Medical Staff Credentialing Minimizing Liability Arising from - - PowerPoint PPT Presentation

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Medical Staff Credentialing

Minimizing Liability Arising from Negligent Credentialing and Physician Lawsuits

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNES DAY, JUNE 15, 2011

Today’s faculty features: Adrienne E. Marting, Partner, Balch & Bingham, Atlanta Robert C. Threlkeld, Partner, Morris Manning & Martin, Atlanta

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Joint Commission Credentialing Criteria & Affordable Care Act Overlay

Robert C. Threlkeld, Esq.

P t H lth G Partner, Healthcare Group

rthrelkeld@mmmlaw.com rct@mmmlaw.com (404) 504-7757 (Work) (404) 717-9529 (Cell)

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Impact of Healthcare Reform and Impact of Healthcare Reform and Medical Staff Credentialing

5

Important Initiatives Under Patient Protection and Affordable Care Act that Will Impact Credentialing

Creation of Centers for Medicare and Medicaid Innovation within the Centers Creation of Centers for Medicare and Medicaid Innovation within the Centers for Medicare and Medicaid Services (CMI)

• The CMI will be the major focal point for the identification of problem areas

i h lth d li d id tifi ti d t ti f d l t in health care delivery and identification and testing of new models to improve program performance.

• To design, implement and evaluate Medicare and Medicaid demonstrations

and pilot programs to test the feasibility, cost effectiveness and quality

• utcomes of new health care delivery models.
• CMI may among other things develop models to focus on the establishment

CMI may among other things develop models to focus on the establishment

• f “best practices and proven care methods” to enhance quality and cost-

effectiveness.

6

Important Initiatives Under Patient Protection and Affordable Care Act that Will Impact Credentialing

• To promote research and demonstration transparency by
• To promote research and demonstration transparency by

disseminating findings to inform law makers and interested parties about health care delivery issues, new innovative concepts, and demonstrations and pilot programs demonstrations and pilot programs

• Evaluative findings to develop new objectives for basic research and

new research demonstrations

• Has the authority to extend and expand the operation of successful

models Source: See Pub. L. No. 111-148, §§ 3021(a) and 10306.

7

Important Initiatives Under Patient Protection and Affordable Care Act that Will Impact Credentialing

E bli h M di il d l d l i

• Establishes a Medicare pilot program to develop and evaluate paying a

bundled payment for acute, inpatient hospital services, physician services,

• utpatient hospital services, and post-acute care services for an episode of

care that begins three days prior to a hospitalization and spans 30 days following discharge The goal of this program is to enhance quality and following discharge. The goal of this program is to enhance quality and reduce costs through coordination of care. See Pub. L. No. 111-148, § 2704(b)(2).

• Establishes a hospital value-based purchasing program in Medicare to pay

Establishes a hospital value based purchasing program in Medicare to pay hospitals based on performance on quality measures and extend the Medicare physician quality reporting initiative beyond 2010. See Pub. L. No. 111-148, §§ 3022 and 10307.

• Establishes shared savings programs whereby incentive payment will be

available if quality and efficiency standards are met. See Pub. L. No. 111- 148, §§ 3001 and 10335.

8

Important Initiatives Under Patient Protection and Affordable Care Act that Will Impact Credentialing

Oth i iti ti

• Other initiatives.
• Extension of Never-Events Payment Policies for

Hospital Acquired Conditions See Pub L No 111 Hospital-Acquired Conditions. See Pub. L. No. 111- 148, §§ 3025(a) and 10309.

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Important Initiatives Under Patient Protection and Affordable Care Act that Will Impact Credentialing

Pediatric Accountable Care Organization Demonstration Project Pediatric Accountable Care Organization Demonstration Project Demonstration project to evaluate integrated care around a hospitalization hospitalization Global Payment System Demonstration Project Medicaid emergency psychiatric demonstration project

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

Accountable Care Organization (ACO) Accountable Care Organization (ACO)

• Means a legal entity that is recognized and authorized under applicable

State law;

• Identified by a Taxpayer Identification Number (TIN);
• Comprised of an eligible group of ACO participants that work together to

p g g p p p g manage and coordinate care for Medicare FFS beneficiaries; and

• Have established a mechanism for shared governance that provides all

ACO participants with an appropriate proportionate control over the ACO participants with an appropriate proportionate control over the ACO's decision making process.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

Statutory Basis Statutory Basis

• Shared Savings Program is part of the Patient Protection

and Affordable Care Act to be codified at 42 USC 1899 and Affordable Care Act to be codified at 42 USC 1899.

• It is not a demonstration program. It is part of the Statute and

the effective date is January 1 2012 the effective date is January 1, 2012.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

Basic Requirements Basic Requirements

• Accountable for the quality, cost, and the overall care of the Medicare

fee-for-service (FFS) beneficiaries assigned to it.

• Enter into an agreement with the Secretary to participate in the

program for not less than a 3-year period.

• Formal legal structure that would allow the organization to receive and
• Formal legal structure that would allow the organization to receive and

distribute payments for shared savings to participating providers of services and suppliers. I l d i f i l th t ffi i t f th b f

• Include primary care professionals that are sufficient for the number of

Medicare FFS beneficiaries assigned to the ACO. (At least 5000 beneficiaries).

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

5 Provide the Secretary with such information regarding ACO

• 5. Provide the Secretary with such information regarding ACO

professionals participating in the ACO as the Secretary determines necessary to support the assignment of Medicare fee-for-service beneficiaries to an ACO the Medicare fee-for-service beneficiaries to an ACO, the implementation of quality and other reporting requirements, and the determination of payments for shared savings.

• 6. Maintain leadership and management structure that

includes clinical and administrative systems.

• 7. Define processes to promote evidence-based medicine

and patient engagement.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

8 Report on quality and cost measures and coordinate care

• 8. Report on quality and cost measures, and coordinate care,

such as through the use of telehealth, remote patient monitoring, and other such enabling technologies.

• 9. Demonstrate to the Secretary that the ACO meets patient-

centeredness criteria specified by the Secretary, such as the use of patient and caregiver assessments or the use of individualized care plans.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

Eligible Entities Eligible Entities

• ACO professionals in group practice arrangements.
• Networks of individual practices of ACO professionals.
• Partnerships or joint venture arrangements between

h it l d ACO f i l hospitals and ACO professionals.

• Hospitals employing ACO professionals.
• Such other groups of providers of services and suppliers as

the Secretary determines.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

Legal Entity/Governance Legal Entity/Governance

• Recognized under State Law as Legal Entity with a TIN.
• Governing Body must have 75% representation from ACO

members.

• Financial and clinical Integration.
• A leadership and management structure that includes

A leadership and management structure that includes clinical and administrative systems.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

Shared Savings Shared Savings

• Meet all minimum quality performance standards.
• Achieve spending less than benchmark.
• Savings greater than minimum savings requirement.

Savings greater than minimum savings requirement.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

Two types:

– One-sided

• Savings only for 2 years.
• Capped at 7.5% of benchmark.
• Share 50% of savings over minimum up to cap.
• Weighted by quality score.
• Year 3 move to upside/downside model.

T id d – Two-sided

• Savings or losses.
• Savings capped at 10% of benchmark.
• Share 60% of savings over minimum up to cap
• Share 60% of savings over minimum up to cap.
• Weighted by quality score.
• Losses capped at 5% Year 1, 7.5% Year 2, 10% Year 3.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

Eligibility: Required Processes Eligibility: Required Processes

• The ACO application will require the applicant to describe its plans for:
• Processes to promote evidence-based medicine

Processes to promote evidence based medicine

• “…the application of the best available evidence gained from the

scientific method to clinical decision-making.” Th t bli h t d i l t ti f id b d

• The establishment and implementation of evidence-based

guidelines, based on the best available evidence concerning the effectiveness of medical treatments, at the organizational or institutional level; plus institutional level; plus

• Regular assessment and updating of guidelines to promote

continuous improvement in the quality of care in light of new evidence concerning the effectiveness of medical treatments. evidence concerning the effectiveness of medical treatments.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

• Processes to report on quality and cost measures

Processes to report on quality and cost measures

• Such as developing a population health data management

capability, or implementing practice and physician level data biliti ith i t f i (POS) i d t t capabilities with point-of-service (POS) reminder systems to drive improvement in quality and cost outcomes.

• ACOs expected to be able to monitor both costs and quality

internally and make appropriate modifications based upon their collection of such information.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

• Processes to promote coordination of care

Processes to promote coordination of care

• Strategies to promote, improve, and assess integration and

consistency of care across primary care physicians, specialists, and acute and post-acute providers and suppliers. and acute and post acute providers and suppliers.

• Includes methods to manage care throughout an episode of care

and during its transitions (i.e. discharge from a hospital or transfer of care from a primary care physician to a specialist). transfer of care from a primary care physician to a specialist).

• May include such strategies as predictive modeling to anticipate

likely care needs; case managers in primary care offices; specific transition of care programs that include guidance and specific transition of care programs that include guidance and instructions for patients, their families, and their caregivers; remote monitoring; telehealth; and the use of health information technology to transfer patient care information in transitions.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

Quality Performance Standards Quality Performance Standards

• To prevent ACO participants from achieving savings by withholding necessary

services, the ACO must meet minimum performance standards based on specified quality measures in order to be eligible for any shared savings payment specified quality measures in order to be eligible for any shared savings payment for a given year.

• For Year 1, an ACO is just required to report on all of the measures, and will

receive the highest percentage of shared savings available to that ACO receive the highest percentage of shared savings available to that ACO.

• For each subsequent year, the ACO’s actual performance score on the

quality measures (expressed as a percentage of total points available) will determine the percentage of savings the ACO will receive If those scores determine the percentage of savings the ACO will receive. If those scores fall below a certain level, the ACO will not be eligible for any shared savings

• payment. Quality measures for these years will be published in advance.

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

• The Proposed Regulations specify 65 measures (see Table 1 in the Regs) based on the

The Proposed Regulations specify 65 measures (see Table 1 in the Regs) based on the aims of improved care and improved health. Each measure has NQF endorsement or is currently used in other CMS quality programs.

• Improved Care measures are organized in three domains:
• Patient/caregiver experience (7 measures, all based on survey results);
• Care coordination (16 measures, including percentage of ACO participants that

meet HITECH meaningful use requirements);

• Patient safety (2 measures).
• Improved Health measures are organized in two domains:
• Preventive health (9 measures) and

Preventive health (9 measures) and

• At-risk populations/frail elderly (29 measures, including diabetes (10

measures); heart failure (7 measures); coronary artery disease (5 measures); hypertension (2 measures); COPD (3 measures); and frail elderly (2 measures)).

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Elements of Accountable Care Organizations as Driver of Quality and g y Efficiency

Quality Measures Data Collection Quality Measures Data Collection Data collection and submission methods:

• Most performance measures can be derived from CMS data.
• Many of the measures are based on data similar to that collected for
• ther purposes, such as the Physician Quality Reporting System, EHR

Incentive Program, etc.

• For quality data not captured in claims processing systems CMS will
• For quality data not captured in claims processing systems, CMS will

make available a CMS-specified data collection tool (see measures designated for Group Practice Reporting Option (GPRO) Data Collection Tool in Table 1.

• Some measures specify the use of patient survey instruments.
• For future program years, certified EHR technology may serve as

additional measures reporting mechanism.

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Assessment of Quality Issues Q y

• All of the demonstration projects the emergence of value-based purchasing

All of the demonstration projects, the emergence of value based purchasing, the bundled payment programs and the potential establishment of accountable care organizations and the Pioneer model all have in common the emphasis on quality of care from the organizational perspective as well as the individual physician perspective.

• Credentialing as a result will increasingly be guided by reference to

established clinical-based protocols that will be developed and approved at established, clinical based protocols that will be developed and approved at the departmental level, by the Medical Executive Committee, and the Board

• f Trustees of a hospital.

As quality of care will clearly be measured and derived from the use of the

• As quality of care will clearly be measured and derived from the use of the

electronic medical record, credentialing will examine the individual physician’s adherence and skill in use of electronic medical recordkeeping.

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Assessment of Efficiency and Teamwork Issues/MS 4 5 and LD 3 10 Teamwork Issues/MS 4-5 and LD 3-10

• For providers participating in shared savings programs of any type,

the ability of a physician to function effectively in the system that is y p y y y providing care also will be a paramount concern in the credentialing process.

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Issues of Economic Credentialing

• Current Joint Commission Standards for Ongoing Professional
• Current Joint Commission Standards for Ongoing Professional

Practice Evaluation mandates a health system to credential physicians with reference to quality of care and patient safety. In this connection the Joint Commission Standards for ongoing professional connection, the Joint Commission Standards for ongoing professional practice evaluation “allows the organization to identify professional practice trends that impact quality of care and patient safety.” Source: Joint Commission Hospital Accreditation Standards, Medical Staff 38.

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Practical Concerns

• In any initiative based on quality of care, it may be incumbent upon health

In any initiative based on quality of care, it may be incumbent upon health systems to define indicia of quality care and requisite training of physicians by standards that exceed those of mere State Licensure Boards.

• Credentialing and re-credentialing will necessarily focus on outcomes of

Credentialing and re credentialing will necessarily focus on outcomes of individual physicians and adherence to quality standards and utilization standards.

• Even for physicians who are not ‘employed’ physicians participation in any

Even for physicians who are not employed physicians, participation in any accountable care organization, medical home or demonstration project may necessitate that these physicians treat their patients in the setting of the health system that participates in the ACO or other demonstration project.

• The challenge in establishing these criteria will be to avoid any implication

that credentialing based on quality concerns and concentration of care within a system to achieve desired outcomes does not constitute or serve as a proxy for bald economic credentialing a proxy for bald economic credentialing.

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Healthcare Reform in the Context of Existing Medical Staff Credentialing g g Standards

MS 3.10 – This standard provides and requires that an organized medical staff MS 3.10 This standard provides and requires that an organized medical staff have a leadership role in hospital performance improvement activities to improve quality of care, treatment, services and patient safety.

• Among other things, this standard requires the active involvement of the

Among other things, this standard requires the active involvement of the medical staff in measurement, assessment and improvement of a variety of criteria including appropriateness of clinical practice patterns and significant departures from established patterns of clinical practice.

• To the extent that an organization adheres to these standards, they provide

important tools for adherence to quality standards generally, and to effective participation in performance improvement projects.

• Challenges to the effectiveness of this standard include the ability of the

leadership to obtain widespread acceptance, in concert with health system leadership, of the underlying metrics to drive the provision of efficient, quality care care.

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Healthcare Reform in the Context of Existing Medical Staff Credentialing g g Standards

Standard 4.1 requires a hospital to collect information regarding each q p g g practitioner's current license status, training, experience, competence, and ability to perform the requested privilege.

• The underlying rationale for this standard is that there be a reliable and

i t t i l t li ti d if d ti l consistent process in place to process applications and verify credentials.

• From a risk management perspective, it is essential that an appropriate

process be in place for each specialty and sub specialty, and that this process be adhered to for each practitioner process be adhered to for each practitioner.

• It is up to an individual health system to determine the experience,

competence and ability of a physician to perform a particular procedure. It is certainly appropriate for the medical staff and the individual department's of y pp p p a hospital to impose heightened training requirements for specialized procedures, and to impose volume requirements for those procedures where there is an inverse correlation between quality and outcomes.

31

Healthcare Reform in the Context of Existing Medical Staff Credentialing g g Standards

Standard 4.3 requires that the organized medical staff define the q g circumstances requiring monitoring and evaluation of a physician's professional performance.

• Relevant information from this monitoring and evaluation will then be

i t t d i t f i t ti iti i t t ith integrated into performance improvement activities, consistent with confidentiality and peer review requirements.

• This focused evaluation applies to new medical staff applicants, physicians

who request new privileges and physicians who lack required volume of who request new privileges and physicians who lack required volume of cases to assess performance or who are not meeting performance standards.

• This focused evaluation process can be of great assistance in performance

p g p improvement activities as well as in managing risk.

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Healthcare Reform in the Context of Existing Medical Staff Credentialing g g Standards

• It is crucial that the criteria for conducting such monitoring be clearly

It is crucial that the criteria for conducting such monitoring be clearly defined, that a method for determining the duration of monitoring be defined, and the circumstances under which an external monitoring source should be used.

• Again, adherence to this focused monitoring is of significant

assistance in managing risk associated with physicians who desire to undertake new procedures, physicians as to whom there is insufficient information to determine competency based on volume insufficient information to determine competency based on volume, and physicians whose performance requires remediation. This Standard also can be used to drive quality as is required for effective participation in some of the demonstration programs under the PPACA.

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Healthcare Reform in the Context of Existing Medical Staff Credentialing g g Standards

Standard 4.40 requires a health system to undertake an Ongoing Standard 4.40 requires a health system to undertake an Ongoing Professional Practice Evaluation for all practitioners who have already been granted patient care privileges.

• This evaluation goes well beyond traditional case based peer review

This evaluation goes well beyond traditional case based peer review activities and recommendations.

• Information in these evaluations should include an analysis of

medical assessments and treatments appropriateness of operative medical assessments and treatments, appropriateness of operative and other procedures, appropriateness of care, and adverse events.

• The Standard allows each individual hospital to develop its own

standards for ongoing professional practice evaluations standards for ongoing professional practice evaluations.

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Healthcare Reform in the Context of Existing Medical Staff Credentialing g g Standards

• The following criteria can be used in such evaluations:

The following criteria can be used in such evaluations: (1) Appropriateness of utilization of system resources. (2) Measurement of quality outcomes by system defined (2) Measurement of quality outcomes by system defined metrics. (3) Measurement of adherence to system defined standards of f h i diti care for chronic conditions. (4) Measurement of adherence to health system defined standards for preventative and ongoing primary care standards for preventative and ongoing primary care.

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Medical Staff Credentialing Update g p

Adrienne E. Marting Balch & Bingham LLP amarting@balch.com June 15, 2011

Discussion Points Discussion Points

• Background
• Case Law

Case Law

• Defending against a Corporate

N li Cl i Negligence Claim

• Minimizing Liability

g y

37

Why is this important? Why is this important?

• In a malpractice action, Plaintiffs are looking for

p , g the deep pockets - hospitals have the deepest pockets

• Limitations or “caps” on compensatory and

punitive damages has led to increased efforts to add hospitals as a defendant add hospitals as a defendant

• Unprecedented focus on how hospitals

credential and privilege physicians credential and privilege physicians

• Increasing volume of documents generated in

the credentialing process

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the credentialing process

Why is this important? Why is this important?

• Recent developments are increasing the

Recent developments are increasing the scrutiny of hospital credentialing and privileging decisions:

– Emphasis on Pay for Performance (“P4P”) and expected or required quality outcomes as determined by public and private payors by public and private payors – Greater transparency to general public via hospital rankings, published costs and outcomes, g accreditation status, state profiling of physicians, etc. – Focus on ongoing and focused professional practice evaluation (“OPPE” and “FPPE”)

39

evaluation ( OPPE and FPPE )

The Basics: A Negligent C d i li Cl i Credentialing Claim

H it l i d li i l i il t

• Hospital issued clinical privileges to

unqualified practitioner who provided li t negligent care

• The claim is based on the Doctrine of

Corporate Negligence

• Different theories of liability are utilized:

y

– Respondeat Superior – Apparent Agency

40

pp g y

Corporate Negligence Corporate Negligence

F li l i i l di

• For any negligence claim, including

corporate negligence, Plaintiff must be bl t t bli h able to establish:

– Existence of duty owed to the patient – That the duty was breached – That the breach caused the patient’s injury – The injury resulted in compensable damages

41

Hospital Duty to Credential Physicians p y y

• Hospital, along with its medical staff, is required to

exercise reasonable care to make sure that exercise reasonable care to make sure that physicians applying to the medical staff or seeking reappointment are competent and qualified to i th t d li i l i il exercise the requested clinical privileges.

• If the hospital knew or should have known that a

physician is not qualified and the physician injures a physician is not qualified and the physician injures a patient through an act of negligence, the hospital can be found separately liable for the negligent d ti li f th h i i credentialing of the physician.

• Doctrine also applies to managed care
• rganizations

42

• rganizations.

Hospital Duty to Credential Physicians Hospital Duty to Credential Physicians

• Restatement of the credentialing duty is

g y found in:

– Case law, i.e., Darling v. Charleston , , g Community Hospital – State hospital licensing standards – State hospital licensing standards – Accreditation standards – Medical staff bylaws, rules and regulations, department and hospital policies, corporate

43

bylaws and policies

Hospital Duty to Credential Physicians Hospital Duty to Credential Physicians

• Some questions associated with this duty:

Some questions associated with this duty:

– How are core privileges determined? Based on what criteria does hospital grant – Based on what criteria does hospital grant more specialized privileges? – Are hospital practices and standards – Are hospital practices and standards consistent with those of peer hospitals? – Were any exceptions to criteria made and if Were any exceptions to criteria made and, if so, on what basis?

44

Breach of Hospital’s Credentialing Duty p g y

Hospital may breach its credentialing duty by:

• Failing to adopt or follow state licensing

requirements q

• Failing to adopt or follow its medical staff

bylaws rules and regulations policies core bylaws, rules and regulations, policies, core privileging criteria, etc.

• Reappointing physicians without taking into
• Reappointing physicians without taking into

account their accumulated quality or performance improvement files

45

performance improvement files

Breach of Hospital’s Credentialing Duty Breach of Hospital s Credentialing Duty

• Failing to adopt or follow accreditation

g p standards, i.e., FPPE and OPPE

• Failing to provide written explanation as to

Failing to provide written explanation as to why physician, who did not meet or satisfy credentialing criteria, was otherwise given certain clinical privileges

• Requiring physician to take ED call who is

q g p y clearly not qualified to exercise certain privileges

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Did the Hospital Cause the Plaintiff’s Injury?

• Can Plaintiff establish that if hospital had met its

duty the physician would not have been given th li i l i il th t l d t th ti t’ the clinical privileges that led to the patient’s injury?

Did h it l if l l it d ti li it i ? – Did hospital uniformly apply its credentialing criteria? – Was there a lack of investigation into peer review issues or malpractice suits since last reappointment? issues or malpractice suits since last reappointment? – Were appropriate remedial measures or corrective actions taken where warranted?

47

Corporate Negligence Corporate Negligence

• Darling v. Charleston Community

Memorial Hospital (1965)

– First case to apply the Doctrine of Corporate Negligence – Teenage athlete with broken leg was treated b f il titi by a family practitioner – Leg was not set properly and patient suffered t i j permanent injury – Hospital claimed no responsibility over the patient care provided by physician

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patient care provided by physician

Corporate Negligence p g g

• Court noted that the hospital had incorporated the

Joint Commission credentialing standards into its Joint Commission credentialing standards into its corporate and medical staff bylaws

• Standards reflected an obligation by the medical

Standards reflected an obligation by the medical staff and hospital to make sure physicians were qualified to exercise the privileges granted

• Physician was found to be negligent
• Court found that the hospital’s decision to give

privileges to an unqualified practitioner directly caused the patient’s permanent injuries H it l h ld li bl f th d

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• Hospital was held liable for the damages

Case Law Case Law

Frigo v. Silver Cross Hospital (Illinois, 2007)

• Case involved a lawsuit against a podiatrist and

Silver Cross Hospital

• Patient alleged that podiatrist’s negligence

resulted in subsequent amputation of the foot

• Podiatrist was granted Level II surgical privileges

even though he had neither the required additional post graduate surgical training nor additional post-graduate surgical training nor Board certification at the time of initial appointment

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Case Law

Frigo v. Silver Cross Hospital (cont.)

• Podiatrist never met these standards
• When alleged negligence occurred, physician

had only performed six Level II procedures and had only performed six Level II procedures and none of them at Silver Cross Hospital

• Plaintiff argued that podiatrist should have never

Plaintiff argued that podiatrist should have never been given the privileges to perform the surgery since he did not meet the required standard Pl i tiff l i d th t h it l i l t d it d t t

• Plaintiff claimed that hospital violated its duty to

make sure the podiatrist was qualified when it granted him privileges even though he did not

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meet the standard

Case Law Case Law

Frigo v Silver Cross Hospital (cont ) Frigo v. Silver Cross Hospital (cont.)

• The hospital’s breach of this duty resulted in

di t i t’ li th t l d t t ti podiatrist’s negligence that led to amputation

• Jury issued a verdict of $7,775,668.02 against

Silver Cross Hospital

• Podiatrist had previously settled for $900,000.00

p y

• Jury verdict was affirmed by appellate court.

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Case Law Case Law

Larson v Wasemiller (Minnesota 2007) Larson v. Wasemiller (Minnesota, 2007)

– The Supreme Court of Minnesota p recognized that the tort of negligent credentialing “is inherent in and the natural extension of well established common law rights.”

53

Case Law

Archuleta v. St. Mark's Hospital (Utah, 2010)

• Utah Supreme Court held that peer review statutes and

mandatory reporting statutes do not immunize a hospital against a negligent credentialing claim

• Patient sued hospital and physicians for medical

negligence and negligent credentialing after suffering severe pain and complications from surgery p p g y

• Utah statute grants immunity to health care providers

that make decisions regarding proper use of facilities, quality and cost of care etc except that it does not quality and cost of care, etc, except that it does not relieve a provider from liability for professional care and treatment of a patient

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Case Law Case Law

Archuleta v. St. Mark's Hospital (Utah, 2010) (cont.)

• The Court held credentialing determination is a decision

regarding a doctor's fitness to provide patient care and is covered by the exception language in the statute

• Court found code section was never intended to shield

hospitals from potential liability or to provide hospitals with protection from medical malpractice claims p p

• Court recognized strong policy for recognizing negligent

credentialing claims: (1) forseeability of harm to patients; (2) superior position of hospitals to monitor and control physician superior position of hospitals to monitor and control physician performance

• But see, Utah Senate Bill 150 which overruled Court’s holding

i A h l t

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in Archuleta.

Case Law

Kulka v. Vora (Kentucky, 2011)

• Plaintiff filed complaint against Dr. Vora and hospital for

p g p medical negligence and negligent credentialing after the death

• f Stephen Kulka
• Plaintiff dismissed the complaint against the hospital following

p g p g discovery

• Later, after learning that the hospital had withheld peer review

documents from discovery, plaintiff attempted to set aside the y p p dismissal

• The Kentucky Court of Appeals refused to set aside dismissal

and noted that a negligent credentialing cause of action has g g g not been recognized in Kentucky

• But see, Estate of Judith Burton v. The Trover Clinic

Foundation, Inc. and Dr. Philip C. Trover

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Case Law

Hunstman v. Aultman Hospital (Ohio, 2011)

• Plaintiff filed negligent credentialing claim against
• hospital. Hospital granted summary judgment. Plaintiff

appealed.

• On appeal, plaintiff claimed that the trial court erred by

not considering:

– (1) medical malpractice suits against the physician ( ) p g p y – (2) amounts paid to settle medical malpractice claims, and – (3) the NPDB report that was filed before physician was reappointed pp

• Plaintiff claimed that the hospital did not follow its own

rules, regulations and bylaws in the credentialing process

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process

Case Law Case Law

Hunstman v Aultman Hospital (cont ) Hunstman v. Aultman Hospital (cont.)

• Ohio court recognized that the peer review

immunity does not provide blanket immunity to immunity does not provide blanket immunity to a hospital for negligent credentialing, but held that where regulated, specific credentialing that where regulated, specific credentialing procedures are in place and they are followed, the statute shields the hospital from negligent credentialing claims

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Defending a Corporate N li Cl i Negligence Claim

• Demonstrate that hospital had appropriate

standards and processes in place and carefully f ll d followed same

• Have expert demonstrate that even if a breach
• ccurred it did not cause patient’s injuries
• Demonstrate that even if issue with physician

p y had been previously identified that physician was appropriate remedial steps were taken

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Defending a Corporate N li Cl i Negligence Claim

• Privileging qualifications are not always black and
• Privileging qualifications are not always black and

white, even where standards have been established

• A reduction or termination of privileges is not always

A reduction or termination of privileges is not always the appropriate response when physician issues identified

• Preferred path is for hospital to work with the

physicians to get them back on track by implementing other remedial measures such as implementing other remedial measures such as monitoring, proctoring, additional training

• Hospital consistently followed its credentialing

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Hospital consistently followed its credentialing process

Minimizing Liability g y

• Routinely audit governing documents and

ensure compliance with all legal accreditation ensure compliance with all legal accreditation standards Promptly address any compliance gaps

• Educate Department Chairs and Credentialing

and Medical Executive Committee members on credentialing process credentialing process

• Breach of duty occurs if bylaws and internal

standards are not followed standards are not followed

• FOLLOW YOUR BYLAWS
• Document document document

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• Document, document, document.

Minimizing Liability Minimizing Liability

• Make sure all pertinent physician information is

i d reviewed

• Consistently and uniformly follow the established

process

• Confer with your peers. If your practices deviate

f thi b h ld i t from your peers, this may be held against you as a breach of the standard of care

• Verify information and carefully review any red

Verify information and carefully review any red flags

• Identify and understand your state’s own

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y y nuances in order to defend accordingly

Minimizing Liability g y

• Identify what testimony plaintiff’s expert must

assert to establish a claim and what must d f bli h b defense expert establish to rebut.

• What does your state peer review statute allow

for the introduction of confidential peer review for the introduction of confidential peer review information under any circumstances.

• If file information would help the hospital can the
• If file information would help the hospital, can the

privilege be waived? Realize that plaintiff would also have access. Will this help or hurt?

• Consider creating a record of the hospital’s

compliance with its duty that is not part of an inadmissible peer review file.

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inadmissible peer review file.

Thank You! Thank You!

Adrienne E Marting Adrienne E. Marting Balch & Bingham LLP 30 Ivan Allen Jr. Blvd. NW, Suite 700 Atlanta Georgia 30308-3036 Atlanta, Georgia 30308 3036 (404) 962-3580 Phone (404) 849-8955 Fax amarting@balch com amarting@balch.com

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