Peer Review

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.