Courts have imposed a duty of care that hospitals must exercise in granting privileges, and The Joint Commission likewise requires hospitals to obtain references and information from other facilities with which the physician has practiced, says Pamela E. Hepp, JD, shareholder with the Buchanan, Ingersoll & Rooney law firm in Pittsburgh.
Hepp notes that reference requests may be received with respect to the potential employment of the physician (and seeking a reference related to that physician’s prior employment with the hospital) as well as in the context of an inquiry related to the physician’s medical staff membership with the hospital. Hospitals or health systems that employ physicians typically will have two sets of files — a human resources file containing the employment-related records, and a medical staff office file containing credentialing and peer review information regarding the physician’s medical staff membership and privileges, she notes.
The Healthcare Quality Improvement Act (HCQIA) as well as applicable state peer review statutes may provide some limited immunity and protection for providing peer review information in response to those inquiries, Hepp says. It is these peer review statutes that result in each of these two offices or departments maintaining separate files because sharing of certain information by the medical staff office with human resources could waive the peer review privilege, she explains.
These peer review statutes generally provide some protection from disclosure of documents or information created by a peer review committee about peer review proceedings as well as immunity from liability for actions that are taken in good faith, Hepp says, after reasonable efforts to obtain the facts and after adequate due process was given, and such decision was not taken maliciously or in a discriminatory fashion.
“In order for the hospital to have such protections of the HCQIA, it must also report certain adverse decisions, or a physician’s voluntary relinquishment of privileges in lieu of an investigation, that are based on clinical competence or conduct, and to the National Practitioner Data Bank,” Hepp says. “State law may also require additional reports to be made to the state licensing board.”
Given the peer review protection that exists, hospitals must take steps to ensure that the privilege is not waived before information is disclosed, Hepp says.
“The medical staff bylaws and application for appointment and privileges will typically include a release that authorizes the hospital to share information with and receive information from other facilities where the physician has practiced,” she says. “But most will still want to obtain a separate specific release signed by the physician that has had an adverse action that authorizes the disclosure of information and that clearly states that such disclosure is not intended to waive the privilege.”
Courts have imposed a duty of care that hospitals must exercise in granting privileges, and The Joint Commission likewise requires hospitals to obtain references and information from other facilities with which the physician has practiced.
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