MSSPNexus Blog

Kadlec Decision Reversed by Appeals Court

Information excerpted from an article by Michael Callahan, Katten Muchin Rosenman LLP, Chicago, IL
(Emphasis mine.)

The 5th Circuit Court of Appeals on May 8, 2008, (No. 06030745) reversed the District Court's opinion which included a holding that Lakeview Medical Center and Lakeview Anesthesia Associates had a duty to disclose to Kadlec Medical Center that Dr. Berry, a former partner with LAA, had a drug problem after Kadlec made inquiry after Berry applied to Kadlec for medical staff membership. This finding and multi-million dollar jury verdict against Lakeview and LAA caused something of an uproar throughout the industry because no court had previously held that such a duty existed. The result was also unsettling for many hospitals because most have been faced with the ethical and legal question of how to respond to third party inquiries about current and former medical staff physicians who have had quality of care or impairment problems.

The holding can be summarized (in part) as follows:

1. A party has an affirmative duty to avoid affirmative misrepresentations in referral letters to another hospital. Here, Lakeview provided a neutral letter regarding Berry which contained only factual, neutral information and did not attempt to recommend Berry for appointment. LAA, on the other hand, stated that Berry was "excellent" and a very good clinician even though they had previously fired him two months earlier because of his addiction to Demerol and his treat to patients.

2. Once a party does disclose information about a physician which creates a "misapprehension" about qualifications or certainly misleads, it has an obligation to clarify the information provided. Here, given LAA's representations that Berry was excellent and "will be an asset to [his future employer's] anesthesia service, they had a "duty to cure these misleading statements by disclosing to Kadlec that Dr. Berry had been fired for on-the-job drug use."

Lessons learned? The basic message here is that a hospital is better off saying nothing about an impaired or unqualified physician or giving only neutral information as was the case with Lakeview. If a hospital chooses to respond to the questionnaire or other inquiry, it must not mislead and must be truthful. This raises important ethical and legal policy questions because all hospitals rely on each other in attempting to determine whether new applicants or existing members are truly qualified and do not pose a threat to patients. If information is purposefully withheld because there may not be a particular duty, problems like Kadlec will continue to occur. The positive impact that the district court opinion had is that it made hospitals more mindful of needing to make more detailed and truthful disclosures keeping in mind that they must be based on hard evidence and documentation and not rumor or innuendo. Many hospitals also have begun to require physicians to sign absolute, versus qualified, waivers and releases as part of the appointment/reappointment process in order to avoid retaliatory lawsuits in response to a truthful disclosure of an impairment or questionable competency which led to non-appointment/reappointment.

Michael R. Callahan
Health Care Department
Katten Muchin Rosenman LLP

Previous MSSPNexus Blog Posts on the Kadlec Case:
Jury Finds In Favor of Kadlec Medical Center - June 2006
Weakness in Medical Vetting - Letters to the Editor - October, 2005
Major New Case Will Impact Credentialing - June 2005

Hospital specialists assume national and state leadership roles

From The Indy Star - Submitted by Joe Steuteville

Two St. Francis Hospital & Health Centers staff members have been elected to lead a national and state chapter of medical service professional organizations.

Janet O'Hair recently was elected president of (the) National Association Medical Staff Services and Belinda Sherlock is the president of the Indiana Association of Medical Staff Services. Their elections mark the first time two professionals from the same health-care facility have simultaneously led the organizations.

Read the rest of the Indy Star article

More Gems from the Estes Park Institute Healthcare Conference

Here are a few more tidbits from my Estes Park Institute conference notes:

Collegial Intervention:

• The suicide rate for male physicians is 1.5 X higher than the general population.
• The suicide rate for female physicians is 2 X higher than the general population.
• Collegial intervention programs can help.  Develop policies that encourage early intervention by medical staff leaders, and procedures that legally protect their efforts.

Conflict of Interest:

• When a member of a voting body has a conflict of interest with regard to a matter under consideration, not only should the individual refrain from voting on the matter, they should leave the room (or be asked by the Chair to leave if necessary) prior to any discussion about the issue.  Minutes should reflect that the individual with the conflict left prior to any discussion.

Environment of Care:

• The need for medication prescribed to modify mood and behavior was significantly reduced (40% or more) when a nursing home was redesigned to be esthetically pleasing and comfortable, suggesting the enormous impact our environment has on wellness and healing.

Leadership:

• The higher an individual's rank in an organization, the less honest feedback they can expect to receive, both positive and negative.  Leaders must find ways to seek and reflect on feedback.

Legislation:

• The Patient Safety and Quality Improvement Act was passed in 2005.  The open comment period for rules ended 4/12/08, and final rules are expected to be published by the end of 2008.

Risk Management:

• Presenters encouraged timely group debriefing after a near-miss event.  If something adverse almost happened, what prevented it?  If it was prevented simply by chance, not by fail-safe measures, prompt redesign can be facilitated by the group.
• When recommending process changes, defer to knowledge and experience over rank.

Future Directions:

• Web-based healthcare is literally, just around the corner.  One presenter forecast that within five years web-based subscription healthcare, paid for in nominal monthly fees, will serve as a resource for basic health information and physician referral.  Patients will use these services as a way to manage and coordinate their care. The repeatedly asked question was, "Will patients receive this information and referral service from your organization or from someone else's?"

DNV Healthcare Seeks Deemed Status from CMS

In 2006 this blog commented on the application for CMS deemed status by Ohio-based TUVHS. We didn't hear much about the application after that, but now we know that TUVHS was bought by DNV (Det Norske Veritas), an international certification body, and an application for deemed status has now been submitted to CMS by DNV Healthcare.

From the DNV Web Site:

DNV continues its expansion and focus on healthcare through the formation of DNV Healthcare Inc. and by acquiring TUVHS, the US based organization providing hospital accreditation to the NIAHO^SM program. 

This latest development fully supports DNV’s initiative to gain deeming status from the Centers for Medicare and Medicaid (CMS) in the US and to provide US hospitals with an alternative hospital accreditation option.

If approved, DNV stands to become the first new option for hospital accreditation in over 40 years. Information about DNV’s application and the need for alternative accreditation is available at www.newaccreditation.com.  Deadline for comments to CMS about the application is May 27, 2008.

http://www.dnvcert.com/DNV/Certification1/Services/HealthcareServices

http://www.dnv.com/press_area/press_releases/2008/dnvhealthcareadvances.asp

The Role of Senior Leadership in Credentialing, Clinical Privileging, and Peer Review

Effective, thorough practitioner credentialing, clinical privileging, and professional peer review are vital components of safe patient care.  The importance of these complex functions is being reinforced this week at the Estes Park Healthcare Leadership conference. 

This conference attracts senior executive, board, and medical staff leaders from hospitals around the country.  Program topics include strategic planning, financing, legislation, technology, patient experience, medical staff relations, and yes, credentialing, privileging, and peer review. 

Sessions led by Charlotte Jefferies and Linda Haddad, Senior Partners in the law firm of Horty Springer, provided these items of note:

Credentialing/Privileging

• Make sure any privilege criteria developed is specialty specific, not department specific.  Department-specific criteria may lead to anti-trust allegations.
• Encourage recruiters to work closely with the medical staff office.  Recruiting a physician who does not meet the hospital's application criteria can create difficult and expensive problems for an organization.
• Associate any requests for temporary privileges with a well-documented patient care need.
• Share all pertinent information discovered during the credentialing/recredentialing process with the ultimate decision makers, i.e., the Governing Board. 

Peer Review

• Develop objective measures for actions and outcomes controlled by physicians.
• Share credible data routinely, not just when a problem arises.
• Remember that an organization cannot manage what it does not measure.
• Encourage early intervention by by medical staff leaders.
• Review concerns and findings with the affected physician, provide ongoing feedback.
• Establish the source of authority and responsibility in peer review matters by advising physician leaders to respond on hospital, not personal, letterhead.

And for both, developing and following well-formulated policies can save the day.

 

Estes Park Healthcare Conference - Orlando

The 2008 Estes Park Healthcare Leadership conference is all about discontinuous change.  Continuous change, as it has been explained over the past few days here in Orlando, can be predicted and projected.  Discontinuous change occurs when future direction does not follow historical patterns.  In other words, the future of healthcare cannot be predicted with any degree of certainty. 

Well that makes strategic planning simple, now doesn't it?  The experts gathered here recommend that organization leaders participate in "what if" discussions and create multiple potential scenarios. 

One fact is abundantly clear, US healthcare can't afford to stay on its current path.  Our economic system is simply unable to support the current delivery model, particularly as the population ages.

Another reality is that burgeoning technology is forever changing the way healthcare is provided and documented.  Google Health, Microsoft Health Vault, and Dossia are all worth watching.  Robotic surgery, nano technology, and implantable microchips will soon dramatically decrease the need for physician and patient to be in the same physical location.  Increased use of the web will enhance patient education, medical record access, and interactive patient/provider relationships. 

Considering those realities, the presenters agree that this may not be the best time for hospitals to plan large building projects.  The delivery of healthcare is beginning to decentralize.  Care that now requires a trip to the doctor's office, (sometimes considerable) time in the waiting room, and a wait of hours (or days) for test results, will increasingly be available remotely or in the local (think Walmart clinic) community. 

The primary take-away message this week?  Don't expect tomorrow's healthcare to look like today's.

Oh, I've included a few photos of our surroundings to show that, while the message may not always be comfortable, we in attendance certainly are. 

Aggravating Your Co-Workers in Ten Easy Steps

"I don't care if people like me - I'm just here to get a job done!" 

Ever hear that one?  The problem is, sometimes getting the job done is a whole lot tougher, maybe even impossible, if our colleagues find us highly annoying.  Having the respect of the people we work with is great, cultivating a relationship where they actually like us and want us to succeed is even better.

Careerbuilder offers these 10 Surefire Ways to Tick Off Your Co-workers. 

1. Is it always all about you?
Are you preoccupied with your own career path and looking good at the expense of others? Do you put others down while you pump yourself up? Instead, conduct yourself in such a way that other people will want to see you succeed -- let their genuine support and admiration of who you are pull you to success.

2. Answering cell phone calls during meetings.
A surefire way to aggravate people is to consistently respond to calls, e-mails and pagers when in conversation with others. This sends a message that they are less important than the caller. Let the calls go and return them when your current conversation is over. If you are expecting an urgent call, alert those present. They will appreciate that you value their time and that you stay focused on matters at hand.

3. Sending voice mails that go on and on and on.
4. Acting like a bureaucrat.
5. Reading the newspaper or hammering on your laptop during training sessions or meetings
6. "I'm like, ya know..."
7. Doing your bills at the office.
8. Skirting around the dress code.
9. Taking it too easy on telecommute days.
10. Acting unethically.

Go to  10 Surefire Ways to Tick Off Your Co-workers

Hello, I'm a Hospital Administrator

When Aggravated Doc Surg goes on a rant the results are bound to be insightful and funny.  Don't miss "We don't speak the same lingo."

And Now A Word From The Chief Happiness Officer

Alexander Kjerulf blogs as the Chief Happiness Officer, and has recently written a book called Happy Hour is 9 to 5. 

Now one might think that a CHO would say if someone isn't happy in their job it must be their own fault, and we can all agree that sometimes that is the case.

However, Mr. Kjerulf also acknowledges that some jobs just aren't worth keeping in the Top Ten Bad Excuses For Staying in a Bad Job.

For example, number four:

#4 “I’ll never get another job”

Well not if you stay in your current job while it slowly grinds you down, you won’t! Move on now while you still have some self-confidence, motivation and energy left.

Having once left a position that was doing just that - killing my self-confidence, motivation, and energy, I can attest that staying on in a work situation that's bad (at least for you) can have a surprisingly negative impact on your life and health.

Read all of The Top Ten Bad Excuses For Staying in a Bad Job.

Online Physician Rating Sites - Here to Stay

Their value will continue to be debated, but one thing is certain, online physician rating sites are here to stay.

Elizabeth Cohen of CNN Health offers five tips for smart surfing on physician rating Web sites.

1. Decide what you care about
2. Look for volume
3. Look for specifics, not adjectives
4. Look for patterns
5. Use reviews along with objective information

Get the details, go to How To Find A Doctor Online

And one wonders, can anonymous online hospital rating sites be far behind?

---

Additional blog posts on the topic of anoymous physician rating sites on the web:
http://msspnexus.blogs.com/mspblog/2006/01/patients_rate_d.html
http://msspnexus.blogs.com/mspblog/2006/11/anonymous_inter.html
http://msspnexus.blogs.com/mspblog/2007/10/wellpoint-insur.html

Concerned Kitty

see more crazy cat pics

This is Kim from Emergiblog's fault... She just had to post the link to this site, where I then had to spend 30 minutes looking for the purrfect medical caption...  After all, I do try to stay "on topic" here at the MSSPNexus blog.

Help Improve Patient Safety With These Free Web-Based Programs

Patient safety is the goal of every healthcare organization, and empowering patients to become part of their own safety team is an essential part of reaching that goal.

Emmi Solutions, a company that produces web-based patient education, is now offering free adult and pediatric patient safety programs that are available for placement on your own web site.  Each lasts about five minutes, and is a valuable addition to your organization's patient safety toolbox.

Adult:  http://www.emmisafety.com/Emmi.html

Pediatric:  http://www.emmisafety.com/pediatrics/Emmi.html

These programs are a simple and effective way to help educate patients and families about ways to keep themselves and their loved ones safe in the hospital.

The Quaid Foundation

Our family has been the victim of an avoidable medical error that came close to costing the lives of our newborn twins.  The cause was a chain of HUMAN ERRORS linked from the drug manufacturer, to the hospital pharmacy, to the pediatric ward, and finally to the administering nurse who twice massively overdosed our twelve day old infants over an eight hour period with the anticoagulant drug, Heparin.We were lucky.  Although a similar incident killed three infants in an Indianapolis hospital a year earlier, our twins survived. 

It has galvanized our family to try to do something about this pervasive, yet solvable problem.  Please join us in helping to minimize the impact of HUMAN ERROR in patient medical care.

http://www.thequaidfoundation.org/

Investigating Patient Complaints: The High Price of Hospital Non-compliance

By Lisa Venn, J.D., M.A., Advocate Alliance

Health care institutions beware!  Having a “Hear no evil; see no evil” patient complaint policy is an expensive proposition.  Just ask Oakland-based Kaiser Permanente which was fined $3 million by the California Department of Managed Care for, among other issues, failing to adequately handle, review and analyze patient complaints.  As quoted in the San Francisco Chronicle (7/27/07), the Department’s Director Cindy Ehnes, said “A patient has to be sure if they have a problem. . . the health plan has their ears open to hear those complaints and their arms available to tackle any of the problems that have arisen.  Those ears in particular seemed to be sometimes deaf.” 

A hospital which turns a deaf ear to patients’ complaints risk sanctions by the Centers for Medicaid & Medicare Services (CMS).  CMS’ Hospital Conditions of Participation (CoP) mandate the form and function of a hospital’s patient grievance program [42 CFR 482.13(a)]. If a hospital fails to comply with each and every CoP, CMS may terminate the hospital’s participation in the Medicare program. (www.cms.hhs.gov/SurveyCertificationEnforcement).

Read the rest of Investigating Patient Complaints: The High Price of Hospital Non-compliance

Grand Rounds 4.29 - A Heartwarming Edition

Dr. Wes, aka Westby G. Fisher, MD, FACC, board certified internist, cardiologist, and cardiac electrophysiologist, is the host of this week's edition of Grand Rounds.  It's a clever compilation of posts, organized by heart rhythm, and one of the few times I've been classified as "normal!"

To miss this edition would be positively heartless!

Stop over at Dr. Wes' place and enjoy the best of this week's posts from the medical blogosphere.