April 14, 2022

QUESTION:
A few weeks ago, a nephrologist resigned from our medical staff to take an opportunity out of state.  It’s been brought to my attention that one of the nephrologist’s cases had been flagged for review by our peer review specialist.  The specialist sent me an email asking whether we should continue with our standard peer review process.  Do you have any guidance?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
This situation is more common than you would think.  Because the nephrologist is no longer a member of your medical staff, we would advise that specific peer review of that physician’s medical services should be discontinued.  The purpose of peer reviewing that physician is to ensure and improve quality; this purpose can no longer be effectuated if the physician has left the medical staff.  Among other things, many of the tools that could be used to improve care would no longer be available (such as having the physician complete additional training and then monitoring a few of the physician’s cases at the hospital).  Also, a malpractice attorney may argue that the peer review privilege doesn’t apply to reviews conducted after a physician has left the medical staff.  Finally, continuing peer review of a physician no longer on your medical staff may give an eager plaintiff’s attorney something to squawk about (e.g., allegations that the purpose of the review is to harm the physician).

April 1, 2021

QUESTION:       I’m supposed to take minutes of meetings I attend, but I don’t know what to include, what not to include, etc., and everyone I ask has a different view.  Help!

ANSWER:           We’re not sure either so we can’t help you at all.  APRIL FOOLS!  We’ve reviewed minutes that could have fit on a 5 by 7 inch index card, and others that are as thick as a phone book (if those even exist anymore).  Here are the “Do’s” for taking minutes:

    1. DO – write down the name of the committee that’s meeting.
    2. DO – write down the date of the meeting.
    3. DO- list who’s in attendance, and who’s absent.
    4. DO – list if there are any guests or visitors at the meeting.
    5. DO – note the time the meeting was called to order, who called it to order, and the time it was adjourned.
    6. DO – note whether it’s a regular or special meeting of the committee.
    7. DO – note that if it’s a special meeting, that notice was given to the committee members, and the way notice was given (mail, e-mail, personal delivery, etc.).
    8. DO – note whether a quorum was present (this eliminates the argument that the action of the committee wasn’t valid because of the lack of a quorum).
    9. DO – note whether the previous minutes were read and approved.
    10. DO – note the result of the votes, for example, 7 – 1 to suspend the physician’s privileges. This is the most important “Do” since the vote is the      committee’s action.  If the result of the vote is written down in black and white at the time it’s taken, there is little room to argue in the future that it was inaccurate.

…and here are the “Don’ts:”

    1. Don’t record the details of any discussion. This is the most important “Don’t”.  Sometimes, in the heat of the moment, someone may say something that they don’t mean.  Or that can be misinterpreted.  Or that was meant as a joke, but looks sinister in black and white.  If it’s recorded in the minutes, it’s there forever, and may turn up again.  There isn’t really a need to record the details of a discussion.  What’s important is the vote, the committee’s action. But, with every rule, there’s an exception.  The exception here is “Do put details of a discussion in if it helps” and it helps when a committee makes an adverse recommendation against a physician.  In that case, the minutes could be your best friend.  The details would allow the committee to record the objective reasons for taking action – physician was disruptive on this date, this date and this date and did this and this and this.  The reasons can be explained, but, comments shouldn’t be attributed to any one individual.
    2. Don’t record how each member voted, unless a committee member wants his/her vote recorded. There’s also an exception to this rule.  When a committee’s going to make an adverse recommendation and a competing physician is on the committee, the minutes should reflect that the conflict of interest principles were followed (Dr. Jones fully answered the committee’s questions, left the room prior to the vote, the vote was taken, and Dr. Jones returned to the room).
    3. Don’t record who made a motion and who seconded them.
    4. Don’t record who said what to someone else.
    5. Don’t record personal remarks unrelated to the committee’s business. For example, when discussion is regarding revocation of privileges, don’t record “Dr. Jones said that Dr. Smith pranked him on April Fools’ Day by telling him that the Health Law Express was ending.”  The only thing that’s relevant is Dr. Smith’s competence.  So record “The committee recommended that Dr. Smith’s surgical privileges be revoked because of competence concerns.”

For more about the “Do’s” and “Don’ts” as well as: confidentiality, the peer review privilege, and how to lose it; what goes in (and what, if ever, can come out of) a practitioner’s confidential file, and; sharing files with a practitioner or within a health care system, tune in to the Grand Rounds Audioconference “Medical Staff Documentation – How to Keep It Confidential” on May 4, 2021.

September 27, 2018

QUESTION:        Is the peer review privilege the same thing as peer review immunity?
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ANSWER:            No, there is a difference.  The peer review privilege protects documents from disclosure in certain kinds of court cases.  Peer review immunity protects participants in the peer review process from having to pay money damages if they are sued (so long as they meet certain conditions).  To put it very simply, privileges protect documents; legal “immunities” protect people.