When it comes to disclosing disciplinary actions taken against a physician or other practitioner granted clinical privileges, no news can be bad news—meaning, if an entity does not respond to requests for verification of the practitioner’s status, there may be a reason for the non-response. Both the entity requesting the information and the entity disclosing the information play a significant part in ensuring appropriate information is disclosed and shared between organizations. Appropriate disclosure is essential to ensure that medical staffs granting clinical privileges to practitioners have sufficient information to make informed decisions. Following is the first of my three-part blog series on proper disclosure and sharing of information.
Relevant legal cases related to disclosure
Most Medical Staff Professionals and Medical Staff Leaders are aware of the Kadlec Medical Center vs. Lakeview Anesthesia Associates case, where disclosure was at the heart of the suit. Kadlec Medical Center obtained peer references from Lakeview Anesthesia Associates during initial credentialing of an applicant. However, the peer references did not disclose that Lakeview Anesthesia Associates was aware of disciplinary action taken against the applicant in question. The affiliated hospital, Lakeview Medical Center, responded with a general template verification letter that did not disclose whether there had been corrective action taken at the facility while the physician held privileges there.
One of the key takeaways from this case is that the receiving hospital that is credentialing the provider must ensure that they have done their due diligence during credentialing—accepting a general verification letter that does not attest to whether there have been any quality or other concerns related to the applicant can lead to negligent credentialing claims. This case also signifies that failure to disclose information can later result in the third party being held liable if there are negative outcomes that may have been prevented had the third party fully disclosed prior actions that were taken against the applicant.
The case in Texas
A Texas case that’s currently in the news is likely to be the next significant case where disclosure during the credentialing process is one of the key elements of the debate. Christopher Duntsch, a neurosurgeon who eventually had his Texas license revoked, had corrective action taken by Baylor Health Care System for concerns related to his clinical competence; the concerns were brought forth by his peers. After the action was taken, Duntsch went on to practice at other hospitals in the Dallas area. Concerns are emerging with regard to what information Baylor had prior to granting him clinical privileges; it has been alleged in some reports that Duntsch’s peers warned Baylor of their concerns about him prior to Baylor granting him clinical privileges.
There are also concerns being reported regarding what information Baylor disclosed to other entities when they requested verification of Duntsch’s status at Baylor. Other hospitals that subsequently granted clinical privileges to Duntsch allegedly were unaware of the competency issues at Baylor until after they were facing significant investigations of their own related to poor patient outcomes—including paralysis and the death of at least one patient.
In one report it is alleged that one of the surgeons who was called in to correct complications after one of Duntsch’s surgeries was so astounded by what he found that he thought Duntsch might be an imposter. The report indicates that the surgeon faxed a photo of Duntsch to the neurosurgery training program in Tennessee where Duntsch trained, to confirm his identity. It will be up to the courts to decide whether Baylor shares some of the liability for the subsequent cases with poor outcomes at the other hospitals, if Baylor is found to have failed to disclose pertinent information to the other hospitals.
In my blog post next week, I’ll discuss the necessary steps to ensure appropriate disclosure during the credentialing process. Stay tuned!
It’s possible to navigate the call to the physician about undisclosed issues without casualties. Rosemary Dragon, CPMSM, CPCS, a regular columnist for Credentialing Resource Center Journal, offers some advice for initiating this difficult but essential conversation. You can read her complete MSP Voice column, including a script to follow, in the February 2014 issue of CRCJ.
After uncovering my first undisclosed issue while working a credentials file, I was told to call the physician to request a detailed explanation. I can’t remember what it was I had to ask about, but I vividly recall feeling horrified, ill-equipped, and small. Perhaps you can relate? I feared the wrath that I expected from him when I asked about this sensitive issue.
That first conversation was about as bumpy as a country road, but I eventually developed a script for these tough conversations. I learned that if I approached them skillfully, these conversations didn’t have to be confrontational; they could be a collegial exchange:
With these conversations, I also stick to a few rules of thumb:
• Use a gentle voice, and keep all communication friendly and professional.
• Stick to the facts. Don’t answer questions that are outside your responsibility. If the physician has a question for you that you can’t answer, tell him or her that you’ll have to look into it.
• Document the entire conversation. Providers may offer details verbally that they choose not to include in the written explanation.
Whether I am asking about a malpractice claim or a history of substance abuse, following a script helps to put the provider and me at ease. I hope this helps you to sail smoothly through your next tough conversation.
More physicians are delaying retirement and practicing longer, and medical staffs across the country are wondering how to help physicians stay in practice longer while promoting quality care. The fact is, many medical staffs aren’t prepared for an aging physician population. If your organization is looking for guidance about this topic, I hope you’ll join us for a webcast Tuesday, March 11, from 1:00 to 2:30 p.m. (ET).
The presentation, Practicing Medicine Longer: Legal and Clinical Considerations for an Aging Physician Population, features two renowned speakers: CRCJ editorial advisor Elizabeth “Libby” Snelson, JD, president of Legal Counsel for the Medical Staff, PLLC; and Stephen H. Miller, MD, MPH, voluntary clinical professor of surgery and family and preventive medicine at the University of California San Diego. They’ll tackle the cultural, clinical, and legal considerations medical staffs must address to help physicians who want to stay in practice longer, and will provide time to answer your questions.
Audience members will find guidance on establishing a policy for aging physicians, protecting against age-discrimination lawsuits, and eliminate unnecessary barriers for physicians who want to stay in practice longer. In addition, this webcast will provide ideas for reducing the stigma of identifying physician impairment, and for supporting physicians when a practice issue is identified.
This program is pending approval by the National Association Medical Staff Services for up to 1.5 continuing education units. More information is available here.
We talk a lot about medical staff bylaws, rules and regulations, and policies and procedures because these are considered the documents that lead to a smooth-running medical staff. However, it is imperative that your medical staff members (and those granted clinical privileges) know that your organization also has its own set of policies and procedures and rules and regulations and that they must comply with as well. Examples include: dress code, ID badges, clinical practice, and infection control.
Set this expectation upfront, even before Day 1 at your organization, by placing an attestation on your medical staff application. The attestation should make it clear that medical staff members or those granted clinical privileges must comply with all organizational and medical staff policies and procedures.
This week’s tip is from Legal Strategies for MSPs & Physician Leaders: Prevent Negligent Credentialing and Protect Peer Review by Anne Roberts, CPMSM, CPCS.
A recent Wall Street Journal article (November 1, 2013) reports that hospitals must now report influenza vaccination rates to the CDC and enforce the wearing of masks by healthcare workers who are not vaccinated.
Well, it is time again for my yearly rant. It is unconscionable for healthcare workers to put the at-risk population we care for in jeopardy of acquiring a potentially life threatening illness due to our “right” to refuse immunization. I know I just really annoyed quite a number of folks. But remember, I live and work in New York where a public health law was passed in July requiring mandatory flu shots. So no flu shot, no mask, proceed to jail? Well the state stopped a little short of that. The law actually doesn’t define the penalty. I guess the legislature is made up of a bunch of cowards. It really shouldn’t be left up to the government to create laws to force healthcare workers to do the right thing. We really need to step up and take control. What do you think?
I will be the first to admit that a) I am not a morning person; and b) I am definitely not a Monday-morning person. If you can relate, I hope this new blog installment will help. Every Monday, Credentialing Resource Center will post a tip or best practice related to medical staff services, so you can kick off your week with a new tool in your belt. I consider that a win for Monday morning.
And so, here is this week’s tip, from one of our new books, The Medical Staff’s Guide to Overcoming Competence Assessment Challenges:
Credentials committees often over-analyze credentialing and privileging decisions regarding low- and no-volume practitioners in an attempt to avoid insulting or criticizing a colleague. However, the best course of action is to approach every applicant in a businesslike manner. Rely on your policies and procedures to avoid the appearance of impropriety, and communicate with the low- or no-volume practitioner regarding:
- Established criteria for clinical privileges, including whether your facility requires a minimum number of patient contacts per year
- The practitioner’s plans to grow or narrow his or her practice
- The hospital’s increased focus on determining proficiency for clinical privileges
- Your medical staff’s strategic direction
- Volumes incurred at your facility
Happy Monday morning!
A recent article in the Washington Post titled “D.C. Council chairman to propose bill boosting nursing staffs at hospitals” brings up again the issue of nurse-to-patient ratios. D.C. Council Chairman Phil Mendelson is quoted as saying “I think this bill is today’s version of the eight-hour day — something that we will see business resist but, on the other hand, makes good sense and leads to quality care.”
Wouldn’t it be nice if nurse-to-patient ratios were the key to quality care? The proposed bill includes some ratios, such as intensive care unit patients should have one nurse to every two patients. That sounds good, but some patients require one-on-one nursing due to their complexity, so is the mandate that those patients can’t have one-on-one nursing? Might there be patients in the intensive care units for whom one to three is appropriate? In my experience that answer is absolutely yes!
As far back as when I was in medical school, and that’s a long time ago, when nurses (or physicians) were busy, there was always an outcry for more help. But when things were not as busy, you rarely heard “We have too much help.” The difference is that most folks of my generation went into healthcare to help people. So if more people needed help, we stayed late, came in early, vented our frustrations to each other (not to the media) and just did our jobs. Certainly some places have unsafe ratios and that needs to be addressed – but not with legislation.
Who is in the best position to determine how to care for patients: health care providers or legislators? Should we in healthcare not be the ones to fix this? I for one don’t want to be the person who can’t be admitted to the hospital when sick because I would cause the nurse to have one too many patients. Quality is multi-factorial, and I object when non-clinicians use the word quality as a hot button to stir up the public. I wholeheartedly agree that staffing should be safe, but as with many things in life, there is not a bright line here, but a gray zone. Thoughts?
Public Citizen, a nonprofit organization that advocates for individual rights, says the Texas Medical Board needs to step up its game. The organization asserts that the state medical board has failed to punish many physicians in the state who have received sanctions from healthcare organizations. The Texas Medical Board disagrees, citing Federation of State Medical Boards data that often ranks Texas at the top for disciplining physicians.
According to an article from HealthLeaders Media, Public Citizen analyzed 21 years of NPDB data.The group found that almost 450 Texas physicians who had been sanctioned by a healthcare entity had yet to be disciplined by the Texas Medical Board. Public Citizen sent a letter to Texas Governor Rick Perry urging him to take “immediate action to improve the performance of the Texas Medical Board and thereby protect patients in Texas from physicians who should have been, but were not, disciplined.”
Public Citizen does not blame the medical board; it instead puts the blame on a lack of funding and staffing. In Texas, the money that is collected through physician appointments, reappointments, and fines is placed in the state’s general fund. The medical board than submits a request for funding to perform its functions.
Lee Hopper, spokeswoman for the Texas Medical Board, says the agency is not underfunded or understaffed. “Like anybody, of course we would always like more money. But we haven’t been dealing with a budget crisis so the agency is healthy and it’s effective,” she tells HealthLeaders Media.
In its letter to Perry, Public Citizen recommends letting the medical board keep more—preferably all—of the funds it collects. This raises some interesting questions to think about.
Should the medical board be entitled to all of the money collected through its processes? Should the medical board learn to do more with less, like many other businesses and citizens are currently forced to do? Would more funding lead to more disciplinary action?
The question that really sticks on my mind is, as a healthcare consumer, how important is it that disruptive physicians be disciplined? I know the short answer is very, but at what cost? Do you want your state’s medical board to use all of the money it collects to fund its needs? Or would you like to see some of this money go into the state’s general fund to be used for other public services?
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.
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.