At the 18th Annual Ambulatory Surgery Centers Conference in Chicago on Oct. 28, Thomas J. Stallings, JD, a partner with McGuireWoods in the firm's Richmond office, discussed five key medical staff issues for ASC and hospitals.
1. Immunity issues. The Health Care Quality Improvement Act provides immunity to a "professional review body" and essentially any person or organization participating in the peer review process if the healthcare facility's medical review committee performs good-faith peer review of medical staff. While the HCQIA is optional, Mr. Stallings "strongly recommend[s]" healthcare providers comply. While the immunity granted doesn't mean healthcare facilities and physicians can't be sued for peer review actions, it does protect them from liability for monetary damages.
"Frankly you're protected unless you lie," he said. Mr. Stallings did caution attendees, however, to keep business considerations out of peer review discussions because anti-kickback regulations prohibit facilities from considering the value of referrals in medical staff decisions.
The HCQIA also discourages physicians who are disappointed with the outcome of the peer review process from filing "frivolous" lawsuits against the hospital, said Mr. Stallings. The Act deems plaintiffs liable for a defendants' attorneys' fees if the defendant "substantially prevails" and complied with HCQIA procedural standards.
State law varies in terms of granting immunity to peer review committees. Mr. Stallings recommended administrators read their state's relevant statutes. If the state does have a law that grants immunity to medical review committees, ensure the functions of the medical review committee as written in your organization's bylaws match the functions of the medical review committee as outlined by the state statute.
2. Privilege. No federal law grants privilege to a peer review committee's proceedings. However, some states, including Pennsylvania and Indiana, do grant these proceedings privilege, which means records cannot be obtained during the legal discovery process. Here as well, Mr. Stallings said it's important to know your state statutes, and ensure bylaw language reflects the functions of the peer review committee as outlined in the statute. He also recommended providers be cautious when sharing peer review outcomes with state medical boards, because in some states doing so will invalidate privilege protections. While Indiana law makes it clear that committees can share records and determinations with the state board without waiving privilege, in other states, determinations could be discoverable if they are shared with an outside committee or board.
3. Reporting obligations. Under federal law, review committees must report to the Board of Medical Examiners all disciplinary actions that adversely affect the privileges of a physician for more than 30 days or when a physician surrenders privileges while under investigation related to incompetence or professional misconduct. State laws vary on reporting requirements, so providers should become familiar with their state's statutes regarding this area, said Mr. Stallings.
4. Disruptive physicians. Next, Mr. Stallings discussed peer review actions against disruptive physicians, explaining that case law (Leal vs. Secretary of HHS) has determined peer review boards can discipline disruptive physicians, even if a physician's actions did not directly hurt a patient. The ruling was "a confirmation of what we all know: Disruptive conduct can put patients and risk because it impairs the function of the team," said Mr. Stallings. "The court was very clear actual harm to a particular patient is not a [precondition of peer review action]. It is expected to take place before a patient is hurt."
5. Authorization and release. Finally, Mr. Stallings recommended providers review all credentialing authorization and release forms carefully and add immunity/indemnification language if needed. Doing so provides immunity to the organization and reviewers if a physician is not pleased with a credentialing decision. "Not all releases are created equal," he said. "You cannot assume it protects you."
When releasing information on physicians who have applied for credentials at other organizations, look for language that releases third parties from indemnification, in addition to the larger organization. If the third party language is not included, providers who share information to the credentialing facility could still be at risk for legal action, said Mr. Stallings.
In closing, Mr. Stallings encouraged providers to be proactive by periodically reviewing bylaws to ensure they provide all available protections under state and federal law. He also recommended organizations involve legal counsel as early in the processes as possible and examine insurance coverage to confirm it covers beer review liability.
1. Immunity issues. The Health Care Quality Improvement Act provides immunity to a "professional review body" and essentially any person or organization participating in the peer review process if the healthcare facility's medical review committee performs good-faith peer review of medical staff. While the HCQIA is optional, Mr. Stallings "strongly recommend[s]" healthcare providers comply. While the immunity granted doesn't mean healthcare facilities and physicians can't be sued for peer review actions, it does protect them from liability for monetary damages.
"Frankly you're protected unless you lie," he said. Mr. Stallings did caution attendees, however, to keep business considerations out of peer review discussions because anti-kickback regulations prohibit facilities from considering the value of referrals in medical staff decisions.
The HCQIA also discourages physicians who are disappointed with the outcome of the peer review process from filing "frivolous" lawsuits against the hospital, said Mr. Stallings. The Act deems plaintiffs liable for a defendants' attorneys' fees if the defendant "substantially prevails" and complied with HCQIA procedural standards.
State law varies in terms of granting immunity to peer review committees. Mr. Stallings recommended administrators read their state's relevant statutes. If the state does have a law that grants immunity to medical review committees, ensure the functions of the medical review committee as written in your organization's bylaws match the functions of the medical review committee as outlined by the state statute.
2. Privilege. No federal law grants privilege to a peer review committee's proceedings. However, some states, including Pennsylvania and Indiana, do grant these proceedings privilege, which means records cannot be obtained during the legal discovery process. Here as well, Mr. Stallings said it's important to know your state statutes, and ensure bylaw language reflects the functions of the peer review committee as outlined in the statute. He also recommended providers be cautious when sharing peer review outcomes with state medical boards, because in some states doing so will invalidate privilege protections. While Indiana law makes it clear that committees can share records and determinations with the state board without waiving privilege, in other states, determinations could be discoverable if they are shared with an outside committee or board.
3. Reporting obligations. Under federal law, review committees must report to the Board of Medical Examiners all disciplinary actions that adversely affect the privileges of a physician for more than 30 days or when a physician surrenders privileges while under investigation related to incompetence or professional misconduct. State laws vary on reporting requirements, so providers should become familiar with their state's statutes regarding this area, said Mr. Stallings.
4. Disruptive physicians. Next, Mr. Stallings discussed peer review actions against disruptive physicians, explaining that case law (Leal vs. Secretary of HHS) has determined peer review boards can discipline disruptive physicians, even if a physician's actions did not directly hurt a patient. The ruling was "a confirmation of what we all know: Disruptive conduct can put patients and risk because it impairs the function of the team," said Mr. Stallings. "The court was very clear actual harm to a particular patient is not a [precondition of peer review action]. It is expected to take place before a patient is hurt."
5. Authorization and release. Finally, Mr. Stallings recommended providers review all credentialing authorization and release forms carefully and add immunity/indemnification language if needed. Doing so provides immunity to the organization and reviewers if a physician is not pleased with a credentialing decision. "Not all releases are created equal," he said. "You cannot assume it protects you."
When releasing information on physicians who have applied for credentials at other organizations, look for language that releases third parties from indemnification, in addition to the larger organization. If the third party language is not included, providers who share information to the credentialing facility could still be at risk for legal action, said Mr. Stallings.
In closing, Mr. Stallings encouraged providers to be proactive by periodically reviewing bylaws to ensure they provide all available protections under state and federal law. He also recommended organizations involve legal counsel as early in the processes as possible and examine insurance coverage to confirm it covers beer review liability.