Medical staff disciplinary proceedings should be guided by legal counsel to avoid the myriad of potential pitfalls. The investigation of potential action on a physician's clinical privileges, commonly known as "corrective action," and the related reporting obligations are some of the most misunderstood and confusing aspects of health care law. The regulatory framework is essentially comprised of the Health Care Quality Improvement Act (HCQIA) and the National Practitioner Data Bank (NPDB) regulations. However, the Medicare Conditions of Participation and applicable accreditation standards also play a role. All of these parameters should be reflected in a well-drafted set of medical staff bylaws with a carefully constructed fair hearing plan.
Medical staff corrective action proceedings can be disastrous if the bylaws and fair hearing plan are not followed carefully and skillfully. Mistakes in handling medical staff corrective action can be emotionally and financially expensive for both physicians and hospitals, potentially ruining medical careers for unfounded reasons or exposing peer reviewers to liability for which they should be immune. Solid legal leadership is an absolute must to successfully guide the process.
The purpose of this article is to outline the primary issues that lawyers representing the hospital or medical staff leadership should consider in managing significant peer review/clinical privileging actions. While I could write a treatise on this subject alone, a few of the key areas of potential confusion are described here.
1. Employment
Terminating or restricting a physician's employment with a hospital is not the same thing as terminating or restricting a physician's clinical privileges. Sometimes the two are inextricably intertwined, but if not, a situation that would be reportable to the NPDB if handled through privileging could avoid reporting if legitimately handled through employment without corresponding investigation or action on privilege.
2. Behavior
Peer review and medical staff disciplinary process are appropriate for disruptive conduct, whether it is clinical or behavioral. This concept is often counterintuitive to medical staff, and good counsel will explain it in a way that makes sense of the nexus between poor behavior (e.g., intimidating, threatening, harassing) and patient safety risks (e.g., nurses being afraid to contact physicians after hours to report changes in vital signs). Because behavior is an intangible slippery slope, great care should be used before initiating corrective action based on behavioral issues.
3. Fairness to Physicians
The corrective action process is not an even playing field—all the way through, the hospital (or medical staff leadership) holds most of the cards. The HCQIA gives those involved in professional review immunity provided that the physician is afforded due process, including, potentially, a "fair hearing." It is critically important to err on the side of fairness to the physician throughout the process. This is a potentially life-altering event for the physician, and he or she should have all relevant documentation and be allowed a meaningful voice in the process. Limiting the physician's ability to review medical records or limiting their time to speak to the investigating committee are huge pitfalls that threaten fairness (and thus immunity), and should be avoided at all costs.
4. Contemporaneous Processes
Depending on the medical staff bylaws, it is very possible that a physician will be subject to simultaneous medical staff processes. For example, if a physician is determined to pose an immediate danger to patient safety or hospital operations, various hospital and medical staff leaders have the option to summarily suspend the physician's privileges. However, to figure out the proper long-term solution, it is often necessary to simultaneously initiate the corrective action process. The management of the simultaneous paths is an acquired skill, and they should, at most, result in one hearing, not two. Sometimes badly drafted bylaws will not make this clear.
5. Counting Days
The trigger for due process and for potential reporting to the NPDB is when there is a restriction of a physician's clinical privileges that is based on professional competence or conduct. The length of the restriction is important—on the 15th day after a restriction is imposed, the physician has the right to request a hearing, and there are notification obligations. On the 31st day after a restriction is imposed, the restriction must be reported to the NPDB and simultaneously to the state medical examining board.
The above-listed concepts are the tip of the proverbial iceberg, but are some of the most common stumbling blocks. Too often, these complicated processes are handled without knowledge of the key issues or potential consequences.
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Sarah Coyne is a partner in the health law group at Quarles & Brady LLP. She has been the national chairperson of the group since 2011, and has an active practice advising hospitals and other providers on the full gamut of health law issues, with emphasis on health information, Medicare billing compliance, and medical staff issues. Sarah is named as one of the Best Lawyers in America® and a SuperLawyer, was selected as the Health Law Attorney of the Year for 2011 by the Wisconsin Bar Association, was selected as a 2013 Leader in the Law by the Wisconsin Law Journal, was selected as the 2014 and 2016 Madison Health “Lawyer of the Year” by Best Lawyers, and holds a Martindale-Hubbell AV Peer Review rating. Sarah has served on the board of the HIPAA Collaborative of Wisconsin since 2004, currently serves as corporate secretary to that organization, and is also on the board of Madison Ballet. Sarah's detailed profile is available at this link: https://www.quarles.com/sarah-e-coyne/.
