April 26, 2018

Posted on April 26, 2018April 26, 2018 by hortyspringer

QUESTION: We have an orthopedic surgeon who is applying for appointment and clinical privileges at our system who has a troubling malpractice history. Within the past five years, he has settled three malpractice claims ($190,000, $100,000, and $75,000). He also has two other cases that are pending. We are reluctant to grant him appointment. At the same time, we are not sure if we have enough to deny his application. What should we do?

ANSWER: Malpractice claims can be tough sometimes. A single claim, standing alone, does not necessarily indicate a problem. However, multiple malpractice claims may reflect underlying issues pertaining to judgment, skill, communication, or behavior, all of which are relevant considerations for appointment and clinical privileges.

Furthermore, according to a study by the New England Journal of Medicine, only 4% of physicians had three or more malpractice claims. The risk of recurrence of a malpractice claim increases with the number of previous paid claims. Physicians who have three paid claims had three times the risk, or a 24% chance, of another paid claim within two years. According to a Vanderbilt University study, physicians with past records of malpractice claims can be expected to have “appreciably worse claims experience” than other physicians in future years.

You can also review relevant data available from the National Practitioner Data Bank, which includes medical malpractice payments by practitioner type and state. This may help to put your applicant’s malpractice history in perspective. Malpractice history, including judgments and settlements, is also important because it could be used against the hospital in a negligent credentialing case if the physician were appointed and then subsequently was sued.

Therefore, before you move forward with the application, you should require the applicant to resolve the concerns raised by his malpractice history. One way to review and assess the concerns would be to review the underlying malpractice cases through your peer review process or to use an expert from an external peer review organization for this purpose. Since the burden of resolving questions about qualifications is on the applicant, the applicant should be responsible for providing a copy of the medical records from the malpractice claims. The applicant would also be responsible for any costs associated with this review.

Remember to keep the burden on the applicant to resolve your concerns. If the concerns cannot be resolved, you may determine that the application is incomplete and should not be processed. Denying the application is a last resort that is almost never needed.

August 17, 2017

Posted on August 17, 2017 by hortyspringer

QUESTION: The Chief of Staff recently implemented a precautionary suspension after a Medical Staff member engaged in some seriously unprofessional behavior that was thought to compromise patient safety. The MEC met to review the matter and lifted the precautionary suspension after four days. A formal investigation was commenced and that process is now complete and the MEC is considering suspending the practitioner for 30 days. For purposes of reporting to the National Practitioner Data Bank (NPDB), will that suspension be added to the four-day suspension he already served — meaning that it will constitute a 34-day suspension and will, in turn, become reportable to the NPDB as a suspension lasting more than 30 days?

ANSWER: Even though the precautionary suspension and the “regular” suspension are related to the same factual matter, they are separate professional review actions and, in turn, they do not “add up” for the sake of reporting. Therefore, the four-day precautionary suspension was not reportable to the NPDB. The same will be true of a 30-day suspension, if that action is finalized by the Board. Be sure to check the applicable requirements of state law, however, as some states require hospitals to report all suspensions of clinical privileges, no matter how long they last.

October 27, 2016

Posted on October 27, 2016 by hortyspringer

QUESTION: We have an applicant who had significant issues at the last hospital where she practiced, significant enough that she left while under investigation. The NPDB report provided us with very little information, really only enough to know that the matter appeared to involve behavior and not clinical care, but it certainly was not enough to feel like we know what happened. The hospital won’t respond to our requests for information, and when we formally asked the applicant for additional information, her lawyer sent us a letter telling us she is bound by a “legally binding” settlement agreement not to disclose what happened except that she had decided not to pursue the investigative process. What can we do?

ANSWER: This is a classic example of an incomplete application. Settlement agreement or no, you should advise the applicant that she has the burden of producing information sufficient to evaluate her qualifications. You can agree to keep any information provided to you by the applicant, and by the other hospital, confidential for use in your credentialing process only. However, you cannot process this application without some information to determine the basis for the physician’s resignation while under investigation. If she does not provide the information within a reasonable time, you can advise her that her application will be deemed to have been withdrawn. It is helpful to have very clear and direct language in the Medical Staff Bylaws to emphasize that the burden is on the applicant to provide information necessary to assess qualifications, as well as a statement that incomplete applications will not be processed. Don’t be dissuaded by the existence of a settlement agreement – the courts have supported the need to obtain information relevant to the credentialing process.

In Scott v. Sisters of St. Francis Health Services, 645 F. Supp. 1465 (N.D. Ill. 1986), St. James Hospital refused to forward Dr. Mac Scott’s application to the Credentials Committee because it had been unable to obtain information regarding his suspension and subsequent resignation from the medical staff of Ingalls Hospital. Dr. Scott had sued Ingalls Hospital and, as part of a settlement agreement, the hospital could only respond to inquiries about Dr. Scott with a form letter prepared by Dr. Scott’s attorney, which provided no meaningful information upon which to make a recommendation regarding appointment.

Dr. Scott sued, alleging: (1) that the refusal to forward his application to the Credentials Committee was a violation of his civil rights and racially motivated; and (2) that the hospital president had exceeded her authority by refusing to forward the application. The federal district court rejected those arguments and entered judgment in favor of the Sisters of St. Francis Health Services, stating:

Scott’s assertion, however, does not take into account the fact that the bylaws provide that Sister is to forward only completed applications to the Credentials Committee for consideration. Sister discussed with Scott the problems he experienced at Ingalls and the need for additional information from Ingalls about his suspension. Sufficient evidence was presented at trial to show Scott’s application was incomplete, and Scott’s efforts prevented St. James from obtaining needed information from Ingalls. As such, Sister’s decisions to not forward Scott’s applications were not outside the bounds of her authority as President of St. James nor indicative of any intent to discriminate against Scott on the basis of his race. [Emphasis added.]

Additional cases that have held that a hospital has no duty to process an incomplete application include Evers v. Edward Hospital Association, 617 N.E.2d 1211 (Ill. Ct. App. 1993), and Eyring v. East Tennessee Baptist Hospital, 950 S.W.2d 354 (Tenn. Ct. App. 1997). (While Scott and Evers involved the initial credentialing process, Eyring was a reappointment case.)

May 19, 2016

Posted on May 19, 2016May 19, 2016 by hortyspringer

QUESTION: Our hospital is registered with the National Practitioner Data Bank (“NPDB”). We would like to designate as an authorized agent for NPDB querying purposes a credentials verification organization (“CVO”) with which we have recently started working. How do we go about doing this?

ANSWER: The NPDB explicitly permits the practice of eligible entities, including hospitals, designating authorized agents, such as CVOs, to query on their behalf. However, according to the NPDB Guidebook, an authorized agent must, itself, register with the NPDB and comply with all the registration requirements. Often, CVOs act as authorized agents for a number of eligible entities. Nonetheless, the CVO must query the NPDB separately for each eligible entity they represent. Moreover, the CVO is not permitted to share results of a query for one eligible entity with another eligible entity.

After the CVO registers with the NPDB, your hospital will have to designate the CVO as its authorized agent. This is a relatively simple process that can be done electronically by accessing this web address: https://www.npdb.hrsa.gov/hcorg/howToDesignateAnAuthorizedAgent.jsp. Finally, as a part of designating the CVO as an authorized agent to query the NPDB on behalf of your hospital, you will have to create a written agreement between your hospital and the CVO. The NPDB Guidebook does not identify any required elements for this written agreement, but the NPDB website provides recommendations for what should be included in the agreement. According to the NPDB website, the agreement should confirm the following: (1) the authorized agent is authorized to conduct business in the relevant state; (2) the authorized agent’s facilities are capable of maintaining the security and confidentiality of NPDB reporting and query responses; (3) the authorized agent is prohibited from using querying responses for any purpose other than that for which the disclosure was made; and (4) the agent understands that sanctions can be taken if information is requested, used, or disclosed in violation of NPDB provisions.

March 19, 2015

Posted on March 19, 2015April 30, 2015 by hortyspringer

QUESTION: In this week’s “NEW CASES,” I see that the U.S. Court of Appeals for the 7th Circuit held that a Chief of Staff’s discussion with an applicant about the red flags in his application and the consequences of denial (reporting to the NPDB) constituted an adverse employment action. Should we immediately halt all such conversations?

ANSWER: No – you do not need to immediately halt informal discussions with applicants regarding the concerns you have about their applications. Nor need you stop educating applicants and medical staff members about the credentialing process and its intricacies. HOWEVER, as always, you should be careful about the legal implications of how you communicate regarding these matters.

First, let’s look at how the Seventh Circuit described the conversation between the Chief of Staff and Dr. Simpson (internal citations omitted):

Dr. Eric Miller [The Chief of Staff] called Dr. Simpson to give him a “heads-up” about the Credentials Committee’s concerns about his application for medical staff privileges. Eric Miller explained to Simpson that if his application were to be denied, it would have to be reported to the National Practitioner Data Bank. Eric Miller outlined some of the Committee’s concerns, including Simpson’s employment and education history, the need to take an oral exam to obtain licensure from the state of Wisconsin, the two malpractice lawsuits, and interpersonal communications. Eric Miller wanted to give Simpson an opportunity to withdraw his application and avoid the risk that a denial would have to be reported to the National Practitioner Data Bank.

* * *

Dr. Eric Miller accused him of “disruptive behavior,” referring to his interaction with [the CEO] when he attempted to get his sign-on bonus. Eric Miller told Simpson that he would have expected an applicant to be on his “best behavior” and more “collegial” during the pendency of his application for medical staff privileges. Simpson suggested that [the hospital] hire him on a probationary status to see how he would do if Eric Miller was concerned that he was disruptive. Eric Miller responded that they had had some “bad actors” in the past, and it was easier not to hire a bad actor than to get rid of one. Simpson also stated that Eric Miller said he wished Simpson well in finding a position that was a “better fit.”

* * *

We agree that Dr. Simpson has suffered an adverse employment action. To establish an adverse employment action, “a ‘plaintiff must show that a reasonable employee would have found the challenged action materially adverse.’” A reasonable physician would have found the threat that his application for privileges would be rejected and that the rejection would have to be reported to the National Practitioner Data Bank to have been materially adverse. While an applicant who voluntarily withdraws an application cannot state a prima facie case of discrimination, Dr. Eric Miller’s warning indicated that it would be futile for Simpson to maintain his application. The writing was on the wall. In essence, viewing the facts in the light most favorable to Simpson, he was compelled to withdraw his application for privileges before the Credentials Committee voted on it; thus the withdrawal does not undermine his prima facie case.

It is clear that, based on the evidence at hand in the Simpson case, the Seventh Circuit believed that the Chief of Staff had not only educated Dr. Simpson about the credentialing process, the concerns with his application, and the consequences of any potential denial – but, also had impressed on Dr. Simpson that his application would, in fact, be denied.

So, what can be learned from this opinion? First, always have more than one person present if you are going to have this sort of discussion with an applicant. That way, you won’t run into a “he said – she said” type of situation.

Secondly, always document these conversations. Documentation serves as great evidence of what was really said years later, when memories have faded. A good way to create the necessary documentation is to follow up in writing, with a letter to the applicant, thanking him or her for talking with you and then outlining briefly the content of your discussion.

Third, never imply or express that the outcome of a credentialing matter has been decided when it has not. Dr. Simpson came away from his conversation with the Chief of Staff believing that he had been told that his application would be denied and he would be reported to the Data Bank, so it would be better for him to go somewhere else where he could fit in better. This is despite the fact that his application was still on hold at the Credentials Committee level of review (it was incomplete due to missing pieces of information). And, though there were a number of unresolved red flags that were part of his application, there was no reason, at the time the Chief of Staff called him, for anyone to conclude that Dr. Simpson would complete his application sufficiently to have it processed or, in the event that he did complete the application, that it would be denied.

Fourth, to make sure that you choose your words carefully and don’t give the wrong impression, prior to having this type of meeting with an applicant, consult with hospital legal counsel and other medical staff leaders involved in the credentialing process. Then, based on those conversations, create a checklist of items to be discussed with the applicant and use that checklist as the talking points for your conversation. Finally, have legal counsel review any follow-up letter, to be sure that any points of confusion are ironed out in that letter. That way, everyone can be clear that a “heads-up” conversation is just that – a heads-up to the applicant about the current status of his or her application, the immediate next steps in the process, and the details of the credentialing process that lies ahead, including any possibly unexpected consequences (such as reporting to the NPDB).