Medical Board Expert Review Standards

Earlier this year the Medical Board of California issued a new manual as guidance for its expert reviewers.  For those who may not be aware, physicians who review cases for the Medical Board are not full time state employees.  Rather they are community based physicians located around the state who review cases for hourly compensation [at the time I write this the current compensation is $150 an hour for records review and preparation of a report]. 

The manual appropriately admonishes reviewers that they are not an advocate for the Board or the physician.  Their job is to determine whether [in their educated opinion] there was a departure from the accepted “standard of practice”.  For enforcement purposes, whether a departure is considered “simple” or “extreme” is quite important.  As you will see below, the Board equates a simple departure with “ordinary negligence”, and an extreme departure as “gross negligence”.  The governing statute admonishes the Board to pursue discipline for any single episode of gross negligence, but only for multiple instances of simple negligence [see California Business and Professions Code §2234].  As a practical matter, what constitutes simple versus extreme [or gross] are matters of degree entirely in the eyes of the beholder.  Unfortunately, this turns out to be equally true about the difference between single and multiple departures, but that can be a topic for another day.

On the issue of simple versus extreme departures, the new manual explains this as follows:

Negligence is the failure to use that level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful physicians would use in the same or similar circumstances.  A negligent act is often referred to as a “simple departure” from the standard of care.

Gross negligence, on the other hand, is defined as “the want of even scant care” or “an extreme departure from the standard of care”.  Gross negligence can be established under either definition, both are not required.  The difference between gross negligence and ordinary negligence is the degree of departure from the standard of care.

One of the things not terribly great about this guidance is the mixture of terms.  The statute refers to negligence and gross negligence and all civil cases and controlling law on malpractice refer to negligence and apply it to the “standard of care”.  Here the Board has mixed in references to simple and extreme departures, which are then defined as simple negligence and gross negligence.  And the Board chooses to alter the term “standard of care” to “standard of practice”.  At the risk of splitting hairs, in the law changing terms can often lead to confusion or misunderstanding of the correct application of the law.  I don’t know why the Board has chosen to complicate and depart from the traditional and statutorily controlling terms of negligence, gross negligence and standard of care.

In any event, my main focus here is to point out that the difference between simple negligence and gross negligence [or simple departures and extreme departures] is all a matter of degree, which is entirely subjective.  While physicians and lawyers can imagine cases so clearly on one end of the spectrum or the other, that they are clearly simple or extreme, an awful lot of medical mistakes are in the large, middle gray zone.  These mistakes in the gray zone fuel bitter and important disagreements among experts and their clients about whether the conduct in question was simple or gross negligence.  Unfortunately, if the case ends up at a disciplinary hearing, it is an administrative law judge, with no medical training, who has the job of sorting out these competing theories of how to define the conduct, with significant consequences riding on the decision.

In the distant past [just as I was entering practice], the Medical Board would have panels of physicians conduct the administrative hearings, in essence like a medical staff peer review.  It’s easy to see how this would lead to better informed decisions as surely fully trained physicians are better able to understand and distinguish conflicting medical testimony describing and characterizing medical care.  It is also easy to see [given the time and money involved] why the system has evolved away from that practice and shifted to single administrative law judges.  It seems kind of a shame that the state cannot find the resources to go back to panels of physicians to hear these cases.  I think the outcomes would be far better if that could be done.

California Repeals 821.5

Recently my partner Greg Abrams was reviewing legislation just enacted in California and noticed a bill that repealed California Business and Professions Code §821.5. That section required peer review bodies, primarily medical staffs, to send a report when the staff initiated an investigation or intervention concerning a physician, who by reason of a perceived disabling physical or mental condition, might not be able to safely provide patient care. Under the statute as written, the reports were to go to the diversion program run by the Medical Board. Historically that program would use these reports to follow, and as appropriate, provide assistance, where the physician’s problem was related to substance abuse. The dilemma leading to its repeal is that the legislature shut down California’s diversion program over a year ago, rendering the statute somewhat moot. Some entities were continuing to make reports that were just going to the Medical Board, instead of the diversion program. The Board was trying to figure out what it should do with these reports but it’s not clear that any rational system had been put in place, so they simply repealed the statute requiring the reports.

This series of steps further demonstrates how California is drifting on the issue of physicians with substance abuse problems. Since shutting down the diversion program, California has not come up with any coherent way of dealing with impaired physicians. My own experience, and I believe the experience of the old diversion program is that many impaired physicians, if given the proper assistance and structure, and if appropriately motivated, can achieve long lasting sobriety and resume safe and effective medical practice, to everyone’s benefit. The current absence of an appropriate program for impaired physicians in California creates a gaping hole in the State’s handling of this problem. Efforts to enact new legislation that would create a newer [better?] version of diversion have been talked about but no substantive action has taken place to date. This seems another expression of the dysfunction of our state government.

Efficient Peer Review Hearings?

Formal physician peer review hearings, [in California typically called Judicial Review Committee (JRC) hearings] suffer from excessive length and expense. These concerns plague both the medical staff and the individual physician. Because hearings are most often held at night, only when all the of the necessary parties [members of the committee, witnesses, representatives of the staff, the target physician, the hearing officer and any counsel] are voluntarily available, it is common to only be able to convene a hearing once or twice a month, if that often. And as the hearings are taking place in the evening, often starting about 6:30 and ending sometime between 9pm and 10pm, you can’t get a great deal accomplished in any given evening.

Further, the amount of evidence to be presented is often inflated by both sides because each is so determined to win. The medical staff is highly motivated to rid itself of a physician it considers unfit [and often difficult], and the physician is fighting for his or her professional life. This tends to cause the staff to throw every possible allegation into the hearing, the weak with the strong, and the physician to respond with every possible exculpatory argument. These tendencies further protract a JRC hearing.

Everyone I know involved in this disciplinary system wrings his [or her] hands at the time and cost involved in putting on a disciplinary hearing. For the most part, not much has been accomplished to address this problem as there are various structural impediments to streamlining these hearings. The committee members are most often unpaid volunteers so the hearings take place at night to avoid pulling them away from their practices and there is no subpoena power to compel the attendance of witnesses. It is usually not that difficult to schedule the attorneys and hearing officer, as this is their job, and they are being paid to do it. But for everybody else, peer review hearings are an unwelcome, unpaid distraction from their jobs- their medical practices.

All that said, I have been involved as both a hearing officer and an advocate in three hearings in the last several years where the medical staff was part of a large integrated health system. In each instance, the health system detached the physician committee members from their clinical duties so hearings could be held during the day. The system also staffed the hearing committee with physicians who all worked in the same specialty as the physician [defendant?], but it pulled those committee members from other nearby facilities. This provided a more expert hearing panel and one not immersed in the politics or relationships of the local facility. The system also facilitated the attendance of witnesses, at least those who were testifying for the medical staff. These various efficiencies made it possible to finish these hearings in far less time than would have been necessary if the hearings had been scheduled in the traditional manner, at night when everybody happened to be available. And because you can accomplish a great deal more in a full day than you can in evening sessions, you end up with far fewer, and more productive sessions of hearing. This undoubtedly lowers the final cost.

These steps are somewhat reminiscent of a hearing I had a number of years ago for an Air Force surgeon. As everybody involved was in the Air Force, it simply ordered the full time, daily attendance of all necessary parties, committee members and witnesses and the hearing was started and finished in less than a week. That was highly efficient, fully fair to both sides, and cost effective.

I’ve pondered how the typical medical staff might be able to take advantage of these efficiencies. There is probably no easy answer outside of an integrated system. But many hospitals have a corporate or charitable parent that might be able to make at least some of these economies work, even within a loose system. It’s a goal well worth pursuing. Effective, meaningful peer review is important for the medical profession, the hospitals where they work, and the public. Anything we can do to chip away at the cost and length of disciplinary hearings, while retaining fairness and validity, is well worth attempting.

Accurate Credentialing Applications

One of the health law forums recently had a number of comments on it about medical staffs requiring a physician to sign credentialing submissions “under oath”.  The meaning of “under oath” is a little unclear but presumably required the physician to sign an averment that the contents of the application or re-application are true and correct, “under penalty of perjury”, or words to that effect.

My own experience is that virtually all credentialing forms include an admonition that they must be filled out accurately and correctly and that material errors or omissions in the information is grounds for summary denial of credentialing.  Such admonitions are frequently enforced by medical staffs regardless of whether the submission was “under oath”. 

I suspect the likelihood that a local prosecutor would really want to dedicate the time and resources to going after a physician who made a misstatement on a credentialing form for perjury is very slight.  I’d like to think that by now the great majority of physicians understand the importance of accurate credentialing forms.  For the small minority that still do not get it, I doubt some sort of “oath” language in the forms would significantly change their thinking.

Nasim Holds New Staff Rules Must Be Fair

Once again I am guilty of an extended absence from my blog.  I had surgery in early May for an abdominal aortic aneurysm and related complications that took me out of action for most of the summer.  I’m better now but wondering at the fact my local hospital billed $182,000 for my 6 day stay [including use of the operating room and a single night in the ICU].  To be clear, this was the hospital bill only, and did not include any professional fees. To me that seemed pretty steep.  The irony is, I’m sure my insurer has a contract under which it will pay a modest fraction of that “retail” bill.  But if I had no insurance, the hospital would undoubtedly negotiate with me based upon the full retail invoice.  The experience reinforced my support for health care reform.  But enough about me…

A case I have recently been handling caused me to revisit a California court of appeal decision that came out last year, Nasim v. Los Robles Regional Medical Center [2008, 165 CA4th 1538].  In that case, Dr. Nasim was a nephrologist who obtained provisional staff privileges at Los Robles Regional Medical Center.  At the time he obtained these privileges he was not board certified in internal medicine or nephrology, but the staff bylaws had no requirement for board certification.  While the decision asserts he had no specific quality of care issues, one wonders because during his provisional tenure the staff leadership imposed a new requirement that all internists and medical subspecialists must obtain board certification in internal medicine and their subspecialty within two years of the completion of their training.  [The decision is a bit fuzzy about whether this requirement applied to both internal medicine and his subspecialty of nephrology or just nephrology.] 

Nasim complained that he could not possible meet the prescribed time window although he was working towards his certification in both internal medicine and nephrology.  While his administrative dispute with the medical staff was pending, he successfully obtained his board certification in internal medicine, and he subsequently obtained his board certification in nephrology.  Testimony revealed that at the time the medical staff leadership adopted this requirement, they specifically discussed Nasim and only Nasim, and he was the only member of the medical staff who was impacted by this new rule.

At a judicial review committee hearing, the JRC committee found no basis to revoke Dr. Nasim’s internal medicine privileges, but sustained the termination of his nephrology privileges because of the new rule about board certification.

Dr. Nasim took the decision up on a writ proceeding and the trial court agreed with his complaint that this was unfair rule making, as did the court of appeal in a published decision.  The court of appeal emphasized that retroactive rule changes that deprive an individual of a vested right are disfavored.  It further noted that in employment law, rules that impose impossible conditions contravene public policy.  The court was further upset by the fact the rule apparently applied to members of the provisional staff, but not members of the active staff.  The transparent imposition of a rule intended to be impossible for only one physician to meet could not possibly pass the requirement of procedural fairness.

The conclusions from this case are pretty obvious.  Nobody disputes that medical staffs are fully empowered and encouraged to set standards for membership.  But those standards better be uniformly applied to all members and retroactive application in ways that cannot possibly be met by one or more current members will be highly suspect.

Thanks for reading.  It’s good to be back.

Mileikowsky Decision Issued by California Supreme Court

The California Supreme Court has issued its awaited decision in the matter of Mileikowsky v West Hills Hospital & Medical Center.  In that case, Dr. Mileikowsky requested a judicial review committee hearing after he was denied admission to the medical staff upon initial application.  Prior to the commencement of the hearing, the medical staff requested certain documents and materials from Dr. Mileikowsky which he repeatedly refused to provide.  The hearing officer got involved and issued orders to Dr. Mileikowsky directing that he produce certain requested materials.  Dr. Mileikowsky persistently refused to comply with the discovery orders issued by the hearing officer.  After various extensions and warnings, the hearing officer dismissed Dr. Mileikowsky’s request for a judicial review committee hearing for his failure to comply with discovery orders.  The judicial review committee hearing had not actually substantively commenced, no evidence had been taken, and the committee itself played no part in the decision by the hearing officer to dismiss Dr. Mileikowsky’s hearing.

 

The Supreme Court concluded [as had the court of appeal] that a hearing officer does not have the power to dismiss a pending judicial review committee hearing, at least not for non-compliance with discovery orders, and given the language of the decision, probably not for any reason.  The court emphasized that this is peer review and the matter is supposed to be decided by peers, not a hearing officer.  Implicit in the decision is that it might be possible to involve the hearing panel in the discovery dispute and let it enter orders, possibly including dismissal, if it believes such to be appropriate given the conduct in dispute.

Peer Review Hearing Witnesses

I just finished three full days of medical staff disciplinary hearing in which I was representing a physician member of a large managed care organization. As is often true, putting these cases on takes too much time. We started in the Fall of 2008 and it took six full day sessions for the institution to present its case. This week we presented most [but not quite all] of the physician’s case.

There were a number of witnesses we needed to present and I was reminded, yet again, how frustrating and difficult it is to get witnesses organized and committed to coming to testify in a physician disciplinary hearing. I think California is probably typical in not providing any subpoena rights to the parties in a medical staff peer review matter. This means that each side must “persuade” witnesses to take time away from work or family and come before the committee and testify. The staff or institution has a significant advantage on this issue as potential witnesses are much more likely to feel testifying is an expected duty. For the individual physician, not only does he or she not have the work place leverage the institution has in getting witnesses to come, but additionally, witnesses are often fearful that testifying for the physician may be perceived by the institution as hostile to the organization and therefore something that might jeopardize their status as an employee or staff member. It is extremely frustrating to be repeatedly told during interviews of potential witnesses, “I’ll tell you this but I wouldn’t come to the hearing and say it…”. I’ve heard this far more often than I care. And even as to the witnesses who agree to come, if the number is significant, juggling their voluntary willingness to appear with the schedule of the committee can be extremely trying. There must be a better way, I just have yet to encounter it. We have a statute in California that sets forth procedures for peer review hearings, and if that statute included subpoena power, that certainly would help.  Maybe someday.

Criminal Complaints and Peer Review

A belated Happy New Year to everybody. It has been quite a while since I posted an entry on this blog and I apologize to my modest readership. A combination of work load, family commitments and a medical leave all intervened to keep me away from attending to this project. That’s my story and I’m sticking to it….

I saw a number of communications recently about whether medical staffs routinely do a check for criminal records as part of their credentialing process. Comments from around the country showed a variety of practices, some yes, some no, some relying on state licensing boards, etc. to address this issue.

There is also the question of when and under what circumstances is a criminal matter relevant to credentialing? What if it is just an arrest but not a plea or conviction? What types of crimes are relevant? Crimes that relate to substance abuse [DUI’s and the like] which might suggest an impairment would seem to warrant review by a credentialing entity to see if there is a problem that needs attention. How about shoplifting? Reckless driving unrelated to substance abuse? What about a charge of spousal assault or abuse? What if a business partner swears out a criminal charge that accuses the physician of fraud in the financial transactions of their business? How about if a state or federal agency charges the physician with fraudulent billing and the physician settles the matter with the payment of money to the agency?

It seems to me if the charge suggests substance abuse, it needs to be investigated. If the charge somehow relates to the practice of medicine [physical abuse of a patient, for example], that is obviously relevant. But does any criminal charge, unrelated to care of patients and medical judgment, suggest a character flaw or lack of morality such that it is always relevant to credentialing? I don’t think so, but I’m pretty sure lots of people might disagree.

Anybody who wants to weigh in with an opinion on the issue is welcome to reply and I’ll either post any replies I get or attempt to summarize them in future communications.

Interesting New California Decision on JRC Hearings

A California court of appeal recently issued a ruling overturning a credentialing decision of a governing board, which had itself overturned a decision issued by a judicial review committee.  The case of Smith v Selma Community Hospital [2008 WL 2791690] is interesting for several reasons. 

 

The facts of the case, in brief, are that Dr. Smith, a family practitioner who also delivers babies, had his privileges revoked at Selma Community Hospital based exclusively on credentialing decisions taken at two other area hospitals.  All three hospitals were operated by the same system [Adventist Health System], and Dr. Smith and his brother, also a physician, operate a number of clinics which compete with Adventist Health in the communities where they are located. There was no indication that Dr. Smith had any quality of care or other issues at Selma.  He appealed the revocation of his privileges and at a full judicial review committee hearing, persuaded a panel of peers that the recommendation to revoke his privileges was not reasonable and warranted.  It appears evidence of political issues at the other two hospitals [business disputes, litigation, etc.] raised questions about the fairness of the actions taken against Dr. Smith at those hospitals, and the JRC committee did not want to revoke privileges at Selma based exclusively on questionable peer review at other institutions.

 

For a variety of reasons, the governing board at Selma reversed the decision of the JRC and reinstated the revocation of Dr. Smith’s privileges. Smith appealed by writ proceeding to Superior Court, where he prevailed, obtaining an order setting aside the decision of the governing board and reinstating the decision of the JRC hearing [where he won reinstatement of his privileges].  The hospital appealed to the Court of Appeal, leading to the published decision fully agreeing with the Superior Court that the decision of the governing board was fatally flawed, reinstating the decision of the JRC.

 

The most important aspect of the decision of the Court of Appeal is probably its refusal to let a governing board reverse a JRC decision without a clear factual and legal basis.  It concluded that a JRC was entitled to find peer review results from other hospitals an inadequate basis to discipline a physician, although it did not announce a rule that peer review from another institution can never, on its own, be enough to warrant discipline.  It simply held that under the facts of this case, it was entirely reasonable for the JRC to conclude the sister institutions’ peer review was not an adequate reason to take action against Dr. Smith’s privileges at Selma.

 

Also of interest is the fact that during the JRC hearing, Dr. Smith successfully introduced evidence of settlement negotiations Selma had conducted with him before revoking his privileges.  According to the Court of Appeal, that evidence was that the hospital offered to drop all peer review issues with Smith if he would dismiss a lawsuit he had pending against Selma.  The inference was that the peer review was being undertaking to obtain leverage against Dr. Smith regarding his law suit, and failing that, to punish him.  Selma apparently objected to Smith offering evidence of these discussions on the grounds of a long standing rule of evidence that holds that settlement discussions are inadmissible in civil proceedings.  The Court of Appeal quickly brushed aside Selma’s objection to the admission of this evidence, noting that formal rules of evidence do not apply in JRC hearings, and that the committee is entitled to hear any relevant evidence, “if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs” [quoting the Selma professional staff bylaws].  As this is the common standard for JRC evidence [at least in California], this decision underscores that formal rules of evidence, including rules of privilege and evidence limitation do not apply in JRC hearings.

Joint Commission Holds Off on Revised MS 1.20

By now I assume most people who follow medical staff credentialing policy are aware the Joint Commission has announced it is delaying implementation of its proposed new standard MS 1.20, but just in case anybody missed that news, I’m passing it on here.  MS 1.20 was announced in June 2007 and was supposed to be implemented in July of 2009 but apparently it drew an avalanche of criticism from hospitals and other “consumers” of Joint Commission policy.  The standard addresses medical staff bylaws, rules and regulations and policies.  You can find the news release on the decision to defer implementation at the Joint Commission web site [http://www.jointcommission.org/]. 

 

TJC has decided to keep its Implementation Task Force in place to assess public reaction and concern about the proposed changes to MS 1.20.  The goal is to obtain feedback over the summer and early fall and for the Task Force to report back in November with any additional revisions and a new recommended implementation date.

 

I’m a bit outside this type of policy discussion but as near as I can tell, some of the hot points in the proposal particularly related to provisions that addressed the division of power between a medical staff and its executive committee.  Anybody who has misgivings [or support for that matter] regarding the new proposal now has the opportunity to convey those ideas to the Task Force for consideration.