Kentucky Primary Care Association
Annual Conference
October 19, 2010
Tricia A. Shackelford, Attorney-at-Law
Crown Medical Management Group,
LLC
The process by which a facility and its
medical staff reviews a physician's
qualifications (or “credentials”) to
confirm eligibility for medical staff
membership and clinical privileges.
The process by which medical practitioners
review professional performance of other
health care professionals.
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Necessary qualifications for medical staff
membership
Procedure for granting and withdrawing
staff privileges
Mechanism for physician appeals from
decisions made regarding staff membership
and privileges
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Six General Areas of Competencies
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Patient care
Medical clinical knowledge
Practice-based learning and improvement
Interpersonal communication skills
Professionalism
Systems-based practice
Focused Professional Practice Evaluation
Continuous evaluation of practitioner
performance
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Challenges to the applicant’s professional license
or a voluntary relinquishment of a license;
Voluntary or involuntary termination of medical
staff membership or reduction of clinical privileges
at another facility;
Evidence of an unusual pattern or an excessive
number of professional liability actions result in a
final judgment against the applicant;
Documentation as to health status; and
Relevant practitioner-specific data, and morbidity
and mortality data, when available.
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Members of the medical staff must apply for
reappointment and renewal of clinical
privileges every two years
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Peer evaluations of performance
Assessment of professional performance,
judgment, interpersonal communication skills,
and clinical or technical skills
Review of demonstrated current competence
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Appeal of adverse medical staff
determinations
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Reasons for denial, revocation, reduction,
suspension
Fair hearing and appeal procedures
Process may differ for initial applicants versus
existing members of the medical staff
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“Pure Economic Credentialing” and “Hybrid
Economic Credentialing”
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Malpractice experience
Number of hospital admissions
Admission diagnoses
Average length of stays
Inpatient resource utilizations
Number of diagnostic tests ordered
Outpatient service utilization
Ancillary services ordered
Payor mix
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Credentialing and Peer Review
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Facilities have an independent duty to oversee the
care provided to patients in accordance with
applicable standards and the facilities bylaws
(Darling v. Charleston Cmty. Mem’l Hosp. (Ill. 1965)
Because most medical staff members enjoy
substantial autonomy over patient care, injured
patients have traditionally been limited to seeking
recovery from physicians for malpractice.
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Recognition of Medical Staff Membership as a
Property Right
Under Kentucky law, membership in a facility’s
medical staff creates a property right
 Facilities must act in accordance with their bylaws
and governing policies and cannot apply them in a
manner that is unreasonable, arbitrary, or capricious
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Medical Staff Bylaws as a Contract
Denial of Due Process
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Antitrust Considerations
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Granting and revoking medical staff privileges
Credentialing non-physicians
Release of Peer Review Documents
Non-Disclosure of Peer Review Documents
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Releases and Waivers in Applications and
Bylaws
Kentucky Statutory Immunity
Kentucky Case Law
Patient Safety and Quality Improvement Act
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Purposes of HCQIA
Peer Review Immunity
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Scope and Limitations
Persons and Entities Qualifying for Immunity
Due Process Standard for Professional Review
Actions
Peer Review Information Required to be Reported
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National Practitioner Data Bank and Querying
Requirements
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Reporting Information to the NPDB
Requesting Information from the NPDB
Confidentiality of NPDB Information
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Reportable Final Adverse Actions
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Reporting Requirements
Eligible Entities
Time Limits
Subjects of Reports
Penalties for Failure to Report
Querying HIPDB
Correction of Erroneous Information
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Creation of the Provider/Patient Relationship
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Implied contract
 Person seeks treatment
 Provider accepts the person as a patient
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Providers have no obligation to accept a person as a
patient
 Exceptions – third party payor contracts, provisions in
medical staff bylaws, anti-discrimination restrictions
for large providers, on-call physicians and ED patients
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Effect of the Provider/Patient Relationship
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Provider is under a duty to provide services to the
patient until treatment is no longer needed
 Patient terminates
 Provider terminates
 Appropriate notice
 Sufficient time to secure substitute care
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Duty of Facilities to Accept Patients
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Emergency Treatment (EMTALA, JCAHO, AOA,
Tax Code)
Non-Emergency Treatment
 Third-party payor contracts
 Medicare/Medicaid
 Hill-Burton Act
 State Property Tax Exemptions/Charity Care
No right is held more sacred, or is more
carefully guarded by the common law, than
the right of every individual to the
possession and control of his own person,
free from all restraint or interference from
others, unless by clear and unquestionable
authority of law (Union Pac. R.R. Co. v.
Botsford (1891)).
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Valid informed consent requires disclosure to
the patient of
The patient’s condition;
 The nature of the proposed treatment;
 The benefits reasonably expected from a proposed
treatment, together with the material risks and
dangers of the proposed treatment; and
 Treatment alternatives, as well as the risks and the
benefits of such alternatives.
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Additional procedures are necessary to
accomplish the initial treatment for which there
was consent;
Emergency circumstances where a
presumption can be made that the patient
would consent to protect the patient’s life; or
Giving the patient all the relevant information
would be harmful to the patient
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Reasons for incompetence
Youth
 Mental Incompetence
 Illness
 Injury
 External Influences (Drugs/Alcohol)
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Liability for Corporate Negligence
Negligent Credentialing/Peer Review
 Inadequate Facilities/Equipment/Supplies
 Promulgation and Enforcement of Policies and
Procedures
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Liability for Acts of Employees
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Intentional Acts
Negligent Acts
 Duty
 Breach
 Causation
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Liability for Acts of Physicians
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Discovery Rule
Wrongful Death
Tolling the Statute of Limitations
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Claims Made v. Occurrence Based
Tail Coverage
Corporate Coverage v. Individual Coverage
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Obtain informed consent
Document care and treatment thoroughly
contemporaneous with the services provided
Assist patient with an untoward outcome
Contact risk management, your insurance
carrier, and your attorney immediately
Be contrite but never admit a mistake
Tricia A. Shackelford, Attorney-at-Law
Crown Medical Management Group, LLC
3288 Eagle View Lane, Suite 300
Lexington, Kentucky 40509
(859) 264-2668 – office
(859) 264-2661 - facsimile
tshackelford@crownmmg.com