medical staff bylaws

August 28, 2025

Posted on by Courtney Patterson


QUESTION:
How can our medical staff leaders best verify that a physician actually received a written request for information? Classically, I hear doctors say they “didn’t get the notice” – even when it is sent multiple ways – including certified mail.  (Registrant Q&A, submitted electronically at the Complete Course for Medical Staff Leaders, held in Las Vegas (Fall 2022))

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
It’s amazing (and somewhat comical) how much time hospitals and medical staff leaders have spent trying to ensure, and document conclusively, that a practitioner has received notifications about medical staff membership, clinical privileges, peer review matters, Bylaws amendments, and so on.  In an era where snail mail, fax machines, and hand delivery were more common, the devotion to tracking down physicians at great effort was (perhaps) understandable.  But, as you mentioned, many times physicians claimed they did not receive hospital correspondence – even when it was sent via certified mail, return receipt requested (a very inconvenient type of mail to send).

Luckily, we have moved past that era and there are now better tools available to hospitals and their medical staff leaders – ones that virtually eliminate the administrative burden of providing appropriate notice or special notice to a member of the medical staff (or other practitioner with clinical privileges).  Specifically – considering using email and/or online messaging apps/programs to correspond regarding all communications related to the practitioner’s medical staff membership and/or privileges.  This can include all routine communications (e.g., “it’s time to submit your application for reappointment”), as well as non-routine communications (e.g., letters of guidance or education sent through the peer review process).  In fact, many organizations these days are even using email for “Special Notice” – that is, the type of notice generally given for matters of importance, such as notice of adverse professional review action and/or the right to request a medical staff hearing.

Of course, the method(s) of notice utilized by the hospital and its medical staff leaders must comply with the Medical Staff Bylaws and other medical staff governance documents (such as the Rules and Regulations, or other medical staff policies).  So, it’s important to consult those documents – and see whether/how they define “notice” – before switching up your default method.  If necessary, you may need to pass an amendment that clarifies the default method for communicating with Medical Staff members and privileged practitioners (as well as applicants for medical staff membership or privileges) will be email.

To help with administration/implementation, also consider:

  • Stating in the Medical Staff Bylaws/Credentials Policy that every applicant/practitioner must provide a current email address to Medical Staff Services and keep that address up-to-date throughout the credentialing period and any term of medical staff membership and/or privileges;
  • Requiring the practitioner to certify that the email address he or she will use for hospital and medical staff correspondence is appropriately secured, sufficient to meet the requirements of the Health Insurance Portability and Accountability Act’s privacy and security regulations. As an alternative, the Bylaws might be drafted to state that every applicant and/or practitioner will be issued an email address by the health system and will be required to utilize that email address to send and receive emails related to the practitioner’s medical staff membership and/or privileges.  A final alternative is for the Bylaws to state that all correspondence will occur via a secured intranet or app (for which the practitioner will have a user ID and password);
  • Placing the burden on the applicant/practitioner to regularly check the email address that has been provided to Medical Staff Services and/or the app that is being utilized for correspondence;
  • Specifically stating the methods of communication that are considered acceptable for notice (e.g., email, regular U.S. mail, telephone) and special notice (e.g., email, federal express or other delivery service offering verification of delivery, hand delivery with documentation of delivery);
  • Outlining any other specific details that may apply to the provision of notice. For example, when calculating “days” for the purposes of giving notice, does the date that the notice was sent count?  Do weekends and holidays count?

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com.

March 27, 2025

Posted on by Courtney Patterson

QUESTION:
A member of our Medical Staff recently had a significant skiing accident which included a concussion.   When he returned to the hospital, staff noticed a change in his behavior and in his clinical performance.  Last week, he had two significant surgical complications and there are concerns that he might not be safe to practice.  The President of the Medical Staff and the Chief Medical Officer want to summarily suspend his privileges and then mandate a health evaluation – not as a punitive measure but to keep patients safe.  Does that sound like a good plan?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Health concerns can be particularly challenging.  There are several reasons why we don’t recommend the imposition of a summary suspension in a situation like this, except as a last resort.  First, the standard for imposing a summary suspension is pretty high and typically requires a finding that “failure to take such an action may result in an imminent danger to the health of any individual.”  (This is the standard built into the federal Health Care Quality Improvement Act.)

Second, most bylaws require that there be significant process after the imposition of a summary suspension.  This process typically includes a meeting with the Medical Executive Committee and, if the Medical Executive Committee continues the suspension, the commencement of an investigation, which might lead to a recommendation for disciplinary action.

Third, just calling the action a suspension changes how it is perceived.  A suspension sounds punitive even if you say it’s for patient safety concerns.  Furthermore, the imposition of a suspension creates reporting obligations.  A summary suspension that is in effect for more than 30 days must be reported to the National Practitioner Data Bank and the State Board.  In fact, some state reporting statutes require any suspension to be reported regardless of the duration.

In our experience, in situations where there might be an injury leading to an impairment, the preferred approach, and the approach that is consistent with accreditation standards, is a more collegial one.  For example, as a first step, the President of the Medical Staff and the Chief Medical Officer could meet with the physician, share their concerns, and discuss next steps and options.  This discussion could include a request that the physician voluntarily refrain from exercising surgical privileges until the fitness for practice evaluation can be completed and reviewed by the Practitioner Health Committee.

A physician in this situation will almost always agree to get the evaluation even if they don’t necessarily think it’s needed.  You can use this approach even if it is not expressly spelled out in your bylaws.

Better yet, build this approach into your Medical Staff bylaws documents.  That way, Medical Staff leaders have the authority to require a fitness for practice evaluation by a physician approved by them and can get the necessary authorizations to share information with, and receive information from, the physician who performs the evaluation.  It also helps to have bylaws language which states that if a physician refuses to get the fitness for practice evaluation that the result would be an automatic relinquishment of clinical privileges, not a suspension.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

February 6, 2025

Posted on by Courtney Patterson

QUESTION:
There is a private subreddit discussion group in which only Medical Staff professionals are approved to participate.  Most members of the group seek advice on credentialing, privileging, and peer review issues.  Community guidelines within the group caution against identifying the practitioners involved in their questions.  However, some posts may include specific details about problematic credentialing files or behavior incidents.  In some instances, individuals who post questions may include information such as their name and the hospital at which they work.  A few of our leaders are wondering if joining this group would help to bounce ideas off other Medical Staffs and their leaders.  Is this problematic?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
While we don’t mean to discourage professional interactions among Medical Staff professionals, there are legal risks to discussing credentialing and peer review issues about individual practitioners on social media.

Let’s be real, it’s social media.  There is never any guarantee that anything posted on platforms like Reddit, Facebook, or Instagram will remain private, even if a group is “closed.”  A member of the group could have a reason for disclosing information outside the group.  All it takes is a screen shot or copy + paste.  Plus, efforts to “de-identify” information do not always work.  Even the smallest bits of supposedly de-identified information can sometimes be pieced together and become identifiable.

There are a variety of legal risks if a post about credentialing or peer review matter gets back to the practitioner who is the subject of the post.  First, the practitioner could claim that the post was defamatory because it disclosed unfavorable information in a public setting.  Also, the practitioner could argue that the post constituted a breach of the confidentiality obligations set forth in the Medical Staff Bylaws, “tortiously interfered” with his employment prospects, or constituted a “breach of contract” under state law.

Social media posts could be problematic even if they are disclosed to individuals other than the practitioner in question.  For example, plaintiffs’ attorneys could use such posts as a reason to look for problems at a hospital.  Also, attorneys representing plaintiffs in malpractice or negligent credentialing cases could argue that the disclosure of peer review information on social media resulted in a waiver of the peer review privilege under state law of any information related to that matter.

So, we want to be careful here.  Again, we don’t mean to discourage professional interactions among Medical Staff professionals.  There are certainly many topics that could be discussed that don’t raise the potential problems discussed above.  However, recognize that there are risks to disclosing practitioner-specific information on social media.

If you have a quick question about this, e-mail Mary Paterni at mpaterni@hortyspringer.com.

January 9, 2025

Posted on by Courtney Patterson

QUESTION:
We have an applicant who is refusing to answer one of the questions on our application form because she says that her lawyer told her it could violate a settlement agreement that she has with another hospital. We think that information is relevant to her request for appointment at our hospital. Can we still ask for the information?  Should we ask for a letter from her lawyer? Should the application be held incomplete?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes! Credentialers have a duty to review all of the relevant qualifications of each applicant for Medical Staff appointment and clinical privileges and cannot allow the legal interests of an applicant, in an unrelated matter, to interfere with that duty. Accordingly, the Medical Staff Bylaws (or related policies) should state very clearly that every applicant bears the burden of submitting a complete application and of producing information deemed adequate by the hospital for a proper evaluation of current competence, character, ethics, and other qualifications and for resolving any doubts.

A similar issue arose in a 1997 case, Eyring v. East Tennessee Baptist Hospital, 950 S.W.2d 354 (Tenn. Ct. App. 1997), in which a physician applicant refused to sign a release form authorizing a hospital where he had previously practiced to send information to another hospital where he had applied. The physician argued that he received legal advice that signing the release could compromise his lawsuit against the hospital, which had revoked his privileges. The court held that because the physician had not provided the additional information that the hospital requested – irrespective of the fact that a settlement agreement was in place – he had not submitted a complete application and, thus, under its Bylaws, the hospital was not required to process his application further.

If you have a quick question about this, e-mail LeeAnne Mitchell at LMitchell@hortyspringer.com.

November 14, 2024

Posted on by Courtney Patterson

QUESTION:
We have an applicant for appointment and privileges who disclosed that she recently enrolled in our state health program and that she had enrolled in a similar program in the state where she previously practiced.  The applicant also shared that she had completed inpatient treatment for substance use disorder earlier in the year.   We were not particularly concerned with this disclosure since the applicant is being monitored by our state program which is quite thorough.

However, we just learned that the applicant’s employment had been terminated, by her previous employer, for practicing in the clinic while impaired.  We are concerned because she misrepresented this information on her application form. What can we do?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Bylaws or credentials policies (the “Credentials Policy”) often allow a hospital to “not process an application” when there are misstatements or omissions.  Typically, the Credentials Policy requires, in situations like this one, that the applicant be notified, in writing, about the potential misstatement or omission, and be invited to explain.  Thereafter, the response will be reviewed, often by the Chair of the Credentials Committee and the Chief Medical Officer, and a determination will be made whether the application should be processed further.

Importantly, this process does not result in a “denial” of the application.  And, the Credentials Policy should make it clear that “No action taken pursuant to this Section will entitle the applicant or member to a hearing or appeal.”

This process should not be different even if an applicant is claiming a disability.  A physician’s substance use disorder may be a protected disability under the Americans with Disabilities Act (“ADA”).  And, the ADA may not allow inquiries related to a physician’s impairment prior to a determination that the physician is otherwise qualified to fulfill the essential functions of appointment and clinical privileges.  However, an impairment does not excuse a physician for misstating information on an application, including that the physician was terminated, or otherwise disciplined, for practicing while impaired.

Therefore, you are free to treat a misstatement, like the one you described, in a manner consistent with any other misstatement or omission.  That means, if you provide notice to the applicant of the misstatement or omission and allow the applicant to respond and, thereafter, determine that the misstatement or omission is substantial enough to support a legitimate concern about the applicant’s integrity, you may, consistent with the controlling documents, decide not to process the application further.

Ideally, your Credentials Policy should treat these decisions as administrative in nature.  This decision should not be considered an adverse professional review action.  The decision not to process the application, because of a misstatement or omission, should not trigger a right to a hearing.  Thus, these decisions are not reportable to the National Practitioner Data Bank and should not be reportable to the state board either.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

November 7, 2024

Posted on by Courtney Patterson

QUESTION:
We asked Grok AI “What do you know about HortySpringer?” Here is what it said.

ANSWER:
Based on the information available up to September 2024, Horty, Springer & Mattern, P.C. is a law firm based in Pittsburgh, Pennsylvania, with a specialization in healthcare law. Here’s what can be inferred or is directly known about them:

  1. Specialization: The firm focuses exclusively on healthcare law, which means they deal with a wide array of legal issues related to healthcare providers, including hospitals, health systems, HMOs, managed care organizations, and other healthcare entities.  Their expertise covers areas like medical staff bylaws, physician contracts, healthcare compliance, and more.
  1. History: Founded in 1971, the firm has over 50 years of experience in the healthcare sector.  This longevity suggests a deep understanding of the evolving landscape of healthcare law.
  1. Clientele: They serve clients across all 50 states and the District of Columbia, indicating a national reach and reputation in healthcare legal services.  This includes consulting with physician leaders, health system executives, and boards, suggesting they’re involved in high-level strategic and governance issues within healthcare organizations.
  1. Innovative Practices: HortySpringer has been recognized for innovation, particularly in how they deliver legal services.  They’ve developed tools like HortySpringer LegalSifter Essentials Edition, which combines legal best practices with AI to help clients manage contract reviews more efficiently.  This indicates an approach towards modernizing legal services with technology.
  1. Education and Training: The firm offers training programs like HortySpringer Pathways, aimed at hospital and physician leaders to manage and oversee medical staff, which underscores their commitment to not just legal advice but also in enhancing the operational capabilities of healthcare professionals through legal education.
  1. Publications and Engagement: They engage actively with the healthcare community through newsletters like the Health Law Express, indicating a commitment to keeping their clients and the broader healthcare community updated on legal changes and best practices.
  1. Legal Expertise: Their involvement in cases and discussions around significant legal issues like the PSQIA (Patient Safety and Quality Improvement Act) and the implications of Supreme Court decisions on healthcare indicates they’re not just practitioners but also contributors to the legal discourse in healthcare.
  1. Size and Structure: The firm has around 14 attorneys, all based in Pittsburgh, focusing solely on health care, which might suggest a boutique yet highly specialized approach to legal services.

In summary, Horty, Springer & Mattern, P.C. is recognized for its deep expertise in healthcare law, innovative service delivery, and a comprehensive approach that includes legal advice, education, and active engagement in healthcare policy and legal developments.  Their focus on healthcare governance, compliance, and operational support for healthcare entities makes them a notable entity in the legal landscape of healthcare in the U.S.

If you have a quick question about this, e-mail Nick Calabrese at ncalabrese@hortyspringer.com.

September 19, 2024

Posted on by Courtney Patterson

QUESTION:
We recently learned that one of our internists lost three fingers in an alligator attack while on a fishing retreat in Florida. He hasn’t been in the hospital for about seven weeks. Do we need to place him on a leave of absence or send him a request for information/records/medical clearance?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
What a traumatic and unfortunate thing to have happen!  When new concerns about practitioner impairment are raised, the hospital and medical staff have a responsibility to take steps to assure patient safety.  The right approach often depends on the circumstances.

In your scenario, the physician is an internist.  As a first step in evaluating whether the new health information raises concerns about the physician’s safety might be to evaluate his privilege delineation.  Does it include privileges that require manual dexterity?  The ability to grasp with a fist?  The use of both hands?  Also consider other Medical Staff obligations.  Would losing full use of one hand affect the physician’s ability to utilize the electronic medical record or other hospital equipment?

If the answer to any of the above is “yes,” then the matter should probably be referred to the committee within your hospital that handles matters of practitioner health (e.g., your Medical Staff Leadership Council or Practitioner Health Committee or Wellness Committee).  That committee can then decide next steps (in accordance with your Practitioner Health Policy, of course!), which might include some or all of the following:

  • Reaching out to the physician to inquire about his well-being, express peer to peer concern, ask about his practice plans, and offer support to the physician as he navigates how this new injury will affect his practice long-term. This initial communication might be a good time to ask the physician if he is planning to request a leave of absence in light of this extended time away from his hospital practice.
  • If the physician does not intend to request a leave of absence, the leadership may consider implementing one unilaterally – if the Medical Staff Bylaws (or other policies) authorize it. We recommend Bylaws language authorizing leaders to place a practitioner on a leave of absence in situations where the practitioner has been absent for a specified period of time (for example, 30 days) and the reason is believed to be related to a health issue.  This allows the leadership to not only plan adequately for the practitioner’s absence (e.g., reconfiguring the ED call schedule without the LOA practitioner on it), but also to ensure a meaningful reinstatement process when the practitioner is ready to return to practice.

In your case, a leave of absence would be a perfectly appropriate option.  Any decision to place the practitioner on leave should, of course, be communicated to the practitioner and memorialized in writing.  Further, it is generally helpful to take this opportunity to inform the practitioner about the reinstatement process, so that as he contemplates his return to hospital practice, he can plan accordingly (including making his reinstatement request well in advance of his planned return and, as appropriate submitting information and medical clearances along with the request).

  • In many cases, you may find that the practitioner with a new impairment is not ghosting the hospital in order to avoid detection or scrutiny but, rather, because he is still actively managing/recovering from the injury or illness and simply needs more time – or because he has insight into his changed circumstances and is stepping away from some of his hospital duties temporarily or permanently while he evaluates the impact the impairment will have on his ability to continue aspects of his practice. If you talk to the practitioner and find that he is thoughtfully managing his recovery, has taken steps to protect patients in the meantime (e.g., made plans to cover his practice, modified his practice while he recovers), then the leadership might decide that no leave of absence is required.  This does not mean you need to forego oversight altogether.  But, depending on the situation, the leadership might decide to simply send the practitioner a letter memorializing their conversation – and then ask the physician to let the health committee know in advance (e.g., 10 days or 30 days – whatever is reasonable) that he intends to return to practice so that the situation can be revisited at that time.  Again, this can be a good time to give the physician a “heads up” that additional information about his condition or a health evaluation could be requested in the future, depending on how things go.
  • Finally, if the physician’s condition clearly implicates his safety for some of his privileges (those requiring full use of the hands), the health committee may need to eventually go through the interactive process of discussing with the physician his intentions with respect to his hospital practice (e.g., does he intend to voluntarily relinquish those that require the use of both hands?) and/or whether any reasonable accommodations would be appropriate to assist him in fulfilling the essential functions of Medical Staff membership and/or his clinical privileges (e.g., will special equipment be required to support one-handed typing or voice transcription? Scribe services?).  You may need to request additional information from the physician at that time.  But, it’s possible that once he has fully recovered, your internist will come to you with ample information about his condition and a reasonable plan for practice.  Unless there is a pressing need to request additional information right now (for example, the physician tells you that he will not be requesting a LOA because he intends get back to practice as soon as possible), it may be best to wait to have these conversations after the physician has recovered enough to be thinking about his return.

In the end, it is important that Medical Staff Bylaws and related documents (e.g., Credentials Policy, Rules and Regulations, Practitioner Health Policy) give physician leaders the tools they need to effectively and efficiently address concerns about practitioner health and impairment (like procedures for implementing LOAs and processing reinstatement requests).  Sometimes you need to take advantage of those tools.  But sometimes, depending on the practitioner and the circumstances, those tools end up being unnecessary (leaving the leadership in the enviable position of simply exercising oversight, without having to invoke more formal intervention strategies).

August 29, 2024

Posted on by Courtney Patterson

QUESTION:
Our Credentials Committee is reviewing a reappointment application for a medical staff member who has had some pretty significant behavioral issues over the past year.  We want to recommend that she be reappointed for less than a full two-year appointment term to reinforce the need to change her behavior, but some members of the committee think that it would be an “adverse recommendation” and give her the right to a hearing. Is it?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
The short answer is that whether or not a recommendation to grant appointment for less than two years (or three years for those hospitals that have made the switch to longer terms) is governed solely by the existing medical staff bylaws.  If your bylaws do not guarantee two-year appointment terms, and the grant of appointment for less than two years is not specifically listed as one of the things that gives an individual the right to request a hearing in the pertinent section of the bylaws, then no, it would not be considered adverse.

Arriving at this conclusion can be more challenging if, rather than listing specific, clear recommendations that trigger the right to a hearing, the bylaws instead provide that “any recommendation that adversely affects an applicant or member” gives the right to request a hearing.  Whether the hospital views a less than two-year appointment term as adversely affecting an individual or not could very well differ from the viewpoint of the medical staff member at issue.

Bottom line, medical staff bylaws should affirmatively state that medical staff appointment will be granted for “not more” than two (or three) years and should give the Credentials Committee and the Medical Executive Committee the clear ability to grant appointment terms of less than the relevant time period – without concerns that it constitutes an adverse recommendation.  A short-term appointment can be a helpful tool in the exact situation posed above – when medical staff leaders are trying to get someone’s attention, emphasizing the need to make changes during a shortened time period of more focused review.  It can also be helpful when a medical staff member is in the midst of a review process that will not be fully concluded before the current term expires, giving the ability to reappoint that individual on a short-term basis, pending the outcome of the relevant review process.

If you have a quick question about this, e-mail LeeAnne Mitchell at LMitchell@hortyspringer.com.

August 1, 2024

Posted on by jwilbert

QUESTION:
Our Medical Staff Bylaws allow the MEC or Board to be represented by a lawyer at a medical staff hearing only if the practitioner who requested the hearing is also planning to be represented by a lawyer. We recently went through a hearing where this caused some issues, because the physician who was the chair of the MEC at the time the Committee made its adverse recommendation was not available to present the MEC’s case at the hearing. No one else wanted to step up to advocate the MEC’s position at the hearing. Since the practitioner did not choose to be represented by his lawyer, we had to scramble to find someone to represent the MEC at the hearing. We wish we could have used our lawyer. Is there a better way to handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
There is a better way to handle this! You will be glad to know that neither the Medicare Conditions of Participation for Hospitals nor the accreditation standards prohibit hospitals or their medical staffs from being represented by a lawyer at a hearing, even if the practitioner is not represented. Additionally, the Health Care Quality Improvement Act (“HCQIA”), which grants a safe harbor for immunity for the hospital and those who engage in peer review activities on behalf of the hospital, does not prohibit the hospital or its MEC from having legal representation. The HCQIA does require you to permit the physician who requested the hearing to have legal representation at the hearing, and to provide notice to the physician of that (and other) rights to which he is entitled at the hearing. But if the physician fails to take advantage of those rights – including the right to be represented – there is no obligation on the part of the hospital or MEC to make the same sacrifice. So, it is completely within your discretion to amend the Medical Staff Bylaws to make representation at hearings a right of both parties (without regard to whether the opposing party decides to be represented). Of course, you should always check with your counsel first, so that any applicable state laws and regulations can be consulted (just in case those include more stringent hearing provisions).

While you are free to (and probably should) adopt Bylaws language that provides for a universal right to legal representation at medical staff hearings, you should consider a different course of action when conducting professional review activities that are part of the collegial, progressive steps of the peer review/professional practice evaluation processes. We have long recommended that the peer review process be conducted as it was originally intended: peer-to-peer, without the meddling of legal counsel. After all, the whole point of “peer” review has always been to ensure that those who have the clinical expertise and ethical/professional obligations of the medical profession are at the forefront of reviewing their colleagues’ work and assisting with continuous performance improvement. Lawyers play no role in this process. Having lawyers present at collegial conversations and interventions can only hamper conversation and increase defensiveness. It is sure to stifle the process.

For this reason, we have always recommended that Bylaws documents and peer review policies state that no lawyers are allowed (both for the peer reviewers and for those subject to the review process) at these types of meetings. Your policy might allow for rare exceptions to this general rule, where requested by the practitioner subject to review and for good reason, but only if the exception is agreed to by the committee/body conducting the peer review activity. Further, we recommend that such exceptions rarely be made. Importantly, however, if an exception is made to allow the practitioner to bring a lawyer to a meeting, the peer review body should also be granted the same exception (allowing its legal counsel to be present, if it so desired).

In sum, at a medical staff hearing, the practitioner will always be entitled to be represented by counsel if he or she wishes. Therefore, the MEC and Board are not in any way compromising the interests of the physician if the Bylaws provide them with the unqualified right to utilize counsel for representation at the hearing (regardless of whether the physician chooses to have legal representation). By contrast, in routine peer review activities at the Hospital, the practitioner will almost never be entitled to be represented by counsel and, in turn, it would be unfair to allow the MEC and Board to utilize legal representation at meetings that are held pursuant to that process – unless an exception has been made to the general rule, permitting the practitioner to bring counsel to a meeting.

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com

July 25, 2024

Posted on by jwilbert

QUESTION:
We are confused about whether an applicant for Medical Staff appointment and clinical privileges is entitled to a hearing because of his failure to disclose certain unfavorable information and our decision to not process his application.  The physician claims that he is entitled to a hearing.  How should we handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLIE CHULACK
While it is always important to consult requirements under state law, which may address situations when a hearing is required, your Medical Staff Bylaws or Credentials Policy (“Bylaws”) should clearly define the consequences for certain events and the circumstances that give rise to a hearing.  For example, if the physician failed to disclose an “accusation” filed against him by the state licensing board and such information is requested on the application, the Bylaws should spell out the results of failing to disclose such information requested on the application.  Specifically, the Bylaws should state that any misstatement in, or omission from, the application is grounds to stop processing the application. A decision not to process an application for these reasons should not entitle the applicant to a hearing or appeal (and this should be clear in your Bylaws).

With that in mind, it also makes sense to review your application forms to confirm that the application questions are seeking information that you need to make an informed decision about someone’s qualifications.  For example, your application should not only seek information on past actions by licensing boards, it also should ask for information on pending actions.  Confirm that the questions on the application form are consistent with provisions in the Bylaws with respect to the threshold eligibility criteria that someone must satisfy for eligibility for appointment.  If one of your threshold eligibility criteria requires an applicant to “have a current, unrestricted license to practice that has never been subject to any restrictions, conditions, or probationary terms and have never had a license to practice in any jurisdiction denied, revoked, restricted or suspended by a state licensing agency,” then there should be a corresponding question on the application seeking this information.

Finally, your Bylaws should place an obligation on members to notify the Medical Staff Office of any change in information provided as a part of the application and state that a failure to do so may result in administrative relinquishment of appointment and clinical privileges.  This permits the Medical Staff and Hospital to evaluate any changes in an individual’s qualifications, weigh those changes against eligibility criteria, and assess the appropriateness of any applicable consequences under the Bylaws.  Unless state law requires it, an automatic relinquishment of appointment and clinical privileges because of failure to continuously satisfy threshold eligibility criteria does not give rise to a Medical Staff hearing.

If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com