Submitted at HortySpringer’s Complete Course for Medical Staff Leaders held in New Orleans, April 2026:

QUESTION:
Does a practitioner who has been notified he/she is being investigated have the right to know the names and specialties of the members of the Investigating Committee prior to meeting with them?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
There is nothing in the Medicare Conditions of Participation for Hospitals that requires a hospital or its medical staff to inform a practitioner of the composition of an investigating committee.  Nor is immunity under the safe harbor provided by the Health Care Quality Improvement Act dependent on providing that information.  The Joint Commission accreditation standards also are silent on this matter.  So, whether you must inform a practitioner of the identity of the members of an investigating committee is dependent on whether your state law requires it (off the top of my head, I cannot think of a single state that does…but it’s worth checking the detailed provisions governing peer review in your state hospital licensing regulations just to make sure because some states have extensive requirements) and whether your hospital’s Medical Staff Bylaws and other governance documents require it.

We generally recommend Medical Staff Bylaw and policy language that requires a practitioner to be informed promptly that an investigation has been commenced (unless specified leaders document good reason for not doing so).  Further, we recommend policy language stating that the practitioner will always be invited to a meeting/interview with the investigating committee prior to it reaching its findings and issuing a report.  This opportunity to be heard is fundamental to fairness of the investigation process.

Most organizations inform the practitioner of the identity of the investigating committee’s members at the time they notify the practitioner of the commencement of the investigation or, alternatively, as part of the notice/request to meet (with that notice also providing information about the nature of the concerns identified during the investigation).  But, that level of sharing is not always required in the Bylaws or policy documents.  Regardless of whether it is required, there is inherent value in providing this level of transparency in the investigation process and we generally recommend it.  Doing so sends the message to all Medical Staff members and other practitioners that the professional review activities of the Medical Staff are fair and impartial and “on the up and up.”  No one wants to be subject to scrutiny by their workplace peers, but doing so when the rules and participants are clear is far more palatable.  Further, if practitioners know the participants in an investigation, they are better able to raise any conflicts of interest or other concerns early in the process.  And if any of those concerns are valid, it could help hospital and medical staff leaders avoid a future dispute (and possible avoid having to repeat the review process at a later date).

If you have a quick question about this, e-mail us at info@hortyspringer.com.

QUESTION:
What is the difference between SUD Records and SUD Counseling Notes?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Under 42 CFR Part 2 (“Part 2”), Substance Use Disorder (“SUD”) Records consist of any information, recorded by, created by, received by, or acquired by a Part 2 Program, relating to a patient (e.g., a diagnosis, treatment or referral for treatment information, billing information, emails, or voice mails), including patient identifying information.

“SUD Counseling Notes” are notes that are made by a Part 2 Program provider who is a SUD or mental health professional during a SUD counseling session (or a group, joint, or family SUD counseling session). SUD Counseling Notes are separated from the rest of the patient’s SUD and medical record.

SUD Counseling Notes exclude the following information:

• medication prescription and monitoring;

• counseling session start and stop times;

• the modalities and frequencies of treatment furnished;

• results of clinical tests; and

• any summary of a diagnosis, function status, treatment plan, symptoms, prognosis, and progress to date.

When a patient provides written consent to the use and disclosure of their SUD Record, that consent does not extend to SUD Counseling Notes.  A separate written consent to use and disclose SUD Counseling Notes must be obtained. Moreover, written consent for use or disclosure of SUD Counseling Notes may only be combined with another written consent for use or disclosure of SUD Counseling Notes.

If you have a quick question about this, e-mail us at info@hortyspringer.com.

QUESTION:
Our hospital uses consent forms that state certain physicians are independent contractors, not hospital employees.  If a patient signs (or verbally agrees to) those forms, does that fully protect the hospital from being held liable for the physicians’ care?

ANSWER FROM HORTYSPRINGER ATTORNEY FISHER FILIPPAZZO:
This is a great question and one that has come up repeatedly over the years, particularly in the emergency department setting.  As a general rule, independent contractor language in consent forms should be viewed as helpful, but not determinative, when it comes to hospital liability.

For example, as we saw in one of this week’s cases, White v. Iroquois Memorial Hospital, courts will look beyond the consent form to evaluate how care was provided and how the hospital presented the physicians to the patient.  Even where a patient signs or verbally agrees to independent contractor language, hospitals may still face liability if the patient reasonably believed that the hospital itself was providing the care.  This is especially true in emergency situations, where patients may be in pain, under stress, and focused on receiving treatment rather than reviewing consent language.

That recent case also illustrates that consent forms must clearly and specifically notify patients which physicians are independent contractors.  Broad or generalized statements may not be sufficient, and verbal acknowledgment of a form does not necessarily resolve these issues if the patient is not given a meaningful opportunity to understand the relationship between the hospital and the treating physicians.

It is also important to remember that independent contractor disclaimers do not eliminate exposure to direct negligence claims against hospitals.  Even if physicians are properly classified as independent contractors, hospitals may still face claims based on communication failures, care coordination issues, transfer processes, or other system‑level breakdowns.

For these reasons, hospitals should regularly review their consent forms to ensure the independent contractor language is clear, specific, and accurate.  Hospitals should also assess whether their operations, signage, training, and patient‑facing communications are consistent with that language.

If you have a quick question about this or other issues, e‑mail info@hortyspringer.com.

QUESTION:
We have some pretty significant concerns about one of our new Medical Staff members.  We met with her and shared our concerns; she promised to do better, but didn’t.  This went on for several months and even after we tried a performance improvement plan, there was no sustained improvement.  Although we don’t often find ourselves in this position, we referred the matter to the MEC to consider whether to start an investigation.  The very next day, before the MEC had taken definitive action, the physician resigned her appointment and clinical privileges.

Now we’re not sure what to do.  Should we go forward with an investigation and confirm or negate our concerns?  Is her resignation reportable to the National Practitioner Data Bank as a resignation in return for not conducting an investigation?  How about a report to the State Medical Board?  We are worried about her clinical competence and afraid that if we don’t do something, she’ll hurt a patient at the next hospital where she lands.

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
We appreciate and share your concern about this physician moving to another hospital and perhaps hurting patients there.  The good news is that you have options on how to proceed in a balanced and fair way and, at the same time, make sure the next hospital has meaningful information so it can make an informed decision about credentialing and privileging this physician.

Let’s start with your first question about whether to go forward with an investigation so you can confirm or negate your concerns.  As it should, your question reflects that no final conclusions have been reached about the physician’s competence.  Obviously, you have serious concerns, and the purpose of an investigation would be to determine whether changes would need to be made to the physician’s privileges (e.g., limitation or revocation of some or all of her privileges).  However, since the physician resigned, this question is no longer relevant to the Medical Staff or the Hospital.

Even beyond this conclusion, it really is not possible to conduct a fair and balanced investigation once the physician has resigned and is no longer available to participate in the process.  Additionally, investigations, when done right, are quite time‑consuming for the members of the Medical Staff who are involved, including the members of the MEC and any members of the investigating committee.  Investigating a physician who has resigned is probably not the best use of your resources.  So, we are a definite “No,” in terms of starting and conducting an investigation of a physician who has already resigned.

The second question is whether the Hospital has an obligation to report this physician to the National Practitioner Data Bank (“NPDB”).  As you described, the MEC had not decided to commence an investigation.  (We will leave for another day, the language in the NPDB Guidebook that describes how the NPDB interprets the word investigation expansively.)

Hospitals are obligated to report the surrender of privileges in return for not conducting an investigation.  However, in this area, the Guidebook advises “A health care entity that submits a clinical privileges action based on surrender … [of] privileges while under investigation should have evidence of an ongoing investigation at the time of surrender, or evidence of a plea bargain.”  (Emphasis added.)  As you described the situation, there was no deal cut with the physician about resigning and, thus, we would conclude that the Hospital is not required to file a report with the NPDB.

Your third question, about whether there is an obligation to file a report with the State Board, will depend on your state law.  Some state reporting statutes follow the NPDB reporting; other states have more expansive reporting obligations.  We will have to check your state law.

Before we conclude, we want to get back to your concern about the physician moving to another hospital and perhaps hurting patients there.  Even without filing a report with the NPDB or the State Board, you can share your concerns about this physician when you respond to a request for a peer reference.  We recommend that you ask the physician to sign a specific authorization and release, including your proposed response.  If the physician refuses to sign a specific release, you can tell the requesting hospital that you are unable to respond because the physician has not authorized you to do so.  Along with protections available in your state peer review statute and your bylaws documents, this approach will help ensure you do not get sued in the first place for providing information to another hospital.  It will also serve as a red flag to the next hospital that they have more digging to do before granting the physician appointment and clinical privileges.

If you have a quick question about this, e‑mail Susan Lapenta at info@hortyspringer.com.

QUESTION:
How is NASA monitoring the health of the Artemis II astronauts?

ANSWER FROM HORTYSPRINGER ATTORNEY
DAN MULHOLLAND:

According to Dr. A.I. Grok, NASA monitors the health of the Artemis II astronauts through a combination of dedicated flight surgeons, wearable and onboard sensors, scheduled self-performed tests, private medical conferences, and specialized experiments. Among other things, astronauts use Orion’s medical kit and perform checks. Key elements include:

• Wearable sensors and actigraphy devices (part of the ARCHER experiment – Artemis Research for Crew Health and Readiness): These track movement, sleep patterns, activity, light-dark cycles, and team dynamics/behavioral data in real time or near-real time. They help assess performance, fatigue, and cognitive health.
• Radiation monitoring: Crew members carry personal dosimeters (e.g., Crew Active Dosimeters in pockets) for real-time individual exposure tracking. Multiple active sensors inside Orion measure cabin radiation levels and can trigger warnings for solar particle events, allowing the crew to use shielding or shelter if needed. Cumulative doses on this short mission are expected to be low (roughly equivalent to a couple of CT scans).
• Biological samples: Dry saliva swabs (easy to collect and store) measure stress hormones (e.g., cortisol), immune biomarkers, and other indicators at multiple points pre-, in-, and post-flight. Blood, urine, and other samples may also be collected for nutrition, cardiovascular, and immune studies.
• Vital signs and physiological checks: Onboard equipment for blood pressure, heart rate, oxygen levels, ultrasound (e.g., artery scans), cognition tests, and vision assessments. The crew has practiced using the medical kit (thermometer, stethoscope, blood pressure monitor, etc.) and even demonstrated CPR in zero-g.

It is not clear if this is covered by the recent extension of the telemedicine waivers, but HIPAA precludes closure of their specific health information.  As a government agency that is not a covered entity, NASA is exempt from the HIPAA privacy rule, but it voluntarily complies with HIPAA with respect to astronauts’ protected heath information.

If you have a quick question about this, e-mail Dan Mulholland at info@hortyspringer.com.