joanne hopkins, jd, msn and missy atwood, jd€¦ · mprc privilege: “medical peer review”...

WE-06 Concurrent Session 3:45-4:15pm

Negligent Credentialing: What Can Happen?

Joanne Hopkins, JD, MSN and Missy Atwood, JD

Disclosing Medical Peer Review Information

in Texas Copyright Joanne P. Hopkins, JD

June 23, 2016 1

TSMSS Annual Conference April 19, 2017

Missy Atwood, JD

Joanne P. Hopkins, JD, MSN

Austin, Texas

Is Negligent Credentialing a viable claim under Texas law?

Are there immunities under Texas and Federal laws to protect those who participate in the credentialing process?

Implications of Employed Practitioners on the Medical Staff

Confidentiality and Access to Medical Peer Review Information

Mock Deposition of MSC in a credentialing lawsuit



June 23, 2016 2

States that Allow Lawsuits for Credentialing Decisions



June 23, 2016 3

◦ Texas is 1 of 35 states (and Puerto Rico) that allow some type of claim for improperly granting privileges to an unqualified practitioner

◦ Different Rules in Different States

Different standards to prove a claim

Different protections and immunities

Different kinds of evidence is allowed

Differs from Many Other States

Not a “Negligent Credentialing” Claim, per se

https://humantraffickinghotline.org/state/texas



June 23, 2016 4

• Claim recognized under the Texas Medical Liability Act

• Texas Supreme Court has decided a claim for improper credentialing falls within the definition of “health care liability claim” under the Act

Garland v. Rose, (Tex. 2004)

• Health Care Liability Claim

• “A claim for treatment, lack of treatment or other claimed departure from accepted standards of medical care or health care or safety or professional or administrative services directly related to health care”

Tex. Civil Practice & Remedies Code 74.001 (a) (13)

• Health Care Liability Claim

Includes:

• Initial decision to grant privileges

• Formal evaluations (FPPE/Peer review)

• Continual assessment and monitoring of competence (OPPE)






June 23, 2016 5

• Involves a “specialized standard of care”

• Involves application of “specialized knowledge necessary to make accurate medical judgments”

• Court looked to TJC guidelines

• Requires expert testimony to establish liability

Garland v. Rose, (Tex. 2004)

• 1. a Hospital, acting through its agents, improperly credentialed a provider

• 2. the provider was negligent in the care or treatment to a patient

• 3. the provider’s negligence caused injury to the patient









June 23, 2016 6

Members of a Medical Committee or PR committee

Agents of a Medical Committee or PR committee

employees of hospital assisting a Medical Committee or PR committee

e.g.

Medical Staff Coordinator

Quality Coordinator

Outside reviewer




Not a “negligent credentialing claim”

The Texas Act’s immunity provisions prescribe a threshold standard of “malice” to state a cause of action against a hospital

St. Luke’s Episcopal Hospital v Agbor (Tex. 1997)






June 23, 2016 7

(c) A person, medical peer review committee, or health care entity that, without malice, participates in medical peer review or furnishes records, information, or assistance to a medical peer review committee or the board is immune from any civil liability arising from that act.

TEX. OCC. CODE ANN. § 160.010

(b) A cause of action does not accrue against a member, agent, or employee of a medical peer review committee or against a health care entity from any act, statement, determination or recommendation made, or act reported, without malice, in the course of medical peer review.

TEX. OCC. CODE ANN. § 160.010

A member of a medical committee is not liable for damages . . . For an action taken or recommendation made . . . If the committee member acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to the committee member

TEX. HEALTH & SAFETY CODE ANN. § 161.033



June 23, 2016 8

“Malice”

Unresolved definition in context of a credentialing claim

Last Texas Supreme Court decision in 2005 (Romero v KPH)

an act or omission:

(i) viewed objectively involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.”

Romero v KPH Consolidation, Inc. 166 S.W. 3d 212 (Tex. 2005)




June 23, 2016 9

“ a specific intent by the defendant to cause substantial injury or harm to the claimant”

Tex. Civil Practice & Remedies Code 41.001 (7)

It is unclear whether this definition will be applied if the Texas Supreme Court interprets the immunity provisions of 161.010 again

“reckless disregard for the truth or the rights of others”

St. Luke’s Episcopal Hospital v Agbor, 952 S.W. 2d 503 (Tex. 1997)

“inadequate investigation and the presence of ulterior motives”

Poliner v. Texas Health Systems, 537 F.3d 368 (5th Cir. 2008), cert. denied

Nursing Peer Review

Patient Safety Committee ◦ Includes review of qualifications of nurses

CRNA’s

Certified Nurse Midwives

Advance Practice Nurses

Podiatry Peer Review

Dental Peer Review



June 23, 2016 10

Moreno v Quintana

Court held Section 160.010(b) (immunity provision) does not apply to credentialing decisions regarding physician assistants.

Pharmacists

Physical Therapists

Surgical 1st Assistants

Chiropractors

Contract sets out terms for services

Contract controls over medical staff bylaws

Greater flexibility in terminating services of practitioner

Contract may allow entity to “refuse” services

May be automatic termination of membership or privileges if contract ends or practitioner’s contract ends

LIMITED OR NO PROCEDURAL DUE PROCESS



June 23, 2016 11

Automatic termination of membership or privileges pursuant to contract generally not reportable to NPDB or Texas Medical Board

If no automatic termination, be cautious with resignation of membership or privileges after employment or contract termination – is practitioner “under investigation or avoiding investigation”?

Does employer or contracting group qualify as “health care entity” with “medical peer review committee”?

Tex. Occ. Code Sec. 160.007(c)(1) authorizes committee-to-committee disclosure without waiver of privilege of confidentiality

Option for hospital’s medical peer review committee to request information from employer or contracting group for purposes of medical peer review

Medical peer review committee (MPRC) privilege, Tex. Occ. Code Sec. 160.007 ◦ Records and proceedings of committee and

communications to committee ◦ Requires health care entity and committee of

entity, governing board or medical staff with written bylaws that is authorized to engage in medical peer review

◦ Exception for anticompetitive action or civil rights action under 42 USC 1983

◦ Does not apply to business records ◦ Specific provisions for how to waive privilege



June 23, 2016 12

Medical Committee (MC) Privilege, Tex. Health & Safety Code, Sec. 161.032 ◦ Committee (including joint committee) of hospital,

medical organization, university medical school or HSC, HMO (including IPA), extended care facility, hospital district or authority

◦ Committee of one or more health care systems if each system includes at least one of above

◦ No exceptions for anticompetitive or civil rights

◦ Does not apply to business records

◦ Voluntary disclosure may waive privilege

MPRC Privilege: “Medical peer review” includes evaluation of qualifications of “professional health care practitioners and of patient care provided by those practitioners”

In re Living Centers of Texas, Inc. (Tex. 2005): Re retrospective review of quality of health care services, MPRC privilege applied to non-physicians as well as physicians

Woodlands: Privilege applies to initial credentialing process – minutes, 3rd party inquiries and responses, and communications with physician

Irving: Initial credentialing file privileged from practitioner even in allegation of malice with two exceptions

Brownwood: GB minutes, applications and 3rd party queries and responses protected from 3rd party, but not medical staff or hospital bylaws



June 23, 2016 13

In re Christus Santa Rosa (Tex. 2016): physician not entitled to MPRC’s recommendation when took no action

In re Memorial Hermann (Tex. 2015): physician’s anticompetitive action overrode MPRC privilege, even though committee also protected under MC privilege

In re Rockwall Regional (Tex. App. 2016): former physician owner not entitled to see another MD’s file just because hospital let him see his own because no written waiver

What information are we talking about

What is required to be disclosed

What is discretionary

Practitioner access to own information

Access by medical staff and hospital staff

Access by third parties

Guidelines, not absolutes

Define what is “confidential information” under the policy

Practitioner Files ◦ Identify what practitioner files there are

◦ What is in the files

◦ Address who can access practitioner files

◦ Address practitioner access to own file(s)

◦ Policy should not govern access to information in corrective action proceeding or peer review hearing



June 23, 2016 14

Other Medical Staff Records ◦ Department records

◦ Quality records

◦ Committee minutes – very limited access, even with subpoena

Access to other records – not necessarily an “all or nothing” approach

Watch for situation where practitioner is also a committee member or medical staff leader and is being reviewed…

Third Party Access – Practitioner Files and other Medical Staff Records ◦ What is required before will share - Query from

MPRC at health care entity so can share MPRC to MPRC

◦ What about Practitioner authorization

◦ What will be shared – Facts? Opinions?

◦ Cite statutory provision for MPRC-to –MPRC

Have a provision for situations not addressed in policy or that need to be handled differently

This presentation is solely for general educational purposes. Neither the information on the slides nor the speakers’ statements during the presentation should be interpreted as legal advice.

Missy Atwood, JD Joanne P. Hopkins, JD, MSN

Germer, PLLC P.O. Box 162834

301 Congress, Ave., Ste 1700 Austin, Texas

Austin, Texas 512.327.4647

512.472.0288 [email protected]

[email protected] www.hopkinshealthlawyer.com

www.germer.com

mailto:[email protected]




http://www.hopkinshealthlawyer.com/

http://www.germer.com/

NEGLIGENT CREDENTIALING: WHAT CAN HAPPEN

TSMSS 40th Annual Conference – April 19, 2017

HANDOUT FOR PRESENTATION BY JOANNE P. HOPKINS, JD, MSN

A. Employed or Contracted Practitioners on the Medical Staff.

1. Considerations of Employment or Contracting.

a. When contracting with a practitioner or group of practitioners, generally the contract sets out the terms of the practitioner’s services in the hospital or health care facility.

i. Contract will provide that it controls terms instead of medical staff bylaws, at least in certain areas.

ii. Contract affords much greater flexibility in terminating the services of practitioners if there are concerns or problems, with no requirement to use medical staff peer review procedures.

b. Contract frequently allows facility to “refuse” or decline services of individual

practitioner without triggering due process rights or procedural rights of review under medical staff bylaws.

i. Practitioner may still have medical staff membership and clinical privileges but cannot work in facility or exercise those privileges; or

ii. Contract may provide that if practitioner’s services refused or declined by facility, the practitioner’s membership and privileges are automatically terminated.

c. Generally, if there will be automatic termination of some type, practitioner is asked

to sign individual document acknowledging contract provisions and waiving any due process rights under medical staff bylaws in connection with automatic action.

i. Contract is between facility and group. ii. No document directly between facility and individual practitioner.

iii. Applies to termination of contract between facility and group AND termination of contract between practitioner and group.

d. Keep in mind that employment arrangement is subject to state and federal

employment laws.

2. Procedural Rights of Review Compared.

a. Medical Staff: If a medical peer review action is taken involving a contracted or employed practitioner, the practitioner would be entitled to the procedural rights of

Negligent Credentialing TSMSS April 19, 2017 Joanne P. Hopkins, JD, MSN Page 1

review afforded by the medical staff bylaws, just as would any practitioner member of the medical staff or practitioner with clinical privileges.

b. Employment/Contract: An employment or other contract with a practitioner on the medical staff or with clinical privileges may have limited if any procedural rights of review if the employment or contract is terminated or other action is taken, such as the practitioner’s employment is terminated by the contracting group.

3. Reporting Implications.

a. When a hospital or health care entity takes a professional review action involving a

physician or dentist that lasts for more than 30 days, it must be reported to the National Practitioner Data Bank. If it involves a physician, it would also have to be reported to the Texas Medical Board if it involved a physician.

b. NPDB Guidebook updated in April, 2015, expanded the guidelines for what constitutes an “investigation” making it easier to be considered “under investigation” or avoiding an investigation.

c. NPDB Guidebook Q& A: Reporting Clinical Privileges Actions:

2. A hospital filed a report with the NPDB announcing the revocation of a practitioner's clinical privileges. The reporting hospital had established a system of professional review under its bylaws, and it also had an employment termination procedure. In this case, the hospital used the employment termination procedure, not the professional review process. The practitioner's privileges were revoked by the employment termination process, but no action was taken through the professional review process. The practitioner was not given a choice of which process (system of professional review or employment termination procedure) the hospital would use. Should the hospital have filed the report with the NPDB?

No. The termination was not a result of a professional review action and, therefore, was not reportable. It does not matter that the employment termination, which was a result of the hospital's employment termination process, automatically resulted in the end of the practitioner's clinical privileges. However, if the hospital had performed a professional review of the practitioner's clinical privileges and revoked the practitioner's privileges as a result of the review, the professional review action would have been reportable, even if the action started as an employment termination. In order to be reportable to the NPDB, adverse actions must be the result of professional review. Generally, the reporting entity decides when a professional review has occurred.

10. A health care entity terminated a physician's contract for causes relating to poor patient care, which in turn resulted in the loss of the practitioner's network participation. Should this be reported to the NPDB using one or two reports?


Depending on the circumstances, the health care entity may be required to submit two different reports. The loss of the practitioner's network participation that resulted from the termination of the contract for reasons relating to professional competence or professional conduct must be reported as a clinical privileges action only if it is considered to be a professional review action by the health care entity.

The termination of the practitioner's contract with the health care entity, in itself, does not meet NPDB reporting criteria for a clinical privileges action. However, if the contract termination meets the requirements of an "other adjudicated action or decision," the contract termination should be reported separately to the NPDB.

d. Two primary issues when dealing with employed or contracted physicians and dentists:

i. Is the employment action also a professional review action, and is the employer or contractor a health care entity required to report to the NPDB? If so, then there will be an obligation to report the employment action to the NPDB. Generally, this is unlikely.

ii. Is the physician or dentist already under investigation at the hospital or other health care entity at the time of the employment or contract action (or is one in the works)? Depending on the effect of the employment or other contact action on the medical staff membership or clinical privileges, there may be a “resignation while under, or to avoid, investigation relating to professional competence or conduct” that must be reported by the hospital or other health care entity. Example: Quality issues have been raised about Dr. Smith who is employed by the hospital’s Sec. 162(b) organization. The employer decides to terminate the employment, but right now the physician has five cases being reviewed by the medical staff’s peer review committee and an outside expert reviewer. If Dr. Smith wants to resign his employment and medical staff membership, will the hospital have to report that as a resignation while under or to avoid an investigation?

4. Sharing Peer Review Information between Practitioner’s Employer and Health Care Facility.

a. One of the two entities may have information about competence or professional

conduct that the other entity does not have.

b. If employer or contracting group qualifies as a “health care entity” under Medical Peer Review Committee privilege (Tex. Occ. Code Chap. 160) and has a medical peer review committee, and the facility is similarly qualified, the two entities can exchange information as medical peer review committee-to-medical peer review committee without risking loss of confidentiality. Sec. 160.007(c)(1).


https://www.npdb.hrsa.gov/guidebook/EClinicalPrivileges.jsp%23ClinicalPrivileges

https://www.npdb.hrsa.gov/guidebook/AppendixAGlossary.jsp%23OtherAdjudicated

c. “Health care entity” is defined to include “group medical practice” that provides or

pays for medical or health care services and follows a formal peer review process to further quality medical or health care. Sec. 151.002(a)(5)(b).

d. Another option may be for hospital or other qualifying health care entity to request the information from the employer or contractor. The MPRC privilege includes “any communication made to a medical peer review committee” (although it would not include information gratuitously submitted to a committee). Sec. 160.007(a).

i. Request from hospital should be from a medical peer review committee, be in writing, and state that the request is for purposes of medical peer review by the medical peer review committee.

ii. Reinforce the privilege in the request and ask that the response from the employer or contractor specifically state that: “This is provided in response to the committee’s request.”

B. Confidentiality and Access to Medical Peer Review Records and Proceedings.

1. Statutory Provisions on Confidentiality.

a. Medical peer review committee privilege, Tex. Occ. Code Sec. 160.007: Protects

each proceeding or record of medical peer review committee, and any communication made to committee.

i. A “medical peer review committee” is defined as: a committee of a health care entity, the governing board of a health care entity, or the medical staff of a health care entity, that operates under written bylaws approved by the policy-making body or the governing board of the health care entity and is authorized to evaluate the quality of medical and health care services or the competence of physicians … . Definitions, Sec. 151.002(a).

ii. A “health care entity” is defined as: • a hospital licensed under Chapter 241 or 577, Health and Safety Code; • an entity, including a health maintenance organization, group medical

practice, nursing home, health science center, university medical school, hospital district, hospital authority, or other health care facility, that: (a) provides or pays for medical care or health care services; and (b) follows a formal peer review process to further quality medical care or health care;

• a professional society or association of physicians, or a committee of such a society or association, that follows a formal peer review process to further quality medical care or health care;

• an organization established by a professional society or association of physicians, hospitals, or both, that: (a) collects and verifies the authenticity of documents and other information concerning the


http://www.statutes.legis.state.tx.us/GetStatute.aspx?Code=HS&Value=241

http://www.statutes.legis.state.tx.us/GetStatute.aspx?Code=HS&Value=577

qualifications, competence, or performance of licensed health care professionals; and (b) acts as a health care facility's agent under the Health Care Quality Improvement Act of 1986 (42 U.S.C. Section 11101 et seq.); or

• a health care collaborative certified under Chapter 848, Insurance Code.

iii. “Medical peer review” is defined as: the evaluation of medical and health care services, including evaluation of the qualifications and professional conduct of professional health care practitioners and of patient care provided by those practitioners… .

iv. Exceptions to confidentiality if judge makes preliminary finding that proceeding or record of MPRC is relevant to anticompetitive action or to civil rights proceeding under 42 U.S.C. Sec. 1983. Sec. 160.007(b).

v. Waiver of the privilege requires written waiver by committee’s chair, vice-chair or secretary. Sec. 160.007(e).

b. Medical committee privilege, Tex. Health & Safety Code, Sec. 161.031-161.032:

Protects records and proceedings of a medical committee. i. “Medical committee” include any committee, including joint committee, of

hospital, medical organization, university medical school or health science center, HMO (Including IPA or other physician association who committee is condition of contract with HMO); extended care facility; hospital district; or hospital authority.

ii. Includes committee of one or more health care systems if each health care system includes one of more of the above entities.

iii. Very detailed provisions for hospital districts. iv. Does not include anticompetitive or civil rights action exceptions. v. Case law has held voluntary disclosure may constitute waiver of privilege.

c. Neither privilege applies to records generated in the ordinary course of business.

Tex. Health & Safety Code Sec. 161.032(f). This emphasizes the importance of distinguishing medical committee/medical peer review committee documents from other documents, particularly when a committee is performing multiple functions, only some of which may be medical peer review.

d. Provisions for other disciplines. i. Podiatric Peer Review Committee, Tex. Occ. Code Sec. 202.451(2): defined

as committee of podiatric medical society or association that is authorized to evaluate quality of podiatric services or competency of podiatrist. Similar confidentiality and exceptions to MPRC.


http://www.statutes.legis.state.tx.us/GetStatute.aspx?Code=IN&Value=848

ii. Dental Peer Review Committee, Tex. Occ. Code Sec. 261.001(2): defined as committee of dental association authorized to evaluate quality of dental services of competence of dentists.

iii. Nursing Peer Review Committee, Tex. Occ. Code Sec. 303.001: committee established under authority of certain designated entities for purpose of conducting peer review, defined as evaluation of nursing services, qualifications of nurse, quality of care, merits of complaint, and determination or recommendation regarding complaint .

iv. Medical Committee Privilege: No limitation to a particular discipline. v. Medical Peer Review Committee Privilege: Definition of “medical peer

review” references the evaluation of the qualifications of “professional health care practitioners and of patient care provided by those practitioners.”

vi. In re Living Centers of Texas, Inc., 175 S.W.3d 253 (Tex. 2005): held that the medical peer review committee privilege applied only to physicians as to the confidentiality of employment evaluations; court also held that, as to the retrospective review of the quality of health care services, the medical peer review committee privilege applied to non-physicians as well as physicians.

e. Health Care Quality Improvement Act, 42 U.S.C. Sec. 11101 et seq.

i. Affords confidentiality protections to information in and access to National Practitioner Data Bank.

ii. Otherwise is an immunity statute protecting participants in professional review actions under circumstances and those who provide information to a professional review body.

2. Texas Supreme Court’s 1996 Triad of Cases.

a. Memorial Hospital –The Woodlands v. McCown, 927 S.W.2d 1 (Tex. 1996) on access

of television network sued by physician to that physician’s initial application: privilege applies to initial credentialing process and documents generated by the committee, as well as those prepared by or at the direction of the committee for committee purposes. Documents that were protected were committee minutes and recommendations, third party inquiries and responses, and communications between the hospital/committees and the physician, including the initial application.

b. Irving Healthcare System v. Brooks, 927 S.W.2d 12 (Tex. 1996) on access by subject physician to committee documents in libel action by physician: records and proceedings of committee are confidential from subject practitioner even if made with malice, except in limited circumstances (i.e., committee makes recommendation that could result in censure, suspension, restriction, limitation,


revocation or denial of membership or privileges in health care entity, TOC Sec. 160.007(d), and communications between physician and committee). Documents that were protected were Irving’s initial credentialing file (including third party query responses) and documents pertaining to peer review investigations, and inquiries to Irving from other hospitals and the responses provided.

c. Brownwood Regional Hospital v. Eleventh Court of Appeals, 927 S.W.2d 24 (Tex.

1996) on access in professional liability and negligent credentialing action against physician and hospital of plaintiffs to physician’s initial application and committee documents: documents that were protected were governing board minutes on appointment and reappointment, applications and third party queries and responses, but privilege of confidentiality did not apply to medical staff and hospital bylaws. Bylaws are not records of committee and do not contain communications to committee.

3. Highlights of Recent Texas cases on Committee Privilege.

a. In re Christus Santa Rosa Health System, 492 S.W.3d 276 (Tex. 2016): Physician sued

in professional liability case sought to introduce results of hospital medical staff peer review of case in which the MRPC had closed the file with no recommendation to the MEC or action taken; physician relied on TOC Sec. 160.007(d) which requires that if MPRC takes certain actions, the MPRC must provide the physician with a copy of the recommendation and final decision; on appeal the court found that the Legislature did not intend that disclosure be made every time a MPRC conducted a review, including if no action was taken; the case was sent back to the trial court for a proper review of the documents to verify that the MPRC did not recommend any action.

b. In re Memorial Hermann Hospital System et al., 464 S.W.3d 686 (Tex. 2015): Heart surgeon claimed his former hospital , Memorial Hermann, retaliated against him and ruined referrals for joining a competing hospital, Methodist West, through a “whisper campaign” regarding his quality including presentations at committee meetings; the physician brought a lawsuit and sought committee documents from the former hospital asserting the MPRC privilege’s exception for records relevant in an anticompetitive action; the court held the exception applies when the physician asserts an action that requires proof that conduct has a tendency to reduce or eliminate competition that is not offset by countervailing precompetitive justifications (i.e., more than just an antitrust action); the court also held that the physician is not required to prove the anticompetitive action to assert the exception; while there is no anticompetitive exception in the MC privilege, the court held that if a committee is protected under both the MC and MPRC privileges, as the MPRC is the later enacted statute and more specific as to when records and


proceedings are confidential would control, the committee cannot enjoy greater confidentiality under the MC privilege than under the MPRC privilege.

c. In re Rockwall Regional Hospital, LLC, No. 05-15—1554-CV (Tex. App. - Dallas Mar. 2, 2016, n.w.h.): Physician-owned hospital in which Gambreezi, PA, held some of the shares; physician principal of Gambreezi terminated his relationship with hospital and hospital attempted to purchase Gambreezi’s shares pursuant to buy-back provision in contract, leading to lawsuit by Gambreezi; Gambreezi sought production of the physician principal’s credentialing file and that of another physician who had sold his shares to the hospital and the hospital asserted the MC and MRPC privileges against disclosure; the court held the files were privileged by the MPRC privilege and that the hospital had not waived the privilege by showing the physician his own credentialing file, as waiver of the privilege requires the signature of a committee officer; the court did not address whether the files were privileged under the MC privilege.

d. Parkview Nursing and Rehabilitation Center v. Texas Dep’t of Aging and Disability

Services, No. 03-11-00480-CV (Tex. App. – Austin, Jan. 10 2014): Resident Incident Report and Incident Log, maintained by the facility to satisfy state regulatory requirements, and provided to Quality Assessment & Assurance Committee (also required by state regulations) were not privileged committee documents just because they were reviewed by committee; evaluative process of committee in reviewing documents was privileged, but not underlying facts being evaluated which were documents maintained in the ordinary course of business .

e. In re Methodist Dallas Medical Center, NO. 05-13-00134-CV (Tex. App. – Dallas, May

9, 2013): Holding that Occurrence Report prepared on hospital visitor who fell, prepared under authority and direction of Quality Review Committee, was privileged and confidential record of medical committee/medical peer review committee, and not ordinary business record; could not be discovered in lawsuit by visitor.

4. Considerations Associated with Access Decisions.

a. Health care entity needs to know what information is available in its “files” and

identify what is considered confidential under its policy. i. If policy will address access to “files,” facility needs to start by identifying

exactly what is in those “files.” ii. Do files include committee minutes? Information on more than one

practitioner?


iii. Consider addressing access in terms of type of information rather than peer review file or credentials file, unless there is clear identification or a listing of what is (and is not) included in that file.

b. Distinguish between mandatory access and permissive access.

i. Mandatory access is that which is required, either by law or the policy (or the Bylaws).

ii. Permissive access is not required and will be at the discretion of a person or committee. Whether permissive access is granted may depend on the reason access is being requested.

c. Look at what has been the practice in the past regarding access.

i. What will practitioners be expecting or what are they used to in terms of access?

ii. What types of requests are most common? Which requests have been the most problematic?

iii. What has worked in terms of access and where have the problems been in terms of access?

iv. Are there any “new areas” of concern as a result of physician employment, or, for example, or MD/JD serving on committees who also represents physicians in medical staff disputes?

d. Address access by practitioner who is subject of information or files.

i. Some access will be governed by the corrective action procedures and the fair hearing plan/procedural rights of review manual.

ii. Policy should be addressing access in situations other than these. iii. Practitioner who wants to access file:

(A) For no reason. (B) Because thinks nursing staff has filed complaint. (C) Because has case being peer reviewed by committee.

iv. Address not just access, but whether has a right to obtain copy of anything in file (remember case law on right of access to correspondence and committee recommendation if may lead to censure, etc.).

v. Address right of practitioner to submit rebuttal or correction of anything in file.

e. Access by committee members and medical staff leaders.

i. Access should be limited to that which is necessary to fulfill authorized duties and functions.

ii. May want to address whether committee member must be current member or can be prior member wishing to access documents generated when was a member.


iii. Address whether members may retain copies of documents or just review. iv. Generally the higher the medical staff leader, the more that can be

accessed.

f. Access by hospital administration and staff (including counsel). i. CEO as representative of governing board will generally be able to access

any document. ii. Hospital staff’s access should be limited to that which is necessary to fulfill

authorized duties. iii. Look at distribution of committee minutes within health care entity.

g. Access by governing board members.

i. Generally governing board members may access any document in course of fulfilling authorized duties and functions.

ii. Still should be a basic inquiry as to purpose of request.

h. Disclosures to third party health care entities. i. Procedures will depend on type of third party.

ii. Disclosures to other health care entities. iii. Subpoenas in litigation. iv. Subpoenas from licensing agencies. v. Medicare/Medicaid/state licensing agency/Joint Commission surveys.

i. Maintenance of record of access and what was disclosed.

5. Policy recommendations/guidelines.

a. Define what is considered confidential and is covered by policy.

b. List what is required before access is granted which may vary depending on who is

asking for access.

c. Address whether a record is made of when access is granted and what is disclosed.

d. Address access versus providing copies.

e. Cover different scenarios: i. Access by subject practitioner

ii. Access by committee members iii. Access by medical staff leaders iv. Access by governing board members v. Access by hospital administration and staff


vi. Access by or disclosures to third parties

f. Indicate when or if hospital administration/legal counsel must be consulted.

g. Identify who makes disclosure decisions that are not covered by policy.

h. Policy should not cover required disclosures covered by medical staff bylaws or fair hearing plan, i.e., disclosures that may be required in a corrective action investigation or prior to a hearing.


SAMPLE MEDICAL PEER REVIEW INFORMATION CONFIDENTIALITY POLICY

Note: This is provided for educational purposes only. Any policy should be developed in consultation with entity legal counsel.

Purpose: The purpose of this policy is to establish guidelines for maintaining the confidentiality of medical peer review information protected by state and federal law. This policy applies to all Medical Staff files and other information concerning practitioners appointed to the Medical Staff and other individuals with clinical privileges to practice at the Hospital; all records and proceedings of Medical Staff committees and departments; and all records and proceedings of Hospital committees when engaged in medical peer review. Definitions:

1. “Medical peer review” shall have the same meaning as “medical peer review” and “professional review action” as defined in Section 151.002(a)(7) of the Texas Occupations Code. [or can include entire definition] As set out in Section __ of the Medical Staff Bylaws, all Medical Staff committees, all Departments and their committees, and the Medical Staff as a whole are authorized by the Governing Board to engage in medical peer review.

2. All Medical Staff committees, all Departments and their committees, and the Medical Staff when meeting as a whole shall operate as medical peer review committee, medical committees, and professional review bodies, as those terms are defined in Section 151.002(a)(8) of the Texas Occupations Code, Section 161.031 of the Texas Health & Safety Code, and 42 U.S.C. Sec. 11151, when engaged in medical peer review.

Policy: It is the policy of the Medical Staff and the Governing Board to maintain the confidentiality of all medical peer review information to the fullest extent permitted by state and federal law, and consistent with the guidelines and procedures in this policy to the extent practical.

Confidential Information: All records and proceedings of medical peer review committee, medical committees, and professional review bodies, including any oral or written communications to or from the committee in the course of performing medical peer review are confidential. This shall be in addition to any other information protected under state or federal law or the Medical Staff Bylaws. Reports received from the NPDB shall also be considered confidential committee records as they are generated and received by committees in the course of medical peer review.

Procedures:

1. Confidential Practitioner Medical Peer Review Files.

1.1. Creation of File.


1.1.1. The Medical Staff Office shall prepare and maintain a confidential file for each practitioner who applies to the Medical Staff or for clinical privileges. This file shall contain the following: _________________________________.

1.1.2. The file shall be continued if the applicant is granted membership or privileges and contain the following information on reappointment: ____________________.

1.1.3. Other file(s)? _________________________________

1.2. Location and Security. The above files shall be maintained in a secure manner in the Medical Staff Office. The Director of Medical Staff Office shall be the custodian of the files, on behalf of the Medical Executive Committee and the Governing Board. The files are the property of the Hospital. [add procedures for removing files from office for meetings or review]

1.3. Access to Files. 1.3.1. The following individuals may have access to a Practitioner file upon request to the

Medical Staff Office for the purpose of fulfilling the duties and function of their position: 1.3.1.1. Medical Staff leader 1.3.1.2. Department Chief 1.3.1.3. Medical Executive Committee member 1.3.1.4. Other Medical Staff committee members – only files pertaining to assigned

committee 1.3.1.5. Chief Executive Officer or designee 1.3.1.6. Chief Medical Officer 1.3.1.7. Governing Board member 1.3.1.8. Legal Counsel 1.3.1.9. Risk Management 1.3.1.10. Medicare/Medicaid/DSHS/Joint Commission during survey 1.3.1.11. Medical Staff Office and Quality Department – all files 1.3.1.12. Hospital staff assigned to committee or supporting committee – only files for

committee to which assigned or which support

If a Practitioner is one of the individuals listed above, the Practitioner’s access to his or her own file is limited as provided in Section 1.3.2.

1.3.2. A Practitioner may not access his or her file unless access is required by law or specifically provided for in the Medical Staff Bylaws or this Policy.

1.3.2.1. A Practitioner is entitled to a copy of any correspondence between the Practitioner and the Hospital or a committee that is included in the file, including copies of any applications filed by the Practitioner and delineation of privileges requested or granted, within a reasonable time after a written request to the Medical Staff Office.

1.3.2.2. Under no circumstances may a Practitioner access committee minutes, complaints filed against the Practitioner contained in the file, other documents in the


Practitioner’s file, or another Practitioner’s file or information except as specifically authorized by this Policy or required by law.

1.3.2.3. A Practitioner may submit written information for insertion in his or her own file at any time.

1.3.2.4. See Section __ on disclosure during peer review hearing or corrective action.

1.4. Removal of Information from File. Information in a Practitioner’s file may be removed only at the written direction of the CEO.

2. Access to other Confidential Information.

2.1. All other Medical Staff, Medical Staff committee and Department records and proceedings, including committee minutes, shall be maintained in a secure manner in the Medical Staff Office. The Director of Medical Staff Office shall be the custodian of the files, on behalf of the Medical Executive Committee and the Governing Board. The files are the property of the Hospital. [add procedures for removing files from office for meetings or review]

2.2. Committee Minutes. 2.2.1. Disclosure of committee minutes to a Practitioner or third party, including the Texas

Medical Board, require approval of the CEO and Legal Counsel. 2.2.2. In that a Practitioner is not afforded access to committee minutes under any

circumstances, a Practitioner who is a member of a committee and who was reviewed by the committee may not access the committee minutes of that review.

2.3. Access to Records.

The following individuals may have access to records upon request to the Medical Staff Office for the purpose of fulfilling the duties and function of their position (all records unless otherwise noted):

2.3.1. Medical Staff leader and Medical Executive Committee member 2.3.2. Department Chief – as pertain to their department only 2.3.3. Other Medical Staff committee members – only records pertaining to assigned committee 2.3.4. Chief Executive Officer or designee 2.3.5. Chief Medical Officer 2.3.6. Governing Board member 2.3.7. Legal Counsel 2.3.8. Risk Management 2.3.9. Medicare/Medicaid/DSHS/Joint Commission during survey 2.3.10. Medical Staff Office and Quality Department 2.3.11. Hospital staff assigned to committee or supporting committee – only records for

committee to which assigned or which support 2.3.12. Medical Staff member – only those at Medical Staff meeting


If a Practitioner is one of the individuals listed above, the Practitioner’s access to his or her file and records concerning the Practitioner is limited as provided in Section 1.3.2.

[could add procedures for distributing records in meetings]

3. Disclosure to Third Party Health Care Entity. 3.1. Information contained in Practitioner files and other Medical Staff records shall be disclosed to

the extent required by law. 3.2. Confidential information may also be shared with the medical peer review committees of

health care entities for purposes of medical peer review as authorized by Texas Occupations Code Section 160.007(c)(1) and this Policy. Disclosure is not intended to waive any applicable privileges of confidentiality under state or federal law.

3.2.1. Unless otherwise directed by the CEO, an authorization signed by the subject practitioner within 12 months of the request shall be required prior to disclosure. [consider attaching form paragraph or letter to use]

3.2.2. Disclosures shall be made in writing by this Hospital’s medical executive committee or credentials committee to the requesting health care entity’s medical peer review committee.

3.2.3. The disclosure shall note that it is being made “pursuant to Texas Occupations Code Section 160.007(c)(1), and is not intended to waive any applicable privileges under state or federal law.”

3.2.4. The disclosure shall be under the signature of the chair of the committee or the CMO on the committee’s behalf.

3.2.5. The disclosure shall be marked as “Privileged and Confidential – Records and Proceeding of Medical Peer Review Committee” (or an equivalent statement), although such marking is not required for the information to remain confidential.

3.2.6. A record of each disclosure and the request shall be maintained in the Practitioner’s file. 3.2.7. Opinions relating to requests for recommendation, competence or qualifications will not

be provided by the committees. Members of the Medical Staff may provide opinions in their individual capacities, but not in their capacity as Medical Staff leaders or on behalf of a committee or the Hospital.

3.2.8. [listing of what factual information will generally be provided or situations in which a more current authorization might be required]

4. Subpoenas. All subpoenas for Practitioner files and other Medical Staff records shall be forwarded

to __________________.

5. Other. For requests or disclosures not addressed by the procedures in this Policy or situations in which the procedures may need to be varied, contact __________.
