Hospitals can avoid legal liability in the peer review process by following four fundamental “do’s and don’ts,” says Karen Owens, JD, an attorney with Coppersmith Brockelman in Phoenix.
1. Follow the bylaws.
The most obvious “do” is to follow the procedures set forth in the medical staff bylaws, rules and regulations, and policies, Owens says.
“Too often these central documents are ignored, not followed carefully, or just plain misread,” she says. “For this reason, it is very important to pay attention to these documents both when a peer review is underway and when it comes time for the bylaws committee to review the provisions. They matter.”
Owens recalls a recent case in which the bylaws’ fair hearing provision required that the chief of staff choose the hearing panel unless the chief of staff was conflicted by having participated in the peer review leading up to the adverse action that was the subject of the fair hearing. In that case, the vice chief would choose the hearing panel. If the vice chief was conflicted, Owens explains, the next member of the medical executive committee would choose unless conflicted, and on through the entire committee.
“However, in this case every committee member had participated in the peer review of the physician’s practice. That left no one authorized by the bylaw to pick a hearing panel,” she says. “The doctor argued that since no hearing panel could be picked, the disciplinary action could not go forward. The medical staff then revised the bylaws, but the matter is now in litigation.”
2. Maintain confidentiality.
It seems self-evident, Owens says, but talking out of school about confidential peer review can lead to liability exposure faster than almost anything else.
“The classic doctor’s lounge or golf course discussions are just so tempting. But they can form the basis of claims for defamation as well as anticompetitive behavior,” she says. “It is well worth it to remind medical staff members again and again not only that they must maintain confidentiality, but of the potential consequences of talking out of turn.”
This includes communicating by email. Owens says she has seen more than one case involving emails that went to unauthorized personnel inadvertently because the “cc” line was ignored when forwarding an email.
Also consider how communications can take place between medical staff and administrative or human resources functions of the hospital. There is no single answer, and hospitals with employed physicians should work with counsel to sort out how much information can be shared according to state laws, Owens says.
3. Document everything.
There is much discussion in medical staff circles about how much to document peer review meetings and deliberations, Owens notes, but her view is that documentation should be detailed.
“While speakers’ names should not be mentioned, it is important for the reasons that an action is taken to be documented in minutes. It is equally important for care to be taken to document all communications with a physician,” Owens says. “Detailed explanations can make the difference between a conclusion that an action is warranted or not justified.”
4. Don’t hide anything from the physician.
This an important corollary to the rule about documenting everything, Owens says.
“It does no good, and can cause considerable harm, to refuse to provide a physician in peer review with important documents, particularly if they either form part of the basis for his or her problems, like external reviews of care, or if they tend to exonerate the physician,” Owens says. “The sooner the physician sees important documents, the sooner the matter can be resolved short of litigation.”
The same is true of communication generally, she says. Peer review is supposed to be a collegial process, and good communication can be the best way to keep it that way, she advises.
“Face to face communications are key. Always have at least two medical staff members or other personnel present to avoid ‘he said, she said’ problems later, and careful notes should be taken and put in the file,” Owens says. “But it is worthwhile to keep lines of communication open as much and as long as possible. This is one of the best risk management tools available.”
