QUESTION:
A plaintiff in a malpractice lawsuit has requested a physician’s credentialing file. Can a hospital refuse to produce the entire file based on peer review privilege?

ANSWER FROM HORTYSPRINGER ATTORNEY FISHER FILIPPAZZO:
Generally, no.  Hospitals should not assume that an entire credentialing file is protected from discovery simply because it was maintained or reviewed as part of the credentialing process.

Depending on the applicable state law, peer review privilege may protect committee deliberations, recommendations, evaluations, and other materials generated as part of the credentialing or peer review process. However, underlying source documents may be treated differently. Placing an otherwise discoverable document in a credentialing file does not necessarily make that document privileged.

Materials, such as credentialing committee minutes, evaluations, recommendations, or OPPE reports prepared specifically for use in the peer review or reappointment process, may be protected by the state’s peer review privilege. Whether those materials are privileged will depend on the applicable state law and the circumstances under which they were created and used.

Hospitals should also consider whether particular documents are protected on grounds separate from the peer review privilege. For example, information obtained from the NPDB is subject to separate federal confidentiality requirements. See 45 C.F.R. § 60.20.  Those protections do not, however, independently protect information contained in the hospital’s own records merely because that information was also reported to the NPDB.

In summary, while some portions of a credentialing file may be privileged, others may not be. Hospitals should avoid applying a blanket privilege determination to the entire file, as doing so may result in either over-disclosure or under-disclosure of information. Instead, the file should be reviewed on a document-by-document basis, taking into account applicable state law, hospital policies and procedures, and the purpose for which each document was created and used.

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

QUESTION:
While conducting an affiliation verification for a recent applicant, we learned that he is subject to a one year “Conditional Appointment” at another hospital where he has held privileges for 12 years.  When this application goes to the Credentials Committee next week, does the failure to disclose the Conditional Appointment constitute grounds to deny the application and, if so, do we have to give the applicant a hearing?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Should you be interested and/or concerned that an applicant for Medical Staff membership and/or clinical privileges is subject to a “Conditional Appointment” at another hospital?  Yes, of course.  If another hospital has some sort of question or concern about that individual (which can be the only explanation for a Conditional Appointment), that is something you should know about before you proceed.  So, at the very least you will want to place this application on hold and not process it any further until you figure out more details (this means the application should be taken off the agenda for the upcoming Credentials Committee meeting).

With that said…whether or not the failure to disclose, in and of itself, is worthy of any sort of action depends on whether the applicant had a duty to disclose the Conditional Appointment to you.  And that depends on what your application forms ask.  Do your forms simply ask whether applicants have ever had Medical Staff membership or clinical privileges revoked, restricted, denied, or suspended?  If so, the application failed to ask about Conditional Appointments and, in turn, the applicant would have been justified in answering, “No.”  If, on the other hand, your application also asks if applicants are currently, or have ever been, under investigation, subject to a formal performance improvement plan, been subject to written conditions, or been subject to a short-term or conditional term of Membership or privileges, then the applicant clearly should have answered, “Yes.”

The questions on the application form should be a reflection of the information that your hospital and its credentialers want to know.  This means the questions should be worded to obtain, at minimum, information about all of the threshold eligibility criteria set forth in your Medical Staff Bylaws and/or Credentials Policy.  In addition, application forms are often more broadly drafted to ask about additional matters that may fall outside of the threshold eligibility criteria, but still be of interest when considering the applicant’s qualifications.  For example, if the threshold criteria simply stated that an applicant may have never been convicted of, or pled guilty or no contest to, a felony, your application form may still ask the applicant about any convictions or pleas for both felonies and misdemeanors.

Once you have determined whether the applicant’s failure to disclose the Conditional Appointment is actionable, the question then turns to whether the appropriate action is for the Credentials Committee to deny the application.

The appropriate response to an omission on an application form depends on your Medical Staff Bylaws, Medical Staff Credentials Policy, and/or related Medical Staff governance documents.  We recommend these documents include provisions stating that if a misstatement or omission is identified with respect to any information provided on an application form or during the course of the application process, the applicant will be provided Notice and be given an opportunity to submit an explanation.  That explanation will then be considered (often by the Chief of Staff and/or CMO) and a decision will be made about whether to process the application further.  The Bylaws/Credentials Policy should clearly state that, in addition, the applicant will then become ineligible to have another application for Medical Staff membership or clinical privileges processed at the hospital (and many organizations go a step further and state that the applicant will also become ineligible to have an application processed at any affiliated entity within the health care system).  The Bylaws/Credentials Policy should be clear that refusal to process an application because of the discovery of an omission/misrepresentation is an administrative matter and that does not constitute an adverse professional review action based on a judgment about the applicant’s competence or conduct (and, in turn, does not result in any hearing rights).

If your organization does not have language stating that omissions and misstatements during the application process result in failure to process the application, then any discovery of an applicant’s failure to disclose credentials will have to be managed like other negative information in the credentialing process.  This may include determining that the application is incomplete while you follow up with the applicant about the discrepancy and combing through the application with a fine tooth comb to make sure that each and every credential has been independently verified with third party original sources (since you know you cannot count on the applicant to provide complete and accurate information about his or her credentials).  Ultimately, if after gathering additional information, you decide to deny the application because you consider the omission to constitute unprofessional conduct, the procedures set forth in the Bylaws for “denials” of applications would apply, including those related to hearings and appeals.

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

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.

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.