Peer Review

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.

June 21, 2018

Posted on by hortyspringer

QUESTION:        A physician who has been on our staff for only a few months has been experiencing complications, with several cases falling out.  So, as part of the initial FPPE, I (as the new Service Line Chief) called this physician into a collegial intervention meeting. He showed up with the head of his group practice, who is not a member of any medical staff committees. When I said that the meeting was a confidential peer review meeting, both physicians left. Now what? Was I right or did I miss an opportunity?

ANSWER:            You are correct that collegial intervention meetings are confidential and that individuals who are not members of an authorized peer review committee should generally not be present. All medical staff members have an obligation to work constructively and cooperatively in the peer review process. This should be covered in new physician orientation, as well as in a statement of expectations that is provided to applicants (and also sent along with the letter of appointment, to be signed by the newly appointed physician).

However, a new medical staff member, especially one who is right out of training, may not be aware of or understand the requirements for Focused Professional Practice Evaluation for all new privileges and may be fearful that collegial intervention is actually a disciplinary step. That’s why it’s important for leaders to emphasize the nature of collegial intervention and performance improvement. Of course, leaders engaging in collegial intervention must be authorized by a peer review committee structured in a manner to fall within the protections of the applicable state peer review law.

There may be times when participation of a respected physician mentor who could serve as moral support for a new physician might make sense, with certain safeguards. You could consider telling the new staff member that he may be accompanied by the head of his group, so long as the head of the group signs a peer review confidentiality agreement. Some state peer review laws explicitly cover group practices as well as hospital medical staff committees; and, in some health systems, information sharing policies encompass affiliated group practices.  This would offer added protection.  (You may also want to be accompanied by another authorized leader, perhaps a vice chief or chair of the peer review committee.)

The purpose of a collegial intervention meeting is to emphasize that the medical staff leadership strives to help all physicians be successful so long as they are willing and able to do what it takes. Leaders may need to remind the head of the group of the expectations for all members, and educate the head of the group who may have had no leadership experience, about the peer review process and the applicable regulatory and accreditation standards.  If both are willing to participate constructively, this approach may help de-escalate the situation.

Join us for The Complete Course for Medical Staff Leaders in San Francisco, as we help new leaders understand their roles and prepare for success.

May 24, 2018

Posted on by hortyspringer

QUESTION:        A physician new to our staff has taken it upon himself to personally “investigate” potential patient safety issues; he says that the medical staff committees are “useless.”  He is not a member of any peer review committee.  What can we do?

ANSWER:            He should be counseled and advised (in writing) of proper channels for expressing his concerns.  He should be asked to provide specifics so the matters can be reviewed.  It is reasonable for hospital and medical staff leaders to develop a statement of expectations, which can be placed into the bylaws, credentials or peer review policy, or adopted separately, requiring that all medical staff members and privileged practitioners cooperate constructively in the peer review, patient safety and performance improvement processes. Careful procedures must be followed, to track any state peer review protection statutory requirements.  It is also a fundamental principle of professionalism and respect that any practitioner who has concerns about hospital policies or other practitioners’ performance should take those concerns through appropriate channels. Otherwise, the practitioner raising these concerns could open himself or herself up to defamation claims by other practitioners whose care or practice he or she has criticized.

The peer review process depends on the willingness of all privileged practitioners to cooperate constructively. Having this responsibility set forth clearly in writing can be very helpful in the event a practitioner continues to act out inappropriately, and thus place the organization and medical staff leaders at risk. In the event an adverse action is necessary, it is best to have a solid written record that leadership reached out to the physician and provided specific directives as to avenues for presenting quality and safety concerns.  If the practitioner persists after the counseling and written follow-up, he or she could be placed on a performance improvement plan or conditional continued appointment. That way, if this practitioner decides to sue, it will be easier to defend the claim because he or she will have brought about the action by his or her own conduct.  You should, however, look into all the issues the practitioner has raised, through appropriate mechanisms.

October 5, 2017

Posted on by hortyspringer

QUESTION:        Can credentials and peer review information about a practitioner be shared with a sister hospital if the sister hospital has the same Board, but each has its own separate Medical Staff?  Should they?

ANSWER:            Hospitals that are affiliated under the same Board, in a system, can exchange information, although we recommend several steps to maximize legal protection. We generally recommend including a provision in each hospital’s Medical Staff bylaws or credentials policy, as well as a statement on the application form, that the applicant understands that information will be shared among entities in the system and that the sharing of this information is not intended to be a waiver of the state peer review protection statute.  It is also a good idea to have a formal information?sharing agreement among the hospitals which clearly defines what information will be shared, when it will be shared, and to whom it will be forwarded.

As for whether the hospitals should share information, the answer is yes. Two hospitals under one Board would be considered one corporate entity.  Each individual hospital (or clinic, health plan, ambulatory surgery center and any other related facility) is part of that one entity.  Important to the Medical Staff leaders responsible for helping to maintain high standards of care through careful and thorough credentialing of physicians is the fact that because it is one entity, credentialers may be “deemed” to be making recommendations as to whether a specific practitioner is qualified and competent based on the collective knowledge of the entity as a whole, rather than the knowledge contained within an individual hospital.  The standard in the law — when it comes to doling out liability — is that the credentialers “knew or should have known” the relevant information that came from the sister facility.

December 1, 2016

Posted on by hortyspringer

QUESTION:        Our Medical Staff policies call for a multi-specialty peer review committee to address concerns about a physician’s clinical skills, and a small Leadership Council to address behavioral concerns.  What happens if there are concerns about a physician that involve both clinical and behavioral issues.  Which process should we use?

ANSWER:            One option is to have the multi-specialty peer review committee address the clinical matter while the Leadership Council separately addresses the behavioral concern.  However, if the clinical and behavioral concerns are related, it may be best to have the same committee review both.  Using two committees may result in a less effective review.

Another option is to have a single committee address both the clinical and behavioral concerns.  However, if this approach is used, it should be explicitly described in your policies.  Otherwise, no matter what review path is chosen, the physician in question might claim that the review is invalid because it was conducted by the wrong committee.

We recommend that language similar to the following be in the Professional Practice Evaluation Policy (for clinical concerns):

If a matter involves both clinical and behavioral concerns, the Chairs of the Leadership Council and the Professional Practice Evaluation Committee (“PPEC”) shall coordinate the reviews.  The behavioral concerns may either be:

(i)         addressed by the Leadership Council pursuant to the Professionalism Policy, with a report to the PPEC, or

(ii)        addressed by the PPEC pursuant to this Policy, with the provisions in the Professionalism Policy being used for guidance.

Similar language should be included in the Professionalism Policy.

To learn more about these and similar issues, please join us in sunny Naples on February 2-4, 2017 for The Peer Review Clinic!

May 5, 2016

Posted on by hortyspringer

QUESTION:        Can credentials and peer review information about a practitioner be shared with a sister hospital if the sister hospital has the same Board, but each has its own separate medical staff?  Should they?

ANSWER:            Hospitals that are affiliated under the same Board, in a system, can exchange information, although we recommend several steps to maximize legal protection, standardize the process, and quell any paranoia that may exist with regard to such sharing. We generally recommend including a provision in each hospital’s medical staff bylaws or credentials policy, as well as a statement on the application form, that the applicant understands that information will be shared among entities in the system and that the sharing of this information is not intended to be a waiver of the state peer review protection statute.  It is also a good idea to have a formal information-sharing agreement among the hospitals which clearly defines what information will be shared, when it will be shared, and to whom it will be forwarded – all of which is drafted in compliance with and with appropriate references to the state peer review statute.

As for whether the hospitals should share information, the answer is yes. Two hospitals under one Board would be considered one corporate entity.  Each individual hospital (or clinic, health plan, ambulatory surgery center and any other related facility) is part of that one entity.  Important to the medical staff leaders responsible for helping to maintain high standards of care through careful and thorough credentialing of physicians is the fact that because it is one entity, credentialers may be “deemed” to be making recommendations as to whether a specific practitioner is qualified and competent based on the collective knowledge of the entity as a whole, rather than the knowledge contained in an individual hospital.  The standard is the law – when it comes to doling out liability – that the credentialers “knew or should have known” the relevant information that came from the sister facility.

May 14, 2015

Posted on by hortyspringer

QUESTION:        Would our state statutory peer review privilege be jeopardized if non-physician support personnel or other representatives of the management team or board attended peer review committee meetings?

ANSWER:        No. It is our experience that the most effective peer review processes result when there is a collaborative approach among the physicians, and other practitioners, non-practitioner support personnel, and hospital representatives. (The latter commonly serve as non-voting members but most committees strive for consensus in today’s world.) (Readers should check with counsel about any specific case law in their states, but – based on our research – the fear of a “waiver” ruling by a court is far greater than the incidence of actual court opinions holding that providing peer review information to someone in a committee meeting, who is not a voting committee member, waives the privilege.) It is becoming increasingly common for a board member to attend credentials committee and MEC meetings as well. State peer review privilege laws do not generally limit the protection to meetings at which only physicians are present (and documents generated at or for such meetings). In fact, the presence of management team or board members may bolster the legal protection available by making clear that the committee’s discussions advance the general interest in quality patient care, and not the interests of any individual physicians. A hospital’s overall responsibility for the peer review process is also outlined in the Medicare Conditions of Participation and most hospital licensing regulations. (For hospitals choosing to be accredited by The Joint Commission, the CEO is to be present at MEC meetings.) The governing board is legally responsible for everything that occurs in the hospital, including credentialing and peer review, with the medical staff committees, departments and leaders being accountable to the governing board for oversight of the quality of care provided to patients. Nonetheless, all individuals present at such meetings should sign confidentiality agreements, at least annually.

There may actually be risks to the physicians and the hospital if hospital personnel are excluded. First, such a practice could create the misperception that the medical staff and hospital are separate legal entities. This could make physicians and the hospital more vulnerable to certain types of lawsuits (e.g., antitrust and other conspiracy based claims). And, the presence of the CEO or designee or a board member at meetings of peer review committees strengthens the immunity provided by the federal Health Care Quality Improvement Act because it makes it clear that the committee is a “professional review body” that is “assisting the governing body in a professional review activity.” 42 C.F.R. §11151(11).

February 12, 2015

Posted on by hortyspringer

QUESTION:     We have an Incident Review Committee which receives all reports generated by our occurrence reporting system. This includes slip and fall injuries and broken equipment, but might also include reports related to the competence or conduct of a Medical Staff member. I’m a little uncomfortable with these physician-specific issues going to the Incident Review Committee, because it’s not designed to deal with them. Ultimately, these issues are referred to our Peer Review Committee anyway. Should our reporting process be revised?

ANSWER:    Yes. We recommend that “reported concerns” about a specific physician (i.e., concerns about clinical competence or conduct) not be referred to as “incident reports” and not be reported initially through the risk management/occurrence reporting process. Instead, we recommend that such physician-specific issues be reported directly to the peer review process.

The rationale for this recommendation is to maximize the protection of these reports under the state peer review protection law. In most states, courts are reluctant to protect risk management reports. As a result, they can often be obtained via subpoena in a malpractice lawsuit. The courts’ rationale is that risk management reports are not “peer review.” Instead, risk management issues involve the financial activities of the hospital, and are not necessarily related to improving care. If reported concerns are initially reported through the risk management/occurrence reporting system, there’s a better chance the malpractice attorney could obtain that report in a lawsuit.

In contrast, if physician-specific concerns are called “reported concerns” and sent directly to the peer review process, it would be easier to argue that the report itself is protected by the peer review privilege. The Joint Commission has done us a favor in this regard, by including the discussion of “reported concerns” in its standards that address peer review.