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.