medical staff

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.

May 23, 2024

Posted on by Courtney Patterson

QUESTION:
Recently, as part of our routine peer review process, a physician was asked to provide a written response to a behavioral concern that had been reported by one of our nurses.  The physician now wants to know who filed the report.  Should we disclose the identity of the nurse?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZZAFAR:
No.  At this stage in the peer review process, we strongly recommend protecting the identity of any individual willing to come forward and raise a concern.

In most cases, who raised the concern is irrelevant.  For clinical concerns, the matter will be evaluated based on what is in the medical record, so whoever reported the matter is unrelated to the concern.  For behavioral concerns, assuming that witnesses are interviewed, and they corroborate the original reported concern, the individual’s identity is also irrelevant.

However, even if you do not disclose the identity of the nurse, that does not mean that the physician under review cannot guess who filed the report.  Accordingly, it is useful to gently remind physicians to avoid any action that could be perceived as retaliatory, even if retaliation isn’t the intent.

Depending on how far into the peer review process this matter gets, it is possible that you will eventually disclose the reporter’s identity.  For instance, if you get to the point that a Medical Staff hearing is going to be held to consider restricting the physician’s clinical privileges, the physician should be provided access to the same documents considered by the hearing committee.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

April 25, 2024

Posted on by Courtney Patterson

QUESTION:
We caught wind of the fact that one of our surgeons was cited for boating under the influence (or “BUI” – yes, this is a thing in our state) last weekend.  Does our Medical Staff leadership need to take any action, or do we only need to act if we’ve observed problems in the hospital?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
A BUI or (more commonly) a DUI may reflect a momentary lapse in judgment or be the sign of a more significant problem.  Given this uncertainty and the potential risks to patients, we think it makes sense to speak with the individual about the BUI/DUI, gather any additional information that may be relevant, and decide if any further action is needed.  This approach should give you the information you need to make sure patients are kept safe.  It will also help you to determine if any steps should be taken in regard to your Medical Staff colleague.

Ideally, you have processes in place through your Medical Staff Bylaws and policies to help your physician leaders navigate these issues in a supportive, non-punitive manner.  If you do not, a practitioner health policy should be on your Medical Staff leadership’s “to do” list for this year, as impairment of all kinds (substance abuse, mental and physical health, disease, etc.) can occur at any time.

If you have a quick question about this, e-mail Ian Donaldson at IDonaldson@hortyspringer.com.

April 4, 2024

Posted on by Courtney Patterson

QUESTION:
We have a podiatrist who practiced at our hospital.  There were a number of serious complaints about her behavior and her ability to work well with others which we tried to address through our Professionalism Policy.  Ultimately, we developed a rigorous Performance Improvement Plan for Behavior, which she signed.  She resigned almost immediately thereafter.  Now, she wants to come back.  What do we do?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Many medical staffs have stringent threshold requirements that applicants must meet in order to be eligible for appointment.  While those criteria might render a physician ineligible if they resigned while under investigation, the criteria probably don’t include a resignation while under a Performance Improvement Plan.  You should check your threshold criteria just in case.

Remember, the burden is always on the applicant.  Even if your criteria do not render the podiatrist ineligible for appointment, that does not mean that, as part of your credentialing process, you should appoint her to your medical staff (of course, denial of appointment is always a last option).  You can require her to demonstrate that she meets your standards, including your standard to work harmoniously with others.  You can require her to address and resolve the questions that had been raised about her conduct before she resigned.

Furthermore, you could inquire about whether she completed the relevant elements of the Performance Improvement Plan.  For instance, if the Performance Improvement Plan included anger management, CME, and/or coaching elements, you could ask for confirmation (and evidence) that she satisfied those elements.  Additionally, you could ask about her practice history since she resigned, including whether she has ever been subject to any collegial efforts or progressive steps at any other facility since she resigned.

Just like with any problem applicant, you should tell her that no further action will be taken until she fully resolves the questions and concerns about her behavior.  It is usually a good idea to give an individual like this a set time frame to respond, as reflected in your bylaws documents and notice that “If you do not fully and completely respond to our questions in the next 60 days, we will deem your request to be withdrawn and no further action will be taken.”

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

February 15, 2024

Posted on by Courtney Patterson

QUESTION:
We recently received a complaint that a Medical Staff member may have been inappropriately accessing medical records.  Do we handle this as a Medical Staff matter or should we refer this to our HIPAA Privacy Officer?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Given the Privacy Officer is responsible for implementing the hospital’s HIPAA policies, they should be made aware of any potential violations by a Medical Staff member.  In addition, Privacy Officers have significant experience investigating and responding to privacy violations and they will understand the law’s regulatory requirements, including if breach notifications are required.

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.

This is why we recommend that the Medical Staff’s professionalism policy or code of conduct 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.  This allows for coordination between the Medical Staff leadership and the individual responsible for the other policy.

If you have a quick question about this, e-mail Ian Donaldson at idonaldson@hortyspringer.com.

February 8, 2024

Posted on by Courtney Patterson

QUESTION:
This question was raised by a registrant at our Complete Course for Medical Staff Leaders last week – should we notify Medical Staff members immediately, as soon as a case “falls out” in our peer review process?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
No!  There are so many different indicators that hospitals track – some required by Medicare, some by accreditation standards, some based upon specialty-specific evidence-based medicine – and the mere fact that a case “tripped” one of these many indicators does not mean that there are specific concerns that need to be addressed.  We hear that Medical Staff members already tend to view the peer review process as something that can feel more punitive than performance improvement based, and if we start sending letters out to individuals the minute that a case has met a specific indicator, we risk making that perception even worse.  Professional practice evaluation/peer review policies should clearly state that cases that make their way into the process can be closed at the earliest, most initial stage of review, and that practitioners need to be notified of cases only once questions or concerns about the care provided by the practitioner have been identified.

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

February 1, 2024

Posted on by Courtney Patterson

QUESTION:
Recently, we have had several physicians on our medical staff refuse to consult on a case because the patient was covered by Medicaid.  The patient had been admitted to the hospital, so we knew it wasn’t an EMTALA issue, but they still needed to be seen by a specialist.  Have you seen this at other hospitals, and do you have any suggestions on how to handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Perhaps not surprisingly, this issue has come up before.  In an effort to address it, we recommend including language in your Medical Staff Governance Documents to make it clear that, not only do physicians have an obligation to see all patients in the ED, but they also have an obligation to respond to requests for consult (regardless of the patient’s payor status) when they are on call.

For instance, you might spell out in the Bylaws that Active Staff members have a responsibility to serve on the ED on-call schedule, and to “accept inpatient consultations, when on call for the ED.”  Similar language could be added to the Bylaws with respect to other staff categories.

Additionally, the threshold criteria for appointment and clinical privileges could require individuals to “agree to fulfill all responsibilities regarding inpatients, including responding to requests for consult when serving on the ED on‑call schedule.”  The basic responsibilities and requirements of appointment should also include an agreement “to provide emergency call coverage, consultations, and care for unassigned patients.”  This language will help ensure appropriate coverage not only for the ED but also for inpatients who require specialty consultations.

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

January 4, 2024

Posted on by Courtney Patterson

QUESTION:
Are Medical Staff Professionals protected under the Health Care Quality Improvement Act (“HCQIA”)?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
While it is rare for a Medical Staff Professional to be named individually in a lawsuit brought by a physician subject to a professional review action, the protections under the HCQIA should be available.  The HCQIA’s protections are available for “professional review bodies,” “any person acting as a member or staff to the body,” and “any person who participates with or assists the body with respect to the [professional review] action.”  Typically, Medical Staff Professionals are not appointed as members of professional review bodies, but the immunity under the HCQIA, as noted above, is also available for those who participate or assist the body with respect to a professional review action.  This provision could apply to duties that Medical Staff Professionals perform, including preparing materials for review by, for example, the Medical Executive Committee.  But keep in mind, for the immunity to apply when a professional review action is taken, certain enumerated standards in the law must be met.  The HCQIA also provides immunity from damages for those providing information to professional review bodies regarding the competence or professional conduct of a physician.  Again, this would most likely cover the tasks performed by Medical Staff Professionals if they are playing a supporting role for Medical Staff committees.

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

November 9, 2023

Posted on by Courtney Patterson

QUESTION:
As a part of the threshold eligibility criteria in our Credentials Policy, physicians are required to be board certified by a board approved by the ABMS or AOA.  Can we accept certification by a foreign board from a physician who has applied for Medical Staff appointment and clinical privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
This is a complex question since it may implicate other threshold eligibility criteria in your Credentials Policy.  For example, many medical staffs and hospitals also require a physician to have successfully completed a residency and, if applicable, a fellowship training program approved by the ACGME or AOA.  Thus, if a physician is board certified by a foreign board, it may also mean they did not receive their training in a residency approved by the ACGME or AOA and, consequently, do not meet that criterion as well.

Nonetheless, assuming all other threshold eligibility criteria are met, you may accept certification by a foreign board even though your Credentials Policy requires physicians to be board certified by an ABMS or AOA board.  However, you would first have to go through the waiver of threshold eligibility criteria process outlined in your Credentials Policy.  As an alternative, some hospitals with which we work that repeatedly come across this issue have incorporated a process in their Credentials Policy to use when evaluating whether a foreign board meets the standards of their hospital.  They consider whether the foreign board has comparable certification requirements, including those related to: (1) education and training; (2) letters of attestation or reference; (3) licensing; and (4) written and oral examinations.  A hospital may also give consideration to whether the foreign board is accepted by, for example, the relevant board of the American Board of Medical Specialties for purposes of qualifying for board certification in the United States (e.g., members of The Royal Australian College of General Practitioners are eligible to receive initial board certification through the American Board of Family Medicine) and if the Medical Executive Committee has previously determined that the foreign board meets the standards of the hospital.

It is also important to remember that the burden of demonstrating and producing information to support an applicant’s qualifications lies with the applicant.  This should be specifically stated in your Credentials Policy.  Therefore, if an applicant has certification by a foreign board, the burden is on them to provide information related to the factors described above for evaluating whether the foreign board meets the standards of the hospital.  If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.