QUESTION:        Our professional practice evaluation committee (“PPEC”) recently obtained an external review of a neurosurgery case that involved significant complications and a poor outcome for the patient. We shared the de-identified results of that review with the surgeon and invited him to submit his written comments and meet with the committee. Instead of doing so and without notice to the PPEC, he arranged for his own external review, by a neurosurgeon picked by him and unknown to the committee. He has submitted that review – which found no deviation from the standard of care – to the committee, with a statement indicating that no further review is required. What can we do with conflicting external reviews? Should we reprimand him for violating HIPAA?

ANSWER:        It can be frustrating when the leadership is attempting to deal openly and collegially with a colleague and its efforts are rebuffed. Such is the case here, where the neurosurgeon whose case is under review has ignored your request for his personal input and his attendance at your upcoming meeting and, instead, has obtained an unauthorized review by a third party. Your knee-jerk reaction may be to reprimand him or disregard his unsolicited expert opinion out-of-turn. After all, you are trying to help this practitioner improve his performance and he is, by all observation, fighting you tooth and nail. While that perspective is understandable, we encourage you to also think about this from the neurosurgeon’s perspective before deciding on next steps.

First, to get the legal issue out of the way, please note that there does not appear to be a violation of HIPAA’s privacy regulations, since the neurosurgeon is part of an organized health care arrangement with the hospital (as are all doctors who are members of the Medical Staff) and, in any event, the disclosure of information he made to his external reviewer was limited to records of a patient that he and the hospital have both treated and was for the limited purpose of quality improvement. HIPAA permits disclosures in such situations.

While HIPAA may not have been violated, the neurosurgeon’s actions may have nevertheless violated the hospital’s policies. For example, the hospital may have policies requiring all external reviews to be arranged through a specific person (such as the CEO or CMO) or body (such as the MEC), to ensure that any contracts for such reviews include appropriate protections. Further, the hospital may require its own business associate agreement or a confidentiality policy to be signed by any reviewer prior to sending that reviewer medical records. In this case, because the review was arranged by the neurosurgeon, but involved the disclosure of the hospital’s records, the hospital lost the opportunity to protect itself through the contract with the reviewer. It would be appropriate to follow up with the neurosurgeon by requesting a copy of the business associate agreement and, consistent with any hospital or Medical Staff policy, by notifying him of the appropriate process for arranging external reviews of care provided in the hospital.

Unless there is good reason to proceed otherwise, a reprimand is probably not necessary. Unless you have additional facts pointing to the contrary, it seems likely that this physician did not realize that his actions in obtaining an independent review informally – and without the authorization of the hospital and its Medical Staff leaders – could violate policy.

Now that you have the neurosurgeon’s independent review in your hands – what should you do with it? Medical Staff leaders often struggle with how to proceed in cases where experts disagree. Admittedly, this can seem like a “damned if you do and damned if you don’t” sort of situation. The good news is: Most courts give great deference to the decisions of hospitals and their Medical Staff leaders in matters involving Medical Staff appointment and clinical privileges. So, when facing conflicting information, your hands are not tied. You should feel comfortable looking at all of the information at hand, weighing each piece against the totality of information, and then finalizing a decision. Things to keep in mind:

• Don’t reject the neurosurgeon’s independent review out of hand, simply because the neurosurgeon obtained it without notice to the PPEC and without going through formal channels. Consider the qualifications of the independent reviewer and the quality of the report that he or she supplied. Ask follow-up questions, if necessary. In the end, you may reject the review if the reviewer is not adequately qualified, does not have current clinical experience, or has not delved into the parts of the case that the PPEC thinks are relevant. If you do reject the report, or choose to give it little weight, articulate your reasons for doing so – and record those reasons in the minutes of the meeting where the matter is decided.
• If the independent review seems well-informed and the reviewer seems well-qualified, you may try to work out the conflict between the PPEC’s external review and the neurosurgeon’s external review via any one or more options. First, you may choose to send the report submitted by the neurosurgeon to the PPEC’s external reviewer – and ask that your reviewer comment on the contrary conclusions. Second, you may choose to send the PPEC’s external review report to the neurosurgeon’s independent reviewer – and ask that reviewer to comment on the contrary conclusions. You could send both external reviews to a third external reviewer, who may act as a “tie breaker.” As a fourth option, you could choose to simply contact the neurosurgeon’s reviewer to question him about his conclusions – and verify that he had all relevant information about the care and about the PPEC’s concerns at the time he conducted his review and wrote his report.
• In the end, the PPEC will need to weigh all of the information it has gathered before deciding how to proceed. This will mean considering all external reviews, any input from the physician, the opinions of the physicians who serve on the committee, and the physician’s peer review history, among other things. It must decide which sources of information are most credible, informative, relevant, and persuasive. Remember that the purpose of professional practice evaluation is to identify areas where there is room for improvement. Therefore, the leadership may choose to give less weight to a case review that concludes that there was “no deviation from the standard of care” (a term usually reserved for malpractice litigation, which relates only to whether the care is considered negligent by legal standards and not to whether the care satisfies your organization’s expectations) and more weight to a review which identifies strengths and weaknesses in the care that was provided.

Finally, one last point that, though discussed last, is not of least importance. The PPEC has invited the neurosurgeon to submit written feedback and to attend its upcoming meeting. The physician has ignored these requests. It is important that you follow up on these invitations – and not get sidetracked by the fact that the physician has submitted a report from an independent reviewer. Now is the time to follow up with the neurosurgeon. Tell him that you will consider the report he submitted, but that he must provide the written feedback and attend the meeting, as previously requested. If you have language in your Medical Staff Bylaws, Credentials Policy, or Professional Practice Evaluation Policy stating that individuals must provide information upon request by the leadership, or stating that they must attend meetings when given special notice that they are required to attend and that their care will be discussed, cite that language.

Make it clear that the leadership will not be thrown off course by the submission of the independent review – or by any other antics. Performance improvement can occur only if physicians under review actively participate in the professional practice evaluation process. Accordingly, it is important that this neurosurgeon get on board and work with the PPEC, collegially, to help it get to the bottom of what happened in this case to give rise to such serious complications and such a poor outcome.