medical staff leaders

September 28, 2023

Posted on by Courtney Patterson

QUESTION:
Do hospital-employed physicians have a conflict of interest with respect to private practice physicians in matters involving credentialing, privileging, and peer review?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Some independent physicians may feel that employed physicians should not be involved in leadership positions for fear that their employment relationships could influence their actions as Medical Staff leaders. Legally, there is no support for viewing an employment relationship as a disqualifying factor when it comes to participating in these activities. And we have rarely seen the type of political pressure from management that independent physicians worry about being brought down on employed physicians who do.

Of course, if a specific concern is raised about an individual’s participation in any given process, it always makes sense to consider whether an individual’s employment would result in a conflict of interest under the guidelines that have been adopted by the Medical Staff.  But, practically, it seems difficult to imagine a Medical Staff adopting bylaws documents that would exclude an employed physician from serving in a leadership position – or from otherwise participating in credentialing and peer review activities – given the large number of physicians who are now employed by hospitals and/or their affiliates.

If you have additional questions about this, please contact Ian Donaldson at IDonaldson@hortyspringer.com.

February 2, 2023

Posted on by Courtney Patterson

QUESTION:
We have a physician who has been working his way through our peer review process with very little sustained success.  Recently, there were several significant clinical events that caused Medical Staff Leaders to escalate the matter to the Medical Executive Committee which decided to commence an investigation.

Our question is “do we have to re-do all the great work done by our Peer Review Committee, or can we use that as part of our investigation?”

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is an excellent question and one that we hear quite frequently.  We know from experience Medical Staff Leaders will be able to address and resolve most issues that come to their attention, whether they are of a clinical or behavioral nature, using collegial and progressive steps.  However, every once in a while, a practitioner can’t or won’t change and Medical Staff Leaders will need to escalate concerns to the Medical Executive Committee for a formal, capital “I” investigation.

The procedure for conducting an investigation is laid out in your credentials policy, bylaws or investigation manual.  Once you get to an investigation, the stakes are high for everyone, so it is very important to follow the procedures outlined in your documents.

It is also important that the investigation is thorough, fair, and objective.  However, that does not mean that you have to re-do all the work done by the Peer Review Committee.  That would simply make no sense.  The Medical Executive Committee, or more likely an investigating committee appointed by the Medical Executive Committee, should have access to any documents that it deems relevant, including documents from the practitioner’s credentials file and quality file.  The investigating committee can and should review and rely on informational and educational letters along with letters of awareness, and letters of counsel or guidance.  It can and should review and rely on prior performance improvement plans (aka voluntary enhancement plans).  The investigating committee can and should rely on case reviews and reports from external experts.

If you have worked your professional practice evaluation process, once you get to the investigation phase, you may have already done most of the heavy lifting.  The role of the investigating committee may be primarily to pull together all prior progressive actions that had been taken and consider potential patterns and trends.  Additionally, the investigating committee may want to conduct interviews of individuals with relevant information including staff, the department chair and members of the Peer Review Committee.  Critically, even if your governing documents don’t expressly require it, the investigating committee will want to provide the subject physician with notice of the concerns that have been identified and an opportunity to discuss, explain or refute those concerns.

So, the bottom line is you can and should consider information reviewed by and generated for the Peer Review Committee at part of an investigation.  But you should also use the investigation to answer any outstanding questions and to meet with the subject physician.

October 13, 2022

Posted on by Courtney Patterson

QUESTION:
As part of our peer review process, we want to develop a plan requiring a physician to obtain 15 hours of CME (to improve performance in a couple of identified areas).  Our peer review committee has always forwarded these types of recommendations to the MEC and Board for approval prior to implementing them.  I recently heard that this is no longer recommended.  Can you explain why?  Did something change about MEC and Board oversight of Medical Staff activities?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Medical Staffs have come a long way in the past 20 years.  As the roles and responsibilities of Medical Staff leaders have multiplied, many Medical Staffs have decided to dedicate the MEC to matters of oversight and strategy, while delegating the detailed, day-to-day work of the Medical Staff to other committees.  This is how the Credentials Committee first came into fashion.  More recently, the Leadership Council and Multispecialty Peer Review Committee have begun to assume greater roles within the Medical Staff.  This means not limiting the work of the committee to conducting clinical case reviews and reporting those results to the MEC.  Most modern peer review committees are responsible for so much more.

For example, multispecialty peer review committees are commonly responsible for all of the following:

  • Taking full responsibility for implementing the Medical Staff peer review policy
  • Recommending revisions to the peer review policy and process
  • Reviewing and approving the OPPE and FPPE indicators recommended by the departments for each specialty
  • Keeping track of system issues that are identified through the peer review process, to ensure that they are addressed and do not fall through the cracks
  • Reviewing cases referred to the committee for peer review (which includes developing performance improvement plans for practitioners, where appropriate)

Any peer review committee that is performing all of the above functions must be engaged, educated, and savvy about peer review (so it’s important to make good choices about committee composition and to provide periodic training).  So, it only makes sense a hospital and medical staff would honor the commitment of the committee’s members by letting go of micromanagement and embracing a pure oversight role.

Oversight does not mean abdication of all responsibility.  But oversight does not require detailed information.  All the MEC and governing board need is enough information to be sure that good policies are in place and that the responsible individuals are following them.  This means summary/aggregate data reports work well.  For example, it should suffice if reports to the MEC and Board list the total number of cases reviewed through the peer review process within a specified period of time, with that data then broken down by department or specialty, with information about how those cases were addressed – e.g., through a letter to the practitioner, a collegial intervention, a performance improvement plan, or otherwise).

Empowering the multispecialty peer review committee to implement the peer review process has other benefits, in addition to demonstrating honor and respect for the committee’s members.  For one, by giving primary authority over the peer review process to a non-disciplinary committee, the Medical Staff promotes a peer review process grounded in collegial, progressive steps – rather than a punitive, threatening process.

Further, if collegial steps are unsuccessful in managing a practitioner’s performance issues, the MEC and/or Board may eventually need to get involved.  By keeping those bodies out of the initial collegial efforts of the Medical Staff peer review process, the hospital and Medical Staff preserve the members as disinterested individuals, allowing the MEC and/or Board to review matters with a fresh set of eyes when a practitioner comes before them.  This promotes fairness in the process, since practitioners who are subject to review can rest assured that there will be multiple layers of review – before committees/bodies that are for the most part disinterested – before any “disciplinary” action were to be imposed.

To conclude – we absolutely do recommend that hospitals and Medical Staffs empower their peer review committees to implement CME requirements, as well as other performance improvement measures, without first having those measures taken to the MEC or Board for approval.  It’s efficient, it shows trust in those leaders doing the legwork on peer review, and it is an important part of a collegial, fair process.

October 6, 2022

Posted on by Courtney Patterson

QUESTION:
Getting attendance at our Medical Staff department and committee meetings has always been a challenge.  Being able to participate remotely has helped somewhat, but it has also opened a whole new set of problems (like members participating on a confidential committee discussion while they shop at Target!).  How can we balance the benefits of using Zoom and Teams with some of the inherent risks that come along with using those remote options?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
While we too have benefited from the ability to interact with Hospitals and Medical Staffs leaders via Zoom and Teams during the pandemic, maintaining confidentiality, privacy and security can be a problem during virtual meetings.  This is especially true if any sensitive information will be discussed or shared.

Like traditional, in-person meetings, it can be helpful for the chair to begin each meeting with a reminder of the importance of confidentiality when sensitive issues are being discussed.  It is also important to remind participants to only join in from a secure location and that they are required to maintain compliance with all applicable policies on confidentiality, data privacy, electronic communications, and security no matter where they call in from.  A “virtual meeting” policy can be a helpful way to spell out these guidelines.

Consider joining us for our November Grand Rounds “Running Effective Meetings in a Virtual World,” where Ian Donaldson and Nick Calabrese will discuss how to make your meetings more efficient, both in-person and remotely, and some of the challenges Medical Staff leaders face regarding confidentiality in a virtual space.

September 29, 2022

Posted on by Courtney Patterson

QUESTION:
We are in the process of credentialing a new applicant.  We spotted some red flags pretty early on.  The Chair of the Credentials Committee knows physicians where the applicant trained.  Those physicians are not included by the applicant on the application.  Can the Credentials Committee Chair still call these physicians or are we limited to talking to the references the applicant listed?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question.  When it comes to gathering information about applicants for appointment, we like to say, “The sky is the limit.”  This means that you are permitted to obtain information from anyone who might have information that is relevant to the applicant’s qualifications.  The permission to obtain information is probably reflected in your Bylaws or Credentials Policy.  For instance, we include the following language in our documents:

The individual authorizes the Hospital, Medical Staff leaders, and their representatives to consult with any third party who may have information relating to the individual’s professional competence or conduct or any other matter relating to their qualifications for initial or continued appointment, and to obtain communications, reports, records, and other documents of third parties that may be relevant to such questions.  The individual also specifically authorizes third parties to release this information to the Hospital and its authorized representatives upon request.

This language protects both your hospital for asking for information and the person who has the information for providing it to you.  As added protection, there should also be similar information in the application form itself.  So, the bottom line is that you are not restricted from gathering information from individuals who the applicant has identified in the application.

The one area where you want to be careful is if you are calling a current employer.  The applicant may not have given notice of their intention to leave.  Usually, we recommend holding off on asking for a reference from the current employer until a little later in the process.  But, ultimately, you can ask the employer for a reference and, as a best practice, follow up with a phone call as well.

Looking for other guidance on difficult credentialing issues, why not join us in Las Vegas on November 17-19 for Credentialing for Excellence!

September 1, 2022

Posted on by Courtney Patterson

QUESTION:
We have new Medical Staff leaders taking office the first of the year and would like to get them trained up when they start. Do you have any virtual options available?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Do we ever!!! Several partners here at HSM have been working on a new virtual Medical Staff Leader Orientation & Toolkit program that will be available on January 26, 2023. This six-hour course will cover leadership, credentialing, and peer review topics, providing your new leaders with the tools they will need to get off on the right foot!

You can obtain more information and register for this program here.

May 12, 2022

Posted on by Courtney Patterson

QUESTION:
Due to the long time needed for a physician with behavioral complaints to go through the collegial efforts and progressive steps (e.g., collegial meetings, letters, performance improvement plans, etc.), staff are often left with the impression that Hospital and Medical Staff Leaders are not addressing the problem and “the physician is getting away with his bad behavior again.”  This destroys morale and it makes everyone reluctant to report concerns.  Do you have suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question.  In our experience, nursing and other hospital staff are typically reluctant to report concerns, especially about behavior.  We also know that the reports that get filed are typically “the tip of the iceberg.”  This is supported by The Joint Commission’s Sentinel Event on Behaviors that Undermine a Culture of Safety, which was first published in July 2008 and was updated in June 2021.

It is even harder for staff to file a report if they think they are being ignored or if nothing has been done about reported concerns in the past.  At the same time, addressing behavioral concerns (just like addressing clinical or health concerns) is part of the peer review process and is confidential and privileged.  That doesn’t mean that leaders can’t get back to the person who filed the report.  In fact, we recommend, as a “best practice,” that leaders try to always follow-up with a person who has filed the report or complaint.

The follow-up is important because you will often get additional meaningful information when you talk with the person who filed the report.  For instance, you might learn that the complained of behavior “happens all the time” or that others have been subject to the same behavior by the same physician.  You might also learn the names of additional people who witnessed the incident or who have relevant information.  Any new information should also be documented.

But beyond getting additional information, talking to the person who reported the concern is important because it is your chance to reassure the person that they have been heard.  You can thank the person for coming forward and remind them that documentation is necessary so that action can be taken.  You can also let them know their report has been reviewed by Medical Staff Leadership and that appropriate action will be taken.

You can also let the person know that retaliation of any sort against them for filing a report will not be tolerated and they should report immediately if they think they are being retaliated against in any way.  It’s also a good idea to let them know that their identity has not been disclosed.

Additionally, you can tell the person who filed the report that the Medical Staff deals with concerns about behavior as part of its peer review process and that the process is confidential and privileged according to hospital policy and state law.  You can explain that you are not at liberty to share the results of the peer review process with them, but you can reassure them again that they have been heard and that action is being taken.

You may want to follow-up with a note or e-mail.  This will reinforce the information you provided and it will also give you a chance to remind the person of the important role that they play in addressing concerns (it is difficult to correct a problem without a written report or complaint) and the need for them to continue to report incidents in the future.

January 13, 2022

Posted on by Courtney Patterson

QUESTION:
We’ve had a question raised about a Medical Staff member who performed a test on a family member without going through the formal patient registration process.  What can we do to educate our medical staff about the risks involved with these kinds of practices?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
We have found it to be helpful to set forth guidelines that remind Medical staff members of the concerns that can arise when a physician treats him or herself, a family member, or others with whom the physician has a close relationship.  A good starting spot is the Standard E-8.19 in the American Medical Association’s Code of Ethics, which speaks to how such actions can compromise professional objectivity and unduly influence medical judgment.  In addition, your state medical board may have guidance on this issue.

Relying on these resources, Medical Staff leaders can then adopt policy language that reinforces the standards of acceptable medical practice in these situations.

October 21, 2021

Posted on by Courtney Patterson

QUESTION:
We are trying to implement care guidelines for hip and knee replacements across the system.  The leadership has agreed on the guidelines generally and is now discussing implementation and enforcement.  They want to monitor the established metrics through the OPPE process and, if a practitioner is outside the metrics, have them automatically referred for FPPE (the matter would be referred to the Medical Staff peer review committee for further review and a determination of what collegial measures, if any, could be taken to get the practitioner into compliance).  If the practitioner remains outside the metrics cutoff after 90 days, the leadership has recommended that the practitioner’s joint replacement privileges be deemed automatically relinquished for failure to comply.  This method of enforcement does seem a whole lot easier than conducting an investigation and going through all of the procedures that are necessary to revoke privileges.  What do you think?

ANSWER:
While it is true that implementing an automatic relinquishment is easier than conducting an investigation, making an adverse professional review recommendation, and/or conducting a hearing and appeal process, not every situation is well suited to automatic relinquishment.

The situations where automatic relinquishment is most appropriate are those that are objectively assessed, require little to no evaluation of the practitioner’s competence or conduct, and tend to be focused on administrative requirements.  For example, failure to comply with documentation requirements, failure to attend a meeting when requested by the Medical Staff leadership, or loss of licensure are all matters that routinely lead to automatic relinquishment within hospitals/medical staffs all across the country.

There are some situations where failure to follow a protocol or guideline could appropriately lead to implementation of automatic relinquishment.  For example, consider the scenario where a hospital and medical staff establish a clinical protocol requiring a practitioner to either comply with the protocol or, alternatively, document contemporaneously in the file the reason why he or she is not following the protocol.  Automatic relinquishment of privileges for failure to comply with the administrative requirement of documenting the reasons for non-compliance would be acceptable, since the evaluation of the matter would be objective (e.g. did the practitioner comply?  If not, was there documentation of why in the chart?).  Further, the relinquishment would be related to an administrative matter (failure to comply with a documentation requirement applicable when not complying with a protocol).

However, if the practitioner were being reviewed because, although he or she was documenting the reasons for not following the protocol, the Medical Staff leadership felt those reasons were not good – that would be a different matter.  That would involve evaluation of the practitioner’s clinical judgment (e.g., the explanations for why the protocol was not followed), which would require subjective evaluation, clinical expertise, and a judgment about the practitioner’s clinical competence and/or conduct. Because of that, the consideration of whether the practitioner was justified in not following the protocol would better lend itself to review under the Medical Staff professional practice evaluation process (which is specifically designed to evaluate performance issues utilizing the expertise of the Medical Staff leaders and, afterwards, implement collegial solutions to help practitioners improve).

The situation you describe sounds like it may be more akin to the latter situation described above, in which case automatic relinquishment would not be the best solution.  It’s true that words like “guidelines” and “metrics” give the initial impression that a matter is being objectively evaluated – and that can lead many to believe that automatic relinquishment is a viable option for all situations involving failure to comply.  Our suggestion is to focus more on the actual metrics that are under consideration.  Is non-compliance with those metrics measured objectively, without the need to consider the explanation of the practitioner (e.g. H&P was on the chart prior to surgery, surgical note was on the chart prior to surgeon leaving the OR)?  If the metrics are “administrative” in nature, like these, then automatic relinquishment may be the right enforcement method.

But, if non-compliance with metrics is measured objectively at first –and then requires subjective evaluation to verify whether non-compliance was justified (e.g. patient was an appropriate candidate for the procedure, diagnostic tests were appropriate, appropriate medications were given), then review through the peer review process may be a better option than resorting to automatic relinquishment.  In your scenario, since the original plan is to refer matters of non-compliance into the FPPE process, it sounds like your guidelines may require subjective evaluation and be less “administrative” and, in turn, less suited to automatic relinquishment.

Of course, as always, the best option is to consult with your in-house or Medical Staff counsel, as the best answer depends on the specific protocols/guidelines you are looking to implement and enforce, as well as the language of your Medical Staff Bylaws and related governance documents.

October 22, 2020

Posted on by hortyspringer

QUESTION:        We have a new crop of Medical Staff leaders taking office on January 1.  How do we get them up to speed with no live seminars this fall?

ANSWER:          Fear not! Horty Springer is bringing its live seminars to a virtual platform, so your new Medical Staff Officers, chairs, and committee members can get all the education they need to become effective physician leaders in the New Year!

These courses will provide the same engaging, practical, and entertaining content that you expect from Horty Springer right to your PC, laptop, or iPad, so please join us this fall!