A Practical Roadmap For Navigating Medical Staff Legal Nightmares In Current Times

1. A Practical Roadmap For Navigating
Medical Staff Legal Nightmares In
Current Times
SSM Health Care Of Wisconsin
Medical Staff Meeting
January 21, 2020
Presented by Sarah Coyne

2. Medical Staff Process – The Tricky Parts
• DISCLAIMER: WE LAWYERS REALIZE THAT MOST MEDICAL STAFF MEMBERS
PROVIDE EXCELLENT CARE AND CONDUCT THEMSELVES PROFESSIONALLY –
THIS IS A ROADMAP FOR THE RARE OCCURRENCES - WHEN THINGS ARE
GOING BADLY WITH A GIVEN MEDICAL STAFF MEMBER. (Well, I am a
lawyer....you knew there had to be a disclaimer).
• Nuances of managing the fork in the road between medical staff process and
administrative process for employed physicians.
• Challenges of navigating the process set forth in the medical staff bylaws in a
manner that maintains immunity for all participants in the process.
• The interface of medical staff leaves of absence with investigations.
• The various reporting obligations for hospital medical staff members.

3. When The Problem Is Identified Through HR
• Human Resources is often the first to learn of a problem, especially when:
• The catalyst is a complaint from a co-worker.
• The physician is employed by the hospital.
• There is a critical crossroads right at the beginning with regard to a complaint
about an employed physician: Will the investigation be handled as a function of
employment or medical staff membership – i.e., through corrective action.
• Practical tips:
• Ensure that HR understands that medical staff has its own review and corrective action
process.
• Ensure that HR will communicate immediately with medical staff leadership so that a
reasoned decision can be made.
• There should be communication the other way as well, if the medical staff is undertaking an
investigation or corrective action process – let HR know so that you don't get at cross-
purposes.

4. Why Choose Medical Staff Process - Ever?
• Collegial intervention didn't work.
• Kinder gentler processes didn't work (FPPE, evaluation for potential impairment,
etc.)
• Not employed.
• Defined process as opposed to the employment process.
• Immunity.
• Fiduciary duty to patients (avoiding negligent credentialing).
• Raising the red flag for future employers/ credentialing facilities.
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5. Health Care Quality Improvement Act (HCQIA)
• The medical staff bylaws corrective action section of the bylaws and fair hearing
plan must reflect HCQIA – this provides federal immunity for those involved in
professional review actions. (Parallel state law immunity Wis. Stat. s. 146.37)
• If proceeding down this path, follow the process to the letter – sometimes it is
tricky to figure out where exactly you are in the process.
• The idea is to encourage frank peer review by limiting civil liability.
• If health care providers as a professional review body meet the standards set
forth in HCQIA, then immunity attaches to the medical staff participating in the
process, the board to the extent it is involved, the administrators involved, etc.
• But like many things – immunity is a defense you assert if you are sued – it
doesn't mean that you can't be sued.

6. Administrative vs. Privileges Suspension
• If the medical staff member is posing an immediate threat to patient care or
hospital operations and is employed:
• Administrative suspension (with or without pay) provided that this will result in the provider
not being able to exercise privileges; OR
• Summary suspension of privileges under the medical staff bylaws.
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7. Counting Days – Summary Suspension Of Privileges
• If a practitioner’s medical staff privileges are suspended for more than
FOURTEEN DAYS, the practitioner will have a right to request a hearing.
• Investigation should begin (and if possible, conclude) during the fourteen days.
• Nightmare: Bylaws that shorten the fourteen days (or lengthen it)!
• Hearing must be AT LEAST THIRTY DAYS after the practitioner requests it – not a maximum,
a minimum.
• Suspension or limitation of privileges (including voluntary agreements) for
MORE THAN THIRTY DAYS means a report to the NPDB.

8. Summary Suspension "Don'ts"
• Don't summarily suspend a physician for behavior that happened a long time
ago/ has been known for a while – it is supposed to be an aversion of imminent
problems.
• Don't assume that events that happened offsite are irrelevant – if there was
some sort of violent crime, it is relevant to whether patients are in danger... BUT
• Don't assume that everything that happens offsite IS relevant, e.g. maybe a
misdemeanor/ traffic incident that occurred offsite is legitimately unlikely to
carry over.

9. How Corrective Action Meshes With Summary Suspension
• When a request for corrective action is brought to the MEC, the MEC can:
• Decide it has enough information.
• Convene an ad hoc committee to investigate.
• Once the MEC does have enough information, they make a recommendation to
the board. If this recommendation falls into the list of those deemed ADVERSE
(i.e. restriction or reduction of privileges/ appointment), then the physician is
entitled to request a hearing.
• If the physician is also summarily suspended (because there is a perception that
he or she should not exercise privileges during the pendency of the corrective
action process), that will also entitle him or her to request a hearing after
fourteen days.
• It is ONE hearing that will address BOTH pathways to the hearing.
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10. Knowing The Facts
• Before taking action on privileges, the acting committee should do a very
thorough analysis of the facts – this is always an area of attack.
• Review medical records.
• Talk to key witnesses.
• Talk to the physician.
• Err on the side of fairness to the physician and document that (his or her side of
the story, his or her access to documents, etc.).
• Nightmare: Committee decides to revoke privileges without having reviewed
documents, without having heard in any depth from the doctor, and without
having a significant period of discussion.
• Recommendation: If the problem is with a person who works in collaboration
with the physician or under the physician's supervision, focus on the actual
practitioner with the issue unless there was a really egregious failure to
supervise/ collaborate.

11. Selecting And Preparing The Investigative Committee
• Pick someone (counsel, medical staff coordinator) to organize the meetings of
the investigative committee – first one should be in person, after that they
might have to be by phone.
• At first meeting, have them sign a confidentiality statement and impress the
importance of confidentiality. Have them decide who they want to interview,
including the physician. Help them to reach out to those individuals and
schedule them – interviews should be in person with all members of the
committee if possible.
• Be aware of timelines in the bylaws – in general the whole process should not
take more than one month (if possible).
• Make sure the physicians on the committee are armed with the bylaws and the
request for correction action so they know what their mission is.
• They should ultimately come to a consensus or at least majority and
recommend possible courses of action.

12. The Physician Under Review's Side Of The Story
• The physician under review should have unfettered input to the investigative
committee is crucial and should be actively considered by the MEC.
• The input can be a meeting, in writing, or (ideally) both.
• Nightmare: The physician is given ten minutes to present his case.
• Fairytale: The physician is given an opportunity to meet with the IC and an
opportunity to submit documentation including a narrative.

13. Ultimate Adverse Recommendation By MEC
• The MEC technically does not have to defer to the investigative committee's
recommendation, but usually does.
• An adverse recommendation by the MEC will entitle physician to request a
hearing.
• Bylaws will spell out which actions are “adverse actions” which will essentially
be recommendations for curtailing/ limiting privileges or appointment.
• Bylaws will spell out timing and process for requesting a hearing.
• Nightmare: Bylaws that give a really short timeline for hearing.
• Fairytale: Bylaws that allow for reasonable scheduling.
• The governing body and hospital administration are apprised at this point
(usually administration is involved and governing board is aware well before
this).

14. Medical Staff Hearings – Providing Adequate Notice
• Two separate notices required under HCQIA:
• Notice of Adverse Action Recommendation (and Right to Request a Hearing).
• Notice of Hearing (after practitioner has requested it).
• Nightmare: Trying to give notice to a physician who will not answer the door or
sign a "return receipt requested").
• Recommended: The bylaws bless multiple methods of delivery, e.g. including
electronic mail that confirms receipt at a certain time.

15. Potential Landmine: Limiting Physician Access
• The physician under review should have full access to the medical records of any
patient where that patient's care is the basis (or one of the bases) for the adverse
recommendation.
• The physician under review should also have the bylaws and any policies/
procedures requested.
• HOWEVER:
• The physician should not be able to access the files of other physicians.
• There should be no right to discovery in the bylaws (there isn't in HCQIA).
• The hospital does not have to facilitate interviews/ depositions with hospital staff (although
can't do much about the physician contacting such staff).

16. Nightmare: Denying Physician Access To Documents
• Recent court case: Blaine v. North Brevard County Hospital District required the
hospital to give the plaintiff physicians a hearing for failing to provide physicians
with data they had requested during the course of reappointment.
• The court held that under the medical staff bylaws, the hospital was required to
give the physicians a hearing before their request for reappointment and renewal
of clinical privileges could be denied for failing to provide “patient data.” The
“patient data” appeared to be related to the hospital’s cancer program and
necessary for accreditation purposes.

17. HCQIA Requirements For A Fair Hearing
• Physician may be represented by an attorney (or someone else).
• Some sort of tribunal.
• Mutually acceptable arbitrator.
• Hearing committee of physicians not in direct competition.
• Hearing Officer.
• Nightmare: Bylaws that allow the physician indefinite veto power.
• Fairytale: Bylaws that allow the physician input, but allocate ultimate authority to the hospital to
appoint the hearing committee.
• Physician may call and examine witnesses, present evidence, submit a written
statement, and upon conclusion, receive a written decision.
• “Appeal” rights to board are common but not essential for HCQIA immunity.

18. HCQIA And Confidentiality
• HCQIA states that information that identifies the entity, practitioner or patient that
is reported to peer review committees is confidential and shall not be disclosed
(other than to reviewed practitioner) except:
• In the course of the PRA.
• As necessary to query the NPDB.
• In accordance with federal regulations or state law.
• The committee taking action on privileges MUST understand that confidentiality is
LEGALLY REQUIRED (by HCQIA and in Wisconsin by Wis. Stat. s. 146.38). No leaking!
It creates a separate battlefield.
• Recommendation: Have the committee members sign agreements to maintain the
confidentiality of the matter at the beginning.
• Recommendation: Collect all paper materials at the end of each meeting.

19. Physician Health/ Impairment
• Impairment issues may be handled through a separate impaired provider policy,
which may be "kinder and gentler" than either HR or medical staff process.
• However, be aware of who owns the implementation of that policy.
• If there are independent medical examinations, be aware that the evaluator may
have a duty to report to the Department of Safety and Professional Services under
Wis. Stat. s. 448.115.
• A good policy will have a pathway from the impaired provider route to the medical
staff corrective action route.
• Nightmare: Taking corrective action that results in loss of privileges/ NPDB report
without having considered that the behavior/ conduct stemmed from a health or
impairment issue.

20. "What Is Going On With Dr. X?"
• Patients, co-workers and community members may start to wonder why a physician
under review has stopped practicing or stopped exercising certain privileges.
• Because confidentiality is key, the strategy for responding to such inquiries should be
thought out in advance and scripted, e.g.:
• To patients/ community members: He has taken a leave of absence.
• To co-workers: He is not currently scheduled, for personal reasons (for confidential reasons).
• The right message will vary greatly with each case.

21. Promising Absolute Confidentiality To Witnesses
• Outside of the corrective action process, a co-worker's commentary or
complaints about another practitioner may be kept confidential.
• Nightmare: Having promised confidentiality to a witness who is the only one with first-hand
knowledge of the basis for a fair hearing.
• Nightmare: Hospital is obligated to turn over all relevant documents to physician who has
requested a hearing and the physician insists on confronting those who reported problems.

22. What Happens After The Hearing?
• Hearing panel or officer issues a report within the timelines in the Fair Hearing
Plan.
• Physician and MEC both receive a copy of the report.
• If adverse, usually goes straight to governing board for consideration (approval,
rejection, or modification).
• If governing board decision is adverse, most Fair Hearing Plans allow for appeal to
the board – this is NOT necessary for HCQIA immunity.
• If upheld on appeal, the life cycle comes to an end – the next step would be for the
physician to bring a lawsuit alleging some sort of wrongful limitation of privileges –
HCQIA immunity would be a strong defense but does not prevent the lawsuit from
being filed.

23. Leaves Of Absence
• If a leave of absence while under investigation restricts privileges, it is a mandatory
report.
• NPDB's regulation states that, "[a]cceptance of the surrender of clinical privileges or
any restriction of such privileges" is reportable.
• To the extent a leave of absence restricts a practitioner's ability to exercise privileges,
it is considered a surrender that is reportable.
• If a practitioner can take a leave of absence without affecting his or her privileges,
and his or her privileges remain intact during the leave of absence, the leave of
absence is not reportable to the NPDB.
• Nightmare: Unclear language in the bylaws about the procedural implications if the
physician is declined return from leave.
• Fairytale: A nice clear conduit between denial of return from leave and the
procedural rights mandated under HCQIA.

24. Licensing Board Actions
• A limitation on the license may trigger a restriction of privileges under the bylaws –
which if automatic, will not give rise to hearing rights.
• A limitation on the license may result in the physician's breach of his or her
employment agreement – would be a factor in favor of going the employment
route rather than the medical staff route.
• Nightmare: Physician's license is limited but he/ she does not disclose this to the
hospital.
• If there was an outright omission on an application (for employment, for appointment, for
reappointment) that is in itself a basis for corrective action regardless of the underlying reason
for the license limitation.
• The bylaws should require disclosure of any such limitations (license, DEA, etc.).

25. Where Do Lawyers (On Both Sides) Fit In?
• Usually, hospital medical staffs do not want to involve the physician's lawyer until
there is a right to request a hearing – and this is consistent with HCQIA.
• HOWEVER, in that case, the hospital/ medical staff lawyer should not be present
at meetings where the physician is not being allowed to bring his/ her attorney.
• Hospital/ medical staff attorney is not required from counseling behind the
scenes.
• If hospital administrative position and goals are not aligned with MEC goals,
there may be a need for separate counsel – watch for diverging interests.
• At the hearing, each side is represented by counsel.

26. Should Reporting Drive The Medical Staff Bus?
• Ideally no – realistically, it often does.
• While an NPDB report or licensing board report is not necessarily (and usually is
not) career ending, it is of course offensive to the subject of the report and it does
complicate future hospital and payor credentialing.
• Sometimes, in an effort to avoid reporting, the MEC will manage timelines
accordingly – e.g. lift summary suspension within thirty days/ find settlement
options where there is not a restriction on privileges/ handle through employment
and let privileges hang out there.

27. What Must Be Reported To The NPDB?
• Hospitals and other health care entities must report adverse clinical privileges
actions to the NPDB.
• Any professional review action that adversely affects the clinical privileges of a
physician or dentist for a period of more than thirty days; OR
• The acceptance of the surrender of clinical privileges, or any restriction of such
privileges by a physician or dentist:
• While the physician or dentist is under investigation by a health care entity relating to possible
incompetence or improper professional conduct; or
• In return for NOT conducting such an investigation or proceeding.

28. Agreements Not To Exercise Privileges
• Is an agreement not to exercise privileges during an investigation, without
actually surrendering the privileges, a resignation while under investigation that
is reportable?
• Yes, the agreement not to exercise privileges is reportable if other reportability conditions are
met. NPDB regulations state that "acceptance of the surrender of clinical privileges or any
restriction of such privileges . . .while under investigation" is reportable. An agreement not to
exercise privileges is a restriction of privileges. Any restriction of privileges while under
investigation, temporary or otherwise, is considered a resignation and must be reported.
• Nightmare: An email from medical staff leadership to the physician stating essentially, "In
return for your agreement not to exercise your privileges, we will stop the investigation into
the concerns against you and no report will be made to the NPDB."
• Nightmare: "Your summary suspension is ending because you agreed that you will not see
patients at our hospital in the future – this will not be reported to any agencies."

29. What Is A Restriction?
• Denials or restrictions of clinical privileges for more than thirty days that result
from professional review actions relating to the practitioner's professional
competence or conduct that adversely affects (or could adversely affect) the
health or welfare of a patient - MUST be reported to the NPDB.
• This includes denials of applications for initial privileges.
• A restriction is the result of a professional review action based on clinical
competence or professional conduct that leads to the inability of a practitioner to
exercise his or her own independent judgment in a professional setting.

30. Surrender Of Privileges Or Appointment
• Surrender of privileges while under investigation or in order to avoid
investigation (or the result of the investigation) is reportable.
• Nightmare: The hospital bends over backwards to facilitate handling something
through HR rather than medical staff process and then the physician sends an ill-
advised resignation letter "I resign my privileges."

31. Threshold Eligibility Criteria
• A denial of clinical privileges at appointment or reappointment that occurs solely
because a practitioner does not meet a threshold criterion for that privilege should
NOT be reported to the NPDB.
• Such denials are NOT deemed the result of a professional review action relating to
the practitioner's professional competence or conduct and should not be reported
to the NPDB.
• Rather, these are decisions based on eligibility.

32. Withdrawal Of Application For Appointment
• Voluntary withdrawal of an initial application for medical staff appointment or
clinical privileges prior to a final professional review action generally should not be
reported to the NPDB.
• However, if a practitioner applies for renewal of appointment or privileges and
voluntarily withdraws that application while under investigation for possible
incompetence or professional misconduct, then the withdrawal of the application
must be reported.
• Applies regardless of whether practitioner KNEW he or she was under investigation
– TELL THE PROVIDER WHAT IS GOING ON.

33. Nonrenewals
• Generally not reported to NPDB.
• However, if practitioner decides not to apply for renewal of medical staff
appointment or privileges while under investigation for professional
competence or conduct – that is considered a surrender while under
investigation and must be reported to the NPDB.
• Regardless of whether the practitioner was aware.

34. No Need To Report Investigations
• The fact of an investigation need not be reported to the NPDB.
• However, when the investigation has started, the chances of reporting go up
because surrender while under or to avoid an investigation is reportable, and
"investigations" run from "the start of an inquiry until a final decision on a clinical
privileges action is reached."
• Not limited to how investigation is defined in the bylaws.
• NPDB distinguishes a ROUTINE formal peer review process in which a "health care
entity evaluates, against clearly defined measures, the privilege-specific competence
of all practitioners." That is NOT an investigation for the purpose of reporting.
• But an investigation of a specific practitioner is different.

35. Reporting Revocation Of Temporary Privileges
• No distinction is made for corrective action regarding temporary privileges.
• If temporary privileges are for a specific amount of time and everyone
agrees on that, and they expire while under investigation – no report.

36. Reporting Summary Suspensions
• A summary suspension must be reported if it is:
• In effect or imposed for more than thirty days;
• Based on the professional competence or professional conduct of the physician; and
• The result of a professional review action taken by a hospital.
• Summary suspensions that have NOT lasted more than thirty days but are
EXPECTED to last more than thirty days and are otherwise reportable MAY be
reported to the NPDB. If the summary suspension lasts thirty days or fewer, a
void report should be submitted.
• The procedural rights of the practitioner are provided AFTER a summary
suspension, not before.

37. Reporting The Fact Of Proctoring
• It is a tough question whether proctoring must be reported to the NPDB if the
proctoring requirement is imposed for more than thirty days.
• If the proctor cannot perform certain procedures without proctor approval, it is a
reportable restriction.
• If the proctor is just reviewing records after a procedure, it is not reportable.
• Routine proctoring for new privileges would not be based on professional
competence or conduct and is not reportable, even if the proctor must be present.
• Recent Texas court case: If the proctoring COULD HAVE been accomplished in thirty
days, do not report even if for various reasons it actually was in place more than
thirty days (e.g. five proctored cases of a low volume condition).

38. Reporting Residents And Interns
• Residents and interns generally do not have clinical privileges and therefore, a
restriction of their practice is not an "adverse action" reportable to the NPDB.
• EXCEPTION: If they are functioning outside the scope of their graduate education,
e.g. moonlighting.

39. NPDB Sanctions For Failing To Report
• If NPDB suspects a hospital has not reported when required to do so, the
Secretary of DHHS will open an investigation and provide written notice to the
hospital.
• NPDB may impose penalties for failure to report.
• The hospital can request a hearing.
• If the hearing is denied for untimeliness or lacking a sufficient statement of facts,
or if the hospital does not prevail at hearing, the sanctions include:
• Publication of the hospital's name in the Federal Register; and
• Loss of the hospital's HCQIA immunity for three years (starting thirty days after publication).

40. Things That Are Not Reportable
• Employment actions.
• Hospital administrative actions (such as discipline for failure to maintain
insurance or board certification).
• Automatic revocation of privileges (for the above reasons and others, e.g. failure
to complete medical records).
• A physician's surrender of privileges for personal reasons, unrelated to
professional competence or conduct.

41. Examples
• A physician applies for medical staff membership and is approved by the
credentials committee but withdraws his application before the governing board
weighs in. The physician is not under specific investigation, just general
credentialing.
• NOT REPORTABLE.
• An employed physician is terminated through the HR process and pursuant to his
employment contract, his medical staff privileges automatically terminate although
the medical staff did not act on his privileges.
• NOT REPORTABLE.
• A physician applies for expanded privileges and is denied by the credentials
committee and the board on the basis that he lacks the skills.
• REPORTABLE.

42. State Law Reporting
• If a physician is reported to the NPDB, the physician will simultaneously be reported
to the State Medical Examining Board which will initiate a screening inquiry.
• MEB may shut things down at the screening stage or proceed to investigation.
• If not resolved and action is proposed on the license, this can proceed to a hearing before an
Administrative Law Judge.
• The physician is responsible for all of the State's costs.
• The limited license is reported to the NPDB by the State.
• Even if a physician is NOT reported to the NPDB, the physicians involved in the review
process should be aware of reporting requirements under Wis. Stat. s. 448.115
• Requires physicians to report other physicians.
• Can be handled by hospital on behalf of all physicians with knowledge.
• If the situation involves rudeness/ behavioral concerns with a patient, consider
SEVEN CALENDAR DAY timeline for investigating and reporting caregiver misconduct
to the State (Office for Caregiver Quality).
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43. © 2019 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained herein is
intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future
developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular
circumstances before acting on any of this information because it may not be applicable to you or your situation.
ANY QUESTIONS?
Sarah Coyne
(608) 283-2435
sarah.coyne@quarles.com