FAILURE OF INITIAL CREDENTIALING PROCESS



FAILURE OF INITIAL CREDENTIALING PROCESS

BACKGROUND: Physician negligently removed pin from hip. Physician failed to disclose 10 pending malpractice cases; misrepresented denial and restriction of privileges elsewhere. Lied about board certification. No investigation was made of any information listed in incomplete application. Hospital failed to check references which would have led to discovery of adverse information should have or could have known. Med Staff Coordinator testified that information on initial application had not been PSV.

DECISION: Hospital is responsible for information that would have been revealed during proper credentialing, verification and peer review process. Hospital has duty to exercise care in selection of medical staff. At minimum, should require that application be complete and verify application statements, especially core criteria, education, training and experience. Should solicit information from peers, determine current licensure and inquire about any challenges and malpractice history.

FAILURE TO HAVE PROPER SUPERVISION/LIABLE UNDER CORPORATE NEGLIGENCE DOCTRINE

BACKGROUND: Independent podiatrist improperly treated patient; medical records knew of pending malpractice claims; hospital did not investigate.

DECISION: Hospital must use all information available to it when evaluating credentials; even if information is obtained by department other than MSO. Hospital has duty to protect patients from harm; to ensure competency and evaluate quality of medical treatment rendered on premise. Courts noted public’s perception that hospital is a health care facility responsible for the quality of medical care and treatment rendered within. Though podiatrist was an independent contractor, not employee, hospital had a duty to screen, carefully select and periodically review performance of all practitioners.

VIOLATION OF FEDERAL ANTITRUST LAWS/ANTI-COPETITIVE PEER REVIEW

BACKGROUND: Dr. Patrick, solo practitioner, was member of only hospital in town. MEC and peer review committee composed of former partners. He filed antitrust lawsuit against physicians at Astoria Clinic, alleging they caused him to lose hospital MS privileges as result of his decision not to join their clinic but instead compete against them. Lower court decision, overturned by Supreme Court, held that physicians were immune from antitrust liability even for bad fait efforts under state action exemption.

DECISION: Physicians who participate in peer review could be held liable under anti-trust theory. Supreme Court found that though state mandates engagement in peer review, since the state was not involved in nor supervised action peer review decisions, the exemption did not apply. Adverse credentialing decisions and negative peer review are NOT immune from federal anti-trust laws. Proceedings led to passage of HCQIA in 1986

DENIAL OF APPLICATION BASED ON EXCLUSIVE CONTRACT IS NOT A RESTRAINT OF TRADE

BACKGROUND: Dr. Robinson alleged that hospital was an “essential facility” and therefore denial of access created server handicap for entry to marketplace and sued hospital and other thoracic surgeon after rejection of application. Hospital followed objective criteria and bylaws; denial based on limited OR space, failure to meet academic standards, participation in residency program. Dr. Robinson had privileges for open heart surgery at 7 other hospitals. Denial did not prevent patients from slection him or physician from referring to him.

DECISION: Neither hospital or surgical group had a monopoly; insufficient evidence of specific anticompetitive intent, conspiracy or agreement to take joint action. Court noted that 1) hospital’s policy of encouraging MS to concentrate practice at hospital; 2) concerns regarding Dr. Robinson’s contributions to residency program and 3) concerns as to alleged inability to work harmoniously with others, advanced hospital’s institutional objectives for patient care and did not unreasonably restrain trade. Court upheld okay to limit competition if consistently follow objective criteria (strategic plan, bylaws, medical staff development plan, P&P, etc.) and/or competitive strategy to limit staff.

DISRUPTIVE BEHAVIOR MUST BE RELATED TO PATIENT CARE

BACKGROUND: Physician denied membership based on inability to work with others, filed suit alleging standards were so vague and uncertain as to allow for arbitrary or discriminatory application.

DECISION: Hospital may not permit exclusion on arbitrary or irrational basis; but requirement for ability to work with others is permissible if that inability presents a real and substantial danger to patient care. There must be a link between conduct and potential effect on patient care.

DISRUPTIVE BEHAVIOR MAY BE CONSIDERED IF ADVERSELY EFFECTS OPERATIONS

BACKGROUND: Privileges denied based on report from other facilities re termination, restriction of privileges, competency and emotional problems.

DECISION: Hospital has discretionary right to exclude physician whether based on lack of proficiency or a personality if detrimental to the working of the hospital (staff’s ability to perform jobs). Additionally, court should not substitute its evaluation of such matters for that of BOD.

MANAGED CARE ORGANIZATION LIABLE FOR PRACTITIONERS ACTIONS

BACKGROUND: Surgeon accidentally perforated chest wall during breast biopsy, causing hemothorax. Husband sued HMO and participating physician under theory of ostensible agency following death of patient after alleged misdiagnosis. HMO represented that participating providers were competent and evaluated up to six months prior to be accepted on panel. Gave impression that MSO controls and is therefore liable for care provided.

DECISION: Policy reasons for holding hospitals liable for actions of medical staff members under theory of ostensible agency may be extended and equally applied to HMO’s, based on limited provider list from which patient may select, selection of practitioner by HMO, role of gatekeeper in accessing specialist; fact that patient does not contract directly with physician but with HMO and mechanics of payment for services. Court considered two factors: 1) whether patient looks to institution rather than physician for care; 2) whether HMO holds out the physician as its employee. Court noted “changing role of hospital in society creates likelihood that patients will look to institution for care” and applied same to HMO.

MCO FAILURE TO CREDENTIAL

BACKGROUND: Malpractice by Dr. Witt, urologist during surgery. Court reviewed relationship between physician and Total Health Care and limited choice of providers.

DECISION: Finding an unreasonable risk of harm to subscribers if the physician is incompetent, the Missouri court held that MCO have common law duty to members to conduct reasonable investigation to ensure practitioners are competent and capable. Extent of investigation can be determined on case by case basis, but no investigation means duty has not been met. However, by Missouri state statute, a health service corporate was immune from liability for any negligence of a person or entity rendering health care serves to the corporations members and beneficiaries, therefore, the Missouri Supreme Court determined that an HMO is akin to a health service corporation and eligible for same immunity. Summary judgment for Total Health Care was affirmed; upheld defendant’s denial of responsibility under state immunity statue (Missouri).

MCO DUTY TO SELECT AND MONITOR PROVIDERS/OSTENSIBLE AGENCY

BACKGROUND: Woman selected primary care provider from list of participating physicians provided by IPA HMO. Malignant mole sample not submitted for analysis of tissue histology. Delay in diagnosing malignant melanoma resulted in metastatic cancer and subsequent death. HMO promotions spoke to the quality of providers, represented as such.

DECISION: MCO liable through theory of ostensible agency. MCO has non-delegable duty to select and retain only competent physicians. Court found sufficient evidence to hold that provider was ostensible agent of HMO using theories of corporate negligence and ostensible agency. Not pre-empted by ERISA.

HCQIA PRESUMPTIOM OF GOOD FAITH PEER REVIEW/BURDEN ON PHYSICIAN TO PROVE BAD FAITH

BACKGROUND: Committee including competitors found substandard care; outside consultant agreed. Surgeon challenged summary judgment, arguing bad faith.

DECISION: HCQIA presumption of good faith upheld. Hospital immune from monetary damages under HCQIA.

NEGLIGENT CREDENTIALING AT REAPPOINTMENT

BACKGROUND: No deficiencies at Sharp Cabrillo but physician had been summarily suspended at another hospital. Sharp Cabrillo did not query other facilities.

DECISION: Hospital liable for physician’s action due to failure to request date from others. Should have obtained more information at reappointment.

INCOMPLETE APPLICATION

BACKGROUND: Applicant did not respond to requests for information felt necessary to process. Application was not acted upon and no fair hearing rights were afforded.

DECISION: Burden on applicant. Incomplete applications do not need to be acted upon and/or may be denied.

FAILURE OF PEER REVIEW

BACKGROUND: Physician had history of unnecessary and negligent surgery. Negligently performed inappropriate laminectomy on patient. Proper peer review would have identified issues and required medical staff action.

DECISION: Hospital has duty to assure quality care; to create mechanism for review (to discover) inadequacies of staff members.

GOVERNING BOARD IS ULTIMATE AUTHORITY

BACKGROUND: Physician taken off backup panel for failing to accept patient; BOD overturned hearing committee recommendation to reinstate due to lack of substantial evidence.

DECISION: Governing board is ultimate authority.

DISRUPTIVE BEHAVIOR/ADVERSE EFFECT ON PATIENT CARE

BACKGROUND: Angry surgeon threw tantrum in OR during lumbar laminectomy; slapped patient on butt to make a point.

DECISION: Hospital can revoke otherwise competent physician’s privileges when disruptive behavior may adversely affect patient care.

GOVERNING BOARD IS ULTIMATE AUTHORITY

BACKGROUND: Patient sent home from ER after chest pain and died at home. Family alleged negligence for failing to require proof of professional qualifications, investigating same, character, background, failure to exercise ordinary care in determining competence.

DECISION: Medical Staff (agents of the hospital) recommendation did not relieve hospital (board) of liability if appointment was negligent.

FAILURE TO DISCLOSE

BACKGROUND: Ophthalmologist did not disclose all prior hospital affiliations on application. Summarily dismissed based upon statement on signature page which stated that “any significant omission is cause for summary dismissal”.

DECISION: Hospital has responsibility to conduct careful credentialing which requires full and complete disclosure by the application. Hospital summary suspension upheld; burden is on the applicant to prove qualifications.

IMPROPER REVIEW OF CLINCAL COMPETENCE

BACKGROUND: Misdiagnosed and performed inappropriate surgery. Department of surgery failed to take action on two similar cases. Filing of four lawsuits against Dr. Purcell and hospital prior to treatment of Zimbleman for diverticulitis should have led to investigation.

DECISION: Hospital assumed duty to supervise competency of staff physicians; responsible for actions of surgery department who acted on his behalf. Hospital knew or should have known lacked skills to treat condition in question; hospital failed to take action to curtail privileges.

INCOMPLETE APPLICATION

Failure to respond to request for information deemed necessary to process the application.

INCOMPLETE APPLICATION

BACKGROUND: New applicant refused to authorize release of information from other affiliations; hospital rejected incomplete application; hearing held, denial upheld due to physician’s lack of cooperation.

DECISION: Hospital may establish reasonable application requirements as part of duty to credential; burden is on the applicant to comply and provide information as requested or allow sufficient information to be provided/gathered so as to allow for thorough evaluation of credentials and qualifications, experience and history.

Darling v. Charleston Community Memorial Hospital (1965)

 

BACKGROUND:  Failure to enforce rules/end of charitable immunity:  16yo football player, FP improperly set orthopedic injury, failed to consult, nursing staff did not monitor, resulted in transfer and amputation

DECISION:    Hospital assume certain responsibility for car and duty to protect patients.  1) Need for responsible credentialing, 2) Development of legal theory of corporate negligence applied to hospitals.  3) Toppled doctrine of charitable immunity.

 

 

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