May 8, 2008 --- Kadlec Reversed: The Fifth Circuit Court of Appeals has reversed the now-famous Kadlec decision. The trial court opinion in Kadlec Medical Center v. Lakeview Anesthesia Associates had held that a hospital has an affirmative duty to inform subsequent hospitals, if asked during credentialing, of adverse facts relating to a physician. The appellate court opinion disagreed. It said that if a hospital chooses to respond to a request from another hospital, it must be truthful. The mere act of answering, however, does not require the answering hospital to tell all it knows, because there is no affirmative duty under Louisiana law to do so. As a result, the answering hospital’s letter providing merely the dates of medical staff membership in response to a detailed questionnaire was not a basis for liability. The anesthesia group, however, still faces liability for its reference letters stating that the impaired physician in question was an “excellent” physician and recommending him highly.

Watch for an analysis of what this decision does – and does not – mean in the next issue of Peer Review Report.

February 19, 2008 --- Estate of Blume case reversed: A federal court of appeals has reversed a trial verdict in favor of a physician who claimed a violation of his due process rights. The trial court had previously held that the hospital was ineligible for immunity because its delay in producing documents had deprived the plaintiff physician of a fair hearing. [See the August 2007 issue of Peer Review Report for an article detailing the trial court's ruling.] On appeal, the Eighth Circuit reversed, but on entirely separate grounds. It noted that the medical staff bylaws contained an immunity clause that read, "[t]he practitioner extends absolute immunity to ... the hospital ... for any actions ... taken ... by this hospital ... relating [to] ... proceedings for suspension ... of clinical privileges or for ... revocation of appointment, or for any other disciplinary action." This clause was sufficient, the court said, to immunize the hospital, despite its failure to qualify for immunity under the HCQIA.

February 12, 2008 --- Colorado federal court grants immunity for providing information: The U. S. District Court in Colorado reminds that state and federal peer review laws protect not only the committees that perform peer review but also those who provide information to those committees. That includes persons at other hospitals who provide information for another facility's credentialing and peer review processes. Both Colorado statutes and the Health Care Quality Improvement Act provide immunity to those who provide information. CHI v. Gross held that a doctor at one hospital was not liable for statements he made to another hospital in the course of its peer review process.

February 12, 2008 --- Patient Safety and Quality Improvement Act Regulations Proposed: The Agency for Healthcare Research and Quality has published proposed regulations under the Patient Safety and Quality Improvement Act of 2005. The regulations would establish how entities may become Patient Safety Organizations that confidentially store, analyze and report patient safety information. The proposed regulations solicit comments not later than April 14, 2008. Read the 173 pages of regulations and the provisions of the statute by clicking on the respective links.

January 3, 2008 --- Joint Commission to study bylaws standard . . . . again: The Joint Commission has appointed a task force to study implementation issues surrounding new Medical Staff Standard MS 1.20. This much debated, drafted and redrafted standard currently requires changes to medical staff bylaws that may, in some cases, range from moderate to considerable. The task force was formed to respond to concerns expressed by some hospitals that the changes would cost too much time and money. Since compliant bylaws must be in place by July 2009, the Joint Commission promised prompt consideration of the task force's work, presently scheduled for their Feb 29-Mar 1 board of commissioners meeting. Click here for the press release.

January 3, 2008 --- Hospital lawyer faces liability for fair hearing conduct: The lawyer for the hospital in the McCullough-Hyde case immediately below also faces litigation. After learning about the favorable expert report in the McCullough-Hyde litigation, Dr. Wilkey sued the hospital's lawyer for the lawyer's alleged role in withholding the report. The lawyer moved in this separate Cincinnati federal court action to dismiss the complaint's many claims. Although the court granted dismissal of most of the claims, it allowed Dr. Wilkey's negligence and fraud claims to stand. The physician's claim that the lawyer knew about the favorable report but intentionally hid it was sufficient to withstand dismissal. Now that Judge Beckwith has denied dismissal in Wilkey v. Hull, the case proceeds into pre-trial discovery.

October 18, 2007 --- Hospital loses immunity for suspension mis-steps: A Cincinnati area hospital was forced to trial for failure to meet the immunity standards of the Health Care Quality Improvement Act. McCullough-Hyde Memorial Hospital had suspended Dr. Keith Wilkey in 2003. An expert report on which the hospital relied found quality problems, but a second exculpatory report was withheld from from both Dr. Wilkey and the hearing panel. Dr. Wilkey sued the hospital in Cincinnati federal court. Judge Michael Barrett denied summary judgment, holding that a jury could reasonably find that the favorable report was purposefully withheld and that failure to consider it was not a "reasonable effort to obtain the facts." It further held that a jury would have to assess the involvement of a competitor in the suspension as well as certain getting-along-with-other-doctors issues to decide whether the review process was in furtherance of quality health care. If also held that there was a jury question concerning whether Dr. Wilkey posed an "imminent danger to any person" that would allow the hospital to suspend him without a prior hearing. The decision in Wilkey v. McCullough-Hyde Memorial Hospital resulted in a jury trial in November. The case settled before the trial concluded.

August 16, 2007 --- Another state recognizes negligent credentialing: The Minnesota Supreme Court joined 27 other states in reognizing the tort of negligent credentialing. In Larson v. Wasemiller, plaintiffs had sued a surgeon for malpractice and the hospital for negligent credentialing. The hospital tried to dismiss the negligent credentialing claim on the basis that Minnesota courts had never recognized the claim in prior cases.. The trial court disagreed and allowed the claim, but the Court of Appeals reversed saying recognition of such a claim was up to either the Supreme Court or the Minnesota legislature. The Supreme Court reversed and reinstated the claim, holding that a negligent credentialing claim is a natural extension of the duty that hospitals owe patients to protect them from harm.

August 15, 2007 --- Peer Review Report materials available: Click on the links below for the August 2007 issue's top sources:
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-- MS. 1.20 likely requires changes to your medical staff documents.

-- Estate of Blume v. Marian Health Center penalizes a hospital delaying document delivery and a hearing.

-- New CMS regulations published late last year change requirements for H&Ps, verbal orders and use of restraints.

-- A West Virginia hospital faces 122 negligent credentialing lawsuits for missing an alleged 100+ negligent acts by one physician in six months.

-- A Wisconsin hospital in Hetz v. Aurora Medical Center faces trial for failing under the ADA's public accommodations section to credential a disabled physician.

July 26, 2007 --- Failure to Report to a Data Bank May Be Basis for Liability: A New Jersey court has sent back for further proceedings a case of alleged failure of a hospital to report. New York hospital Beth Israel fired, then allowed the resignation of, Dr. Stenson, one of its faculty. New York's data bank law requires a report under these circumstances, but Beth Israel did not do so. Dr. Stenson then went across the river to New Jersey to change his membership status at Englewood Hospital. Finding no data bank report, it granted the request. Two years later, he caused the death of a patient. The patient's estate claimed that had Beth Israel reported as required, Englewood would not have allowed Stenson to continue to practice. The appellate court found that it was not clear whether New York would have passed information to the National Practitioner Data Bank and sent the case back to the trial court for a hearing. If such information would have been shared by New York, the court said, a new trial might be necessary. Click here for Fazaldin v. Englewood Hospital & Medical Center.

July 11, 2007 --- Joint Commission Announces Major Bylaws Change Requirements: After almost four years of study, JCAHO announced its much anticipated rule on medical staff document structure. The major revision to Medical Staff Standard 1.20 levies substantially more restrictive requirements on what bylaws must contain and whether certain matters can relegated to ancillary documents. Hospitals that had transferred major portions of their bylaws to credentialing policies and separate fair hearing plans likely face major restructuring of their bylaws. To read the new standard, click here. Hospitals have two years to comply.

June 2, 2006 --- JCAHO Announces New Credentialing, Privileging Standards: The Joint Commission on Accreditation of Healthcare Organization announced significant revisions to the credentialing section of the Medical Staff Standards for Hospitals. The changes require more specificity and the collection of more data. In particular, hospitals must collect performance date on every privileged practitioner in the hospital. It also announced more stringent requirements for the development and revision of privileges. See the prepublication redline by clicking here.

May 26, 2006 --- Kadlec Jury Finds Against Hospital That Withheld Info: A Louisiana jury returned verdicts in favor of Kadlec Medical Center in its groundbreaking suit against Lakeview Regional Medical Center. The suit alleged that Lakeview had failed to tell Kadlec about the drug problems of an anesthesiologist who moved from Lakeview (in Louisiana) to Kadlec (in Washington state). Kadlec wrote asking for credentialing information; Lakeview provided an incomplete response. After getting Kadlec staff privileges, the anesthesiologist, Dr. Lee Berry, seriously injured a Kadlec patient. Kadlec sued to get Lakeville to pay the damages. The jury found that Lakeview had both negligently and intentionally misrepresented what it knew about Dr. Berry. It also found against two of Dr. Berry’s former partners, who had each written favorable recommendations despite knowing of Dr. Berry’s drug problems. For a copy of the jury's verdict, click here.

May 19, 2005 --- Kadlec Judge Orders Hospital To Trial On Info Withholding Claim: The trial judge in a case of great importance to credentialing denied the defendants' efforts for dismissal and ordered the case to proceed to trial. Kadlec Medical Center in Washington had requested from defendant Lakeview Regional Medical Center credentialing information on a particular physician applicant. Lakeview provided an incomplete response. According to the lawsuit, the physician involved had a drug problem, and Lakeview allegedly knew about it but disclosed nothing. The trial judge, pointing to the "special relationships" that exist among the nation's hospitals to protect patients, he order the case to trial. If Kadlec can prove Lakeview misled it, said the judge, it would be entitled to recover the $8 million in damages paid to a patient whom the physician subsequently injured. For a copy of the judge's decision, click here.