Dealing with Difficult Physicians: Preparing For and Minimizing Trouble Colin Luke Leigh Anne Hodge Jo Moore November 3, 2009
Agenda • Lessons Learned – Recent Horror Stories Leigh Anne Hodge 10:00 – 10:40 a.m. • Are your Medical Staff Bylaws Up to Date? Colin Luke 10:40 – 11:10 a.m. • Reporting to the National Practitioner Data Bank; When, Where and How Jo Moore 11:15 – 12:00 a.m. • Responding to Recommendation Requests Regarding Difficult Physicians Colin Luke 12:45 – 1:15 p.m. E.Strategies to Avoid Litigation/Settlement Options Leigh Anne Hodge 1:20 – 2:00 p.m. F. Questions and Answers
Lessons Learned – Recent Horror Stories Leigh Anne Hodge
Butler County physician arrested for more sex crimes A Butler County physician was arrested Friday by state police and charged with sex crimes involving two male juveniles. The doctor, who spent more than two decades serving as a Boy Scout leader in Butler County, was also arrested in March by state police for earlier sex crimes in which former Scouts were the victims, police said. The Scouts came forward nearly two decades after the alleged crimes occurred, police said. Dr. David Allen Evanko, 56, of Butler, surrendered to state police Friday at the Butler barracks on the most recent charges. He was charged by state police with two counts each of institutional sexual assault, unlawful contact with a minor, corruption of minors, endangering the welfare of children and indecent assault. Police said the crimes occurred between April 2008 and March 2009 at Butler Medical Associates on Medical Center Road in Chicora, Butler County, and at Summit Academy on Herman Road in Summit Township, Butler County. Butler Medical Associates is a family practice that was operated by Evanko. Evanko was arraigned before district judge Lewis Stoughton, and he was released on an unsecured $30,000 bond. Evanko took a voluntary leave of absence from Butler Medical Associates and from the medical staff of Butler Memorial Hospital after the March arrest.
Two Sources of Statutory Immunity • Federal Immunity: Health Care Quality Improvement Act (HCQIA) • State Immunity: Alabama Peer Review Statutes
HCQIA Grants Qualified Immunity: • Peer Review Participants • Entities • “Engaging in Good Faith Peer Review” Confers Confidentiality: • Information reported to the National Practitioner Data Bank (“NPDB”)
Health Care Quality Improvement Act (HCQIA)42 U.S.C. § § 11111-11152 Standards for Professional Review Actions. In order to have immunity from liability, a professional review action must be taken – (1) in the reasonable belief that the action was in the furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3). 42 U.S.C. § 11112(a).
HCQIA Notice and Hearing Requirements Notice of Proposed Action • Information that a professional review action has been proposed against the physician. • Reasons for the review action. • Physician has right to request hearing. • Any time limit (not less than 30 days) within which to request hearing. • Summary of rights in the hearing. 42 U.S.C. § 11112(b).
HCQIA Notice and Hearing Requirements Notice of Hearing • If physician timely requests a hearing: • Notice must be given at least 30 days in advance of hearing. • Notice must include: • Place, time, and date of hearing; • A list of witnesses expected to testify for professional review body. 42 U.S.C. § 11112(b)(1)–(2).
HCQIA Notice and Hearing Requirements Hearing to be conducted by: • Mutually acceptable arbitrator; • Hearing officer appointed by the entity who is not in direct economic competition with the physician; or • Panel of individuals appointed by the entity and who are not in direct economic competition with physician. • Physician may waive hearing if he/she fails to appear, absent good cause.
HCQIA Notice and Hearing Requirements • At hearing, physician has the right – • To be represented by an attorney or other person of the physician’s choice; • To have a record of the proceedings upon payment of reasonable charges; • To call, examine, and cross-examine witnesses; • To present evidence; and • To submit a written statement at the close of the hearing.
HCQIA Notice and Hearing Requirements • Upon completion of the hearing, the physician has the right - • To receive a written recommendation that includes the basis for the recommendation; and • To receive a written decision of the health care entity, including the reasons. 42 U.S.C. § 11112(b)(3).
Adequate Procedures for Investigations • Hearing and notice procedures not required if there is no adverse professional action. • Hearing and notice procedures not required in the case of a suspension or restriction of clinical privileges for 14 days or less, during which an investigation is being conducted. • Hospital may at any time take immediate action to suspend or restrict clinical privileges subject to subsequent notice and other adequate procedures, where failure to take action may result in imminent danger to the health of any individual. 42 U.S.C. § 11112(c).
For HCQIA Immunity to Apply: • Compliance with fairness standards. • Adequate notice and a hearing. • Members of hearing panel must not be in direct economic competition with affected physician. • Report the results of the review action to the appropriate authorities in compliance with 42 U.S.C. § § 11131-34.
Alabama Peer Review StatutesAlabama Code § § 22-21-8; 34-24-58; 6-5-333 Alabama Peer Review Statutes: • Protect all records, documents and materials furnished to peer review committees concerning accreditation or quality assurance or similar functions. • Protect all records, documents and materials created by peer review committees; • Protect all decisions and actions taken by peer review committees acted upon in good faith and without malice on the basis of facts reasonably believed to exist. • Provide qualified immunity to action of peer review committee members.
Exceptions to Privilege / Confidentiality Under Alabama Peer Review Statutes: 1. Materials can be obtained from their primary source. Ex: medical records. 2. Information and facts within personal knowledge of physicians or other individuals participating on peer review committee.
Potential Claims Against Hospital Arising out of Credentialing & Peer Review Activities
Claims by Patients • Negligent Credentialing • Public looks to hospital and not individual physicians for treatment • ER • Anesthesiologists • Pathologists • Hospital Potentially Liable – Not directly for malpractice, but for breach of duty to care for patient • Selecting physicians • Renewing staff privileges
Rebecca, a surgical nurse, filed a suit against Dr. Michael and St. Vincent’s Hospital. Ms. Farr alleged Dr. Michael gripped her in a bear hug, held on to her while she thrashed to get away, rubbed his body against her chest, and actually reached down into her scrub top and pulled it away from her body so that he could stare down at her chest. • Previously, at a different hospital, Dr. Michael had taken a staple gun and stapled a nurse’s forehead and forearm when she angered him. • Ms. Farr is suing St. Vincent’s for its negligent hiring, training, and retention of Dr. Michael.
Moore v. Williamsburg Regional Hospital(4th Cir. 2009)(cert. denied by U.S. Supreme Court October 2009) HCQIA Immunity for hospital and members of peer review committee that suspended general surgeon over allegations that surgeon and his wife had sexually abused adopted teenage daughter.
Moore v. Williamsburg Regional Hospital(4th Cir. 2009)(cert. denied by U.S. Supreme Court October 2009) • Review of Facts • Hospital Chief of Staff and Chairman of Medical Executive Committee learned that Department of Social Services (“DSS”) had taken surgeon’s three adopted children into emergency custody based upon allegations of sexual abuse. • General surgeon’s practice included adults and children. • Hospital summarily suspended privileges. • Hospital reported suspension to NPDB, because of “serious allegations of sexual misconduct of minor child.”
Moore v. Williamsburg Regional Hospital(4th Cir. 2009)(cert. denied by U.S. Supreme Court October 2009) • Hospital provided hearings, notice, and upheld summary suspension. • Months later, DSS dropped charges and surgeon petitioned for reinstatement of privileges. • Hospital did not reinstate. Surgeon would not authorize the hospital where he had been practicing to release credentialing information.
Moore v. Williamsburg Regional Hospital(4th Cir. 2009)(cert. denied by U.S. Supreme Court October 2009) • Lawsuit • Defendants: Hospital and Peer Review Participants • Damages Claims: • Intentional infliction of emotional distress • Tortious interference with business relations • Breach contract (hospital bylaws) • Defamation • Unfair trade practices • Violation Federal Due Process
Moore v. Williamsburg Regional Hospital(4th Cir. 2009)(cert. denied by U.S. Supreme Court October 2009) • Holding: • Hospital prevailed because it complied with fairness and procedural requirements for HCQIA immunity. • Pivotal Issue: Was peer review process a “professional review action.” • Court rejected surgeon’s argument that his conduct was private and not properly the subject of peer review. • Nexus between allegations and potential harm to patients. • Limits: driving infractions, messy divorces, tax or financial difficulties - - tenuous or speculative relation to medical competence.
Chudacoff v. University Med. Ctr. of S. Nevada(D. Nev. April 14, 2009) No HCQIA Immunity For Hospital and Peer Review Committee Members For Failure to Comply with Notice and Hearing Requirements.
Chudacoff v. University Med. Ctr. of S. Nevada(D. Nev. April 14, 2009) Facts: 5/28/08: By letter, Hospital MCC notified Dr. Chudacoff, OB-Gyn, of suspension and ordered drug testing and physical and mental examinations. Dr. had no notice of proposed action or the reasons for the action. 6/2/08: Counsel for Dr. requested hearing. 6/16/08: Hospital filed NPDB report: privileges suspended for substandard or inadequate care. 6/18-20/08: Dr. lost privileges at other facilities due to NPDB Report. 6/23/08: Dr. obtained medical record numbers for patients in NPDB Report.
Chudacoff v. University Med. Ctr. of S. Nevada(D. Nev. April 14, 2009) 7/2/08: Dr. filed lawsuit for damages and injunctive relief, alleging violation of Due Process rights. Still no response to request for Fair Hearing. 7/18/08: Hospital MEC informed Dr. that Fair Hearing set for 9/11/08. 9/5/08: MEC disclosed list of witnesses, but no information about nature of testimony. 9/11/08: At hearing, Dr.’s attorney not allowed to present evidence, question witnesses, or participate in hearing. In addition to substandard care allegations, Fair Hearing Committee addressed discrepancy on Dr. application to join staff.
Chudacoff v. University Med. Ctr. of S. Nevada(D. Nev. April 14, 2009) 10/1/08: Fair Hearing Committee decision. Disagreed with suspension, but recommended peer review. Indicated that concern about application would be addressed to MEC with appropriate action. 10/28/08: MEC hearing to consider Fair Hearing Committee recommendations. 11/7/08: MEC decision by two letters: (1) Adopted Fair Hearing Committee recommendation of peer review; (2) Suspended privileges pending revocation for material misrepresentations on application. Unknown: Dr. requested Fair Hearing on suspension for application.
Chudacoff v. University Med. Ctr. of S. Nevada(D. Nev. April 14, 2009) 11/25/08: Dr.’s attorney given 3-hour notice of MEC meeting to discuss discrepancy in application. One hour after meeting, MEC informed Dr. that it was suspending privileges. 11/25/08: Dr. appeal substandard care issues. Early 2009: Board sided with Dr. and awarded Dr. $10,000 for costs and fees. Board also opined there was a need to re-write reporting policies to allow procedural due process before suspension.
Chudacoff v. University Med. Ctr. of S. Nevada(D. Nev. April 14, 2009) Holding: Lessons Learned 1. Privileges revoked without any notice to Dr. that privileges were in jeopardy. 2. Hospital reported suspension to NPDB before Dr. had opportunity to be heard. 3. Failure to comply with procedural requirements results in loss of HCQIA immunity and potential liability for damages.
Poliner v. Texas Health Systems (5th Cir. 2008) $366 Million Damages Award to physician reversed by appeals court. Hospital and Peer Review Committee Member entitled to HCQIA immunity where Hospital complied with HCQIA, notwithstanding failure to comply with Hospital Bylaws.
Poliner v. Texas Health Systems (5th Cir. 2008) Facts: • Dr. Poliner, cardiologist, was granted temporary privileges at Hospital in 1996 and obtained full privileges in October 1997. However, questions about quality of care began to arise in September 1997 following a patient death after procedure in cath lab. • Dr. Poliner’s cases were under review by Clinical Risk Review Committee (“CRRC”) when, on May 12, 1998, he misdiagnosed a patient and performed angioplasty to wrong artery, leaving the blocked artery untouched.
Poliner v. Texas Health Systems (5th Cir. 2008) • The next day, on May 13, 1998, Dr. Knochel, head of Department of Internal Medicine, requested Dr. Poliner to agree to “abeyance” for fourteen days to allow investigation. Hospital Bylaws required consent. • Dr. Knochel told Dr. Poliner that if he refused to agree to abeyance, he would suspend privileges. • Dr. Knochel testified at trial that at time of compulsory abeyance, he did not have enough evidence to determine if Dr. Poliner was a present danger to patients. • On June 12, Hospital suspended Dr. Poliner’s privileges.
Poliner v. Texas Health Systems (5th Cir. 2008) Issue: • Damages at trial based solely on forced abeyance of May 13, 2009. • Jury found no agreement as required by Hospital Bylaws. • Jury found abeyance did not meet HCQIA standards for 14 day suspension in case of health emergency because Dr. Knochel testified that he did not have enough information to determine if Dr. Poliner was a present danger.
Poliner v. Texas Health Systems (5th Cir. 2008) Holding: (1) HCQIA immunity applied. (2) 14 day HCQIA requirement satisfied - decision made before May 14 even though Hospital did not request Poliner’s consent to extension of abeyance until day 15. (3) Hospital met “imminent danger” standard based upon CRRC’s determination that Poliner had provided substandard care in half of cases reviewed plus seriousness of mistake in clinical judgment resulting in misdiagnosis and error in treatment of patient the day before the abeyance.
Poliner v. Texas Health Systems (5th Cir. 2008) (4) HCQIA “reasonableness requirements” were intended to create objective standard of performance, rather than subjective good faith standard. (5) Focus of reasonableness standard is not whether peer review committee’s decisions were correct or even whether peer review committee had bad motives. Instead, focus should be on whether decision was reasonable based upon facts known at that time.
Poliner v. Texas Health Systems (5th Cir. 2008) Lessons Learned: • Be diligent about time limitations for emergency suspensions. 2. Emergency suspensions based upon “imminent danger” must be based on reasonable belief and based upon facts.
Adkins v. Christie (11th Cir. 2007) • No HCQIA privilege for documents relating to medical peer review proceedings in federal employment discrimination cases. • The court emphasized that the privilege must be considered against a corresponding and overriding goal – the discovery of evidence essential to determining whether there has been discrimination in employment. The documents that the Hospital seeks to protect are the very documents that Adkins needs to prove his discrimination claims.
ALABAMA PEER REVIEW STATUTE CASES