April 26, 2018

QUESTION:        We have an orthopedic surgeon who is applying for appointment and clinical privileges at our system who has a troubling malpractice history.  Within the past five years, he has settled three malpractice claims ($190,000, $100,000, and $75,000).  He also has two other cases that are pending.  We are reluctant to grant him appointment.  At the same time, we are not sure if we have enough to deny his application. What should we do?

ANSWER:            Malpractice claims can be tough sometimes.  A single claim, standing alone, does not necessarily indicate a problem. However, multiple malpractice claims may reflect underlying issues pertaining to judgment, skill, communication, or behavior, all of which are relevant considerations for appointment and clinical privileges.

Furthermore, according to a study by the New England Journal of Medicine, only 4% of physicians had three or more malpractice claims.  The risk of recurrence of a malpractice claim increases with the number of previous paid claims.  Physicians who have three paid claims had three times the risk, or a 24% chance, of another paid claim within two years.  According to a Vanderbilt University study, physicians with past records of malpractice claims can be expected to have “appreciably worse claims experience” than other physicians in future years.

You can also review relevant data available from the National Practitioner Data Bank, which includes medical malpractice payments by practitioner type and state.  This may help to put your applicant’s malpractice history in perspective.  Malpractice history, including judgments and settlements, is also important because it could be used against the hospital in a negligent credentialing case if the physician were appointed and then subsequently was sued.

Therefore, before you move forward with the application, you should require the applicant to resolve the concerns raised by his malpractice history.  One way to review and assess the concerns would be to review the underlying malpractice cases through your peer review process or to use an expert from an external peer review organization for this purpose.  Since the burden of resolving questions about qualifications is on the applicant, the applicant should be responsible for providing a copy of the medical records from the malpractice claims.  The applicant would also be responsible for any costs associated with this review.

Remember to keep the burden on the applicant to resolve your concerns.  If the concerns cannot be resolved, you may determine that the application is incomplete and should not be processed.  Denying the application is a last resort that is almost never needed.

September 29, 2016

QUESTION:        Our Medical Staff Bylaws include a process whereby an individual who does not satisfy one of our threshold eligibility criteria for appointment and privileges can request a waiver.  Only if a waiver is granted by the Board is the individual’s application then processed.  When we write to individuals to inform them that they do not satisfy our criteria — and that their applications cannot be processed — should we also be informing them of the option to apply for a waiver and the process for doing so?

ANSWER:            Your question is a good one because it illustrates the tendency to want to point out additional avenues that individuals could pursue to achieve their goals (in this case, requesting a waiver).  And most MSSPs and Medical Staff leaders want to help individuals and want to make the process easier for everyone.  So, it seems natural to proactively offer up the waiver process in the very letter that informs the individual that they are ineligible for appointment pursuant to the threshold criteria set forth in the Medical Staff Bylaws or Credentials Policy.

What is important to keep in mind, however, is that the waiver process is one that should be used rarely — when exceptional circumstances exist and the individual has shown that he or she is at least as (if not more) qualified than applicants who do satisfy all of the threshold criteria.  To preserve the objective nature of the eligibility process — and the hospital’s and medical staff’s reliance on objective threshold criteria as the bare minimum level of qualification for appointment and — it is important that the threshold criteria be applied consistently to applicants.

While there is nothing patently wrong about informing all ineligible individuals of the fact that a waiver process exists, in our experience, institutions that do so are more likely to routinely grant waivers and to infuse the eligibility process with subjectivity.

Therefore, it is our recommendation that letters informing individuals of their ineligibility not routinely inform individuals of the waiver process.  This does not deny any particular individual the ability to request a waiver (if he or she inquires further about any avenues he or she may have to appeal your decision regarding his or her ineligibility).  But, it also does not invite every ineligible individual to request subjective consideration of their qualifications in lieu of the routine application of the objective threshold criteria.

If the hospital occasionally finds itself with an application from an individual who is ineligible, but who has revealed sufficient facts about the situation which rendered him or her ineligible to indicate that truly exceptional circumstances exist and a waiver might be appropriate — in that case, it may make sense to proactively inform the individual of the availability of a waiver process.

July 21, 2016

QUESTION:        We have an applicant for appointment and clinical privileges who seems to have an unusual number of malpractice cases in his history.  Do we need to do anything with this information if everything else about the applicant checks out?

ANSWER:            Every application for appointment and reappointment asks applicants about their malpractice history.  But many hospitals don’t know what to do with the information they receive. The Joint Commission requires hospitals to consider “any evidence of an unusual pattern or an excessive number of professional liability actions resulting in a final judgment against the applicant” in granting privileges. But what is “an unusual pattern or an excessive number”?

A physician’s malpractice history cannot be ignored.  Unfortunately, there is no hard and fast rule on what constitutes reasonable due diligence when it comes to reviewing these types of disclosures.  The key is to know what to look for:

  • Not all malpractice claims are created equal, so information should be obtained to understand the nature of the claims.
  • The number of claims may not tell the whole story, but patterns or trends do.
  • Don’t compare apples to oranges – know which states and which specialties are more “at risk” for malpractice claims.
  • There is a big difference between malpractice claims and malpractice verdicts.

To learn more about how to consider an applicant’s malpractice claims history, as well as other hot topics in the world of credentialing, please join LeeAnne Mitchell and Ian Donaldson this fall at The Credentialing Clinic in Las Vegas, Nevada.