Peer Review and risk management: a primer

1. Peer Review and risk management: a primer Kentucky Primary Care Association Annual Conference October 19, 2010 Tricia A. Shackelford, Attorney-at-Law Crown Medical Management Group, LLC

2. Credentialing The process by which a facility and its medical staff reviews a physician's qualifications (or “credentials”) to confirm eligibility for medical staff membership and clinical privileges.

3. Peer Review The process by which medical practitioners review professional performance of other health care professionals.

4. Required Medical Staff Bylaws • Necessary qualifications for medical staff membership • Procedure for granting and withdrawing staff privileges • Mechanism for physician appeals from decisions made regarding staff membership and privileges

5. Model Accreditation Standards and Elements of Performance • Six General Areas of Competencies • Patient care • Medical clinical knowledge • Practice-based learning and improvement • Interpersonal communication skills • Professionalism • Systems-based practice • Focused Professional Practice Evaluation • Continuous evaluation of practitioner performance

6. Model Criteria for Application to Medical Staff • Challenges to the applicant’s professional license or a voluntary relinquishment of a license; • Voluntary or involuntary termination of medical staff membership or reduction of clinical privileges at another facility; • Evidence of an unusual pattern or an excessive number of professional liability actions result in a final judgment against the applicant; • Documentation as to health status; and • Relevant practitioner-specific data, and morbidity and mortality data, when available.

7. Model Criteria for Application to Medical Staff • Members of the medical staff must apply for reappointment and renewal of clinical privileges every two years • Peer evaluations of performance • Assessment of professional performance, judgment, interpersonal communication skills, and clinical or technical skills • Review of demonstrated current competence

8. Model Criteria for Application to Medical Staff • Appeal of adverse medical staff determinations • Reasons for denial, revocation, reduction, suspension • Fair hearing and appeal procedures • Process may differ for initial applicants versus existing members of the medical staff

9. Economic Credentialing • “Pure Economic Credentialing” and “Hybrid Economic Credentialing” • Malpractice experience • Number of hospital admissions • Admission diagnoses • Average length of stays • Inpatient resource utilizations • Number of diagnostic tests ordered • Outpatient service utilization • Ancillary services ordered • Payor mix

10. Potential Liabilities • Credentialing and Peer Review • Facilities have an independent duty to oversee the care provided to patients in accordance with applicable standards and the facilities bylaws (Darling v. Charleston Cmty. Mem’l Hosp. (Ill. 1965) • Because most medical staff members enjoy substantial autonomy over patient care, injured patients have traditionally been limited to seeking recovery from physicians for malpractice.

11. Potential Liabilities • Recognition of Medical Staff Membership as a Property Right • Under Kentucky law, membership in a facility’s medical staff creates a property right • Facilities must act in accordance with their bylaws and governing policies and cannot apply them in a manner that is unreasonable, arbitrary, or capricious • Medical Staff Bylaws as a Contract • Denial of Due Process

12. Potential Liabilities • Antitrust Considerations • Granting and revoking medical staff privileges • Credentialing non-physicians • Release of Peer Review Documents • Non-Disclosure of Peer Review Documents

13. Protections Afforded to Peer Reviewers and the Peer Review Entity • Releases and Waivers in Applications and Bylaws • Kentucky Statutory Immunity • Kentucky Case Law • Patient Safety and Quality Improvement Act

14. Health Care Quality Improvement Act of 1986 • Purposes of HCQIA • Peer Review Immunity • Scope and Limitations • Persons and Entities Qualifying for Immunity • Due Process Standard for Professional Review Actions • Peer Review Information Required to be Reported

15. Health Care Quality Improvement Act 0f 1986 • National Practitioner Data Bank and Querying Requirements • Reporting Information to the NPDB • Requesting Information from the NPDB • Confidentiality of NPDB Information

16. Healthcare Integrity and Protection Data Bank • Reportable Final Adverse Actions • Reporting Requirements • Eligible Entities • Time Limits • Subjects of Reports • Penalties for Failure to Report • Querying HIPDB • Correction of Erroneous Information

17. Patient Rights • Creation of the Provider/Patient Relationship • Implied contract • Person seeks treatment • Provider accepts the person as a patient • Providers have no obligation to accept a person as a patient • Exceptions – third party payor contracts, provisions in medical staff bylaws, anti-discrimination restrictions for large providers, on-call physicians and ED patients

18. Patient Rights • Effect of the Provider/Patient Relationship • Provider is under a duty to provide services to the patient until treatment is no longer needed • Patient terminates • Provider terminates • Appropriate notice • Sufficient time to secure substitute care

19. Patient Rights • Duty of Facilities to Accept Patients • Emergency Treatment (EMTALA, JCAHO, AOA, Tax Code) • Non-Emergency Treatment • Third-party payor contracts • Medicare/Medicaid • Hill-Burton Act • State Property Tax Exemptions/Charity Care

20. Informed Consent No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference from others, unless by clear and unquestionable authority of law (Union Pac. R.R. Co. v. Botsford (1891)).

21. Informed Consent • Valid informed consent requires disclosure to the patient of • The patient’s condition; • The nature of the proposed treatment; • The benefits reasonably expected from a proposed treatment, together with the material risks and dangers of the proposed treatment; and • Treatment alternatives, as well as the risks and the benefits of such alternatives.

22. Exceptions to the Informed Consent Requirement • Additional procedures are necessary to accomplish the initial treatment for which there was consent; • Emergency circumstances where a presumption can be made that the patient would consent to protect the patient’s life; or • Giving the patient all the relevant information would be harmful to the patient

23. Right of an Incompetent to Make Treatment Decisions • Reasons for incompetence • Youth • Mental Incompetence • Illness • Injury • External Influences (Drugs/Alcohol)

24. Issues Related to Medical Malpractice • Liability for Corporate Negligence • Negligent Credentialing/Peer Review • Inadequate Facilities/Equipment/Supplies • Promulgation and Enforcement of Policies and Procedures

25. Issues Related to Medical Malpractice • Liability for Acts of Employees • Intentional Acts • Negligent Acts • Duty • Breach • Causation • Liability for Acts of Physicians

26. Limitations to Medical Malpractice • Discovery Rule • Wrongful Death • Tolling the Statute of Limitations

27. Malpractice Insurance • Claims Made v. Occurrence Based • Tail Coverage • Corporate Coverage v. Individual Coverage

28. Limiting Malpractice Exposure • Obtain informed consent • Document care and treatment thoroughly contemporaneous with the services provided • Assist patient with an untoward outcome • Contact risk management, your insurance carrier, and your attorney immediately • Be contrite but never admit a mistake

29. Questions? Tricia A. Shackelford, Attorney-at-Law Crown Medical Management Group, LLC 3288 Eagle View Lane, Suite 300 Lexington, Kentucky 40509 (859) 264-2668 – office (859) 264-2661 - facsimile tshackelford@crownmmg.com