November 12, 2020

QUESTION:        The medical staff recently began an investigation of one of our employed physicians.  We have decided to exercise our right to terminate the physician without cause which, per the terms of his employment agreement, will result in the automatic expiration of his medical staff appointment.  Is this reportable?  Is there anything else we should consider?


ANSWER:          This situation is not reportable to the Data Bank.  How do we know – the Data Bank told us.  We also have some other recommendations that you should consider.

First, the termination of the Physician’s appointment due to the terms of an agreement is not reportable.  That is true even if the physician is under medical staff investigation at the time of the termination.

When asked about a similar situation, we received the following response and analysis from the Data Bank:


Regulations and Policies:

Under 45 CFR §60.12(a)(i), “[e]ach health care entity must report to the NPDB…[a]ny professional review action that adversely affects the clinical privileges of a physician or dentist for a period longer than 30 days.”

Under 45 CFR §60.3, a professional review action is “…an action or recommendation of a health care entity; 1) taken in the course of professional review activity; 2) based on the professional competence or professional conduct of an individual health care practitioner which affects or could affect adversely the health or welfare of a patient or patients; and 3) which adversely affects or may adversely affect the clinical privileges or membership in a professional society of the health care practitioner…” Additionally, a professional review activity under 45 CFR §60.3 is “an activity of a health care entity with respect to an individual health care practitioner…[t]o change or modify such privileges.” According to the NPDB Guidebook, the reporting entity generally decides when a professional review has occurred.

According to the NPDB Guidebook, “[a]dministrative actions that do not involve a professional review action should not be reported to the NPDB.”2 This point is illustrated in Q&A#2.3 In Q&A#2, the hospital used its employment termination procedures, not a professional review process, to revoke the practitioner’s clinical privileges. Since the hospital did not take the action through the professional review process, the revocation of the clinical privileges was not reportable.


In this scenario, the facility is terminating its employment arrangement with a physician due to the physician’s past non-compliance. The employment agreement requires that the physician relinquish his or her privileges if requested by the facility. Should the facility report the relinquishment of the privileges? Based on these facts, and similar to Q&A#2, the facility in this scenario is using its employment termination procedures to remove the practitioner’s privileges. Since it is using its employment termination procedures and not its professional review processes to remove the privileges, the relinquishment of the physician’s privileges would not be a reportable action.

(Emphasis added.)

We also have some practical advice for employers everywhere.  When preparing an employment agreement, give some thought to the length of the notice period to terminate the agreement without cause.  This period should be long enough to provide time to find a replacement, but not so long that it will create a financial strain on the employer’s finances if it decides to provide the physician with pay in lieu of working out the notice period (which is common).

While the decision to terminate the employment agreement must be made solely by the employer, the employer should make the medical staff committee involved in the investigation aware of its decision.  Also remind the Committee members that if they receive a request for a recommendation about this physician, they should inform Hospital management of the request.  The Hospital’s medical staff office should then inform the physician requesting the recommendation that no information will be provided without the physician executing a release that is specific to your hospital.


May 28, 2020

QUESTION:        We have a physician who is up for reappointment and when we started to pull the credentialing, peer review, and quality information together we realized there were very serious concerns that might warrant an adverse recommendation.  We were wondering, do we have to start a formal investigation or, if warranted, can we just make an adverse recommendation at reappointment?  Are there any steps we should follow to make sure we are being fair to the physician and protecting ourselves at the same time?


ANSWER:           Reappointment should be an opportunity to make an evidence-based decision that reflects data that has been gathered during the most recent appointment period.  (You can certainly look back further if you need to gain perspective or discern if there are patterns of care or conduct that have been developing.)  Ideally, you will address issues as they come up through the peer review process.  But sometimes, even with a robust peer review process, you don’t see the whole picture until reappointment.

Certainly, if, in looking at relevant information at reappointment, you are concerned enough to consider an adverse recommendation because a lesser action will not be sufficient to protect patients, you have the authority to make that recommendation.  To answer your specific question, there is generally no reason why you would have to commence a formal investigation, separate and apart from the reappointment process.  While many bylaws require that the Medical Executive Committee commence an investigation before making an adverse recommendation, that step would not be required if you are already in the midst of the reappointment evaluation.

In most organizations, the Credentials Committee would do the heavy lifting at reappointment.  That means the Credentials Committee would evaluate the information including documents from the peer review process, incident reports, letters, minutes, and reports.  The Credentials Committee can also rely on the clinical expertise of the department chairperson at reappointment.

As a matter of fairness and good practice, even if your bylaws (or credentials policy) don’t require it, we strongly recommend that the Credentials Committee meet with the physician before it makes an adverse recommendation.  The physician should be given advance notice of the concerns and at the meeting (or in advance of it) the physician should have an opportunity to respond to the concerns.  It will be very helpful to keep a detailed summary of this meeting, including the physician’s response.  The minutes should also reflect, in some detail, the reasons for the adverse recommendation – you’ll need that when you get to the hearing.

One issue that sometimes comes up in difficult reappointment matters is timing.  If the physician’s current appointment is set to expire, you may need to grant a short-term conditional reappointment to give you time to conduct the evaluation and assessment, meet with the physician, and prepare a report of concerns to support an adverse recommendation.  The report and recommendation of the Credentials Committee will need to be forwarded to, and acted on, by the Medical Executive Committee.  If the Medical Executive Committee upholds the adverse recommendation that will trigger the physician’s right to a hearing.

Remember, the hearing and appeal processes are going to take months to complete.  The Credentials Committee and Medical Executive Committee should consider whether there are any conditions that need to be put in place while the processes are being carried out to keep patients safe in the interim.

January 17, 2019

QUESTION:       We recently learned that the medical board investigated one of our medical staff members after a patient called the hospital to request a copy of her medical records and, while doing so, informed our patient experience liaison that she had filed a complaint with the state board.  A little fact-gathering revealed that the board’s investigation was closed.  The practitioner showed us a letter from the board thanking him for his cooperation and informing him that the board was unable to substantiate the complaint.  What comes next for the hospital?  Do we just make a copy of the letter and put it in the practitioner’s file?  Since he was exonerated, do we even need to do that?


ANSWER:           It’s disappointing to learn AFTER THE FACT that one of your doctors has been under investigation by the state board, CMS, or any other government agency.  Many hospital and medical staff leaders may be hesitant to make “a big deal” about a failure to notify in a situation where, as here, the member provides evidence showing that the investigation went nowhere.

But, as usual, how you respond to information about the state board’s investigation of a medical staff member should depend on what your Medical Staff Bylaws and related documents say.  Do they require members to notify you if they are under investigation?  When?  Within a certain time frame?  Is failure to notify excused when the underlying matter has been closed with no “adverse” action by the regulatory body?  Obviously, it does not serve the interest of patient safety to require notification of investigations only after the outcome is known to the member, since such a policy would prevent the hospital and medical staff leadership from taking precautionary steps to protect patients, the hospital, and other practitioners during the pendency of the investigation (if such precautions were determined to be necessary).

At this point, it makes sense to at least obtain a copy of the letter the physician produced to evidence the fact that the investigation was closed.  Note that the closure of an investigation by the board due to lack of substantiating evidence is not equivalent to exoneration.  Therefore, hospital and medical staff leaders should at least consider whether any additional information should be requested from the physician (e.g., correspondence between the physician and/or his attorney and the state board regarding this matter) or directly from the state board.

Provided that the Medical Staff Bylaws or Credentials Policy required the physician to notify you of the investigation earlier, it also makes sense to refer this instance of non-compliance into the professional practice evaluation process for further review under the medical staff’s professional practice evaluation policy (or Credentials Policy or other document outlining peer review procedures).  If the practitioner has a long history of failing to comply with the Bylaws and other requirements of hospital and medical staff policies, then a significant response to this event might be appropriate (e.g., a written reprimand or “last chance” performance improvement plan).  If the practitioner is generally compliant and his or her actions indicate that this was mere oversight or a one-time poor decision (e.g., perhaps a conscious decision not to provide notification, but based on the practitioner’s rational embarrassment about being investigated or based on incorrect legal advice telling him he was not required to report), the response may be less substantial (e.g., a collegial conversation).

In cases such as this, a lot depends on the facts.  But, what we know for sure is that ignoring an incident like this is never the right approach.  Consistent application of and reminder of policies – even when done collegially and without a punitive tone – helps to establish the expectations of the hospital and medical staff.

Finally, one could argue that too much of the lip service that is given to the topic of notification revolves around what’s required and what’s not.  Consider including in your policies and/or guidance documents language making it clear that the hospital and medical staff expect all ambiguities to be resolved in the favor of patient safety.  After all, patient safety is the first priority:

Applicants and practitioners are expected at all times to be forthcoming and truthful with respect to their initial and ongoing qualifications for Medical Staff membership and clinical privileges and any concerns that have been raised regarding the same.  The hospital and medical staff agree that complete information is of the utmost importance to the credentialing and professional practice evaluation processes and, in turn, to patient safety.  To that end, when in doubt about whether disclosure is required, applicants and practitioners are expected to err on the side of making a full disclosure to the Hospital and/or Medical Staff leadership, as set forth in the Medical Staff Bylaws and related hospital and medical staff policies.

June 1, 2017

QUESTION:        We are concerned about the language in our Medical Staff Bylaws that states that notification to an individual under investigation may be delayed if informing him or her immediately would compromise the investigation or disrupt the operation of the Medical Staff or the Hospital.  Doesn’t a physician under investigation have a right to know immediately when a resolution has been made to conduct an investigation?

ANSWER:            We understand your concern about delaying the notification to the individual. The reality is that, in most cases, the individual will be given notification as soon as possible once the MEC has decided to commence an investigation. However, there may be some situations where Medical Staff leaders are concerned that the individual might take some action (i.e., tamper with evidence or harassment of others involved) that would compromise the investigation or put others at risk of retaliation. In these rare situations, we recommend having Bylaws language that gives the MEC the discretion to delay notifying the individual about the investigation.

September 17, 2015

QUESTION:        Our MEC recently commenced an investigation regarding a practitioner with a long history of behavioral incidents. The MEC has decided to conduct the investigation itself. Who should be present for the investigation? All of the people normally present at MEC meetings? Only members of the committee? Only voting members of the committee?

ANSWER:           If the MEC has decided to undertake a task, the whole committee can and should be involved. This means all members of the committee, including any individuals who are members by virtue of their position (i.e., ex officio members) and regardless of whether those members are physicians or have voting rights. Members are members because they have a valuable role to play (sometimes, providing expertise or information or administrative support for the committee). Take advantage!

Individuals who often attend MEC meetings as guests, but who are not members, may be excluded from investigations or other sensitive matters, if that makes sense. For example, if the investigation involved a psychiatrist, there would probably be no reason to have the director of the OR or the nurse manager present for the investigation, even if those individuals routinely attend MEC meetings as guests.

Medical Staff Services professionals and other administrative support persons, on the other hand, are often asked to attend and be involved in the MEC’s investigation because they may be able to offer valuable support to the committee as it proceeds (including offering support regarding the terms of the Bylaws, the contents of the practitioner’s credentialing and peer review files, keeping minutes, coordinating meetings, and assisting in drafting or coordinating the drafting of documentation regarding the investigation process – such as interview summaries).