medical staff bylaws

June 8, 2023

Posted on by Courtney Patterson

QUESTION:
An independent member of our Medical Staff has a long history of unprofessional conduct.  Our Leadership Council addressed various complaints using progressive steps under the Professionalism Policy, such as educational letters and collegial meetings.  We even tried sending the physician to an on-site educational course on behavior with no success.  Before we refer him to the Medical Executive Committee for its review under the Bylaws, are there any other options we could try?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes.  A “personal code of conduct” might be successful where other efforts have failed.  A personal code of conduct outlines specific expectations for behavior and, more importantly, specific consequences for failing to meet those expectations.

With respect to expectations, a personal code of conduct may simply require compliance with the standards for behavior set forth in the Professionalism Policy.  (To assist with enforcement of the personal code of conduct, it’s very helpful if the Professionalism Policy includes specific examples of inappropriate behavior.)  Additional expectations might include periodic mentoring meetings with Medical Staff leaders, 360 reviews, or additional training.

The personal code of conduct could then describe the process that will be followed to review the facts if an additional concern is raised about the physician’s behavior.  This fact-finding process may include steps in addition to those set forth in the Professionalism Policy.

The personal code of conduct could then outline the consequences if the Leadership Council determines that there has been a “formal violation.”  The Leadership Council has the flexibility to define these consequences in any reasonable manner.  For example, the first confirmed violation could result in a final letter of warning, the second could result in the physician not exercising his or her clinical privileges for five or 10 days, and the third could result in a referral to the Medical Executive Committee for a formal investigation under the Medical Staff Bylaws.  The personal code of conduct could be indefinite or have a fixed term, and the number of formal violations could be re-set to zero if the physician goes “x” months/years without a violation.

It’s important to include other language in the personal code of conduct, such as a statement that truly egregious behavior can be referred immediately to the Medical Executive Committee.

In our experience, two formal violations are not common and three formal violations are very rare.  As long as the Leadership Council is willing to enforce personal codes of conduct, they can be an effective tool for physician leaders who are attempting to deal with long-term inappropriate behavior.

If you have a quick question about this, e-mail Phil Zarone at PZarone@hortyspringer.com.

March 30, 2023

Posted on by Courtney Patterson

QUESTION:
We’re in the process of reviewing our Medical Staff Bylaws, so we need to get the Bylaws Committee up and running.  The Bylaws state that the Bylaws Committee will be chaired by the Vice President of the Medical Staff, but the Vice President resigned a few months ago.  Should the President of the Medical Staff just appoint another Bylaws Committee chair?  Or should it be the MEC that appoints the chair?  Or should the Bylaws Committee just vote on a new chair?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
The Medical Staff Bylaws should have the answer.  In the article in the Bylaws that deals with officers, their eligibility criteria, duties and election, there should be a section regarding what happens when there are vacancies.  Vacancies can be filled based on what works best for a particular hospital.  Usually, if there is a vacancy in the office of President of the Medical Staff, the Vice President is elevated to that role.  If there is a vacancy in the office of Vice President, Secretary or Treasurer, the Medical Executive Committee will usually appoint an individual to fill the office for the remainder of the term or until a special election can be held, whichever is decided by the Medical Executive Committee.  In this case, let’s assume that the MEC appoints the individual, in which case, the VP can take the reins of the Bylaws Committee.

January 5, 2023

Posted on by Courtney Patterson

QUESTION:
There is a lot of confusion amongst members of our Medical Staff about the relationship between Medical Staff appointment and clinical privileges.  For example, it is common to hear individuals refer to “Active Staff Privileges.” How can we help educate our Medical Staff on the difference between Medical Staff appointment and clinical privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Many people confuse or intertwine these two concepts, even though they are separate and distinct.  As such, it is important that your bylaws recognize appointment and clinical privileges as distinct concepts.

Appointment relates to an individual’s membership on the Medical Staff (i.e., that they are recognized as being “on the team”).  With this membership comes certain rights and responsibilities, like voting, serving on committees, etc.

Clinical privileges relate solely to the patient care services an individual has been authorized to provide at the hospital.  They do not relate to an individual’s involvement in Medical Staff affairs and, in turn, are not tied to the individual’s staff category.  In fact, an individual may be a member of the Medical Staff but have no privileges (e.g., “Community Staff”) or could have clinical privileges but no membership on the Medical Staff (e.g., telemedicine providers).

Ensuring your Medical Staff Bylaws documents make this distinction will hopefully help to educate your Medical Staff on this issue.

July 14, 2022

Posted on by Courtney Patterson

QUESTION:
We’re revising our Medical Staff Bylaws, which require that we run criminal background checks at initial appointment on all Medical Staff applicants.  There’s no disagreement there, but there is disagreement as to whether we should also run criminal background checks at reappointment.  Any thoughts?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Although this differs from hospital to hospital, in our experience, the majority of hospitals are not running new criminal background checks at reappointment.  Why?  Most hospitals have strong language in the Medical Staff Bylaws that require Medical Staff members to keep the hospital updated on any new criminal activity. So, the rationale is that once an individual is on the Medical Staff, the hospital will know about any additional criminal activity because Medical Staff members have an obligation to inform the hospital of such activity.  While this is not necessarily foolproof – a hospital can only truly verify that criminal activity hasn’t occurred by running subsequent background checks – in terms of an industry standard, we feel comfortable saying that many hospitals are only running full checks at initial appointment, not reappointment.  So, a hospital could reasonably decide not to run these background checks on an ongoing basis.  There is one caveat here – you should check to see if there are any state law requirements regarding criminal background checks and how often to run them.

June 23, 2022

Posted on by Courtney Patterson

QUESTION:
We’re updating our process for peer review of clinical concerns. We want it to be more effective and less feared by Medical Staff members. Any tips?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes!  Here are a few:

  1. Create a Multi-Specialty Committee. Create a multi-specialty committee that works with practitioners on a voluntary basis to address clinical concerns.  If the multi-specialty committee believes there’s an opportunity for improvement with the care provided by a practitioner, the committee presents an improvement plan to the practitioner and asks the individual to voluntarily participate.  If the practitioner disagrees with the need for the improvement plan, the matter would be referred to the Medical Executive Committee for its independent review under the Medical Staff Bylaws/Credentials Policy.  This approach allows the multi-specialty committee to remain a supportive committee with no disciplinary authority, while the MEC is a second layer of review when needed.
  1. Obtain Specialty Expertise. Identify small committees or individuals (depending on state law) for each specialty that provide the specialty expertise that informs the decisions of the multi-specialty committee.  In larger hospitals with more volume, these committees/individuals can be authorized to take certain performance improvement actions (such as sending educational letters or engaging in collegial counseling discussions) while more significant concerns are sent to the multi-specialty committee for its review.
  1. Get Input from the Practitioner. A process will be perceived as more fair and credible if the practitioner under review has been provided notice of any concerns and an opportunity to provide input about those issues.  No performance improvement action should occur until the practitioner’s input has been obtained.
  1. Adopt Mechanisms to Identify “Lessons Learned” and “System/Process Issues.” Peer review should help everyone get better.  Case review forms and committee minutes should specifically ask if a review identified a lesson that would be of value to others in the specialty, or a system/process issue that needs to be fixed.  There should be mechanisms to ensure that such lessons learned or system/process issues are shared with the appropriate individuals or committees for follow-up action, and the multi-specialty committee should keep these items on its agenda until it receives word that they have been addressed.
  1. Stop Scoring. Rather than asking reviewers to assign a numerical value or category to a case, the reviewer should simply assess whether there was a concern with the care provided.  If so, how could that concern be addressed?  Scoring causes practitioners to be defensive and diverts energy away from what really matters in the review process (i.e., how to help a practitioner improve).
  1. Words Matter! The term “peer review” is viewed negatively by most practitioners.  Using new terminology will help to emphasize that a new process has been created that is educational and not focused on restrictions of privileges.  Consider creating a “Committee for Professional Enhancement” or “Performance Improvement Committee” rather than a more traditional “Peer Review Committee.”  Similarly, refer to the process as the “professional practice evaluation” process rather than “peer review” process.

For more information about creating an effective peer review process for clinical concerns, please join us this season at The Peer Review Clinic in Las Vegas, Orlando, or Nashville!

May 5, 2022

Posted on by Courtney Patterson

QUESTION:
We’ve got a debate going on at the MEC.  Does the Chief of Staff vote, not vote, or vote only when needed as a tie-breaker?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:

No need to debate any longer!  The good news is that, for the most part, Medical Staffs and their leaders are free to conduct their meetings however they wish.  You are not bound by any sort of formal parliamentary procedure (e.g. “Robert’s Rules of Order”) and, in turn, can set your own rules.  So – the answer to your question is that your Chief of Staff, who chairs the MEC, can vote if your Bylaws and related Medical Staff documents say so.  If the documents are silent, as a general rule, the chair decides procedural matters for the committee.  Since the chair, in this case, has a bit of a conflict of interest, the committee itself may wish to weigh in and make a determination (or develop a policy/guideline for how it will conduct meetings/voting).

If you are wondering how other organizations do it, note that there is not one, “right” position on this matter.  We see some Medical Staff committees that lean toward inclusivity and let all members of the committee vote, whether or not they are the chair, whether or not they are an administrator (e.g. CMO, Medical Director, Service Line Director), and whether or not they are physicians.  I tend to prefer this type of organizational structuring, since I believe providing voting rights to each member of the committee honors the time and energy that they commit to the committee’s work.

We also see Medical Staff committees that only allow physician members to vote (including any chairs, employed physicians, administrators).

Finally, we sometimes see Medical Staff committees that only allow voting by specified, physician members (sometimes limited to physicians who are members of the Active Staff category).

Again, as a general rule, it is up to each organization to establish its own culture and rules regarding meetings and voting.  Note, however, that you should always check with your medical staff counsel before making changes to committee membership and/or voting, since counsel can verify that any changes are consistent with the statutes and other laws in your state that exist to protect (through immunities and privileges) the peer review activities that your Medical Staff conducts through its committees.  Some states have a more narrow definition of a “peer review committee” or “quality assurance committee” that requires membership to be all or mostly physicians, etc.  Counsel can help to make sure you stay within the confines of applicable law and maximize your protections.

April 28, 2022

Posted on by Courtney Patterson

QUESTION:
We are preparing for a medical staff hearing and a member of our Medical Executive Committee asked why our Medical Staff Bylaws say that the CEO appoints the hearing panel and not the Chief of Staff since it’s the Chief of Staff who knows most of the members of the medical staff.  We are trying to figure out whether this was a typo or not.  Should the Chief of Staff appoint the panel?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
No – that’s not a typo!  While we do still sometimes see bylaws which assign the Chief of Staff the responsibility to appoint the hearing panel (and worse yet, occasionally it’s the whole Medical Executive Committee that does so), it’s long been our recommendation that the CEO or the CMO fulfill that responsibility – in consultation with the Chief of Staff.

This is because, generally speaking, the Chief of Staff, both in his/her role as a Medical Staff officer as well as a member of the MEC (the body that will most often be making the adverse recommendation that triggers a hearing) tends to be someone who is very intimately involved in the underlying matter that led to the hearing.  The Chief of Staff will frequently be the individual who engaged in collegial intervention and other progressive steps with the affected physician, who was involved in the development of any conditions or restrictions and, ultimately, is involved in the adverse recommendation made by the MEC as the chair of that committee that led to the hearing.  When an involved Chief of Staff is then responsible for appointing the hearing panel and presiding officer, it makes it easy for the argument to be made that the selections were biased in favor of the MEC and are not neutral – which can lead to objections and legal challenges (both before and after the hearing) to the appointment of the panel.

While we know that these claims are largely groundless, it is very important to manage the appearance of fairness at all steps of the hearing process.  The goal is to isolate the volunteer physician leaders – like the Chief of Staff – from these types of claims and allegations as much as possible, which is why the CEO or CMO should appoint the panel after consulting with the Chief of Staff.

December 16, 2021

Posted on by Courtney Patterson

QUESTION:
Our Medical Executive Committee initiated a formal investigation a few weeks ago – the first one we have done in years.  The investigating committee has met several times and is ready to make its recommendations. The bylaws reference a “report,” but the committee members would rather just come to the MEC meeting and give the findings in person. Is a written report really necessary?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes, yes, and YES.  A written report is required not only because your medical staff bylaws require one (which frankly, in a heightened legal process like a formal investigation would be reason enough to ensure a written report is created), but, more importantly, should a matter that led to an investigation result in an adverse recommendation (i.e., revocation of appointment and/or privileges, a restriction of privileges, etc.), the investigating committee report will likely be the most important document that helps to explain the reasoning of the MEC when it made that adverse recommendation.  Most medical staff bylaws permit the MEC to delegate the investigation process to another standing committee or to an ad hoc committee, and they do not require the MEC perform the investigation itself.  The MEC then relies heavily on the fact-finding, conclusions, and recommendations made by the investigating committee.  It is vitally important that such information be reduced to writing in order to create a strong record.

The report should include a summary of the review process (e.g., a list of documents that were reviewed, any individuals who were interviewed, etc.), specific findings and conclusions regarding each concern that was under review, and the investigating committee’s ultimate recommendations.  Capturing that level of detail in a verbal discussion in a (typically) one hour or less meeting, where individuals are asking questions and side discussions often occur, is very difficult.  You really want to have more than a set of minutes to rely upon in explaining the findings that were made.

November 11, 2021

Posted on by Courtney Patterson

QUESTION:
Last month, our hospital announced a policy requiring individuals who are physically present on the premises to be fully vaccinated with the COVID-19 vaccine.  We understand that this policy applies to advanced practice professionals and members of the Medical Staff, but we are not sure how to enforce it.  Any suggestions would be appreciated.

ANSWER:
The Medical Staff Bylaws and Credentials Policy (“Medical Staff Governance Documents”) probably require members “to abide by the medical staff documents and the policies of the Hospital.”  That’s a start, but you may want more.  Here are some ideas.

We recommend that the Medical Staff Governance Documents include a threshold criterion that requires individuals to “document compliance with immunization and health screening requirements (e.g., TB testing, mandatory vaccines, and infectious agent exposures).”  We also recommend that your documents expressly state: “Failure of an individual to continuously satisfy any of the threshold eligibility criteria will result in the administrative relinquishment of appointment and clinical privileges, unless a waiver is granted.”

If you don’t have that language now, the Medical Executive Committee may be able to add it to your Medical Staff Governance Documents, but you’ll have to check the notice requirements and the amendment process.

Another alternative is to rely on language in your Medical Staff Governance Documents that requires individuals to provide information when it is requested by a medical staff leader.  Specifically, we recommend the following language:  “Failure of an individual to provide information pertaining to an individual’s qualifications for appointment or clinical privileges in response to a written request from any medical staff leader or any other authorized committee will result in the administrative relinquishment of appointment and clinical privileges until the information is provided to the satisfaction of the requesting party.”  Since the hospital policy requires proof of vaccination, we are comfortable using this language to help enforce the hospital policy.

Remember, a relinquishment is administrative in nature and is not considered an adverse professional review action.  Therefore, the individual is not entitled to a hearing and the hospital is not required to report the individual to the National Practitioner Data Bank or the State Board.

October 14, 2021

Posted on by Courtney Patterson

QUESTION:
What should be done if an applicant for reappointment is under investigation but his current term of appointment is set to expire before the investigation is completed?

ANSWER:
As most know, the Joint Commission has made it clear that privileges are granted for a period not to exceed two years and that continuations or extensions are not appropriate.  While this rule likely came about to avoid routine extensions due to administrative failures to process reappointments in a timely manner, it makes situations like the one above difficult to manage.

Keeping in mind this two-year limitation, we’ve found the best way to address applicants for reappointment who are currently under investigation is through a short-term conditional reappointment pending the outcome of the process.  This keeps the hospital on the right side of the Joint Commission, while providing time for the investigation to work its way out.

Having language in your Medical Staff Bylaws documents to support this approach is a key to good credentialing.