Synergy - May/June 2014 - 14

industry feature

Nonphysician Practitioners
The Centers for Medicare & Medicaid
Services now requires that advanced
practice nurses and physician assistants be
credentialed and privileged through the
medical staff process. HCQIA immunity
applies only to professional review actions
involving physicians and dentists. (When
Congress was considering the HCQIA,
there were Federal Trade Commission
investigations into alleged conspiracies by
medical staff to exclude podiatrists and
midwives.) Interestingly, one court, in
Morgan v. Peace Health, Inc.,10 held that
the termination of a podiatrist's privileges
based on complaints of inappropriate sexual
behavior constituted a professional review
action for HCQIA purposes and the peer
review procedures met the standards. The
applicability of the HCQIA was apparently
not raised.
One of the four accrediting bodies for
hospitals, The Joint Commission, allows for
a different hearing mechanism for privileged
individuals who are not medical staff
members. Courts may favor peer reviewers
who adhere to HCQIA standards in hearings
involving nonphysicians, even if the HCQIA
is not directly applicable.

Strategies for Counsel
Peer reviewers must balance the risks
of practitioner challenges with potential
patient suits for negligent credentialing
and corporate negligence. Patients are
not represented in peer review except
through peer reviewers. Counsel for
physician leaders must strive to avoid the
potential for undermining the confidence
of leaders that has been fostered by
HCQIA protection.
The ADA was enacted after HCQIA,
but it would be prudent to assume that
HCQIA immunity will not be available.
Age discrimination suits will undoubtedly
increase. In fact, news reports show
that older physicians may pose a danger
to patients without mentioning age
discrimination.11
Hospitals are subject to potential liability
if they do not take steps to protect
patients when they know, or should know
through the medical staff peer review
processes, that a practitioner is unable to
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SYNERGY MAY/JUNE 2014

practice safely or behave professionally.
So, how can hospitals and medical staff
leaders protect patients while treating
practitioners fairly? Here are a few ways
you can do this:
* Carefully document the reasons for any
professional review or employment action.
This has been necessary for HCQIA
immunity, so it should already be a best
practice. Counsel should be involved in
ongoing and focused professional practice
evaluation; decisions to seek external
reviews; documentation of collegial
interventions (e.g., follow-up letters to
practitioners, memos to the file);
performance improvement plans;
minutes; and, in the event of adverse
actions, hearing transcripts, exhibits, and
reports of the hearing panel and the
board's final decision.
* Be prepared to produce redacted records
of "similarly situated" practitioners.
Recognize that information may be
sought in discovery about other
practitioners, and be prepared to seek
appropriate confidentiality (protective)
orders.
* Know that defining "essential functions"
may become essential! To be successful in
a disability discrimination suit, the
plaintiff must provide evidence that he or
she is "otherwise qualified" and capable
of performing the "essential functions" of
the job, with or without reasonable
accommodation. Being proactive in
developing and communicating the
"essential functions" of a medical staff
member could put the hospital and
medical staff leaders in a much better
position to defend disability
discrimination suits. Essential functions
might encompass the following:
Clinical competence/Accreditation
Council for Graduate Medical Education
(ACGME) competencies
It may seem obvious to require
specialty-specific technical and
cognitive competence, but several
unsuccessful ADA suits in residency
training provide some insight. In
Jakubowski v. The Christ Hospital, 12
a resident with Asperger's disorder
found it difficult to keep up with the
necessary pace of seeing patients
and communicating with nurses.

The program did not have sufficient
resources to accommodate the
resident's condition without adversely
affecting the program and, potentially,
patients. In Shin v. University of
Maryland Medical System Corp,13
an intern was found to be unable to
perform the essential functions of his
position. He argued that he was forced
to work beyond the work hour limits
set forth by the ACGME, but the court
found that he chose to do so because it
took him longer. The court also found
that he failed to show that "light duty"
was an option for residents without
seriously compromising the functions of
the hospital, the needs of its staff, and
patient safety.
Professional conduct
A physician who engages in disruptive
behavior may argue that he or she
has a psychiatric disability that must
be accommodated. There can be no
doubt today that patient safety requires
a culture in which all team members
treat others with respect and courtesy.
A physician with a psychiatric condition
must be able to behave appropriately
in the hospital.
Emergency call
A physician may seek to be relieved
from taking emergency call as an
accommodation for a disability. This
may result in a hardship on other
practitioners, so taking a fair share
of emergency call duties can be
considered an essential function of
medical staff membership.
Medical recordkeeping
Other members of the healthcare team
rely on accurate and timely medical
records. A possible accommodation for
a physician whose disability impedes
recordkeeping could be the use of
a scribe.
If a physician asserts a disability, leaders can
refer the matter to a wellness committee
pursuant to a practitioner health policy.
Under the ADA, if the disability is not
obvious, the committee can require the
physician to obtain an evaluation to assist
in determining whether the physician can
perform the essential functions with or
without a reasonable accommodation.
Continued on page 30
Synergy - May/June 2014

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