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August 6, 2026

Posted on by jwilbert

QUESTION:
We placed a provider on a Performance Improvement Plan (“PIP”) because of clinical concerns.  The PIP requires the provider to identify another physician willing to serve as a proctor.  The provider has identified a physician whom we believe would be a suitable proctor.  How should we communicate our expectations and ensure that the proctor understands the responsibilities of the role?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
The best way to ensure that the proctor understands the role, performs it as expected, and provides the information you need, is to meet with the proctor before the proctorship begins.

Proctors are not bound by the provider’s PIP and often are not privy to all the details surrounding its implementation. Although they may agree to serve in the role, they may not fully understand their responsibilities.

Meeting with the proctor in advance allows you to (1) clearly explain the expectations the proctor must meet and (2) identify the information which the proctor will need to report on or attest to.

This discussion is an opportunity to define the parameters of the proctorship.  For example:  How many procedures must be proctored? What procedures must be proctored?  Should the proctor discuss the treatment plan with the provider?  How long must the proctor be present during each procedure – from beginning to end, or only for a specified portion?

You should also specify the information the proctor must provide.  For example, did the provider make appropriate decisions regarding treatment plans and procedures?  Did any complications occur?  Did the proctor identify any other concerns?  It may be helpful to provide a standardized review form for the proctor to complete that includes all the details you may be looking for the proctor to be able to report on.  Over the years, HortySpringer has developed tools – including a Proctoring Review Checklist – that simplify this process for committees that use proctors. Standard forms like this ensure the committee clearly outlines everything they are looking for and makes it easy for the proctor to relay that information.

Finally, as lawyers, we would be remiss not to mention at this meeting the importance of explaining the legal protections available to the proctor while serving in this role.  Understanding those protections can help the proctor feel comfortable providing the candid, thorough feedback you need.

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

July 16, 2026

Posted on by Courtney Patterson

QUESTION:
Do you have any recommendations for the appointment of members to and composition of an Ethics Committee?

ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
When it comes to appointment of members, you should follow whatever your policies require.  If the Ethics Committee is a Medical Staff committee, it’s not uncommon for the Bylaws to instruct that non-ex officio members of such committees will be appointed by the Chief of Staff, in consultation with the Chief Medical Officer.  Sometimes, the Bylaws give the Medical Executive Committee the authority to appoint members to Medical Staff committees.  Nonetheless, the process described in your Bylaws for appointment of members should be followed.  If the Ethics Committee is designated as a hospital committee (which they often are), hospital administration would appoint any non-ex officio members but any of those positions that are for Medical Staff members would, again, be appointed according to the process described in your Bylaws which often isn’t different from the process for appointment of members to Medical Staff Committees (e.g., by the Chief of Staff, in consultation with the Chief Medical Officer).

Regarding the backgrounds of the individuals who should serve on Ethics Committees, Medical Staffs and hospitals often have a general statement such as this:  “The Ethics Committee shall consist of at least three members of the Medical Staff.  In addition, the Chief Executive Officer shall appoint the following representatives:  three nurses, one or more members of the clergy practicing within the service area of the Hospital, and one or more lay members not employed by or affiliated in any capacity with the Hospital.  The Chief Nursing Officer, hospital chaplain, social worker, and legal counsel, and a resident from the family practice group, shall also serve on the committee.”  You could also give preference to individuals who have an interest or past training in bioethics or who are certified by, for example, the American Society for Bioethics and Humanities.

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

July 9, 2026

Posted on by Courtney Patterson

QUESTION:
One of our physicians has been asked to attend a peer review meeting to discuss several cases that raised concerns. The physician has informed us that she intends to bring her attorney to the meeting. Are we required to allow legal counsel to attend?

ANSWER FROM HORTYSPRINGER ATTORNEY FISHER FILIPPAZZO:

This is a great question and one that comes up frequently during the peer review process. As a general rule, physicians do not have a right to bring legal counsel to routine peer review meetings unless that right is specifically provided by the Medical Staff Bylaws, peer review policy, or applicable state law. Also, if a physician will not be permitted to be accompanied by counsel, the hospital attorney should not attend either.

It is important to remember that a routine peer review meeting is not the same thing as a formal hearing. Peer review meetings are intended to be collegial discussions among physicians regarding clinical care, opportunities for improvement, and any concerns that have been identified. Allowing attorneys to participate can quickly change the nature of the discussion and make it more difficult for the committee to conduct an effective review.

Sometimes physicians express concern that the outcome of the review could ultimately affect their privileges. While that concern is understandable, hearing rights, including any rights related to legal representation, are typically triggered only if a professional review action reaches a stage where formal procedural rights apply. In most organizations, a routine peer review meeting is simply a step in the information-gathering process.

That does not mean the physician is unable to present information. The physician can be invited to submit a written response, provide supporting documentation, or otherwise address the concerns raised by the committee. In fact, committees often receive the most helpful information when discussions remain focused on the clinical issues rather than legal arguments.

For these reasons, hospitals should review their Medical Staff Bylaws and peer review policies to ensure they clearly address whether attorneys may attend peer review meetings and apply those provisions consistently.

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

July 2, 2026

Posted on by jwilbert

QUESTION:
We recently had reasons to take a close look at how long it’s taking for cases to make their way through the peer review process and were surprised to see that it’s often more than seven months – even for issues that appear to be relatively straightforward.  Our peer review committee chair said that, frankly, the committee is drowning; there are so many cases going through that they discussed whether the committee should meet twice a month, but she’s afraid that will lead to a mass exodus in members.  She also said that, lately, they are spending so much time on behavioral issues that the clinical reviews seem like they are taking a backseat.  And when it comes to behavior, even those are dragging, often because it takes so long for the psychiatric evaluations that the committee asks for to come back.  Any suggestions?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL-OBRIEN:
Yes, several!  First, in terms of the process, consider having separate committees to manage clinical peer review, professional conduct and health rather than one that has to manage all three.  While they absolutely all fall under the umbrella of “peer review,” the issues require different types of expertise.  Specifically, clinical issues require clinical expertise – which should fall to a multidisciplinary peer review committee representative of the major specialties on the medical staff (and, depending on the size of the medical staff, could also include smaller, specialty-specific subcommittees that perform certain lower-level functions and then feed into the overarching peer review committee).

By comparison, professional conduct and practitioner health issues are challenging issues that require leadership expertise, not clinical expertise. For these issues, consider developing a smaller, more nimble committee that includes the key leaders on the medical staff – who are also the most seasoned and experienced in dealing with difficult issues (and people!).  Many medical staffs have the same committee (often referred to as a Leadership Council) deal with both of these issues – while others have a Leadership Council manage conduct and maintain a separate practitioner health committee.

You also noted that one thing slowing down the conduct reviews was waiting on psych evaluations to come back – and this is a great reason to make sure that you have fully separate policies addressing professional conduct and practitioner health.  The reality when it comes to unprofessional conduct is that while some conduct issues may be impacted by an underlying health issue, it is actually a very small percentage – and in most cases where health is the underlying cause, the indicator of a potential health issue is a change in behavior, not the existence of unprofessional conduct itself.

When unprofessional conduct continues despite lower-level leadership interventions, there is often a desire to identify a root cause that is more than just the need for behavior change by the practitioner at issue – which is a natural tendency of healthcare providers who spend their careers identifying and treating health issues (i.e., the “normal people don’t act this way” discussion that very often occurs in committees when discussing repetitive behavior issues).  When that type of sentiment is the sole basis for the shift towards a possible health issue (i.e., as compared to a noticeable behavior change or awareness of a difficult issue occurring in a practitioner’s personal life or practice life), committees often require psychiatric evaluations, which tend to result in non-helpful information that can actually sidetrack addressing the behavior at hand (i.e., narcissistic personality disorder diagnoses, etc.).

Redirection from a conduct review to a health review tends to shift the focus away from the specific unprofessional conduct that is at issue – which must change regardless of the underlying origin.  Overall, separate policies with fully separate review processes help to keep the focus on the unprofessional conduct; however, because it is certainly a possibility that health issue could be at the heart of a conduct review, there should be a reference in the conduct policy that would permit shifting a review out of the conduct policy and into the practitioner health policy.

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

June 18, 2026

Posted on by Courtney Patterson

QUESTION:
What is the latest information on the Joint Commission’s initiative for AI use in healthcare?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Following the release of initial guidance to help U.S. health systems implement AI, The Joint Commission recently launched its new Responsible Use of AI in Healthcare (“RUAIH”) certification. The RUAIH certification program is a voluntary program designed to recognize organizations that demonstrate they have the governance, safeguards, monitoring processes, and education in place to use AI responsibly in healthcare settings.

The certification does not validate or certify any specific AI product or tools. Nevertheless, the certification focuses on “the safe, reliable, transparent and ethical use of AI by healthcare organizations.” The Joint Commission believes that the RUAIH certification can help “champion patient-first AI practices” by giving organizations the ability to demonstrate their commitment to patient safety, trust, and quality in AI adoption; “structure adoption and accountability” by providing a framework for governing AI use across an organization; “support responsible stewardship” through supporting transparency, accountability and oversight over AI tools; “effectively manage risk” by proactively addressing AI-related risks; and “build and maintain trust” with patients, caregivers, and other stakeholders.

The certification standards focus on the following areas:  (i) governance; (ii) effective data management; (iii) risk and bias reduction; (iv) monitoring, evaluating, and validating safety performance, effectiveness, and responsible use; and (v) transparency, education, and training. The certification standards address, among other things, whether an organization has processes to protect patient data from unauthorized access or theft; a written organization-wide AI policy that defines criteria for governed AI tools, permitted and prohibited uses, and alignment with existing policies; and education and training of staff on health AI tools used in the organization.

Individual health care organization and health care systems are not required to be accredited by the Joint Commission to apply for the RUAIH certification. Nevertheless, individual health organization and health care systems must meet specific criteria related to establishing processes to support the responsible use of AI.

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

June 11, 2026

Posted on by Courtney Patterson

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.

June 4, 2026

Posted on by jwilbert

QUESTION:
We have gotten into the habit of recording all our Medical Staff meetings to allow us to go back and take notes. We delete the recording afterwards, but some individuals have raised concerns about the recordings existing in the first place. Is this really something we should be worried about?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
While the idea of using all the technology available to us to help improve efficiency and accuracy sounds great, unfortunately in the medical staff world something like recording meetings can pose a threat to confidentiality and privilege and put the members of your committees at risk for legal action.

In meetings, we want people to speak openly and freely about peer review and patient care. When we make a recording of those meetings it essentially creates a transcript of everything that was said ‑ both good and bad. The recording captures more than the very brief descriptions of what happened that we typically recommend be documented in meeting minutes. Even though the purpose is only to use the recordings to create meeting minutes, if the recording was ever discovered or got into the wrong hands, every person who talked openly and honestly could be at risk.

We also often hear that same argument, “but we delete the recordings right after we are done with them.” Even if you “delete” recordings locally, it is hard to determine for certain if these recordings are held offsite in servers or the mysterious cloud for some indeterminate amount of time. And unfortunately, in many instances, recordings never truly are deleted and can always be retrieved in some format. Additionally, some hospitals are subject to state laws that require them to keep all documentation related to meetings, meaning that, even if it is possible to delete a video recording, the hospital is not legally permitted to do so.

If you do still insist on recording meetings, I would only record things outside of the scope of peer review and patient care. So, if you’re talking general business matters (e.g., what is the hospital hand washing policy) a recording is fine, but as soon as patient care gets discussed, the recording should be paused.

Hypothetically, recording all your meetings for the purposes of note taking seems like a great idea, but in a risk versus reward analysis, it might not be worth it in the long run.

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

May 21, 2026

Posted on by Courtney Patterson

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.

May 14, 2026

Posted on by Courtney Patterson

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.

May 7, 2026

Posted on by Courtney Patterson

QUESTION:
Over the course of the past six months, three different physicians were recruited by our affiliated medical group who had significant issues – none of which were identified until they had applied for appointment and privileges at our hospitals.  And I mean big issues – one of the physicians didn’t even meet our threshold eligibility criteria because of a past licensure action!  We keep being told “they’ve been vetted already!” with lots of pressure to “get it done” when it comes to their credentialing.  We don’t know what they’re looking at in their “vetting” process, but it sure doesn’t seem to be what we’re looking at in credentialing.  Beyond the obvious waste of resources this is causing (both time and money!), it’s also starting to create serious strain between those of us involved in credentialing and the administrative team.  Is there a fix for this?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
First, if it helps you feel better, virtually every health system in the country is struggling with how to better align recruitment/employment and credentialing to avoid the very issues that your hospital is dealing with.  A big part of this problem is that for a very long time, the employment of physicians just didn’t exist, so now, we are trying to figure out how to best make these very different processes work together.

The other thing to understand is that when the individuals involved in recruitment say that these candidates have been “vetted” – they very likely have; however, the extent of information that is obtained in the standard employment process is very different than the extent (and type) of information we get in medical staff credentialing.  For example, while employers do verify past employment affiliations, an incredibly forthcoming employment reference will provide dates of employment and whether the individual is eligible for rehire.  That’s it.  And the vast majority only provide dates.  Recruiters tend to be astounded when they find out how much information we get in credentialing.  Unfortunately, that process – which is going to provide you with the much more detailed information – virtually always happens second (sometimes after contracts have been signed and money has changed hands).

So, is there a fix?  The perfect solution would be to not make any employment overtures until an identified candidate has been fully credentialed, which we also understand is impractical, and, frankly, just isn’t going to happen.  Short of that, given that it’s the employment screening or vetting that is occurring first, it’s vital to get everyone on the same page in terms of the qualifications that a physician must meet to be on your medical staff AND the types of “red flag” issues that might be identified in a candidate’s background that will, at the very least, slow down the credentialing process because they will require further review and which might end up being significant enough that the individual doesn’t make it through credentialing – whether that’s in the form of an application that remains incomplete because we can’t get sufficient information to resolve the concerns or through a denial.

We recommend that health systems sit down with their recruiters (whether internal or external) and explain exactly how the credentialing process works, what kind of information is requested, what primary source verification means and requires, what the hospital’s bylaws require, and what is typical in a healthcare provider’s background (and what isn’t).  Then, to go a step further and create recruitment screening tools for their recruiters to use very early on in the process of identifying candidates.  This tool should begin with the threshold eligibility criteria in the medical staff bylaws – with the recruiters understanding clearly that not meeting threshold criteria is a hard stop as no one can be guaranteed to get a waiver of such criteria.  Beyond threshold eligibility criteria, the screening tool should also identify significant red flags that are going to slow down the process – if for no other reason than for the employment side to be envisioning logical start dates (i.e., don’t think this candidate will be on the call schedule next week!).  So, for example, on the threshold eligibility criteria list may be that a candidate can’t have had a past licensure suspension in any state, while the red flag list includes having had terms of probation or conditions placed on a license in the past.

While not a perfect solution, ensuring that the recruiters understand the credentialing process itself and then the routine and consistent use of a more detailed screening tool can definitely help with these issues.

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