presents presents Medical Staff Credentialing and Healthcare Reform Healthcare Reform Minimizing Liability Arising from Negligent Credentialing and Physician Lawsuits A Live 90-Minute Teleconference/Webinar with Interactive Q&A A Live 90-Minute Teleconference/Webinar with Interactive Q&A Today's panel features: Michael R. Callahan, Partner, Katten Muchin Rosenman , Chicago Adrienne E. Marting, Member, Epstein Becker & Green , Atlanta M Mark A. Kadzielski, Partner, Fulbright & Jaworski , Los Angeles k A K d i l ki P t F lb i ht & J ki L A l Thursday, August 26, 2010 The conference begins at: The conference begins at: 1 pm Eastern 12 pm Central 11 am Mountain 10 am Pacific 10 am Pacific You can access the audio portion of the conference on the telephone or by using your computer's speakers. Please refer to the dial in/ log in instructions emailed to registrants.
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Medical Staff Credentialing and Healthcare M di l St ff C d ti li d H lth Reform Minimizing Liability for Negligent Minimizing Liability for Negligent Credentialing and Physician Lawsuits Michael R. Callahan Adrienne E. Marting Mark A. Kadzielski Katten Muchin Rosenman LLP Epstein Becker & Green P.C. Fulbright & Jaworski LLP 312.902.5634 312 902 5634 404 869 5346 404.869.5346 213 892 9200 213.892.9200 michael.callahan@kattenlaw.com amarting@ebglaw.com mkadzielski@fulbright.com 60821795
Goals of Program • Environmental overview of industry developments and Health Care Reform Initiatives • Review of Doctrine of Corporate Negligence • What must a plaintiff establish in order to succeed in a negligent credentialing case negligent credentialing case • Review of recent negligent credentialing cases and their impact on a hospital’s duty to protect patients • Impact of The Joint Commission Standards on hospital’s f C S ’ duty • How to successfully defend against these actions 5
Goals of Program (cont’d) • The importance of establishing and uniformly applying credentialing criteria as well as documenting grounds for exceptions to minimize negligent credentialing claims exceptions to minimize negligent credentialing claims • What impact does your state’s peer review confidentiality statute or participation in a Patient Safety Organization have on the hospital’s ability to defend against these lawsuits th h it l’ bilit t d f d i t th l it • How to maximize your peer review protections as applied to physician profiling, P4P and quality outcome information 6
Environmental Overview • Plaintiffs are looking for as many deep pockets as possible in a malpractice action – Hospital has the deepest pockets • Tort reform efforts to place limitations or “caps” on T t f ff t t l li it ti “ ” compensatory and punitive damages has increased efforts to add hospitals as a defendant • Different Theories of Liability are utilized Different Theories of Liability are utilized – Respondent Superior Find an employee who was negligent – Apparent Agency Apparent Agency Hospital-based physician, i.e., anesthesiologist, was thought to be a hospital employee and therefore hospital is responsible for physician’s negligence negligence 7
Environmental Overview (cont’d) – Doctrine of Corporate Negligence Hospital issued clinical privileges to an unqualified practitioner who provided negligent care practitioner who provided negligent care • Emphasis on Pay for Performance (“P4P”) and expected or required quality outcomes as determined by public and private payors private payors • Greater transparency to general public via hospital rankings, published costs and outcomes, accreditation status state profiling of physicians etc status, state profiling of physicians, etc. • Denial of reimbursement by government for “never events”, i.e., operated on wrong patient or wrong surgical site and for hospital acquired conditions site, and for hospital acquired conditions. 8
Environmental Overview (cont’d) • Hospital profiling of physician performance resulting in periodic reports on comparative utilization and quality outcomes outcomes. • The Patient Protection and Affordable Care Act clearly conditions actual participation and level of reimbursement or penalties on hospital and physician achievement of quality lti h it l d h i i hi t f lit outcomes and adherence to specific protocols. • Government also has stated its intention to contract with Accountable Care Organizations, i.e. clinically and structurally A bl C O i i i li i ll d ll integrated providers, that will be obligated to manage all levels of care to Medicare patients. ACOs will need to track quality as one component of achieving a share of savings as one component of achieving a share of savings. 9
Environmental Overview (cont’d) • Required focus on evidenced-based guidelines and standards and the six Joint Commission competencies (patient care, medical knowledge, practice based learning and improvement, g , p g p , interpersonal and communication skills, professionalism and systems based practice) and ongoing and focused professional practice evaluation (“OPPE” and “FPPE”) as a basis of determining who is currently competent to exercise requested determining who is currently competent to exercise requested clinical privileges • The effect of all of these industry and regulatory demands and expectations regarding quality is to require much greater expectations regarding quality is to require much greater scrutiny on how physicians are credentialed in order to determine current and continuing competency to exercise all of the clinical privileges given by the hospital 10
The Tort of Negligence • Plaintiff must be able to establish: – Existence of duty owed to the patient – That the duty was breached – That the breach caused the patient’s injury – The injury resulted in compensable damages The injury resulted in compensable damages 11
Duty - Doctrine of Corporate Negligence Negligence • Hospital, along with its medical staff, is required to exercise reasonable care to make sure that physicians applying to the medical staff or seeking reappointment are currently and continuously competent and qualified to exercise the requested clinical privileges. If the hospital knew or should have known that a physician is not qualified and the physician h k th t h i i i t lifi d d th h i i injures a patient through an act of negligence, the hospital can be found separately liable for the negligent credentialing of this physician this physician • Doctrine also applies to managed care organizations such as PHOs and IPAs 12
Duty - Doctrine of Corporate Negligence (cont’d) Negligence (cont d) • Restatement of this Doctrine and duty is found in: – Case law, i.e., Darling v. Charleston Community , , g y Hospital – State hospital licensing standards – Accreditation standards, i.e., Joint Commission and Accreditation standards i e Joint Commission and Healthcare Facilities Accreditation Program, NAMSS – Medical staff bylaws, rules and regulations, d department and hospital policies, corporate bylaws t t d h it l li i t b l and policies 13
Duty - Doctrine of Corporate Negligence (cont’d) Negligence (cont d) – Practice parameters, protocols and standards created by professional associations such as AMA, ACOG and ACR ACR – Will P4P and CMS quality and reimbursement criteria be treated as a standard of care? 14
Duty - Doctrine of Corporate Negligence (cont’d) Negligence (cont d) • Some questions associated with this duty: – How are core privileges determined? – Based on what criteria does hospital grant more specialized privileges? – Are hospital practices and standards consistent with those Are hospital practices and standards consistent with those of peer hospitals? – Were any exceptions to criteria made and, if so, on what basis? basis? 15
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