|
healthlaw reference
- July 2005 -
Is P4P 4U?
By
Michael A. Cassidy, Esq.
Pay For Performance
(P4P) is the newest healthcare reform theory. Many believe the theory
developed wide-spread acceptance following the landmark report, To
Err is Human, published by the Institute of Medicine (IOM) in 2000,
followed by the IOM report, Crossing the Quality Chasm: A New Health
System For the Twenty-First Century, issued in 2001.
There is almost
unanimous agreement that P4P, if implemented correctly, has great
potential to improve patient care. The basic premise is to (1) define
quality by some measurable standard, (2) provide reimbursement
incentives which compensate improved quality and (3) assess performance
and pay accordingly.
There is almost equal
consensus that, if implemented haphazardly or inequitably, P4P has just
as much potential to frustrate physicians and waste resources. Both
specialty and primary care physicians are concerned that, unless the
absolute budget for Medicare reimbursement or any healthcare
reimbursement is increased proportionately, any P4P system could merely
redistribute existing reimbursement pools, thereby reducing the
reimbursement of physician groups who do not have the benefit of easily
measurable performance targets.
Numerous reports have been issued on the
subject. In April 2004, the American College of Physicians (College)
issued a Position Paper entitled The Use of Performance Measurements
to Improve Physician Quality of Care. The paper identifies
seven fundamental position points:
Position 1:
The goal of physician performance measurement should be to foster
continuous quality improvement of clinical care to meet or exceed
evidence-based national standards of such care.
Position 2:
Physician performance measures should be evidence-based, broadly
accepted, and clinically relevant. These measures should assess and
focus on those elements of clinical care over which physicians have
direct and instrumental control (as opposed to systems constraints).
They should be built on statistical methods that provide valid and
reliable comparative assessment across populations.
Position 3:
Any data collection required to support performance measurement should
be feasible, reliable, and practical. Data collection should not violate
patient privacy or add to the paperwork burden experienced by
physicians. Should performance measurement data collection impose
additional costs on physicians, these costs should be supported by the
health system and not the physician.
Position 4:
The College supports demonstration projects on public reporting of
performance measures to provide patients with information to make
educated choices about their physicians and other health care
professionals. Acceptable demonstration projects should include the
following elements:
-
Physician
participation in the demonstration projects is voluntary.
-
Physicians have a
key role in determining the design of the demonstration projects,
selection of the measures, and data collection and reporting systems
that will be used.
-
Physician-specific
performance data are disclosed only after physicians participating in
the project are provided an opportunity to review and comment on such
data; data are fully adjusted for case-mix composition (including
factors of sample size, age/sex distribution, and severity of illness;
number of comorbid conditions; and other features of a physician’s
practice and patient population that may influence the results); and
patient identifiers are removed to ensure that patient privacy is
protected.
Position 5:
Information technology tools should be used whenever possible to
facilitate data acquisition for performance measures and to minimize any
manual data extraction to support such measurement.
Position 6:
The College supports demonstration projects to evaluate the use of
incentives, including financial incentives, to reward physicians who
meet or exceed performance standards. Any financial incentives related
to performance measurement should be directed at positive rather than
negative reward.
Position 7:
The College will lead the critical review, development, and
dissemination of physician clinical performance measures and the
development of public policies to support the appropriate use of
performance measures.
FEDERAL LEGISLATION: VALUE BASED PURCHASING
Congress is working on
legislation to expand P4P within Medicare. This concept has been
christened “Value Based Purchasing.” The Chairman of the House Ways and
Means Committee, William M. Thomas (R-California), and the Health
Subcommittee Chairwoman, Nancy L. Johnson (R-Connecticut), have asked
CMS to provide information on the Agency’s P4P initiative, such as the
hospital demonstration project and the Physician Group Practice
demonstration project, involving ten of the largest physician practices
described in our February 18, 2004 e-mail newsletter (available on our
Web site). The American Medical Association (AMA) has, not
surprisingly, stated that its goal is to have a “place at the table” in
the development for P4P. The AMA Board of Trustees at its June 2005
Annual Meeting recommended a report on Pay for Performance Principles
and Guidelines identifying 5 core elements for a P4P program:
-
Insure quality;
-
Foster
physician/patient relationships;
-
Voluntary physician
participation;
-
The use of accurate
data and fair reporting mechanisms; and
-
Funding of fair and
equitable program incentives which should include resources to cover
the administrative costs of collecting and reporting quality data.
Many physician groups
have indicated staunch opposition to any P4P program that does not
include a permanent fix of the Medicare system. They particularly object
to the formula which ties physician reimbursement to a sustainable
growth rate for Medicare spending, which simply maintains a defined pool
of Medicare dollars that gets redistributed among physicians by reducing
reimbursement rates, via the Medicare conversion factor, if volume
exceeds the original projections used to implement the Medicare
physician fee schedule. Congress has intervened in each of the last
several years to avoid Medicare reimbursement and reductions, but
physician groups are seeking a permanent fix to this situation.
Obviously, the definition of a permanent fix depends upon whether you
are the payor or the payee in this situation, so this type of dogmatic
opposition could impede the development of P4P.
Michael A. Cassidy is
Chair of the firm’s Health Care Practice Group. Mike was named a 2005
Pennsylvania Super Lawyer in the Health Care Law category. For more
information on this topic, please contact Mike at 412.594.5515 or via
e-mail at
mcassidy@tuckerlaw.com.
>Top
Estate Tax Repeal Or Reform?
It’s Anybody’s Guess!
On April 13, 2005, the
U.S. House of Representatives passed legislation that would make the
2001 federal estate tax repeal permanent by eliminating the “sunset”
provision, which otherwise would bring the estate tax back in 2011. The
Senate, however, has failed to vote on that legislation, and the debate
rages on.
Under the 2001 repeal
- which is currently the law - the per-person exemption amount gradually
increases from the $675,000 in 2001 to $3.5 million in 2009. In 2010 no
estate tax applies, regardless of the size of the estate, and the
current “step-up” in basis for estate assets is replaced by a carry-over
basis system. Additionally, the tax rate gradually decreases from 55
percent in 2001 to 45 percent in 2009. In 2011, however, the “repeal”
is repealed, and the tax regime returns to how it would be had the 2001
repeal not passed: a $1 million per-person exemption amount and a 55
percent tax rate.
Legislation
permanently repealing the estate tax faces a much tougher battle and an
uncertain fate before the U.S. Senate. The debate focuses as much on
how to reform the estate tax as it does on whether to permanently
repeal the estate tax.
Various options are
being considered in bipartisan Senate discussions, including a proposal
to increase the per-person exemption amount to $10 million with a
maximum rate of 15 percent and an alternate proposal for a per-person
exemption amount in the range of $3 to $5 million coupled with a maximum
rate lower than the current 47 percent but higher than 15 percent.
Despite the emphasis
being placed by many on the reform rather than the repeal,
the battle cry of “Kill it, don’t wound it!” is still being heard. In
the midst of the debate, however, most seem to believe that a resolution
will be reached in 2005.
In the meantime,
flexibility in estate planning documents is the key. A review of
documents now to ensure that unintended consequences will not
result under the current tax scheme is vital. Once some resolution is
found that can pass both the House and the Senate and be signed by the
President, another review will be necessary.
The only certainties
are that things will change and that no one knows exactly how.
>Top
Department of Justice Confirms
Personal Liability for HIPAA Violations
By
Michael A. Cassidy, Esq.
The Office of Legal
Counsel of the U.S. Department of Justice issued an opinion on the scope
of HIPAA criminal enforcement (HIPAA Criminal Enforcement Memorandum)
on June 5, 2005, a copy of which can be accessed on our Web site here.
The HIPAA Criminal
Enforcement Memorandum provides guidance and clear warning regarding
potential criminal enforcement regarding HIPAA violations. It also
addresses the standards for establishing criminal intent.
The HIPAA Criminal
Enforcement Memorandum begins by confirming that the HIPAA standards
apply, by statute, only to covered entities, which are identified as
providers, health plans, clearinghouses and Medicare prescription drug
card sponsors, which was added to the category of covered entities by
the Medicare Prescription Drug, Improvement and Modernization Act of
2003. However, the opinion goes on to conclude:
“In addition,
depending upon the facts of the given case, certain directors, officers,
and employees of these entities may be liable directly under § 1320d-6
in accordance with general principles of corporate criminal liability,
as these principles are developed in the course of particular
prosecutions. Other persons may not be liable directly under this
provision. The liability of persons for conduct that may not be
prosecuted directly under § 1320d-6 will be determined by principles of
aiding and abetting liability and of conspiracy liability.”
This concept should be
not be foreign to healthcare providers, who have been deluged with
reports of civil and criminal liability for Medicare fraud and abuse,
false claims, and other violations of Federal healthcare programs over
the years. Some confusion had arisen regarding criminal liability of
individuals because the HIPAA standards apply only to the covered
entities, as defined by the statute, and the criminal provision apply to
“a person who knowingly and in violation of this part” performs any of
the prohibited conduct, i.e., uses or causes to be used a unique health
identifier, obtains individually identifiable health information, or
discloses individually identifiable health information to another
person. The reasoning was there could be no conduct “in violation of
this part” if the individuals were not literally subject to that part,
i.e., HIPAA.
The opinion makes it
clear that the general principles of corporate criminal liability will
be applied, but presumably the covered entities would remain liable as
well. A HIPAA violation by a covered entity should be prerequisite
before there can be any consideration of whether an individual is
responsible by virtue of conspiracy or aiding and abetting theories, but
the individual’s conduct will be attributed to the entity. The opinion
confirms this by stating:
“Although we do not
elaborate these principles here, in general, the conduct of an entity’s
agent may be imputed to the entity when the agent acts within the scope
of their employment, and the criminal intent of agents may be imputed to
the entity when the agent act on its behalf.”
The next issue to be
addressed in the criminal enforcement memorandum is whether the
requirement of a “knowing” violation required the government to prove
only knowledge of the facts that constitute the offense or whether proof
that the defendant knew that the act violated the law was required.
You might recall that
enforcement of the Medicare Fraud and Abuse Rules, as defined by the
Hanlester case, which was a fraud and abuse prosecution involving
clinical laboratory referrals, was severely restricted because the
Hanlester decision required proof of intent to violate the law. The
criminal and enforcement memorandum concludes that criminal intent need
not be proven, but simply knowledge of the facts. The opinion states,
“a plain reading of the text indicates that a person need not know the
commission of an act described in subsections (a)(1)(2)(a)(3) violates
the law in order to satisfy the ‘knowingly’ element of this offense.”
The opinion goes on to say that the Justice Department’s reading of the
“knowingly” element comports with the usual understanding of the term in
that, unless the text of a particular statute specifically dictates
otherwise, the term “knowingly” merely requires proof of knowledge of
the facts that constitute the offense.
Michael A. Cassidy is
Chair of the firm’s Health Care Practice Group. Mike was named a 2005
Pennsylvania Super Lawyer in the Health Care Law category. For more
information on this topic, please contact Mike at 412.594.5515 or via
e-mail at
mcassidy@tuckerlaw.com.
>Top
OSHA Requirements for Medical
Professionals
By
Michael A. Cassidy, Esq.
The OSHA regulations
applicable to the offices of medical professionals are aimed at creating
a safe and healthy practice. Compliance creates a positive work
environment and minimizes employee complaints. There are six OSHA
general standards that apply to physician offices of all sizes and a
seventh requirement that applies only to offices that offer X-ray
services. We will discuss each in this article. The seven standards
are:
1. Bloodborne
Pathogens;
2. Hazard
Communication;
3. Exit Routes;
4. Electrical;
5. Reporting
Occupational Injuries and Illnesses;
6. OSHA Poster; and
7. Ionizing
Radiation (applicable only if X-ray services offered).
1. Bloodborne Pathogens
The OSHA requirements
aimed at reducing occupational exposure to HIV, Hepatitis B and
Hepatitis C are found in the OSHA bloodborne pathogens standard (1991),
which was updated in 2000 by the Needlestick Safety and Prevention Act.
There are eight key requirements regarding bloodborne pathogens. They
include:
Exposure Control
Plan.
An exposure control plan is required where an employee is subject to
occupational exposure (reasonably anticipated skin, eye, mucous
membrane, or parenteral contact with blood or other potentially
infectious materials that may result from the performance of an
employee’s duties).
Exposure Determination.
The exposure determination shall be made without regard to the use of
personal protec-tive equipment and shall contain lists of job
classifications in which all or some of the employees have occupational
exposure. Safety Equipment. Engineering and work practice
controls shall be used to eliminate or minimize employee exposure and
shall be examined and maintained or replaced on a regular schedule.
Where the controls do not eliminate exposure, personal protective
equipment must also be used.
Personal Protective
Equipment.
The employer shall provide, at no cost to the employee, appropriate
personal protective equipment (e.g. gloves, gowns, laboratory coats,
mouthpieces).
Information and
Training.
Employee training on safety devices, work practices, and personal
protective equipment is required and must be given during work hours at
no cost to the employee.
Prohibited
Practices.
Bending, recapping, or removing of contaminated needles is prohibited
unless the employer can demonstrate that no alternative is feasible or
that such action is required by a specific medical or dental procedure.
Housekeeping.
Employers shall ensure that the worksite is maintained in a clean and
sanitary condition. All equipment and working surfaces shall be cleaned
and decontaminated after contact with blood or other potentially
infectious materials.
Disposal of
Needles, Materials, Protective Equipment.
Contaminated materials must be discarded immediately or as soon as
possible in containers that are closed, puncture resistant, leak-proof,
and color-coded.
Hepatitis B
Vaccination and Treatment After Exposure.
The employer must make the Hepatitis B vaccination available to all
employees who have
occupational
exposure. Employees that are exposed must receive immediate
confidential medical screening and follow-up care.
2. Hazard Communication
If an office contains
hazardous chemicals of any kind, the employer must have a written
listing of them and the employees must have access to the
manufacturer-supplied Material Safety Data Sheet for each hazardous
chemical. The requirement covers chemicals that are physical hazards
(e.g. flammables, explosives, combustibles) and those that are health
hazards (e.g. irritants, carcinogens, corrosives).
3. Exit Routes
At a minimum,
employers must establish exit routes to accommodate all employees in a
defined workspace and must post easily visible evacuation diagrams.
4. Electrical
Electrical equipment
(e.g. copy machines, X-ray machines, microwaves) must be safely located
and used. Sufficient access and working space must be provided and
maintained around all electrical equipment to permit safe operation and
maintenance.
5. Reporting Occupational Injuries and
Illnesses
Medical professionals
are exempt under federal law from keeping an injury and illness log.
State law may require a log if the state has its own occupational safety
and health plan. However, Pennsylvania does not have such a plan;
therefore the log is not required. All work-related fatalities and
work-related incidents resulting in hospitalization of three or more
employees must be reported.
6. OSHA Poster
An OSHA poster
displaying a notice of employee rights and information on filing a
complaint must be posted in a conspicuous place. Posters are available
for free from OSHA (www.osha.gov/Publications/poster.html
or 1-800-321-OSHA).
7. Ionizing Radiation
If X-ray and related
imaging services are offered, employers must:
-
survey the different
types of radiation used;
-
designate restricted
areas to limit employee exposure;
-
supply personal
radiation monitors to employees working in restricted areas; and
-
label rooms and
equipment with caution signs where necessary.
There are several
options to assist an employer in ensuring compliance with the above OSHA
standards. An obvious but underused resource is OSHA itself. The
Administration offers free state-run consultation services and the
results of the consultation are confidential. In addition to the
consulting, OSHA offers a wealth of materials on its Web site
www.osha.gov
that is helpful in verifying compliance with the requirements. Other
potential sources of help are county, state, or national medical
societies. A final option is the hiring of a private health and safety
consultant.
Michael A. Cassidy
is Chair of the firm’s Health Care Practice Group. Mike was named a 2005
Pennsylvania Super Lawyer in the Health Care Law category. For more
information on this topic, please contact Mike at 412.594.5515 or via
e-mail at mcassidy@tuckerlaw.com.
>Top
Living Wills:
How To Avoid A Family Controversy
By Bruce F.
Rudoy, Esq.
For the last 15 years,
living wills have been the centerpiece of an ongoing discussion of an
individual’s right to determine how healthcare matters are handled and
an individual’s right to die. In 1990, the United States Supreme Court
decided the case of Cruzan v. Director, Missouri Department of Health.
In that case, the Court determined that all individuals have the right
to decide these healthcare issues. The court also established a standard
that, if it can be proved by clear and convincing evidence that an
individual communicated those decisions, after that person was deemed to
be permanently unconscious and terminally ill, those wishes would be
required to be honored. That court gave us guidance that if a living
will was prepared in accordance with state law, that living will would
be deemed to be evidence. Without a living will in writing, that
individual’s wishes would need to be proved through oral testimony and
evidence, which is what occurred in the very publicized Terri Schiavo
case.
Pennsylvania’s Law
Pennsylvania enacted
its right-to-die law that followed Cruzan having enacted (The
Advanced Directive for Healthcare Act) (The “Living Will Statute”) in
1992. Enacted following the Cruzan decision, the Living Will
Statute recognized the right of an adult with full capacity to execute a
written living will declaration covering the initiation, continuation,
withholding or withdrawal of life sustaining treatment. The Living Will
Statute provides that it must be signed by the individual (or at the
direction of the individual if that individual is unable to sign) and be
signed by two witnesses who are each at least 18 years of age.
The Living Will
Statute defined “life sustaining treatment” as any medical procedure
that, when administered to a terminally ill or permanently unconscious
patient, will serve only to prolong the process of dying or to maintain
the patient in a state of permanent unconsciousness.
Intravenous or
invasive food and water have presented the most controversial forms of
life sustaining treatment. If the individual would like either or both
of these items to be withdrawn or withheld while in a permanently
unconscious state, that individual must specifically refer to these
items in his or her living will. If no specific reference is in the
living will to these matters, there is a presumption that a person wants
food and water if in a state of permanent unconsciousness. Other life
sustaining procedures that are commonly experienced are cardiac
resuscitation, blood transfusions, kidney dialysis, artificial
respiration, surgery or invasive diagnostic treatments, and the
administration of antibiotics.
A living will
typically names a surrogate or agent as a decision maker with authority
to make certain medical decisions on behalf of an incapacitated
individual and to interpret the living will in the event there is any
uncertainty or ambiguity in the document. It is not necessary, however,
to name a surrogate in the living will for it to be effective. The
living will meets proper formalities when the prerequisites mentioned
above are met.
How
a Living Will Works
Putting the living
will into action is an extremely deliberative process. When the
individual is thought to have reached a state of permanent
unconsciousness or terminal condition, a living will document should be
presented by a surrogate or family member to that individual’s attending
physician. The attending physician will then determine whether the
individual is incapacitated and cannot make healthcare decisions on his
or her own. After that determination is made, the attending physician
analyzes whether the individual is in a state of permanent
unconsciousness or terminal condition.
The Living Will
Statute defines “state of permanent unconsciousness” and “terminal
condition”. “State of permanent unconsciousness” is defined as a
medical condition that has been diagnosed in accordance with currently
accepted medical standards and with reasonable medical certainty as to
the total and irreversible loss of consciousness and capacity for
interaction with the environment. “Terminal condition” is defined as an
incurable and irreversible medical condition in an advanced state caused
by injury, disease or physical illness which will, to a reasonable
degree of medical certainty in the opinion of the attending physician,
result in death regardless of the continued application of life
sustaining treatment. Typically, a physician will use a six month time
frame to measure a terminal condition. If death will occur in less than
six months it will usually be considered a terminal condition.
When the attending
physician has determined that the patient is in a state of permanent
unconsciousness or terminal condition, the attending physician shall
without delay certify this determination in writing and arrange for a
second physician to examine the individual and confirm the
determination. If the determination is confirmed and a surrogate is
named in the living will, the healthcare provider or hospital/facility
where the individual resides must communicate that determination and
confirmation to the surrogate so that the individual’s wishes under the
living will can be carried out by the surrogate’s directions. If no
surrogate is appointed, the instructions in the living will still need
to be carried out by the healthcare provider. If a healthcare provider
objects to the individual’s wishes in the living will, whether for moral
reasons or from an operational policy, the Living Will Statute compels
the healthcare provider to promptly assist with the individual’s
transfer to a different facility or physician that will abide by the
instructions under the living will.
How
is a Durable Power of Attorney Different
From a Living Will?
A durable power of
attorney (“durable POA”) is a separate legal document from a living
will. A durable POA is a document which grants authority to an
appointed person to make decisions for the individual which relate to
not only medical matters, but also financial and personal decisions.
The durable POA can be effective upon signing and survive beyond the
individual’s incapacity, hence it is “durable.” A living will typically
only activates upon the certification of the individual’s incapacity.
Under Pennsylvania
law, it is unclear whether the person authorized under a durable POA
also has the authority to request or refuse the withdrawal of life
sustaining treatment on an individual’s behalf. Further, if the person
authorized under the durable POA is different from the person authorized
under a separate living will, there may be a conflict as to who is
authorized to make healthcare decisions and to carry out an individual’s
instructions regarding the withdrawal or withholding of life sustaining
treatment. Therefore, it is not uncommon and often recommended that an
individual execute two separate documents, a general power of attorney
relating to financial matters (but not relating to healthcare matters)
and a second document combining the appointment of a healthcare power of
attorney and living will declaration regarding the individual’s wishes
with respect to healthcare matters and life sustaining procedures.
What if You Have No Living Will?
Without a living will
and healthcare power of attorney as described above, a dispute can arise
between family members as to what an individual would have wanted if he
or she were in a state of permanent unconsciousness and terminal
condition. Terri Schiavo had this misfortune. In Pennsylvania, the law
allows a “close family member” to approve the removal of life support
from a patient in a state of permanent unconsciousness without court
approval and without a written advanced healthcare declaration, provided
at least two doctors qualified to evaluate the patient’s condition first
certified in writing that the individual is in a permanent vegetative
state. This is called the “substituted judgment rule.” A case before
the Pennsylvania Supreme Court, In re Fiori still
permitted other family members to disagree with the decision to remove
life support and to challenge that decision in court. In such a
circumstance the court will apply “the best interest of the patient”
analyzing factors such as relief of suffering, no quality of life and no
prospect of recovery and allowed the substituted judgment of a close
family member. In the Fiori case, the court never defined
what it meant by a “close family member” and provided no guidance as to
how to decide between conflicting view points of family members.
Therefore, these cases, at least for now, will be analyzed on a
case-by-case basis by the court.
Given the state of the
law in Pennsylvania, it is clear that if an individual does not wish to
have life sustaining procedures applied, the most certain way of
achieving this is to properly execute a Living Will Declaration and
Healthcare Power of Attorney. Although there is case law permitting the
substituted judgment rule allowing a close family member to withdraw
life support or withhold healthcare providers from providing life
sustaining procedures, it still would allow the possibility for
disagreeing family members to contest that decision in the court of law
and without any guidance from our courts. Therefore, it is quite
possible that we may have a case similar to the Terri Schiavo case in
Pennsylvania before too long. As a result, we highly recommend that
Living Will Declarations and Healthcare Powers of Attorney be executed
in accordance with proper formalities under Pennsylvania law.
Bruce F. Rudoy is a
shareholder in the firm’s Business and Finance Department. If you would
like more information on living will declarations and healthcare powers
of attorney, please contact Bruce at 412-594-5608 or via e-mail at
brudoy@tuckerlaw.com.
>Top
Biggest Mistakes: Credentialing Case
Studies
By
Michael A. Cassidy, Esq.
In the March 2005
edition of HealthLaw Reference, I presented an article entitled
“The 10 Biggest Mistakes Physicians Make in the Credentialing Process.”
Following are a few actual case studies to illustrate those points.
The Cover-Up
A physician was in the
midst of the Medical Staff hearings at one hospital; the hospital had
summarily suspended his privileges, the physician had requested and
received a Medical Staff hearing, the Medical Staff Hearing Panel upheld
the suspension and the physician appealed. During this process, the
physician applied for Medical Staff privileges at another hospital and,
in response to the question on the application that asks if privileges
had ever been suspended or otherwise curtailed at another hospital, the
physician answered “no” - his explanation was that the appeal was
pending. However, during the credentialing process, Medical Staff
officers at Hospital B talked to Medical Staff officers at Hospital A
and learned about the suspension. The physician’s application was
rejected because he attempted to conceal the summary suspension. Denial
was based on the false application and ignored the details of the case
at Hospital A.
Believing That Collegial is Actually
Collegial
While cooperation and
professional courtesy is important, you must also be cautious when your
Medical Staff membership and clinical privileges are at stake. In
another case, a physician was alleged to have a history of disruptive
behavior, but there were never any formal interventions.
However, when an
adverse peer review action was initiated, the hospital’s evidence
consisted of numerous statements by Medical Staff officers about
counseling sessions, consisting of call waiting counters and discussions
in the doctor’s lounge. Although the physician in question could not
deny that the discussions occurred, she never suspected that the
hospital was creating a record of these encounters to later be used
against her.
Failure to Secure Witnesses
Although most Medical
Staff procedures authorize informal meetings at which counsel is not
permitted, either from the hospital or on behalf of the physician, those
same procedures often permit the physician to bring other Medical Staff
members who will support his position. Not only do those Medical Staff
members serve to support the position at the meeting, they also serve as
critical witnesses about what happened at a later time. In another
situation, a physician was threatened with a situation similar to the
one above, in which there were a number of statements by other
physicians attending the meetings as to what occurred and what the
physician admitted. The fact that there was a witness to rebut the
severity of the statements that were to be offered as evidence was
critical to a satisfactory resolution of the situation.
Failure to Take Peer Review Activity
Seriously
Physicians sometimes
fail to take potential adverse peer review activity seriously. They
don’t really disregard the threat, but they feel that they are
sufficiently prepared and know their adverse cases well enough that they
can simply attend the meetings and provide their opinion, which they
presume will not be questioned by their fellow Medical Staff members.
Unfortunately, in some of these meetings and in one situation
particularly, the Peer Review Committee had already consulted an outside
expert and had voluminous critical information about cases in which
there were adverse events. When faced with that information, the
physicians unprepared remarks were not sufficient to sway his peers.
Failure to Obtain Counsel
This mistake is a
tangent of the mistake about failure to take peer review activity
seriously. Not only do some physicians believe that they can handle the
medical issues with which they will be confronted without outside help,
many often believe that counsel is unnecessary until there is an actual
hearing. In one situation in which I was involved, I was not contacted
until the hospital sent a formal notice that termination of clinical
privileges was going to be recommended. At this point, I met with the
physician and reviewed the By-Laws which provided for notice and an
opportunity to discuss this situation before any adverse action would be
recommended. When that opportunity was requested, the physician was
advised that he had already had that opportunity in the guise of a
conference call. At this point, the physician wanted to explore
opportunities to resolve the situation without a termination, but since
the investigation had already commenced, any type of a voluntary
withdrawal or resignation would be reported to the National
Practitioners Data Bank and, in fact, was reported. That physician
failed to realize that there were formal proceedings underway with which
he had no prior experience.
These case studies are
not isolated events. In fact, they are frequent occurrences, and you
should be aware of these whenever your Medical Staff membership or
clinical privileges are threatened.
For more
information on this topic, please contact Mike at 412.594.5515 or via
e-mail at mcassidy@tuckerlaw.com.
>Top
< Back
|
