Synergy - September/October 2014 - 12

industry feature

other cases where physicians challenged
proctoring and other medical staff actions
on discrimination grounds-was whether
proctoring served as a mechanism to
implement selective or disproportionate
treatment.21 This issue emerged in the
court's analysis of whether Brintley
sufficiently demonstrated that, as an
African-American woman, she was treated
differently than similarly situated individuals
outside her protected class so as to establish
a prima facie case of discrimination in
public accommodations under Michigan
law.22 Brintley claimed that the medical
staff treated her differently in this respect,
pointing to two white physicians who were
subject to proctoring but who had the ability
to choose their proctors, unlike Brintley.23
Underscoring the context-specific nature
of proctoring, the court, however, rejected
Brintley's purported comparisons. In contrast
to Brintley, the court noted that one of the
physicians, an obstetrician-gynecologist,
"never underwent any corrective
'proctoring,'" but rather voluntarily agreed,
as part of an ongoing peer review matter, to
temporarily seek input and consult with an
obstetrician from a designated medical group
whenever she performed labor and delivery
care.24 Moreover, the other physician was an
orthopedic surgeon, not a general surgeon
like Brintley, and his alleged ability to
choose his proctor was attributable to factors
inapplicable to Brintley's proctorship, such
as the smaller size of the orthopedic surgery
section of the hospital and the smaller
number of orthopedic surgeons.25 Even
assuming differential treatment from similarly
situated, non-protected physicians, the court
concluded that Brintley's proctorship and
subsequent suspension "were based on
serious quality of medical care concerns and
[with respect to her suspension, her] inability
and unwillingness to adhere to the terms of
the proctorship."26
The court's assumptions about proctoring for
purposes of the federal Health Care Quality
and Improvement Act (HCQIA) are another
notable aspect of the case. In addition to
governing reporting of certain actions to the
National Practitioner Data Bank (NPDB),
the HCQIA provides immunity from money
damages for those who participate in a
"professional review action" that satisfies
specified standards, such as a requirement
12

/

SYNERGY SEPTEMBER/OCTOBER 2014

for notice and a hearing before the action.27
The Brintley court held that the procedures
governing the professional review action
against Brintley met these standards; thus,
immunizing the defendants against liability on
Brintley's various other state law claims.28 The
court suggested, but did not state explicitly,
that both Brintley's proctorship and suspension
constituted professional review actions.29

past surgeries. The malpractice liability, to
which a proctor in a more hands-on role
may be exposed, as in Brintley, will play an
important role in setting the parameters of a
given proctorship. But just as well, as Brintley
indicates, the internal dynamics of a medical
staff, including the ability of proctors and
proctored providers to work compatibly, will
become equally crucial considerations.

Even within a single institution,
proctoring is rarely conducive to
a one-size-fits-all appoach.
The significance of treating a proctorship as
a "professional review action" is that such
actions are reportable to the NPDB when
they adversely affect a physician's privileges
for more than 30 days.30 In Brintley, both
the medical staff and the court considered
Brintley's proctorship a restriction on her
privileges, which lasted for more than 30
days.31 The hospital, therefore, presumably
reported or should have reported the
proctorship to the NPDB. Such reporting is
consistent with the Health Resources and
Services Administration's own guidance
about NPDB reporting. The agency advises
in its NPDB Guidebook that a 30-day
or longer proctorship intended to assess
professional competence pursuant to which
the provider must be granted approval
before administering certain medical care is
reportable; however, a proctorship meeting
the same criteria, except that the proctor does
not grant approval before the provider renders
medical care, is not reportable.32 Likewise, the
assignment of a proctor to a provider recently
granted privileges "[a]s a matter of routine
hospital policy" is not reportable.33
In contrast to Clark, the Brintley case
offers an expansive view of proctoring
as a means to review the competence
of established medical staff members as
well as candidates for membership. These
different contexts may necessitate different
rules and restrictions; thus, for example,
a medical staff may find it appropriate to
allow a proctor to intervene in a surgery
performed by an established medical staff
member subject to proctoring because of
demonstrated preventable complications in

Discerning the Role of the
Proctor from Industry Sources
In addition to specific examples of
proctoring in case law, industry groups
such as the AMA and the California
Medical Association (CMA) put forward
general guidance on defining proctoring
and implementing it in the medical staff
environment. Reinforcing that proctoring is a
fluid concept, when measuring the examples
of proctors from the cases discussed in this
article against the standards articulated
in some of these sources, one comes to
different conclusions regarding whether the
"proctor" was actually a proctor and the
legal significance of such designations.
For their parts, AMA and CMA define
proctoring as a credentialing tool limited
in use to evaluating the competence
of new providers seeking privileges on
a medical staff or existing medical staff
members requesting new privileges.34 CMA
recommends that medical staffs prioritize
direct, onsite observation by a proctor
(i.e., "concurrent proctoring") but notes that
proctoring may occur through review of a
patient or a patient's chart before treatment
(i.e., "prospective proctoring") and through
post-treatment review of a patient's charts
(i.e., "retrospective proctoring").35 Both AMA
and CMA emphasize that proctoring consists
of "observation" and does not include
intervention.36
According to a 1999 report by the AMA
Council on Medical Service, which advises
the AMA House of Delegates on policy
Continued on page 14



Synergy - September/October 2014

Table of Contents for the Digital Edition of Synergy - September/October 2014

Contents
Synergy - September/October 2014 - Intro
Synergy - September/October 2014 - Cover1
Synergy - September/October 2014 - Cover2
Synergy - September/October 2014 - 1
Synergy - September/October 2014 - Contents
Synergy - September/October 2014 - 3
Synergy - September/October 2014 - 4
Synergy - September/October 2014 - 5
Synergy - September/October 2014 - 6
Synergy - September/October 2014 - 7
Synergy - September/October 2014 - 8
Synergy - September/October 2014 - 9
Synergy - September/October 2014 - 10
Synergy - September/October 2014 - 11
Synergy - September/October 2014 - 12
Synergy - September/October 2014 - 13
Synergy - September/October 2014 - 14
Synergy - September/October 2014 - 15
Synergy - September/October 2014 - 16
Synergy - September/October 2014 - 17
Synergy - September/October 2014 - 18
Synergy - September/October 2014 - 19
Synergy - September/October 2014 - 20
Synergy - September/October 2014 - 21
Synergy - September/October 2014 - 22
Synergy - September/October 2014 - 23
Synergy - September/October 2014 - 24
Synergy - September/October 2014 - 25
Synergy - September/October 2014 - 26
Synergy - September/October 2014 - 27
Synergy - September/October 2014 - 28
Synergy - September/October 2014 - 29
Synergy - September/October 2014 - 30
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_2020q4
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_2020q3
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_2020q2
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_2020q1
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20191112
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20190910
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20190708
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20190506
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https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20180910
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20180708
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20180506
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20180304
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20180102
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20171112
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20170910
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20170708
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20170506
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20170304
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20170102
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20161112
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20160910
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20160708
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20160506
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20160304
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20160102
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20151112
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20150910
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20150708
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20150506
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20150304
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20150102
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20141112
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20140910
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20140708
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20140506
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20140304
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20140102
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20131112
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20130910
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20130708
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20130506
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20130304
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20130102
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20121112
https://www.nxtbook.com/nxtbooks/NAMSS/synergy_20121011
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