical Staff leadership would have a close and ongoing working relationship with legal counsel and would discuss with counsel any time there are questions, but at least in the following situations that arise during the course of peer review activities:

  • Whenever addressing a peer review matter involving a practitioner who has previously sued the health system, hospital, or any Medical Staff leader
  • Whenever the practitioner has retained a lawyer and is using a lawyer to communicate with the leadership
  • Whenever the practitioner has claimed failure to comply with the Bylaws or Rules and Regulations or other policies of the Hospital or Medical Staff
  • Whenever the practitioner has claimed that the Hospital or Medical Staff leadership has acted unlawfully with respect to peer review activities
  • Whenever the practitioner has claimed impermissible conflicts of interest, anti-competitive activity, or discrimination is influencing the peer review process
  • Whenever the practitioner claims to be a whistleblower during the course of peer review activity
  • Whenever the peer review concerns involve matters with particularly legal significance (e.g., violation of EMTALA or HIPAA or concerns of medical necessity)
  • Prior to implementing any precautionary suspension, if possible. If previous consultation with legal is not possible (for example, the issue arises in the middle of the night and is an emergency), legal should be consulted as soon as possible (for example, first thing the next morning)
  • Whenever developing a formal Performance Improvement Plan
  • Whenever considering whether to commence a formal investigation
  • Whenever conducting a formal investigation
  • Meetings of the MEC or Board where adverse professional review action will be considered (for example, when the MEC meets to review the report of an investigating committee)
  • When conducting a Medical Staff hearing or appeal
  • When filing an NPDB report or a report to the state licensure board
  • When responding to a subpoena from a licensure board or other governmental agency that is seeking information about a Medical Staff member
  • When drafting a reference for a practitioner about whom some “not nice” things will be said

This list is not necessarily exhaustive.  But we know from experience that the scenarios listed above have legal implications and Medical Staff leaders can protect themselves (and better serve their colleagues) by seeking advice on how to proceed when handling those tough scenarios.  Seasoned leaders often need less guidance, particularly as their experience increases.  But, even then it can be helpful for leaders, who are often full-time clinicians — to rely on legal to help with document preparation and identification of applicable Bylaws, policies, and other matters that need to be considered during the course of review.

To conclude — should legal be involved in peer review?  Absolutely!  With the caveat that meetings with the practitioner under review are meant to focus on peer-to-peer interaction and likely are not the right venue for attorney participation or attendance.