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Dealing with Difficult Physicians: Preparing For and Minimizing Trouble Colin Luke Leigh Anne Hodge Jo Moore November 3, 2009. Agenda. Lessons Learned â€“ Recent Horror Stories Leigh Anne Hodge 10:00 â€“ 10:40 a.m. Are your Medical Staff Bylaws Up to Date?
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Preparing For and Minimizing Trouble
Leigh Anne Hodge
November 3, 2009
Leigh Anne Hodge 10:00 – 10:40 a.m.
Colin Luke 10:40 – 11:10 a.m.
Jo Moore 11:15 – 12:00 a.m.
Colin Luke 12:45 – 1:15 p.m.
E.Strategies to Avoid Litigation/Settlement Options
Leigh Anne Hodge 1:20 – 2:00 p.m.
F. Questions and Answers
Recent Horror Stories
Leigh Anne Hodge
A Butler County physician was arrested Friday by state police and charged with sex crimes involving two male
The doctor, who spent more than two decades serving as a Boy Scout leader in Butler County, was also arrested
in March by state police for earlier sex crimes in which former Scouts were the victims, police said. The Scouts
came forward nearly two decades after the alleged crimes occurred, police said.
Dr. David Allen Evanko, 56, of Butler, surrendered to state police Friday at the Butler barracks on the most
recent charges. He was charged by state police with two counts each of institutional sexual assault, unlawful
contact with a minor, corruption of minors, endangering the welfare of children and indecent assault.
Police said the crimes occurred between April 2008 and March 2009 at Butler Medical Associates on Medical
Center Road in Chicora, Butler County, and at Summit Academy on Herman Road in Summit Township, Butler
County. Butler Medical Associates is a family practice that was operated by Evanko.
Evanko was arraigned before district judge Lewis Stoughton, and he was released on an unsecured $30,000
Evanko took a voluntary leave of absence from Butler Medical Associates and from the medical staff of Butler
Memorial Hospital after the March arrest.
Standards for Professional Review Actions.
In order to have immunity from liability, a professional review action must be taken –
(1) in the reasonable belief that the action was in the furtherance of quality health care,
(2) after a reasonable effort to obtain the facts of the matter,
(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and
(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).
42 U.S.C. § 11112(a).
Notice of Proposed Action
42 U.S.C. § 11112(b).
Notice of Hearing
42 U.S.C. § 11112(b)(1)–(2).
Hearing to be conducted by:
42 U.S.C. § 11112(b)(3).
42 U.S.C. § 11112(c).
Alabama Peer Review Statutes:
Under Alabama Peer Review Statutes:
1. Materials can be obtained from their primary source. Ex: medical records.
2. Information and facts within personal knowledge of physicians or other individuals participating on peer review committee.
physicians for treatment
HCQIA Immunity for hospital and members of peer
review committee that suspended general surgeon over
allegations that surgeon and his wife had sexually
abused adopted teenage daughter.
No HCQIA Immunity For Hospital and Peer Review Committee Members For Failure to Comply with Notice and Hearing Requirements.
5/28/08: By letter, Hospital MCC notified Dr. Chudacoff, OB-Gyn, of suspension and ordered drug testing and physical and mental examinations. Dr. had no notice of proposed action or the reasons for the action.
6/2/08: Counsel for Dr. requested hearing.
6/16/08: Hospital filed NPDB report: privileges suspended for substandard or inadequate care.
6/18-20/08: Dr. lost privileges at other facilities due to NPDB Report.
6/23/08: Dr. obtained medical record numbers for patients in NPDB Report.
7/2/08: Dr. filed lawsuit for damages and injunctive relief, alleging violation of Due Process rights. Still no response to request for Fair Hearing.
7/18/08: Hospital MEC informed Dr. that Fair Hearing set for 9/11/08.
9/5/08: MEC disclosed list of witnesses, but no information about nature of testimony.
9/11/08: At hearing, Dr.’s attorney not allowed to present evidence, question witnesses, or participate in hearing. In addition to substandard care allegations, Fair Hearing Committee addressed discrepancy on Dr. application to join staff.
10/1/08: Fair Hearing Committee decision. Disagreed with suspension, but recommended peer review. Indicated that concern about application would be addressed to MEC with appropriate action.
10/28/08: MEC hearing to consider Fair Hearing Committee recommendations.
11/7/08: MEC decision by two letters: (1) Adopted Fair Hearing Committee recommendation of peer review; (2) Suspended privileges pending revocation for material misrepresentations on application.
Unknown: Dr. requested Fair Hearing on suspension for application.
11/25/08: Dr.’s attorney given 3-hour notice of MEC meeting to discuss discrepancy in application. One hour after meeting, MEC informed Dr. that it was suspending privileges.
11/25/08: Dr. appeal substandard care issues.
Early 2009: Board sided with Dr. and awarded Dr. $10,000 for costs and fees. Board also opined there was a need to re-write reporting policies to allow procedural due process before suspension.
Holding: Lessons Learned
1. Privileges revoked without any notice to Dr. that privileges were in jeopardy.
2. Hospital reported suspension to NPDB before Dr. had opportunity to be heard.
3. Failure to comply with procedural requirements results in loss of HCQIA immunity and potential liability for damages.
$366 Million Damages Award to physician reversed by appeals court. Hospital and Peer Review Committee Member entitled to HCQIA immunity where Hospital complied with HCQIA, notwithstanding failure to comply with Hospital Bylaws.
(1) HCQIA immunity applied.
(2) 14 day HCQIA requirement satisfied - decision made before May 14 even though Hospital did not request Poliner’s consent to extension of abeyance until day 15.
(3) Hospital met “imminent danger” standard based upon CRRC’s determination that Poliner had provided substandard care in half of cases reviewed plus seriousness of mistake in clinical judgment resulting in misdiagnosis and error in treatment of patient the day before the abeyance.
(4) HCQIA “reasonableness requirements” were intended to create objective standard of performance, rather than subjective good faith standard.
(5) Focus of reasonableness standard is not whether peer review committee’s decisions were correct or even whether peer review committee had bad motives. Instead, focus should be on whether decision was reasonable based upon facts known at that time.
2. Emergency suspensions based upon “imminent danger” must be based on reasonable belief and based upon facts.
Holding: Incident reports and witness statements were privileged, notwithstanding the fact that they were not created by a peer review or quality assurance committee, where medical center established that reports and statements:
Holding: Letter in possession of Hospital Infection Control Committee not privileged.
Holding: Physician participant of peer review committee prohibited from testifying about statements made by affected physician to Peer Review Committee for purpose of impeaching testimony.
Holding: Handwritten notes of physician made in preparation for meeting with physician shareholders of a private medical practice not privileged by Alabama Peer Review Statute.
4. Incident reports and witness statements should never become a part of the patient’s medical record.
5. Peer review and quality assurance discussions, and activities must remain confidential to guard privilege and qualified immunity.
Colin LukePresentation to Alabama Hospital AssociationNovember 3, 2009
3.If a hearing is requested on a timely basis:
4. Upon completion of the hearing:
MS.01.01.01 requires the Medical Staff Bylaws to address:
Ongoing Professional Practice Evaluation (OPPE)
Focused Professional Practice Evaluation
2. Call Responsibilities:
3. Summary Staff Suspension
4. Exclusive Contract Provisions
5. Participation by Competing
7. Procedures for Single Hearing after MEC makes its Determination
The Top 10 Most Important Things to Include in Your Medical Staff Bylaws:
The Top 10 Most Important Things to Include in Your Medical Staff Bylaws:
The Top 10 Most Important Things to Include in Your MedicalStaff Bylaws:
National Practitioner Data Bank
By Jo Moore
The Health Care Quality Improvement Act of 1986 (the “Act”)
“To improve the quality of healthcare by encouraging State licensing boards, Hospitals, and other healthcare entities and professional societies to identify and discipline those who engage in unprofessional behavior and to restrict the ability of incompetent physicians, dentists and other practitioners to move from State to State without disclosure or discovery of previous medical malpractice payment and adverse action history.”
The following entities must report information to the NPDB:
“[A] payment in settlement of a medical malpractice action or claim shall not be construed as creating a presumption that medical malpractice has occurred.”
NPDB Regulations 60.7(d)
Within 30 days that the payment is made
NPDB Rules specify that Hospitals and other health care entities must report
Within 15 days from the date the adverse action was taken or clinical actions were voluntarily surrendered
Ala. Code § 34-24-59
A Hospital must request information from the NPDB
The NPDB Website
The NPDB Guidebook
Presentation to Alabama Hospital Association
November 3, 2009
This letter is written in response to your inquiry regarding [Dr. Berry]. Due to the large volume of inquiries received in this office, the following information is provided.
Our records indicate that Dr. Robert L. Berry was on the Active Medical Staff of Lakeview Regional Medical Center in the field of Anesthesiology from March 04, 1997 through September 04, 2001.
If I can be of further assistance, you may contact me at (504) 867-4076.
Hospital receives a complaint about Physician A from Physician B who competes with Physician A. Physician A was reported to have approached patient in hospital bed to tell patient that patient’s primary care physician, Physician B, was no longer accepting Medicaid patients because Physician B was only concerned about money. Since Physician A was “motivated by concern about the patient”, Physician A was willing to accept responsibility for the patient and move the patient over to his service. Patient moved over to Physician A.
Hospital nursing supervisor received complaints from three operating room nurses regarding new Surgeon X. These nurses alleged that Surgeon X was not familiar with even the most basic operating room supplies and asked them to download and read out loud instructions from the internet during a surgical procedure. Surgeon X reportedly asked the operating room nurses several questions about what to do next during operating room procedures. As part of a routine review for new physicians, Surgeon X was found by an outside reviewer to have violated the standard of care during several surgical procedures. Surgeon Y, the only other surgeon in Surgeon’s X’s specialty on the medical staff, refuses to participate in the peer review process.
Physician 1, the hospital’s only neurosurgeon, receives a consult request from hospital for an inpatient in serious condition in the ICU. Physician 1 learns that request for consult was initiated by Physician 2 who was his former partner. Hospital’s medical staff bylaws require that active members of the medical staff accept consults if they are available. Physician 1 reports that he is unavailable as he is out of the area. Physician 1 later that day arrives at hospital to see one of Physician 1’s patients. Physician 1 states that he cannot see Physician 2’s patient as the two physicians do not get along.
Hospital nursing supervisor received a complaint from an R.N. in the Labor & Delivery unit that one of the Ob-Gyn doctors approached her in the medicine room, pulled her to him in a bear hug, rubbed his upper body against her breasts, and then pulled her scrub top away from her body and looked down her shirt. Another R.N. who happened to be in the medicine room observed the incident. Nurse number two told Nurse number one that this is not the first time that the Ob-Gyn doctor has behaved in this way.
Surgeon X, the hospital’s most prominent cardiothoracic surgeon, has a reputation for yelling at nurses and support staff during procedures and for throwing sutures, bandages, and other items in the O.R. The hospital nursing supervisor received a complaint from an O.R. nurse that Surgeon X became enraged during a procedure when his favorite brand of staple gun was not available. The O.R. nurse presented Surgeon X with one of the staple guns that the hospital currently stocked. Surgeon X closed the patient’s incision and then used the staple gun on the O.R. nurse and stapled her shoulder and scalp. The O.R. nurse left the operating room in tears. Surgeon X completed the procedure. Patient care was not compromised.