QUESTION: A physician on our medical staff has made numerous inappropriate entries into the EMR. These include critiques of other physicians, the hospital, and its staff. We have approached the physician several times to inform him that a patient’s medical record is not an appropriate forum for these comments, but he claims he has the First Amendment right to put whatever he wants to in the records, and continues to do so. What can we do?
ANSWER: The regulatory and accreditation requirements set forth by the Joint Commission and both federal and state law make it clear that they require the medical record to document objective clinical information relative to an individual patient’s medical condition that will enable a patient’s caregivers to provide the appropriate patient care. Entering comments in a patient’s medical record that are critical of the hospital or of other individuals are inappropriate editorial statements, which do not advance the care of a patient. In addition, they clearly create and increase legal risks to the hospital and to all individuals involved in the care of the patient.
A physician who has a complaint or concern regarding an administrative policy, the hospital’s utilization practices, or the care provided by any other individual should be advised that the medical record is not the proper forum for that issue and should be directed to register those concerns through appropriate medical staff or administrative channels. Most times, providing this education and counseling to the physician is sufficient to resolve the concerns. If not, however, the physician should be advised that continuing disregard of the policy concerning the proper content of medical records will be referred for review under the Medical Staff Professionalism Policy.
QUESTION: We recently received a complaint that one of our Medical Staff members was “surfing” the EMR, looking for patients with a certain diagnosis and then contacting them to offer his services. Should we refer this matter to our HIPAA Privacy Officer, review it under our Medical Staff Professionalism Policy, or take some other approach?
ANSWER: There are good reasons for involving the hospital’s Privacy Officer in the review of HIPAA violations by Medical Staff members. The Privacy Officer is responsible for implementing the hospital’s HIPAA policies, so that individual should be aware of potential privacy violations by Medical Staff members. Also, Privacy Officers have significant experience investigating and responding to privacy violations. They will be familiar with HIPAA’s dense regulatory requirements and know how to find information that shows if health information was improperly accessed.
At the same time, there are good reasons for using the Medical Staff process to review HIPAA complaints involving physicians:
- Physicians may be more likely to listen to other physicians.
- Hospital licensing regulations generally require the Medical Staff to review the actions of its members.
- The Medical Staff process is protected by a statutory peer review privilege, which results in confidentiality and candid discussion.
- Violations of HIPAA (or any regulation) may include a behavioral component that will be of interest to the Medical Staff leadership.
To get the best of both worlds, we recommend that the Medical Staff Professionalism Policy include a provision describing how individuals responsible for other hospital policies (such as the HIPAA Privacy Officer or the Corporate Compliance Officer) will be notified of concerns that involve their area of responsibility. The Policy should also describe how efforts will be made to coordinate the efforts of the Medical Staff leadership and the individual responsible for the other policy (e.g., through attendance at meetings and the sharing of information).
For additional information about dealing with physician behavior concerns, please join us in San Francisco for:
The Peer Review Clinic
QUESTION: Our hospital is employing a lot more physicians than in the past. When we receive a complaint about the behavior of one of these employed Medical Staff members, we’re not sure if we should review it through the Medical Staff process or through the employment process (i.e., HR policies or the employment agreement). Or should we use both?
ANSWER: We recommend that the Medical Staff Professionalism Policy (or Code of Conduct Policy) have a “triage” process. If a behavioral concern is raised about a Hospital-employed physician, a Medical Staff leader (such as the Chief of Staff) will discuss the concern with a representative of the employer. The Medical Staff leader and the employer representative then decide which process will be used to review the complaint.
If a decision is made to use the employment process, the Medical Staff process would be held in abeyance. Critically, though, the employer would keep Medical Staff leaders continually informed of the status and outcome of the review. If the Medical Staff leaders are unhappy with how the review is being conducted, they can commence their own review under the Professionalism Policy at any time. On the other hand, if the Medical Staff leaders are satisfied with what the employer is doing, the Medical Staff leaders would essentially adopt that action as their own. Thus, the Medical Staff is not “punting” or abdicating its responsibilities. It’s evaluating the actions of the employer, then deciding to either adopt that action as its own or conduct a separate review.
There are several goals to this process. The first is to avoid a duplication of effort by both the physician under review and those conducting the review. The second is to use the most effective process to address the concern. In some cases, the employer will have better tools for dealing with the issue, while in other cases the Medical Staff process will be more effective. Finally, a triage process can help to avoid inconsistent results that send mixed messages to physicians and create legal risk.
For a more detailed discussion of peer review of hospital-employed physicians, join us in sunny Austin, Texas for The Peer Review Clinic on March 1-3, 2018.
QUESTION: In our Medical Staff Professionalism Policy, should we have a different process for addressing reports of sexual harassment?
ANSWER: Since there are unique legal implications surrounding sexual harassment, we recommend that a policy addressing inappropriate conduct incorporate a modified process for review of reports involving sexual harassment.
We recommend that a single, confirmed incident of sexual harassment trigger a well-defined process that involves the medical staff and hospital taking immediate and appropriate action to address the conduct and to prevent it from reoccurring. For example, a personal meeting should be held with at least two members of the professionalism committee (or similar committee) to discuss the incident. If the physician acknowledges that the incident occurred and agrees not to repeat the conduct, the physician is sent a formal letter of admonition and warning that is placed in his or her file. The letter should set forth any additional actions or conditions imposed on the physician’s continued practice at the hospital which result from the meeting. If the physician refuses to acknowledge the confirmed incident of sexual harassment or there are confirmed reports of retaliation, the matter should be immediately referred to the Medical Executive Committee to conduct a review consistent with the credentials policy or bylaws. A well-defined process which incorporates these details demonstrates the hospital’s efforts to address any incidents of sexual harassment and attempts to prevent them from occurring again, minimizing the risk of the hospital being held liable in court.