medical legal issues
TRANSCRIPT
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MEDICAL LEGAL ISSUESMEDICAL LEGAL ISSUES
MARCY AUCLAIRMARCY AUCLAIRATTORNEY ADVISOR FOR HEALTH CARE LAWATTORNEY ADVISOR FOR HEALTH CARE LAW
BUREAU OF MEDICINE AND SURGERYBUREAU OF MEDICINE AND SURGERY
Phone: (202) 762Phone: (202) 762--30893089
Email:Email: [email protected]@med.navy.mil
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MEDICAL MALPRACTICEMEDICAL MALPRACTICE
Why Claims are Filed:Why Claims are Filed:
Upset with the SystemUpset with the System
Devastating InjuriesDevastating Injuries
Unreasonable ExpectationsUnreasonable Expectations
Unexpected ResultsUnexpected Results
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ELEMENTS OFELEMENTS OF
NEGLIGENCENEGLIGENCE DutyDuty
Breach of DutyBreach of Duty
Resulting in an InjuryResulting in an Injury
CausationCausation
Reasonably ForeseeableReasonably Foreseeable DamagesDamages
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DUTYDUTY Due CareDue Care Lowest Acceptable StandardLowest Acceptable Standard
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Each physician may with reason and
fairness be expected to possess or have
reasonable access to such medical knowledge
as is commonly possessed or reasonably
available to minimally competent physicians
in the same specialty or general field of
practice throughout the United States, to
have a realistic understanding of the
limitations of his or her knowledge or
competence, and in general to exercise
minimally adequate medical judgment.
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Establishing Standard of CareEstablishing Standard of Care
Locality Rule (old rule)Locality Rule (old rule)
Standard of Care established byStandard of Care established bypractice in a particular geographicpractice in a particular geographic
areaarea
Problem: Difficulty in getting Drs.Problem: Difficulty in getting Drs.
to testify against their peers.to testify against their peers.
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Establishing Standard of CareEstablishing Standard of Care
National StandardNational Standard
Presumes basic level of medicalPresumes basic level of medicaltraining and practicetraining and practice
Resource Based Caveat:Resource Based Caveat:Standard of Care is expanded orStandard of Care is expanded or
limited by available resourceslimited by available resources
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Proving the Standard of CareProving the Standard of Care Expert WitnessesExpert Witnesses: Standard of Care is: Standard of Care is
established by professionals in the field.established by professionals in the field.
Easy to qualify as a witness; question isEasy to qualify as a witness; question is
how much weight will jury give thehow much weight will jury give the
testimony...testimony...
Jury hears testimony from opposingJury hears testimony from opposingexpert witnesses and then must chooseexpert witnesses and then must choose
which is rightwhich is right
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Federal Tort Claims ActFederal Tort Claims Act
28 U.S.C. 1346(b)28 U.S.C. 1346(b)...the District Courts.... shall have exclusive...the District Courts.... shall have exclusive
jurisdiction of civil actions on claims againstjurisdiction of civil actions on claims against
the United States for money damages accruingthe United States for money damages accruing
on and after January 1, 1945, for injury or losson and after January 1, 1945, for injury or loss
of property, or personal injury or death causedof property, or personal injury or death caused
by the negligent or wrongful act or omission onby the negligent or wrongful act or omission onany employee of the Government while actingany employee of the Government while acting
within the scope of his office or employment...within the scope of his office or employment...
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FTCAFTCA
Limited Waiver of Sovereign ImmunityLimited Waiver of Sovereign Immunity
for:for:
Deviations from Standard of Care,Deviations from Standard of Care,
By Government Employees,By Government Employees,
Acting within the scope of FederalActing within the scope of FederalEmploymentEmployment
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Excluded ClaimantsExcluded Claimants
FERES DOCTRINE:FERES DOCTRINE: Feres v.Feres v.
United StatesUnited States, 340 U.S. 135 (1950), 340 U.S. 135 (1950)
Congress Did Not Intend toCongress Did Not Intend to
Waive Sovereign Immunity forWaive Sovereign Immunity for
Suits by Members of the ArmedSuits by Members of the Armed
ForcesForces
Applies to Derivative ClaimsApplies to Derivative Claims
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FERES DOCTRINEFERES DOCTRINE
Unique Relationship BetweenUnique Relationship Between
Service Members and theService Members and theGovernmentGovernment
Other NoOther No--Fault MilitaryFault Military
Compensation Schemes (PEB)Compensation Schemes (PEB)
Negative Effect on Good OrderNegative Effect on Good Order
& Discipline& Discipline
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Military Claims ActMilitary Claims Act
Similar to FTCA but applies OverseasSimilar to FTCA but applies Overseas
No Judicial RemedyNo Judicial Remedy
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Standard of CareStandard of Care
FTCA: Apply the Law of theFTCA: Apply the Law of the
Location of the TortLocation of the Tort
MCA: Apply General Principles ofMCA: Apply General Principles of
American LawAmerican Law
Apply Federal Procedural LawApply Federal Procedural Law
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Government EmployeesGovernment Employees
Active Duty MilitaryActive Duty Military
GS/GM/SES CiviliansGS/GM/SES Civilians
Red Cross/Other volunteersRed Cross/Other volunteers
Personal Services ContractorsPersonal Services Contractors
(for purposes of FTCA only)(for purposes of FTCA only)
Independent Contractors are NOTIndependent Contractors are NOT
Government EmployeesGovernment Employees
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Scope of EmploymentScope of Employment
Must be performing authorized militaryMust be performing authorized military
dutiesduties
Training Affiliation AgreementsTraining Affiliation Agreements External resource Sharing AgreementsExternal resource Sharing Agreements
Criminal Misconduct not CoveredCriminal Misconduct not Covered
Moonlighting or Volunteer Work NotMoonlighting or Volunteer Work NotCoveredCovered
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Statute of LimitationsStatute of Limitations
Claim Must be Filed within 2 Years ofClaim Must be Filed within 2 Years of
knowledge of existence and cause of theknowledge of existence and cause of the
injury.injury.
SOL continues until plaintiff hasSOL continues until plaintiff has
information necessary to discoverinformation necessary to discover
both his injury and its probableboth his injury and its probable
cause.cause.
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Litigation Under FTCALitigation Under FTCA
Must Exhaust Administrative RemediesMust Exhaust Administrative Remedies(OJAG Code 15)(OJAG Code 15)
MustMust File Suit Within 6 Months of Denial ofFile Suit Within 6 Months of Denial ofClaimClaim
MayMay File Suit Anytime 6 Months AfterFile Suit Anytime 6 Months AfterPresenting Claim (Constructive Denial)Presenting Claim (Constructive Denial)
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Personal LiabilityPersonal Liability
Federal Employees Liability and TortFederal Employees Liability and TortCompensation Act (28 U.S.C. 2679)Compensation Act (28 U.S.C. 2679)
Westfall LegislationWestfall Legislation
FTCA is the Exclusive Remedy for NegligenceFTCA is the Exclusive Remedy for Negligence
of Government Employees Acting in the Scopeof Government Employees Acting in the Scope
of Employmentof Employment
Protects Against Personal LiabilityProtects Against Personal Liability
Removes individual & substitutes U.S. asRemoves individual & substitutes U.S. as
defendant (28 U.S.C. 1442a)defendant (28 U.S.C. 1442a)
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Avoiding ClaimsAvoiding Claims
ConsultConsult -- because no one can do it allbecause no one can do it all
Know what you dont knowKnow what you dont know
Get help when you need itGet help when you need it
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Avoiding ClaimsAvoiding Claims
DocumentationDocumentation -- because peoplebecause people
forget/lieforget/lie
LegibleLegible Dont backdateDont backdate
Document thought processDocument thought process
Differential diagnosisDifferential diagnosis
Informed consentInformed consent
ConsultsConsults
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Avoiding ClaimsAvoiding Claims
Patient RelationsPatient Relations -- because technicallybecause technically
good care is not enoughgood care is not enough
ListenListen RespectRespect
CommunicateCommunicate
CareCare
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TYPICAL CLAIMS SCENARIOSTYPICAL CLAIMS SCENARIOS
Failure To Timely Diagnose Cancer:Failure To Timely Diagnose Cancer:
Ensure appropriate diagnostic tests (scans, bloodEnsure appropriate diagnostic tests (scans, blood
test, etc.) and/or referral is done and completed in atest, etc.) and/or referral is done and completed in atimely fashion.timely fashion.
Be sure patient know exactly how the scheduling andBe sure patient know exactly how the scheduling andfollow up process works at the time the referral is madefollow up process works at the time the referral is madefor diagnostic tests or consults with a specialist.for diagnostic tests or consults with a specialist.
Document the instructions given to the patient in theDocument the instructions given to the patient in themedical record.medical record.
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Typical Claims ScenariosTypical Claims Scenarios
Failure To Timely Diagnosis Cancer (Cont.)Failure To Timely Diagnosis Cancer (Cont.)
At each clinic visit, make a point to review the lastAt each clinic visit, make a point to review the last
several clinic visits and follow up with any tests orseveral clinic visits and follow up with any tests orreferrals that were ordered but not completed.referrals that were ordered but not completed.
Be sure to document what specific advice andBe sure to document what specific advice andinstructions are given, especially all informationinstructions are given, especially all informationreasonably relevant to making an informed decision.reasonably relevant to making an informed decision.
Computerized CHCS records are discoverable; itComputerized CHCS records are discoverable; itreflects patient appointments and all telephone contactsreflects patient appointments and all telephone contacts be sure to adequately document those phone calls.be sure to adequately document those phone calls.
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Typical Claims ScenariosTypical Claims Scenarios
Delay in Acting on Obstetric EmergencyDelay in Acting on Obstetric Emergency
Know the specific fetal and maternal clinicalKnow the specific fetal and maternal clinical
parameters beyond which intervention is required.parameters beyond which intervention is required.
Notify senior staff immediately when any of the clinicalNotify senior staff immediately when any of the clinicalparameters are exceededparameters are exceeded
Be vigilant in monitoring both mother and fetus whenBe vigilant in monitoring both mother and fetus whenembarking on an offembarking on an off--label use and/or dosage of alabel use and/or dosage of a
particular medication.particular medication.
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Typical Claims ScenariosTypical Claims Scenarios
Failure To Recognize an EmergentFailure To Recognize an EmergentConditionCondition Important to formulate a differential diagnosis whenImportant to formulate a differential diagnosis when
confronted with a significant new or worsening symptomconfronted with a significant new or worsening symptomwithin the context of an established chronic problemwithin the context of an established chronic problem
Equally important that the new differential diagnosisEqually important that the new differential diagnosisbe documented in the patients medical record at thebe documented in the patients medical record at the
time of the visit, along with whatever workup was donetime of the visit, along with whatever workup was doneto rule out any emergent condition on the list.to rule out any emergent condition on the list.
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ADVERSE PRIVILEGINGADVERSE PRIVILEGING
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FUNDAMENTAL PRINCIPLESFUNDAMENTAL PRINCIPLES
Patient SafetyPatient Safety
Quality Assurance / Risk ManagementQuality Assurance / Risk Management
Individual Due Process RightsIndividual Due Process Rights
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BUMEDINSTBUMEDINST
6320.67A CH 16320.67A CH 1(Adverse(Adverse
PrivilegingPrivileging
Actions, PeerActions, PeerReview PanelReview Panel
Procedures,Procedures,
and Healthand Health
Care ProviderCare Provider
Reporting)Reporting)
Talk
to me
or
else!!
I
did
it !!!
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FIRST LEVELFIRST LEVEL
PEERPEERREVIEWREVIEW
(NON(NON--ADVERSE)ADVERSE)
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Department HeadsDepartment Heads
Clinical DirectorsClinical Directors
QA Review (Occurrence Screens)QA Review (Occurrence Screens)
ECOMS ReviewECOMS Review
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ADVERSE PRIVILEGINGADVERSE PRIVILEGING
DEFINITIONS
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Adverse Privileging ActionAdverse Privileging Action
The denial, reduction, suspension orThe denial, reduction, suspension or
revocation of clinical privileges based uponrevocation of clinical privileges based upon
provider impairment (professional,provider impairment (professional,
behavioral, medical), misconduct, or lack ofbehavioral, medical), misconduct, or lack of
professional competence.professional competence.
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AbeyanceAbeyance
The temporary removal of a privilegedThe temporary removal of a privileged
provider from clinical duties while an inquiryprovider from clinical duties while an inquiry
into allegations of misconduct or impairment isinto allegations of misconduct or impairment is
conducted.conducted.
An abeyance is not an adverse action.An abeyance is not an adverse action.
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Denial of PrivilegesDenial of Privileges
An adverse action taken by a privileging authority whichAn adverse action taken by a privileging authority which
denies privileges to a provider when those privilegesdenies privileges to a provider when those privileges
would normally be granted at the facility to a provider ofwould normally be granted at the facility to a provider ofsimilar education, training and experience occupying thesimilar education, training and experience occupying the
same billet.same billet.
Can only be imposed after the opportunity for a peerCan only be imposed after the opportunity for a peer
review hearing has been afforded the provider.review hearing has been afforded the provider.
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Summary SuspensionSummary Suspension
The temporary removal of all or part of aThe temporary removal of all or part of a
providers clinical privileges prior to theproviders clinical privileges prior to the
completion of due process procedures.completion of due process procedures.
Not reportable to the National PractitionerNot reportable to the National Practitioner
Data Bank unless the final action is adverse.Data Bank unless the final action is adverse.
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Suspension of PrivilegesSuspension of Privileges
An adverse action temporarily removing allAn adverse action temporarily removing all
or a portion of a privileged providersor a portion of a privileged providersclinical privilegesclinical privileges afterafter due processdue process
procedures are completed.procedures are completed.
Reportable to the NPDB.Reportable to the NPDB.
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Reduction of PrivilegesReduction of Privileges
An adverse privileging action whichAn adverse privileging action which
permanently removes a portion of apermanently removes a portion of aproviders privileges.providers privileges.
Can only be imposed after the opportunityCan only be imposed after the opportunity
for a peer review hearing has been affordedfor a peer review hearing has been affordedthe provider.the provider.
Reportable to NPDBReportable to NPDB
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Revocation of PrivilegesRevocation of Privileges
An adverse privileging action thatAn adverse privileging action that
permanently removes all of a providerspermanently removes all of a providersclinical privileges.clinical privileges.
Can only be imposed after the opportunityCan only be imposed after the opportunity
for a peer review hearing has been affordedfor a peer review hearing has been affordedthe provider.the provider.
Reportable to the NPDBReportable to the NPDB
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Types ofTypes of
providerproviderconduct thatconduct thatcould triggercould trigger
Peer Review:Peer Review:
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IMPAIRMENTIMPAIRMENT
Any personal characteristic orAny personal characteristic orcondition which may adverselycondition which may adverselyaffect the ability of a provider toaffect the ability of a provider torender quality healthcare.render quality healthcare.
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THREE CATEGORIES OFTHREE CATEGORIES OF
IMPAIRMENTIMPAIRMENT
PROFESSIONALPROFESSIONAL
BEHAVIORALBEHAVIORAL
MEDICALMEDICAL
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PROFESSIONALPROFESSIONAL
IMPAIRMENTIMPAIRMENT
Deficit in MedicalDeficit in Medical
Knowledge, Expertise orKnowledge, Expertise or
JudgementJudgement
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BEHAVIORAL IMPAIRMENTBEHAVIORAL IMPAIRMENT
Includes unprofessional,Includes unprofessional,
unethical, or criminalunethical, or criminalconductconduct
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MEDICAL IMPAIRMENTMEDICAL IMPAIRMENT
Conditions whichConditions which
permanentlypermanently
impede orimpede orpreclude apreclude a
provider fromprovider from
safely practicingsafely practicingmedicinemedicine
Help Me
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PEB POLICY AND PEERPEB POLICY AND PEER
REVIEWREVIEW PEB Policy Letter 7PEB Policy Letter 7--94 requires all medical boards94 requires all medical boards
involving MC officers to have a command evaluationinvolving MC officers to have a command evaluation
of the physicians level of function and list ofof the physicians level of function and list of
privileges as determined by peer review.privileges as determined by peer review. Per SECNAVINST 1850.4E, Para. 3304b, A medicalPer SECNAVINST 1850.4E, Para. 3304b, A medical
corps officer in any grade will not be found unfit forcorps officer in any grade will not be found unfit for
duty if he or she can perform satisfactorily in anduty if he or she can perform satisfactorily in an
assignment appropriate to grade, qualifications andassignment appropriate to grade, qualifications andexperience.experience.
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PEB POLICY CONT.PEB POLICY CONT.
Paragraph 3304b also states a medical doctor willParagraph 3304b also states a medical doctor will
have a review of clinical privileges with peer reviewhave a review of clinical privileges with peer review
required before being found unfit.required before being found unfit.
If a PA believes a provider has a permanent medicalIf a PA believes a provider has a permanent medicalcondition that impedes on his or her ability to safelycondition that impedes on his or her ability to safely
practice medicine, adverse action should be initiated.practice medicine, adverse action should be initiated.
No adverse privileging action required if PA believesNo adverse privileging action required if PA believes
there is no impact on patient safety.there is no impact on patient safety.
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OTHER ADVERSE ACTIONOTHER ADVERSE ACTION
GROUNDSGROUNDS
MISCONDUCTMISCONDUCT
When there is a nexus between the act committed and theWhen there is a nexus between the act committed and thedelivery of safe patient care.delivery of safe patient care.
VIOLATIONS OF UCMJVIOLATIONS OF UCMJ
CIVILIAN CRIMINAL LAWCIVILIAN CRIMINAL LAWVIOLATIONSVIOLATIONS
OTHER ACTS LISTED IN ENCL (2) OFOTHER ACTS LISTED IN ENCL (2) OFBUMEDINST 6320.67A /ChBUMEDINST 6320.67A /Ch--11
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Drug AbuseDrug Abuse
Alcohol AbuseAlcohol Abuse
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Aiding or abetting the practice ofAiding or abetting the practice of
medicine by an obviously incompetentmedicine by an obviously incompetentor impaired provideror impaired provider
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SelfSelf--prescribing controlled medicationprescribing controlled medicationfor ones own use or for familyfor ones own use or for family
members.members.
Failure to report disciplinary action orFailure to report disciplinary action orsanctions taken by a professional orsanctions taken by a professional or
governmental organizationgovernmental organization
Failure to report malpractice awardsFailure to report malpractice awardsoccurring outside DOD facilitiesoccurring outside DOD facilities
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Healthcare Integrity and Protection Data Bank (HIPDB)Healthcare Integrity and Protection Data Bank (HIPDB)
Administered by DHHS, same staff that run NPDBAdministered by DHHS, same staff that run NPDB
A new fraud and abuse data collection program forA new fraud and abuse data collection program for
reporting certain final adverse actions taken againstreporting certain final adverse actions taken against
health care providers, suppliers, and practitioners.health care providers, suppliers, and practitioners.
The purpose of the HIPDB is to combat fraud and abuseThe purpose of the HIPDB is to combat fraud and abuse
in health insurance and health care delivery and toin health insurance and health care delivery and to
promote quality care.promote quality care.
REPORTING OF MISCONDUCT
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REPORTING MISCONDUCT CONT.REPORTING MISCONDUCT CONT.
DOD 6025.13DOD 6025.13--R: SG responsible for reportingR: SG responsible for reporting
adverse actions occurring on or after 21 Aug 1996.adverse actions occurring on or after 21 Aug 1996.
Reportable Adverse Actions: UCMJ actions; adverseReportable Adverse Actions: UCMJ actions; adverse
personnel actions (military and civilian); that arepersonnel actions (military and civilian); that areagainst a health care provider, supplier, or practitioneragainst a health care provider, supplier, or practitioner
based on acts or omissions that affect the delivery ofbased on acts or omissions that affect the delivery of
a health care item or service is reportable.a health care item or service is reportable.
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ALLEGATIONALLEGATION
An ALLEGATION can be a:An ALLEGATION can be a:
PATIENT COMPLAINTPATIENT COMPLAINT
PATIENT CLAIM OF MALPRACTICEPATIENT CLAIM OF MALPRACTICE
SFSF--95 (Claims Form)95 (Claims Form)
OCCURANCE SCREENOCCURANCE SCREENMEDICAL STAFF OBSERVATIONMEDICAL STAFF OBSERVATION
CRIMINAL REPORTCRIMINAL REPORT
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FORMAL INVESTIGATONFORMAL INVESTIGATON
Unless the CO is confident that theUnless the CO is confident that the
allegations are untrue or are of such a minorallegations are untrue or are of such a minornature that no adverse action would be takennature that no adverse action would be taken
even if they were true, an investigation musteven if they were true, an investigation must
be ordered.be ordered.
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FORMAL INVESTIGATIONFORMAL INVESTIGATION
REPORT MUST BE COMPLETEDREPORT MUST BE COMPLETED
WITHIN 60 DAYS IF A PROVIDERSWITHIN 60 DAYS IF A PROVIDERS
PRIVILEGES HAVE NOT BEENPRIVILEGES HAVE NOT BEEN
PLACED IN ABEYANCE.PLACED IN ABEYANCE.
IF A PROVIDERS PRIVILEGES WEREIF A PROVIDERS PRIVILEGES WERE
PLACED IN ABEYANCE, THIS REPORTPLACED IN ABEYANCE, THIS REPORTMUST BE DONE WITHIN THE 28 DAYMUST BE DONE WITHIN THE 28 DAY
ABEYANCE PERIOD.ABEYANCE PERIOD.
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REMINDERREMINDER::
THE INVESTIGATION IS ATHE INVESTIGATION IS AQUALITY ASSURANCEQUALITY ASSURANCE
DOCUMENT PROTECTED FROMDOCUMENT PROTECTED FROM
DISCLOSURE BY 10 USC 1102DISCLOSURE BY 10 USC 1102
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INITIAL PRIVILEGING DECISIONINITIAL PRIVILEGING DECISION
If privileges placed in abeyance, the CO mustIf privileges placed in abeyance, the CO must
decide on or before day 28 to either reinstate ordecide on or before day 28 to either reinstate orsummarily suspend privileges.summarily suspend privileges.
If privileges summarily suspended, a full and fairIf privileges summarily suspended, a full and fairhearing must be conducted.hearing must be conducted.
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NOTIFICATIONNOTIFICATION
If a CO summarily suspends a providersIf a CO summarily suspends a providersprivileges, written notice must be given toprivileges, written notice must be given to
the provider within seven (7) days.the provider within seven (7) days.
PANEL PROCEDURESPANEL PROCEDURES
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PANEL PROCEDURESPANEL PROCEDURES
If a provider elects a hearing, the hearingIf a provider elects a hearing, the hearingcannot take place sooner than thirty (30)cannot take place sooner than thirty (30)
days after the provider receives the noticedays after the provider receives the noticeof suspension.of suspension.
This can be waived ifThis can be waived if bothboth parties agree.parties agree.
If a provider waives their appearance, theIf a provider waives their appearance, thehearing can take place anytime after thehearing can take place anytime after thewaiver is received in writing.waiver is received in writing.
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PANEL PROCEDURESPANEL PROCEDURES
At least 10 days before the panel hearing, the COAt least 10 days before the panel hearing, the CO
must inform the provider:must inform the provider:
Of the date, time and location of the hearingOf the date, time and location of the hearing That failure to appear at the hearing constitutesThat failure to appear at the hearing constitutes
a waiver of appearancea waiver of appearance
Of the rights and obligations of the provider atOf the rights and obligations of the provider at
the hearingthe hearing
Names of witnesses including expectedNames of witnesses including expected
testimonytestimony
Copies of all documents panel will receiveCopies of all documents panel will receive
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RESPONDENTS HEARINGRESPONDENTS HEARING
RIGHTSRIGHTS
TO COUNSEL:TO COUNSEL:
MILITARY MAY REQUEST JAGMILITARY MAY REQUEST JAG
CIVILIANS AT OWN EXPENSECIVILIANS AT OWN EXPENSE
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RESPONDENTS HEARINGRESPONDENTS HEARING
RIGHTSRIGHTS
TO CHALLENGE PANEL MEMBERSTO CHALLENGE PANEL MEMBERS
REMOVAL FOR CAUSE ONLYREMOVAL FOR CAUSE ONLY
TO CALL WITNESSESTO CALL WITNESSES
TO SUBMIT EVIDENCETO SUBMIT EVIDENCE
TO TESTIFY IN OWN BEHALFTO TESTIFY IN OWN BEHALF
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Panel MembershipPanel Membership
Must have at least 3 members, no more than 5.Must have at least 3 members, no more than 5.
Panel membersPanel members mustmust be privileged providers!!!!!be privileged providers!!!!!
The Chairperson of the Credentials Committee shouldThe Chairperson of the Credentials Committee should
chair the peer review panel, unless:chair the peer review panel, unless:
They have advised the CO on the caseThey have advised the CO on the case
They have investigated the caseThey have investigated the case One member of the panelOne member of the panel shouldshould be from the samebe from the same
specialty as the respondent.specialty as the respondent.
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The RecorderThe Recorder
At the time a panel is appointed, the PA must alsoAt the time a panel is appointed, the PA must also
appoint a Recorder (a qualified officer) for theappoint a Recorder (a qualified officer) for the
panel.panel.
The Recorder presents documentary evidence,The Recorder presents documentary evidence,
witness testimony, and addresses the panel.witness testimony, and addresses the panel.
The Recorder may be a JAG.The Recorder may be a JAG.
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The Legal AdvisorThe Legal Advisor
A Legal Advisor may be appointed to the panel to adviseA Legal Advisor may be appointed to the panel to advise
the panel members on issues of evidence and procedurethe panel members on issues of evidence and procedure
onlyonly..
The Legal Advisor should not actively participate in theThe Legal Advisor should not actively participate in the
hearing accept when asked to advise on a specific issue.hearing accept when asked to advise on a specific issue.
The Legal Advisor may not be present during panelThe Legal Advisor may not be present during panel
deliberations.deliberations. The Legal Advisor should be drawn from a commandThe Legal Advisor should be drawn from a command
different from that of the Privileging Authority.different from that of the Privileging Authority.
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HEARINGHEARINGPROCEDURESPROCEDURES
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PANEL PROCEDURESPANEL PROCEDURES
NO RULES OF EVIDENCENO RULES OF EVIDENCE
RelevancyRelevancy
MaterialityMateriality
CompetenceCompetence
CumulativeCumulative
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Recording the HearingRecording the Hearing
The panel hearing must be recorded by aThe panel hearing must be recorded by a
reliablereliable recording device.recording device.
Only the Recorder (or other professionallyOnly the Recorder (or other professionally
retained reporter) may use a recordingretained reporter) may use a recording
device in the hearing.device in the hearing.
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FINAL TRANSCRIPTFINAL TRANSCRIPT
May be summarized, unless the action isMay be summarized, unless the action is
appealed by the provider.appealed by the provider.
Any appeal must be accompanied by aAny appeal must be accompanied by a
verbatim transcript. Please number theverbatim transcript. Please number the
transcript pages!transcript pages!
STRONGLY RECOMMEND USE OFSTRONGLY RECOMMEND USE OF
PROFESSIONAL COURT REPORTERPROFESSIONAL COURT REPORTER
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Recommendationsmayinclude:Recommendationsmayinclude:
-- Reinstatement (No conditions can be attachedReinstatement (No conditions can be attachedto a reinstatement; can recommend additionalto a reinstatement; can recommend additional
training)training) -- Initial granting of privilegesInitial granting of privileges
-- DenialDenial
-- ReductionReduction
-- SuspensionSuspension
-- RevocationRevocation
PEER REVIEW PANELPEER REVIEW PANEL
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PEER REVIEW PANELPEER REVIEW PANEL
REPORTREPORT
A COPYA COPY MUSTMUST BE PROVIDED TO THEBE PROVIDED TO THE
RESPONDENT AT THE SAME TIME ONE ISRESPONDENT AT THE SAME TIME ONE IS
GIVEN TO THE COMMANDGIVEN TO THE COMMAND
RESPONDENT HAS 7 DAYS TO COMMENTRESPONDENT HAS 7 DAYS TO COMMENTON THE PANEL REPORT. THE COMMENTSON THE PANEL REPORT. THE COMMENTS
ARE FORWARDED TO THE PA.ARE FORWARDED TO THE PA.
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CO FINAL DECISIONCO FINAL DECISION
PA MUST MAKE HIS DECISION WITHIN 7PA MUST MAKE HIS DECISION WITHIN 7DAYS AFTER RESPONDENTS COMMENTSDAYS AFTER RESPONDENTS COMMENTSARE RECEIVED.ARE RECEIVED.
MUST GIVE WRITTEN NOTICE OF THEMUST GIVE WRITTEN NOTICE OF THEFINAL DECISION TO THE RESPONDENTFINAL DECISION TO THE RESPONDENTWITHIN THAT 7 DAY WINDOW.WITHIN THAT 7 DAY WINDOW.
IF ADDITIONAL TIME IS REQUIRED,IF ADDITIONAL TIME IS REQUIRED,CONTACT BUMED SJA FOR GUIDANCECONTACT BUMED SJA FOR GUIDANCE
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CO FINAL ACTIONCO FINAL ACTION
PA can agree or disagree with panels findingsPA can agree or disagree with panels findings
and recommendations, but must take someand recommendations, but must take someaction to either reinstate, grant initialaction to either reinstate, grant initial
privileges, deny, reduce, suspend or revokeprivileges, deny, reduce, suspend or revoke
privileges.privileges.
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PAs can nonPAs can non--concur with a panels findings,concur with a panels findings,
conclusions and recommendations, but theirconclusions and recommendations, but their
decision must be reasonably based on thedecision must be reasonably based on the
hearing record and their reasons must behearing record and their reasons must be
articulated in the final decision letter.articulated in the final decision letter.
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APPEALAPPEAL
DUE 14 DAYS AFTER FINAL DECISIONDUE 14 DAYS AFTER FINAL DECISION
FORWARDED TO CHIEF, BUMED VIA PAFORWARDED TO CHIEF, BUMED VIA PA
REVIEW STANDARDSREVIEW STANDARDS
LIMITED TO APPEALED GROUNDSLIMITED TO APPEALED GROUNDS
ABUSE OF DISCRETIONABUSE OF DISCRETION
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APPEALAPPEAL
Appeals are reviewed by M00J and theAppeals are reviewed by M00J and the
Chief of the appropriate Corps.Chief of the appropriate Corps. Chief, BUMED makes the final call.Chief, BUMED makes the final call.
The standard for decision on appeal isThe standard for decision on appeal is
whether the decision of the PA was anwhether the decision of the PA was anabuse of discretion.abuse of discretion.
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NPDB REPORTINGNPDB REPORTING
Final actions resulting in denial, reduction,Final actions resulting in denial, reduction,
suspension or revocation of a providerssuspension or revocation of a providersindependent practice are adverse actions thatindependent practice are adverse actions that
are reported to the National Practitioner Dataare reported to the National Practitioner Data
Bank by BUMED SJA.Bank by BUMED SJA.