Question:

A surgeon who is over 80 has requested renewal of his full surgical privileges, but has done no work at our hospital in the last two years.  The surgeon accused us of age discrimination when the Department Chief asked for more information (our bylaws provide that the Chief may seek information from outside sources to confirm current competence).  However, he did provide a case log from the only other hospital where he practices.  The log showed six cases in the last two years.  Another surgeon wrote a letter containing a glowing assessment, but the letter doesn’t state that the assessment is based on actual knowledge of recent performance.  Our Credentials Committee is very uncomfortable.  Should we deny his request?

Answer:

CMS requires evidence of current competence in order to grant privileges, initially and at reappointment.  For those with low or no volume, you can – but are not required to – accept evaluations or other information from other organizations.  Many hospitals now require minimum numbers for eligibility to request renewed privileges, particularly in procedural specialties.  Some hospitals require not just a reference letter and log, but an actual quality profile showing complications.  (A few hospitals are concerned that providing this might waive the peer review privilege, but we have been comfortable that, under most state per review laws, hospitals could exchange such peer review documents within the context of a confidentiality agreement.  Check with counsel.)

There is almost always a better option than “denial.”  While it is harder absent bylaws or a policy in place, you might consider deferring action while a policy is considered.  No physician has a RIGHT to have an application processed.  He (and possibly a lawyer acting for him) might protest.  But, does the public interest not trump his private interest?  It may be hard for a practitioner to face the fact that he is winding down, but granting privileges in the absence of evidence of competence isn’t an option.

You could write a letter saying that his request revealed the need to develop a policy as to how to handle requests from physicians with little or no volume, in light of the CMS, accreditation and legal (corporate negligence) standards.  This policy will aim to establish eligibility guidelines.  He could be advised that the process of developing this policy will take some time and that his application will be tabled pending the completion of the process.

The purpose of medical staff appointment and privileges is to further the hospital’s mission to provide care to patients.  The ability of a physician to derive an economic benefit is secondary.  How would he show a court that he has been harmed if he doesn’t truly practice at your hospital?  Would a court order you to process an application?  The burden remains on the applicant to demonstrate current competence.

In a memo to state agencies back in 2004, CMS stated:

The Medical Staff must periodically (defined as no less frequently than every 24 months in the absence of a State law that requires more frequent appraisals) conduct appraisals of individual current practitioners for continued or revised hospital privileges and must conduct individual appraisals of practitioner applicants requesting privileges.  The Medical Staff must actually examine each individual practitioner’s qualifications and demonstrated competencies to perform each task/activity/privilege he/she has requested from the applicable scope of privileges for their category of practitioner.  Components of practitioner qualifications and demonstrated competencies would include at least: current work practice, special training, quality of specific work, patient outcomes, education, maintenance of continuing education, adherence to medical staff rules, certifications, appropriate licensure, and currency of compliance with licensure requirements.  All practitioners providing a medical level of care and/or conduct surgical procedures either directly or under supervision, whether employed by the hospital, physician or other entity, or contracted, must be individually evaluated.  Board certification, certification, or licensure in and of itself is not recognized as an appropriate basis to bestow or award any or all of the privileges included in a particular practitioner’s category.

This memo might be helpful to show a court that you are not acting arbitrarily if he chooses to fight.  It is not age discrimination to require all applicants to provide sufficient evidence of current competence.