Avoid charges that peer review is malicious
Avoid charges that peer review is malicious
Bylaws are the 'constitution of the medical staff'
Disruptive behavior is a growing focus among organizations. However, if not handled properly, disciplinary actions can result in allegations of malice and violation of rights involving the peer review process, as a Minnesota hospital recently discovered.
The hospital had conducted a peer review inquiry of a physician's disruptive behavior, which resulted in a 120-day suspension of the physician's privileges and a post-suspension probation. The Minnesota Court of Appeals upheld an injunction preventing the hospital from disciplining the physician after finding that the hospital's peer review process was performed with malice and violated the physician's procedural rights (Peer Review Action, A07-0813 Minn. Ct. App. June 3, 2008).
The take-home message for all quality and medical staff professionals, says Christina W. Giles, CPMSM, MS, president of Nashua, NH-based Medical Staff Solutions, is: Follow your bylaws and policies and procedures. "If that is done, then no matter what is charged, it won't be proved," she says.
Sometimes the bylaws or hearing plan is difficult to understand, yet medical staff leaders fail to contact legal counsel before they actually take an action. It is imperative that legal counsel, either that of the hospital, the medical staff, or both, be involved from the beginning with all issues and decisions to take action, emphasizes Giles. "Most disruptive behavior policies that I have seen definitely call for the first step to be somewhat collegial and informal — a meeting between the identified physician and a physician leader or two," she says.
She adds that the meeting should be documented, and it should have, at the least, a third person who can witness the discussion. "That way, if a problem occurs later on, you don't have a 'he said, she said' situation," she says.
At the end of that first meeting, it should be very clear to everyone what the expectations of behavior are and what will happen if changes do not occur, adds Giles.
Follow process to the letter
"The message of this case is about how the medical staff bylaws are the constitution of the medical staff," says Alice Gosfield, a Philadelphia-based attorney and consultant specializing in quality improvement. "They establish the rules of procedure, and they must be followed in every single detail."
If the bylaws include ambiguous or vague interpretations, they will be problematic, says Gosfield. "To the extent they speak to what the process is, the process should be followed scrupulously," she says.
The dilemma of "one day the straw breaks the camel's back" is a very common problem with disruptive physicians. "They are often tolerated up to a point, and then the decision is they will not be tolerated any further," Gosfield says.
To make a case against a physician, there should be enough evidence, during the period of appointment, to make the case. Reaching back into prior periods of time when the physician acted out but no one did anything is not a good way to make a strong case, says Gosfield.
Assess your peer review
The Minnesota court's findings and conclusions support structure and fairness, which are the foundation of the conduct of peer review, says Douglas L. Elden, chairman of the Northbrook, IL-based National Peer Review Corp.
The ruling should encourage hospitals to conduct peer review appropriately, whether it is clinical peer review or professional conduct peer review, warns Elden. He says that appropriate peer review includes:
- Medical staff bylaws, a peer review policy or a peer review manual that provides detailed instructions for performing peer review.
- A fair hearing plan that satisfies the requirements of The Healthcare Quality Improvement Act of 1986 (HCQIA).
- A process conducted uniformly for each member of the medical staff in a timely fashion, in accordance with the medical staff bylaws, peer review policy or peer review manual and the fair hearing plan. "Conducting peer review appropriately should provide hospitals and the medical staff with immunity under HCQIA, and protect them from money damages," says Elden.
[For more information, contact:
Douglas L. Elden, Chairman, National Peer Review Corp., 1033 Skokie Boulevard, Suite 640, Northbrook, IL 60062. Phone: (847) 480-8800. Fax: (707) 988-8800. E-mail: [email protected]. Web: www.nationalpeerreview.com.
Christina W. Giles, CPMSM, MS, President, Medical Staff Solutions, 32 Wood Street, Nashua, NH 03064. Phone: (603) 886-0444. Fax: (810) 277-0578. E-Mail: [email protected]. Web: www.medicalstaffsolutions.net.
Alice G. Gosfield, Alice G. Gosfield and Associates, 2309 Delancey Place, Philadelphia, PA 19103. Phone: (215) 735-2384. Fax: (215) 735-4778. E-mail: [email protected]. Web: www.gosfield.com.]
Disruptive behavior is a growing focus among organizations. However, if not handled properly, disciplinary actions can result in allegations of malice and violation of rights involving the peer review process, as a Minnesota hospital recently discovered.Subscribe Now for Access
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