October 21, 2021

Posted on October 21, 2021 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.

July 15

Posted on July 15, 2021 by Courtney Patterson

QUESTION:
“A physician recently smelled of alcohol and was behaving oddly while conducting rounds. The physician refused a screening test, so the Medical Staff leadership imposed a precautionary suspension. Is there a better way?”

ANSWER:
Yes! First, all hospitals should have a Practitioner Health Policy to govern health issues affecting privileged practitioners. Such a policy is required if your hospital is accredited by the Joint Commission, and it’s a best practice in any event. A Practitioner Health Policy allows Medical Staff leaders to identify practices and procedures that work in your setting, and can then be applied in a consistent manner (which helps to avoid allegations of discrimination).

Your Practitioner Health Policy should have a section dealing with responses to immediate threats, such as the one you describe above. The first step is for the Policy to identify who may respond to handle such situations. We recommend that a broad group of Medical Staff leaders be authorized to take the steps described in the Policy, to ensure that someone is always available.

The Policy should then identify who, and how many, individuals may request a practitioner to undergo a screening test to identify a possible impairment. Ideally, two Medical Staff leaders will make such a decision (or a Medical Staff leader and an administrator such as the CMO). Having two individuals involved in the decision protects them from allegations of bias, and should enhance the credibility of the process in the eyes of the practitioner under review.

To answer your specific question, if the practitioner refuses to cooperate with a screening test, the Practitioner Health Policy should say that the individual automatically relinquishes clinical privileges pending further review by the Leadership Council (or whatever committee handles health issues). This is not a permanent fix – potentially impaired practitioners would not be permitted to simply move out of town and subsequently harm themselves or others. Instead, it’s a method of buying time to persuade the practitioner to cooperate with the review process without imposing a suspension. A suspension causes the situation to feel more confrontational, which sends the wrong message when the goal is to help a colleague. A suspension also starts the clock ticking for hearings and NPDB reports, which can detract from efforts to constructively deal with the health issue.

For more information about how to deal with practitioner health issues, please join us in Orlando, FL from September 19 – 21, 2021 for the Peer Review Clinic. For more information, click here.

March 4, 2021

Posted on March 4, 2021 by jwilbert

QUESTION: We are currently doing an update to our medical staff bylaws, and, as part of the process, have been really focusing on how our committees are structured – making sure they’re accurate, updating functions – things we haven’t looked at in a decade. One of the biggest issues we have is that we have so many committees and it’s the same six people who seem to have to sit on all of them because we just don’t have that many people who are willing to serve any more. Any suggestions?

ANSWER: Yes – consolidation! This is a concern that we hear being raised in hospitals across the country. Medical Staff members are too busy, over committed, looking for work-life balance – whatever the case may be – and they are not as willing or as able to serve in these medical staff leadership roles as was the case in the past. A bylaws revision project is a great time to look at each medical staff committee and determine whether the functions being fulfilled necessitate a fully separate committee, or whether the function might become one component of a committee that fulfills multiple functions. While it used to be typical to see hospitals maintain fully separate committees dedicated to Infection Control, Radiation Safety, Pharmacy & Therapeutics, Performance Improvement, Blood Utilization, Tissue Review – and so on and so on – it is becoming much more commonplace to see, for example, a single “Quality Committee” that performs all of those functions with a member or two who has oversight of each of the specific functions.

The only cautionary note would be to check your state hospital licensing regulations. While most state regulations speak only generally in terms of the above “functions” being fulfilled in the hospital setting, there are still a handful of state regulations that are more proscriptive and do require separate defined committees to fulfill certain functions, so you would want to be sure that any changes made are in compliance with state requirements.

May 25, 2017

Posted on May 25, 2017May 25, 2017 by hortyspringer

QUESTION: The Medical Executive Committee disagrees with the way the Credentials Committee is managing a particular issue that has come before the Credentials Committee for consideration. Since the MEC has higher authority in the medical staff leadership structure, can it direct the Credentials Committee on how to manage the issue? Or is the Credentials Committee free to proceed as it sees fit?

ANSWER: While it is true that the Medical Executive Committee is the “supreme” authority in terms of the medical staff leadership, most medical staffs are structured with built-in checks and balances and roles and responsibilities that are assigned to specified individuals or committees. While the Medical Executive Committee may exercise oversight over all medical staff activities, that does not mean it can intervene any time that it disagrees with the way that something is being done. So, if the Credentials Committee is performing assigned functions, it has some discretion to determine how to perform those functions – provided that it abides by the Medical Staff Bylaws and other relevant policies.

The Medical Executive Committee can offer suggestions, but has no authority to intervene with the exercise of the Credentials Committee’s discretion by telling it how to perform its duties (again, unless the Committee is violating the Bylaws or a policy or acting unlawfully). This does not mean that the MEC is powerless, however. Remember that the activities of all medical staff committees are subject to oversight of the MEC. So, if the matter is one in which the Credentials Committee is making a recommendation to the MEC (such as a recommendation for a waiver of threshold criteria, of criteria for new clinical privileges, of criteria for clinical privileges that cross specialty lines, of appointment and privileges for an applicant, etc.), then the MEC can take the opportunity, during its review, to “correct” any mistakes it thinks the Credentials Committee may have made. That could mean gathering more information, if the MEC feels the Credentials Committee did not do enough to scour an applicant’s background. It could mean reviewing the matter anew, if it felt the Credentials Committee did not adequately address conflicts of interest during its review. It could mean talking to an applicant, if it felt the Credentials Committee did not give the applicant ample opportunity to be heard. The list goes on and on. The point is, the MEC – as a subsequent level of review – has the opportunity to set right a multitude of perceived wrongs.

On a related matter, when medical staff leaders do not see eye-to-eye about how to manage day-to-day medical staff activities, that can indicate that it’s time for more education about the roles and responsibilities of hospital and medical staff leaders, as well as required credentialing and peer review functions (and the risks of not completing those functions well). Leaders who are well-informed about the content of their Bylaws, the Credentials Policy, and related Medical Staff policies are likely to be more consistent in how they perform their leadership functions. All medical staff leaders should also receive education about legal protections for leaders, the risks to legal protection (such as frolic and detour), and ways to maximize legal protections (e.g., through management of conflicts of interest, good documentation, reasonableness when dealing with other practitioners, and following a “patient safety first” rule of thumb).