RSSAll Entries in the "legal and ethical issues" Category

Holy Moly, He Wants to Come Back!

Okay, here are the questions:

  • What do you do when the physician requests his privileges be restored after he returns from rehab for his cocaine and sexual addictions?
  • What do you do when the 67-year-old internist, who retired five years ago, has just been hired by administration to be your new hospitalist?
  • What do you do when your favorite cardiologist returns from a medical leave of absence after suffering a significant stroke?

Of course, these scenarios cause more questions than answers. You suddenly wish you had declined the invitation to be chief of staff of your medical staff. The fact remains that demographics apply to physicians as well as the general public.

Alcohol and substance abuse is 12-14% in the general population and is the same or somewhat higher in the physician population. (P Hughes, Prevalence of Substance Abuse Among US physicians, JAMA, 1992) Sexual addiction, especially cyber addiction to pornography, is present in 6-8% of the general population and one out of five are women. (Carnes, Am J Prev Psychology Neurology, 1991, 3:16-23) Dementia is present in 13.9% of individuals 71 and older and 9.7% of these have Alzheimer’s disease. (Plassman, et al, Neuroepid, 2007) Stroke recovery is possible, but of course, varies widely depending on age, severity of the injury, rehabilitation efforts, and support to name a few. None of us are immune from these possibilities.

Okay, now a few answers. Patients are more important than physicians. Don’t get caught in the trap of treating physicians as “special people.” First and foremost, you should have a concrete policy for dealing with all of the above possibilities. It must be iron clad, fair and equitable, be consistent with HIPPA and the American Disability Act, should be patient-safety focused but also allow for the physician to return to your medical staff. This begins with a viable and credible Physician Health Committee, an engaged credentials committee, OPPE and FPPE plans on steroids, legal advice, and a “Fitness to Work” evaluation from an objective and independent physician.

Want more from Dr. White? R Dean White DDS, MS, of Dean White Consulting, will be speaking about how to create a physician re-entry process at the 15th Annual Credentialing Resource Center Symposium, May 10-11. For more information, click here.

Centralization of physician performance data

The structure for collecting and trending practitioner data varies from organization to organization. In many, all FPPE and OPPE data is collected, tracked, and trended by medical staff services departments. Incident reports related to patient grievances or other clinical concerns may be tracked and trended through the risk management department while peer review and individual practice deviations may be tracked and trended through the quality review department. In addition to hospital performance, division chiefs may keep division files on any issues that are reported and/or addressed by them.

It is important for organizations to have a clear picture of a practitioner’s performance. Centralizing where practitioner data is tracked will eliminate the possibility that there is performance data missing when conducting performance reviews. Although different departments may handle and/or address different issues related to performance, there should be one central repository for physician data. Departments should then forward all data to this area for safe keeping and filing in the practitioners quality file.

One of the first steps in developing a central repository for practitioner performance data is education. Organizations should spend time educating their division chiefs on how to address concerns that are brought to their attention; when collegial intervention is appropriate and when an issue must be escalated or forwarded to another department and/or a formal medical staff committee. Division chiefs should be educated on how to document performance issues and how to document the steps that they have taken to resolve the concerns. Ensuring that all concerns are well documented helps protect the division chief as well as the organization should an issue arise later which requires further scrutiny or results in due process.

Should an investigation be initiated, having all data centralized saves time and ensures a more thorough review. Having a one-stop shop for all incident reports, collegial interventions, peer review referrals, and all other clinical performance data allows the committee conducting the review to have a full picture of the practitioner’s performance. Organizations should also include all positive feedback in the quality file and should always respond to a practitioner when a review is conducted and the care he or she provided is deemed to have met or exceeded the standard.

Centralization of practitioner performance data not only benefits the committees or division chiefs conducting performance reviews, but also helps protect the organization from claims of negligence should they conduct reviews without all of the information available.

Featured webcast: Managing adverse actions

Adverse actions are a serious matter that requires serious attention. From prevention to investigation to reporting, how can you ensure your organization has the best processes in place? In the 90-minute live webcast, “Adverse Actions: Steps to Prevent, Manage and Report,” Joanne Hopkins, JD, and Anne Roberts, CPCS, CPMSM, will discuss how deal with an adverse action from beginning to end. Listeners will learn how to prevent adverse actions through education, how to prepare for an investigation, how to set clear guidelines and expectations for the peer review committee, what types of corrective action can be used, due process obligations, and reporting obligations.

Sponsored by the 15th Annual Credentialing Resource Center Symposium, the webcast will be held on Thursday, Oct. 27 at 1 p.m. EST. Participating in the live webcast or purchasing the CD to listen to at a later date cost just $159.20. For more information, click here.

Cognitive decline associated with aging: What medical staffs need to know

Most of us may not consider aging to be an impairment, but it can greatly affect a physician’s ability to practice safely. Currently, the aging baby boomer generation of physicians is treating other aging baby boomers who require three to five times the amount of healthcare as younger patients. When you couple this with the fact that more physicians are electing to practice later in life for financial or personal reasons, medical staffs must implement safeguards that ensure aging physicians maintain the competence to practice safely.

Medical staffs cannot refer a physician for evaluation for suspected cognitive decline arbitrarily. A referral is warranted if there are clinical or behavioral aberrations that are difficult to explain, a history of head injury, a history of substance or alcohol abuse, or a known neurologic disease. But before we delve into referrals, a brief explanation of neuropsychological testing is in order.

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Was care spread too thin with multi-hospital privileges?

It’s not uncommon for practitioners to hold privileges at more than one facility. But can a practitioner’s ambitions put patient care in jeopardy? Should medical staffs set a limit on how many different facilities they allow their privileged practitioners to practice at, or set limits on patient case load at each facility?

These are some of the questions raised by the case of Eldridge Pearsall, MD, an OB-GYN who was put on probation by the Medical Board of California after several cases were called into question.

In one instance, a hospital contacted Pearsall to assist with fetal distress in a patient carrying twins, according to a news report. Pearsall responded that he was busy working at another hospital, but would arrive in 45 minutes. When Pearsall eventually arrived, it was later than expected and the twins were already delivered.

In another instance, he forgot about a patient and went home to sleep, ignoring calls about the patient.

The Medical Board cited “patient abandonment” and an “extreme departure from the standard of care,” as some of the reasons for placing him on probation.

Do you think the Pearsall case is an isolated and extreme example or does it contain some learning lessons for all medical staffs about stretching practitioners too thin?

Do patients need to prove malpractice before proving negligent credentialing?

Negligent credentialing claims usually overlap malpractice claims. But do patients need to prove one before the other? Courts have interpreted this differently.

In Schelling v. Humphrey (2009), the Supreme Court of Ohio ruled that a plaintiff can bring a negligent credentialing claim against a hospital without filing a malpractice claim against an individual practitioner.

However, in Plaisance et al., v. Our Lady of Lourdes Regional Medical Center, Inc., et al. (2010), an appeals court in Louisiana ruled that the plaintiffs had to establish a malpractice claim before they could establish that the medical staff knew about the pattern of alleged malpractice behavior and went ahead with its credentialing, thus negligently credentialing the practitioner.

These rulings show that in some states it’s more difficult to prove a negligent credentialing claim if a malpractice claim has to be established first.

The goal for MSPs remains the same: process applications with due diligence to avoid negligent credentialing or even the appearance of it. Ultimately credentialing best practices will help keep the medical staff out of the court room, for malpractice or negligent credentialing cases.

$163 million squeezed from Medicare by organized crime, largest case of its kind

The largest Medicare fraud operation conducted by a single group was recently taken down, the Department of Justice announced earlier this week. The accused individuals allegedly stole the identities of physicians and Medicare beneficiaries to set up shadow clinics to bill for unnecessary services and/or procedures that were never performed.

Here are some of the statistics from the case:

  • 73 defendants were charged with various healthcare fraud-related crimes
  • $163 million in fraudulent billing was sent to Medicare
  • 118 alleged shadow clinics submitted Medicare charges
  • 25 states housed the shadow clinics

“The [accused] perpetrated a large-scale, nationwide Medicare scam that fraudulently billed Medicare for more than $100 million of unnecessary medical treatments using a series of phantom clinics,” said Kevin Perkins, FBI Assistant Director of the Criminal Investigative Division, in a press release. “We want to restore the confidence in the nation’s health care system and assure practitioners we will not stand by and let their identities be used for criminal gain.”

This case highlights the important work MSPs do in verifying Medicare and Medicaid sanctions to ensure the proper sanctions are rendered and to stop identity fraud in its tracks.

Do you need a medical staff lawyer, or will a call to the hospital lawyer solve the problem?

When medical staffs face a legal problem, they have a choice as to whether they use the hospital’s legal counsel or secure their own counsel. The fact that there is a choice may seem obvious, however, in most instances this may be a hidden choice as medical staff may be likely to use whatever lawyer they used in the past, rather than exploring a new option. If the legal problem the medical staff is facing puts the medical staff at odds with the hospital, the medical staff may be more likely to pursue their own lawyer. Nevertheless it’s important for medical staffs to understand the differences between hospital lawyers and medical staff lawyers and which agent to call.

“The medical staff leadership should be able to get advice from a knowledgeable lawyer that they trust,” says Constance Baker, Esq., partner at Venable, LLP, in Baltimore, who represents hospitals and medical staffs. “I don’t think they generally need separate legal counsel except for these unusual circumstances where the culture may have been such that the medical staff simply cannot trust the hospital leadership or there have been historical reasons why the relationship is not going to work out with the hospital counsel and medical staff.”

One of the reasons why it may be easy for lawyers to play on both teams at once is because often the hospital and medical staff have closely aligned interests, from meeting accreditation requirements to serving the community.

“Any advice that any well-trained, seasoned, experienced hospital attorney can provide really benefits both sides—and in many senses there aren’t two sides, they really are the same side,” says Michael R. Callahan, Esq., partner with the healthcare practice group of Chicago-based Katten Muchin Rosenman, LLP, who represents hospitals and medical staffs.

Yet, there’s another school of thought that suggests medical staffs need their own lawyers who can solve problems solely from the medical staff’s point of view.

“[Hospital lawyers] represent the hospital so when they are explaining the impact of the due process procedures, how you request a hearing, and what the physician’s rights are, they can explain them without necessarily saying, ‘and if you’re the doctor at the other end of it, it’s a bad idea for you,’” says  Michael Cassidy, Esq., of Tucker Arensberg, PC, in Pittsburgh, who represents medical staffs and practitioners. “They don’t go that last step because they’re not supposed to.”

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Cardiologist collected $13m from insurance billing scam

When MSPs conduct criminal background checks on practitioners or search for them on the OIG’s List of Excluded Individuals/Entities, chances are the results will reveal an honest application. However, that doesn’t mean practitioners aren’t committing insurance fraud.

Case in point: Sushil Sheth, MD, cardiologist from Chicago who was recently found guilty of stealing $13 million from Medicare and 30 other insurance companies over a five year period. Law officials say Sheth held privileges at three hospitals where he obtained patient information that he used for false billing purposes.

Click here to read more about the case which highlights the importance of conducting background checks.

Epilogue to the story of the whistleblowing nurses

For a while now we’ve been following the story of Anne Mitchell, RN and Vicki Galle, RN who reported a physician to the Texas Medical Board. It seemed that the final chapter was written in February when Mitchell received a not guilty verdict from the jury. Galle’s case had been dropped earlier.

However, the latest detail of the case emerged this week with the announcement that the nurses will share a $750,000 payment from Winkler County, TX where the original charges were filed.

Click here to read more about the update.