February 10, 2022

Posted on February 10, 2022February 10, 2022 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.

July 29, 2021

Posted on July 29, 2021 by Courtney Patterson

QUESTION:
“We are in the process of reviewing our Medical Staff Bylaws after a long period of neglect. While going over the provisions related to Medical Staff hearings, a Bylaws Committee member suggested that if a practitioner is under precautionary suspension, the hearing should be held within 10 days of the practitioner’s request. Ten days seems like a short time for us to prepare for a hearing. But, a few of the doctors on the committee really felt like it would be most fair to a practitioner whose livelihood is “on hold” to have the hearing occur in the most expedited way possible. What do you think?”

ANSWER:
It’s noble to consider the impact of a precautionary suspension on the practitioner who is affected, but holding a hearing within 10 days of a practitioner’s request will be almost impossible for you to manage, from a practical standpoint. Here’s why:

Thirty days is the minimum time you must give the practitioner to decide whether to request a hearing under the Health Care Quality Improvement Act (which provides certain immunities from liability to peer reviewers). Therefore, most organizations’ Medical Staff Bylaws and related documents, like the Medical Staff Credentials Policy, are drafted to give a practitioner 30 days to request a hearing.

Because the practitioner has 30 days to make the request, the hospital never really knows when the practitioner’s request will be received. The request could come on day one or it could come at the close of business on day 30. That’s a big window!

This matters because the Bylaws language your Committee member suggested states that you will hold a hearing within 10 days OF THE PRACTITIONER’S REQUEST. If you don’t know when the practitioner’s request will come in, it will be very difficult to prepare (for example, recruiting hearing panel members who are available to serve).

Adding to the complexity here is the fact that the Health Care Quality Improvement Act requires, as a condition of immunity, that the practitioner be given at least 30 days to prepare for the hearing after being provided NOTICE OF THE HEARING. That is, you must give the practitioner 30 days to prepare after you send the notice that includes the time, date, and details of the hearing itself (this is different than the first notice, which tells the practitioner that he or she is entitled to request a hearing).

If a practitioner is subject to a precautionary suspension at the time, he or she may consent to have the hearing held in a shorter timeframe (e.g., 10 days) – but until you obtain the practitioner’s consent, you will not know whether you will be able to hold the hearing within 10 days of the practitioner’s request or, alternatively, after 30 (or more) days. Again, this lack of knowledge regarding when the hearing may or may not occur will make it incredibly difficult for you to find a hearing panel and schedule the hearing – tasks that are essential to tackle if you are planning to hold a hearing within a 10-day timeframe.

WHAT THIS ADDS UP TO: Imagine yourself, as a leader, approaching colleagues to see if they would be willing to sit on a hearing panel (which likely would mean giving up at least a couple of evenings and perhaps a couple of working days) – and then telling them that you are not sure when you will need them to do this, but think it will be sometime in the next one to 60 or so days! It’s difficult enough to recruit a hearing panel member without this level of uncertainty in scheduling.

So, if we can agree that holding a hearing 10 days after the practitioner requests it is not practical, what options exist to provide some expedited assurance of fairness to a practitioner who is subject to precautionary suspension?

First, make sure you are considering precautionary suspensions separately from other adverse professional review actions. Try not to lump them all together. That way, you can expedite the process for reviewing the precautionary suspension (e.g., deciding whether there continues to be an imminent risk to the health or safety of an individual) and, if possible, lift the suspension pending continued inquiry into the underlying matter or work with the practitioner to look for less restrictive alternatives (such as having the precautionary suspension apply to some, but not all, privileges held by the practitioner).
Second, in the case of precautionary suspension, provide expedited procedures that are “fair under the circumstances.” These procedures should be outlined in the Medical Staff Bylaws (or related documents, such as the Medical Staff Credentials Policy). Consider requiring that the MEC meet to review the precautionary suspension within an expedited timeframe (e.g., no more than five or 10 days after the suspension is put in place) to decide whether it should be continued pending further review. Include an opportunity for the practitioner to meet with the Committee to discuss the concerns and offer input (including suggesting any less restrictive alternatives that might be employed to address the concerns while the review continues – for example, strict compliance with patient selection criteria, the use of a consult/second opinion, etc.).
After the above review is conducted, the leadership will determine whether to keep the precautionary suspension in place pending further review. In that case, the Medical Staff leadership should be diligent in proceeding with the review of the underlying matter so that there is not unnecessary delay that prolongs the precautionary suspension period.
Finally, if anything changes in the interim, or additional facts are brought to light through the review of the matter, and that changes the assessment of whether an imminent risk exists – it is appropriate for the MEC to revisit the issue and lift the precautionary suspension as soon as plausible.

By way of example, imagine a practitioner was precautionarily suspended after the Hospital learned he had been arrested for harassment of an individual who used to be his patient and who claimed that he continued to stalk her following the end of their relationship. If you later learned from the police that the charges had been dropped after the patient recanted her story and attested to the fact that their relationship was consensual, the MEC might consider immediately lifting the precautionary suspension (on the basis that the concern of imminent risk has been eliminated), even though it would want to continue its underlying review of the matter (on the basis that a consensual sexual relationship with a patient is nevertheless a concern and ethics violation, even if it does not give rise to a concern of imminent risk).

July 15

Posted on July 15, 2021 by Courtney Patterson

QUESTION:
“A physician recently smelled of alcohol and was behaving oddly while conducting rounds. The physician refused a screening test, so the Medical Staff leadership imposed a precautionary suspension. Is there a better way?”

ANSWER:
Yes! First, all hospitals should have a Practitioner Health Policy to govern health issues affecting privileged practitioners. Such a policy is required if your hospital is accredited by the Joint Commission, and it’s a best practice in any event. A Practitioner Health Policy allows Medical Staff leaders to identify practices and procedures that work in your setting, and can then be applied in a consistent manner (which helps to avoid allegations of discrimination).

Your Practitioner Health Policy should have a section dealing with responses to immediate threats, such as the one you describe above. The first step is for the Policy to identify who may respond to handle such situations. We recommend that a broad group of Medical Staff leaders be authorized to take the steps described in the Policy, to ensure that someone is always available.

The Policy should then identify who, and how many, individuals may request a practitioner to undergo a screening test to identify a possible impairment. Ideally, two Medical Staff leaders will make such a decision (or a Medical Staff leader and an administrator such as the CMO). Having two individuals involved in the decision protects them from allegations of bias, and should enhance the credibility of the process in the eyes of the practitioner under review.

To answer your specific question, if the practitioner refuses to cooperate with a screening test, the Practitioner Health Policy should say that the individual automatically relinquishes clinical privileges pending further review by the Leadership Council (or whatever committee handles health issues). This is not a permanent fix – potentially impaired practitioners would not be permitted to simply move out of town and subsequently harm themselves or others. Instead, it’s a method of buying time to persuade the practitioner to cooperate with the review process without imposing a suspension. A suspension causes the situation to feel more confrontational, which sends the wrong message when the goal is to help a colleague. A suspension also starts the clock ticking for hearings and NPDB reports, which can detract from efforts to constructively deal with the health issue.

For more information about how to deal with practitioner health issues, please join us in Orlando, FL from September 19 – 21, 2021 for the Peer Review Clinic. For more information, click here.

August 17, 2017

Posted on August 17, 2017 by hortyspringer

QUESTION: The Chief of Staff recently implemented a precautionary suspension after a Medical Staff member engaged in some seriously unprofessional behavior that was thought to compromise patient safety. The MEC met to review the matter and lifted the precautionary suspension after four days. A formal investigation was commenced and that process is now complete and the MEC is considering suspending the practitioner for 30 days. For purposes of reporting to the National Practitioner Data Bank (NPDB), will that suspension be added to the four-day suspension he already served — meaning that it will constitute a 34-day suspension and will, in turn, become reportable to the NPDB as a suspension lasting more than 30 days?

ANSWER: Even though the precautionary suspension and the “regular” suspension are related to the same factual matter, they are separate professional review actions and, in turn, they do not “add up” for the sake of reporting. Therefore, the four-day precautionary suspension was not reportable to the NPDB. The same will be true of a 30-day suspension, if that action is finalized by the Board. Be sure to check the applicable requirements of state law, however, as some states require hospitals to report all suspensions of clinical privileges, no matter how long they last.