Physicians often ignore crucial early warning signs in the credentialing process. Physicians also sometimes ignore the fact that the credentialing process is a structured legal process which can trap the unwary and penalize the careless. Here are 10 mistakes physicians make during the process, along with advice on how to prevent them.
1. The “Cover-Up”: Misrepresenting or Attempting to Hide Prior Adverse Peer Review Actions
By far the most serious credentialing mistake any physician can make is the “Cover Up”. Failing to disclose a prior adverse peer review action, especially when that fact will be discovered through a data bank query or a reference check, creates almost insurmountable problems. There are several reasons why this mistake is so serious:
a. In a profession where ethics are both important and valued, the cover up itself is a very negative event.
b. A misrepresentation is an objective, clear-cut violation of the credentials application process. Most applications have a statement or series of questions concerning prior adverse peer review actions. If you fail to disclose, then that nondisclosure is itself a violation. The incident happened, you were asked about it, you lied. There are no subjective issues, and no defenses.
c. Lying about your record taints your credibility and therefore your explanation of any underlying events precipitating the peer review action. The underlying event cannot now easily be portrayed as politics, or professional disagreement, or retaliation by competitors, because the veracity of your position is now in doubt.
d. Because of the National Practitioners Data Bank, JCAHO emphasis on quality credentialing, and the “small world” of the medical community, deception is almost always discovered.
Action Step: Answer the questions on medical staff applications correctly. Do not adopt unreasonable definitions of the questions just to provide a questionable excuse for nondisclosure. Take your time and answer each question carefully.
2. Failure to Report Adverse Peer Review Actions
Many medical staff bylaws and third party participation agreements require physicians to report adverse peer review actions (e.g. revocation, suspension, or voluntary relinquishment of medical staff membership, clinical privileges, or state or DEA licenses and exclusion from third party programs).
Although not as serious as affirmatively or actively concealing adverse peer review actions, the failure to report these adverse actions when required to do so is still a serious mistake for two reasons:
1. Although perhaps inadvertent, it nevertheless smacks of the dreaded Cover Up.
2. The failure to report is itself an independent, separate, and easily established clear and objective violation of the bylaws or agreements. It taints your reputation. In situations where the “old M.D.s’ network” or the new CEO is looking to remove you, or when the alleged subjective violation is difficult to prove, some disciplinary action for this type of violation is an easy determination.
Although the violation itself may have nothing to do with quality of care or your professional ability, it could still result in your loss of membership or reduction of privileges.
Action Step: When an adverse peer review action occurs, you should review the medical staff applications and participation agreements you have signed. Better yet, you should have a list of the applicable requirements. You will receive a copy of the NPDB Report. If appropriate, you should submit a supplemental statement (See Mistake #3). In some situations, you are best served by sending a brief notice that may just convey the data bank report and the supplemental statements. There is no harm in sending the NPDB Report because all queriers will see it anyway, and the voluntary production of the report demonstrates that you have nothing to hide. If the reported incident is a serious problem, you may want to have a full explanation prepared with supporting exhibits, together with letters of reference, to diffuse the situation.
3. Failure to Monitor or Respond to Data Bank Reports
Reports to the National Practitioners Data Bank should be monitored and contested when appropriate. Data Bank procedures permit physicians to:
a. Request the reporting entities to correct erroneous reports;
b. Utilize the administrative procedures of the Department of Health and Human Services to challenge incorrect reports; and
c. File an individual supplemental statement.
Action Step: When notified of an adverse NPDB Report, utilize all of the procedural safeguards available.
4. Believing “Collegial Intervention” is Collegial
Collegial intervention can be a trap for the unwary. Whenever you are approached by an “official” member of the medical staff to discuss quality assurance or quality improvement issues, especially in relation to your cases or conduct, you should both embrace the opportunity as a professional and suspect the worst. Collegial intervention can be used as an excuse by the medical staff or the hospital to initiate or conduct an investigation before you even know it is happening – without providing any of the due process protections provided by the bylaws with respect to formal investigations. What you perceive as just a series of casual conversations could instead be portrayed as a concerted effort by the organized medical staff to address or investigate a problem you did not even realize you had.
Action Step: Be careful. Ask the inquiring medical staff/hospital representatives if this is an “official visit”. Check your medical staff and credentialing file (See Mistake #9).
5. Neglecting the Opportunity to Secure Corroborating Witnesses
Collegial intervention, as well as initial investigations, usually start with a meeting of some type. This is not the place to “lawyer up”; that is both unprofessional and unnecessarily adversarial, and usually prohibited by the bylaws. (See Mistake #10) The intent of the bylaws is usually to provide a professional and non-adversarial environment to address minor issues before they become major problems. However, you should request that you be accompanied by another physician, e.g. a partner, another department member, etc., just so you have a witness that can corroborate the facts if necessary. If you can’t have a witness, then you should either record the meeting as long as you have obtained the consent of the other party or prepare a written memo immediately after the meeting and send a copy to the person responsible for conducting the meeting to confirm the facts. Using a professional and non-accusatory memo to confirm the facts is especially helpful when done before the battle-lines harden.
Action Step: Secure potential witnesses and keep accurate records so you are not “unarmed” in future confrontations.
6. Failure to Appreciate that any Peer Review Activity Should Be Taken Seriously
Physicians have an unfortunate tendency to dismiss the seriousness of the initial stages of peer review investigations as unnecessary and unwelcome administrative intrusions that will be resolved when the real doctors become involved. While this may have been true at an earlier time – maybe – it is certainly not true now. Liability for negligent credentialing and JCAHO medical staff standards make credentialing a serious business all the time, not just when the controversy erupts into a medical staff hearing.
Credentialing professionals take their responsibility quite seriously, and these “professionals” are now well trained. Gone are the days when credentialing was just another bookkeeping duty of the medical staff secretary. By the time the credentialing professionals first raise an issue with the physician, their homework will have been done and they will have the pertinent facts, witnesses and medical records. Unless you investigate and prepare your position and defense with the same diligence and zeal as your “prosecutors”, you will find yourself at a significant disadvantage. You will be starting with a handicap that you may well not overcome. Do your homework.
Action Step: Appreciate the possible adverse consequences of any peer review action from the very first stage.
7. Whistleblowing In Retaliation Is Generally a Bad Idea
Physicians sometimes confuse patient advocacy with disruptive behavior, sometimes intentionally. It is almost never effective, on a long term basis, to threaten exposure of quality assurance concerns or issues as a means to justify your own problem cases.
First and foremost, other bad outcomes do not change your outcomes. However, one clear exception to this policy is when you are being held to a different standard. But even in this situation, the identity of other physicians need not be disclosed if the critical facts can be discussed without identification.
Second, your conduct could create unwanted liability for you, such as slander or defamation. The peer review statutes of most states immunize the participants, although some status may have overlaying good faith requirements. This immunity against liability for participation in the peer review process usually applies only to charges and disclosures made as an integral part of the peer review process, such as statements or written communications to a quality assurance committee. Immunity may not apply to unprotected communications, such as impassioned speeches in the doctors’ lounge.
Finally, there is no surer way to precipitate retribution than to cast the first stone.
Action Step: Follow your mother’s advice: people who live in glass houses should not throw stones! If you don’t have anything nice to say, don’t say anything!
8. Conspiracy Theorists Only Win In the Movies
A variation of the misguided whistleblowers mistake is maligning the motives of others. The best defense might be a good offense on the gridiron but, unless you have solid facts, blaming your situation on scheming competitors, jealous physicians, and clueless hospital staff is not a winning strategy. Although truth is always an exception to any warning, and there are a significant number of medical staff cases where the conspiracy and the liability have been proven, all cases are unique.
Action Step: Do not create an entire class of adversaries and undermine your legitimate defenses by making unfounded accusations.
9. Neglecting to Monitor Your Own Medical Staff Records
You should not wait until a peer review action is threatened to inspect your medical staff or credentials file. When your reappointment application is being filed, you should go to the medical staff office and request to review the file. Your explanation can be simply that you heard it was a good idea to review your record at the times of each reappointment.
Some medical staff offices might keep separate credentials and peer review files; you should ask to see both. The hospital might object to allowing you to review the file, arguing that “peer review laws” make such information confidential. Depending on the state, this may or may not be true. Many peer review protection acts, including the federal Health Care Quality Improvement Act of 1986 (HCQIA), which established the National Practitioners Data Bank, do provide immunity for those who participate in the peer review process, but they don’t make the records confidential from you. If this claim is made, ask your medical staff to formally review this issue with separate counsel.
Action Step: Regularly monitor your medical staff and credentials files.
10. Failing to Retain an Experienced Lawyer
This mistake is one of that group of mistakes falling in the general category of unpreparedness. When investigations or inquiries begin, physicians mistakenly believe that legal counsel at this early stage is inappropriate or unnecessary, however – that is how some of the other mistakes happen. Even if you cannot be represented by a lawyer in the meeting or during the interview process, that does not mean you should not know your rights. We wouldn’t have a list of the 10 biggest mistakes physicians make in this area if they were effectively represented by counsel.
Action Step: When you think you need legal advice, it may already be too late. Consult counsel as soon as you realize that anything unusual is happening. Too early is an inconvenience; too late is a serious problem.
There is a common thread to these mistakes, and that is the failure or refusal by physicians to treat credentialing issues as potentially serious problems. Gone are the days when the medical staff was willing to handle these issues informally – until they become an issue of critical proportions – and gone they should be, provided the credentialing process is also prepared to acknowledge that bad outcomes happen to good doctors. However, since some processes will not differentiate unavoidable bad outcomes from actual malpractice, and therefore might blindly pursue adverse peer review sanctions, physicians will unfortunately need to be vigilant in protecting themselves in this new credentialing climate.