According to the Office of the Inspector General (OIG) and Joint Commission for Accreditation of Healthcare Organizations (JCAHO), Hospitals’ credentialing practices will come under increased scrutiny. As a result, Hospitals will need to be able to demonstrate and document an effective evaluation process of individual requests for privileges and the criteria used for granting these privileges.
The doctrine of corporate negligence was introduced in 1965 when the Illinois Supreme Court upheld a jury verdict against a hospital for injuries to an eighteen year college football player as a result of treatment for a broken leg by an on-call non employee emergency room physician. The court ruled that the doctrine of charitable immunity no longer applied and that the standards for hospital accreditation, the state licensing regulations and the hospital’s bylaws demonstrated that the medical profession and other responsible medical authorities regarded it as both desirable and feasible that a hospital assume certain direct responsibilities for the care of patients
In 1980 the Supreme Court of Wisconsin held that the failure of a hospital to investigate a surgeon’s qualifications for the privileges requested gives rise to a foreseeable risk of unreasonable harm and therefore, the hospital has a duty to exercise due care in selection of its medical staff
surgeon unsuccessfully attempted to remove a pin fragment from Johnson’s right hip damaging patient’s common femoral nerve and artery resulting in a permanent paralytic condition of his right thigh muscles
Hospital admitted to failing to contact any of the surgeon’s references or check alleged credentials
Hospital records were devoid of any information concerning the procedure used to approve surgeons appointment
The court stated that the Hospital was required to “solicit information from applicant’s peers, including those not referenced in his application, who are knowledgeable about his education, training, experience, health, competence, and ethical character.”
In addition, the hospital will be charged with gaining and evaluating the knowledge that would have been acquired had it exercised ordinary care in investigating its medical staff applicants and its failure to do is negligence
Physicians who believe they were victimized by a credentialing system driven by anti-competitive agenda
Polmer v. Presbyterian Hospital of Dallas
$366 million jury verdict in favor of a cardiologist and against a Hospital Chair of Internal Medicine, Chief of Cardiology and Director of Cath Lab who summarily suspended his privileges to perform certain cardiac procedures for six months
Expanded exposure under the Doctrine of Apparent Agency or Ostensible Agency
Kafri V. Greenwich Hospital (U.S. District Court for CT)
Judge Nevas denied Greenwich Hospital’s Motion for Summary Judgment who had been sued for the alleged negligence of Greenwich Radiology, an independent contractor, on the theory of apparent agency. Judge Nevas stated:
“… the Court finds several reasons for applying the doctrine of apparent agency to a hospital. No reasonable patient in the position of the plaintiff would assume anything else but that the medical staff physicians were employees of the hospital. Indeed, a patient has the right to rely on the reputation of the hospital when she agrees to have a medical procedure performed at the hospital. As such, it is reasonable for the public to assume that a hospital to which it goes for treatment exercises medical supervision over, and is responsible for the negligence of, medical personnel providing services whether they are independent contractors or not.”
As a result of court decisions like Kafri , hospitals are at increased risk of becoming secondary insurers, in affect, for radiology, anesthesiology and other contracted service groups regardless of their status as “independent contractor”
Past five years – intense and growing focus on issues of patient safety and quality in health care industry
Both state and federal regulators are scrutinizing as never before the effectiveness of the systems the hospitals have put in place to protect and promote patient safety – i.e. credentialing and peer review.
OIG’s Supplemental Compliance Program Guidance for Hospitals (January , 2005):
“Hospitals must also take an active part in monitoring the quality of medical services provided by appropriately overseeing the credentialing and peer review of their medical staffs”
In 1997, a Pennsylvania HMO, Keystone Health Plan East, learned that an individual named David Tremoglie fraudulently presented himself has a psychiatrist and was employed by a behavioral health organization to treat Keystone patients. The Government took the position that all claims for reimbursement based on Tremoglie’s work violated the False Claims Act.
Wire Fraud – U.S. v. United Memorial Hospital
In 2003, United Memorial Hospital signed a federal guilty plea agreement in which it admitted to fraud in connection with the alleged over utilization of pain management surgical procedures, one of which resulted in the death of a patient. The Hospital also admitted to inadequate credentialing of the chair of Anesthesia and agreed to pay $750,000.
Individuals being considered for privileges must be reviewed with the information and detail necessary to answer the core question. “ Will this individual deliver high quality care to the first and every subsequent patient? ”
No longer acceptable to use the question “Can we prove the individual is awful enough to not approve or re-approve privileges?” Instead organizations should be answering the question “Do we have sufficient information to prove that the individual continues to be as good as we require?”
Conclusion: Difficult decisions are now expected to arise regularly (e.g. whether or not to grant privileges to an applicant who only uses a more costly and dangerous procedures. Even if the applicant’s outcomes have been acceptable, the Credentialing Committee is expected to consider the costs and risks incurred in exposing patients to outdated procedures.)
Over the past 3 decades privileging concepts have progressed along a continuum from detailing each privilege offered in a “laundry list” to granting a large block of ill-defined privileges based on specialty training
Presently these concepts have been effectively combined through the concept of core privileges.
Concept of core privileges is meant to simplify the privileging decisions by taking into account the competence acquired throughout a full residency training program and demonstrated by board certification
Candidates can be granted all privileges for which their education and training qualifies them without needing special consideration
Core competency can only be assumed for individuals who completed training after the privileges were accepted as mainstream medicine
Others, even if board certified, should be asked to provide specific evidence of competency
Problems with Core Privileging
Over time training programs delete specific skills and training. (Example – Before 1990 all pathologists received training to perform bone marrow aspirations. After 1995 this was dropped as a core element of training.)
Use of Board Certification as a basis for core privileging (Example – Board Certified gynecologist being granted privileges to perform hysterectomies without further documentation. However, a pelvic exenteration may still require documentation of specific training since it is complex in nature and infrequent, even in residency program.)
the fact that Board Certification may be a basis for granting privileges in certain basic , common procedures does mean that a physician is competent to perform more complex and less common procedures
When using core privileging do not overlook the need to completely evaluate the candidate.
Completion of a residency and passing a test may not fully assure competent performance.
JCAHO requires that “when the Medical Staff uses a system involving classification or categorization of privileges, the scope of each level of privileges must be well defined and the standards to be met by the applicant stated clearly for each category” (MS.5.15.4)
It is important that the principals of core credentialing be consistent between practice areas
It is in the hospital’s best interest to have an extremely detailed application.
should include meaningful questions which seek complete details of significant issues
undesirable candidates may actually choose not to complete the application
Norwalk Hospital’s Credentialing Policy states that an application shall be complete when all questions on the application have been answered and all supporting documentation have been supplied and all information verified
Good Policy and should be adhered to
“ Forced decisions” without full information are better answered with a decision of “No”
The present Credentials Policy at Norwalk Hospital
Not a guarantee that credentialing will not become a problem unless strictly followed
Possible amendment to Economic Credentialing Requirement
Citizenship Criteria – seeks to select physicians who are willing to center their practices in the community and deny privileges to physicians who are seeking staff privileges for purpose of obtaining potential referrals
Conflicts Criteria – Hospital policies which prohibit conflicts of interest support government programs to stop fraud and abuse. Indeed, many conflict policies may be viewed as extensions of ethics in Patient Referral Act (STARK) to the private payor setting. OIG published the following in the Comments of a Solicitation regarding the practice of economic credentialing:
“ Increasingly, Physicians invest in and own entities, such as ambulatory surgical centers, cardiac catheterization labs, and specialty hospitals, that compete with hospital services. These physicians may be in a position to steer profitable business or patients to their own competing businesses through their control of referrals. A credentialing policy that categorically refuses privileges to physicians with significant conflicts of interest would not appear to implicate that anti-kickback statute in most situations.
Moreover, the only issues which seem to concern the OIG were (1) policies that allow the hospital to have discretion as to when to apply the policy, and (2) situations where the hospital commands that the physician refer a specific number of patients to the facility.”
Programmatic Credentialing and Re-credentialing policies should be adopted to guard against recent attacks on the credentialing process by the plaintiff’s bar seeking to hold the Medical Staff/Hospital liable for negligent credentialing
With two of Connecticut’s largest MCOs (Anthem and Aetna) launching P4P programs which pay higher reimbursements for demonstrable programs of clinical quality initiatives and physician interdependence, the Medical Staff should investigate the role it can play, together with the hospital, in the development of such clinical programs.
Medicare has started implementing P4P payments to physicians involved in Physician Group Practice (“PGP”) Demonstration projects around the country. Physicians at Middlesex Hospital are involved in the PGP program which seeks to identity quality measures in Diabetes, Congestive Heart Failure, Coronary Artery Disease and Preventive Care.