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On Hospital Medical Staff Selection

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fentonBy Dr. Charles F. Fenton III; JD

The Joint Commission [TJC] Accreditation Manual for Hospitals has established basic guidelines for medical staff selection and monitoring.

 

Governing Body

The responsibility for selecting and monitoring the medical staff rests with the governing body of the hospital. The governing body may delegate the actual process of review to a medical staff committee, but it cannot delegate its responsibility for the decisions that committee makes.

The hospital will be liable for allowing an unqualified person to become a member of the medical staff if that person is improperly approved by the medical staff committee. The hospital governing body must ensure that the criteria used in evaluating staff members are sufficient and are followed. While the governing body may not be qualified to judge the professional competence of the potential staff member, it can verify the current status of the applicant’s license and determine whether the letters of reference are authentic.

These may seem to be simple matters, but they are often neglected, to the great legal detriment of the facility if an unlicensed or incompetent physician is admitted to the medical staff.

The application for staff membership should include:

  • applicant’s full name, date of birth, Social Security number, drivers license number, current address, and past addresses since a student or for five years
  • name of applicant’s medical school, its location, and the date of graduation
  • names, positions, addresses, and phone numbers of references who will vouch for the applicant’s professional competence and ethical character
  • type and location of all postgraduate training
  • board certifications or eligibilities
  • all places of licensure, whether in force or not, and the identification numbers of the licenses
  • all hospital privileges now in effect, those in effect within the past three years, and any facilities where privileges were terminated for disciplinary reasons
  • all malpractice suits in which the applicant was or is a defendant, including the docket number of the suit, the place of filing, a brief statement of the allegations against the applicant, and the ultimate disposition of inactive suits
  • any current of past challenges to medical or drug licenses
  • a statement of the applicant’s health

Specials

Any special qualifications or experience that are relevant to the applicant’s professional competence. In addition to these items, the applicant should sign a release that will enable the investigating committee to check the validity of the information in the application. There are certain items that must be validated.

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ASSET_BARCODE: BCK-951-BS ## DESCRIPTION: Baltimore City Jail ## EXTENDED_DESCRIPTION: 3 | ## CAPTION: ## SUMMARY:

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These include medical school graduation, status of all medical licenses (whether currently in force or not), all disciplinary actions, and personal references. It is especially useful to contact reference by telephone, if care is taken to make a record of any information obtained and its source. The most important aspect of the application is the history of past disciplinary actions and malpractice suits. Past successful disciplinary action, especially limitation or suspension of a state license is assumed to be a strong indication of incompetent or unethical practice. The hospital may choose to grant privileges after weighing the offense and the applicant’s subsequent behavior, but this is legally very different from granting privileges without exploring disciplinary proceedings. The committee reviewing the application must decide whether the application should be granted and must be able to defend that decision. If a questionable applicant is granted privileges, there should be a formal written statement detailing the investigation of the applicant and the factors relied upon in granting privileges. The history of past malpractice suits is more difficult to interpret. The loss of a single suit should be reviewed, but this will not usually be a bar to obtaining privileges (unless it turned on intentional or unethical actions). A series of lost lawsuits is a strong indication of both negligence and poor patient relations. The decision is more difficult when there are pending lawsuits or a long string of suits that was settled or won by the defendant.

From a legal point of view, a lawsuit won by the defendant should be treated as if it was unfounded. Practically, however, there are many areas of the country where it is almost impossible for a plaintiff to win a malpractice lawsuit. A physician who attracts litigation but prevail in court may become a threat in an area where plaintiffs’ verdicts are more common. If several suits are involved or the charges involve unethical practice, pending litigation should also be reviewed.

Assessment

While civil litigation does not affect licensure in many states, its existence can be used to question the hospital’s decision to extend staff privileges to an applicant. 

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The Surgeons Scorecard

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Millions of patients a year undergo common elective operations – things like knee and hip replacements or gall bladder removals.

But, there’s almost no information available about the quality of surgeons who do them. ProPublica analyzed 2.3 million Medicare operations and identified 67,000 patients who suffered serious complications as a result: infections, uncontrollable bleeding, even death.

We’ll be reporting the complication rates of 17,000 surgeons — so patients can make an informed choice.

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Litigation and Legacy in Education and Medicine

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Distinct Fields Bound by Certain Parallels

[By Jeffrey M. Hartman]

jhThe fields of education and medicine are distinct, yet bound by certain parallels. In particular, litigation has shaped present practices in each field. Case law has expanded the rights of students and parents while increasing protections for patients. Resulting improvements in the quality of education or health care vary depending on perspective.

Of greater certainty is the comparable increase in procedures, protocols, and overall bureaucracy needed in each field as a result of litigation.

Compensation Culture

Throughout the 1980s and 1990s, a perceived rise in civil cases led some pundits to ascribe a compensation culture to certain segments of America. Sensationalistic stories about plaintiffs seeking outrageous damages generated concern that this compensation culture was real and threatening to business interests across the country.

Media outlets frequently portrayed those behind the questionable suits as poor but entitled people looking to take advantage of tort law for personal gain. Pundits claimed these cases represented a decline in personal responsibility matched by an increase in shameless greed. At the same time, the notion of frivolous litigation creating unnecessary layers of bureaucracy took hold in the American conscious and remained there.

Predatory Litigation

The actual incidence and impact of supposedly predatory litigation remains debatable. Some civil liberties advocates suggest American companies created smear campaigns in the media to make the issue appear more prevalent than it was while attempting to curtail future suits. Without question, some companies have had to pay significant damages, particularly in class action cases.

However, the claims against these companies typically haven’t materialized without cause. Tort law always has existed as a protection. A few plaintiffs and attorneys may have exploited these laws and others may continue to do so. Such exploitative cases haven’t outnumbered cases built around legitimate claims.

Ethics

Questions about the ethics and even the prevalence of civil suits are the stuff of legal philosophy. The more immediate question is whether or not such cases have impacted particular fields and if so, what has been the nature of the impact. Legal precedents often lead to regulation of industries. Some forms of regulation can alter business practices. This can be for the better of all involved. Even if regulation increases costs, it often improves safety or quality.

In fields such as education and medicine, litigation has profoundly influenced practices. Influence on quality is another matter.

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education

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Education

The impact of litigation on education has been most apparent in special education. Class action suits resulted in the foundational special education law in America. Case law continues to establish precedents and corresponding mandates that states and school districts must follow. Many of the cases parents bring against districts stem from these districts struggling to abide by demanding mandates. Large districts retain teams of attorneys who spend a disproportionate amount of their time handling special education cases. Special education bureaucracy requires many schools to employ administrators who deal solely with compliance and protocol. In special education, litigation has led to more litigation.

Special Education

Special education litigation affects school practices in several additional ways. Compensatory education losses in special education pull from overall budgets. Teachers need to compile data on special education students not just for planning, but to protect themselves and their schools in disputes with parents. School members of IEP teams construct programs from the perspective of how readily they can defend themselves should a legal case develop. Decisions about goals for students are often based on the likelihood of students appearing to make progress in a way that prevents potential conflict. When lawsuits do emerge, school districts have demonstrated a historic willingness to settle and give parents what they want rather than getting involved in lengthy and costly legal battles.

Medicine

In medicine, public perception of the effects of litigation are somewhat skewed. Malpractice cases make for attention-getting headlines. However, the number of malpractice suits has decreased in recent years. The average amount for damage claims has leveled off as well. These cases tend to be reserved for incidents involving serious injury and death. Although this might seem counter-intuitive, plaintiffs often lose malpractice cases. Preventable mistakes still account for a massive amount of loss in medicine, but the public perception of malpractice suits driving up insurance costs isn’t exactly accurate.

Malpractice Liability

This isn’t to say litigation has had no effect. Some health care professionals have had their careers upended by ruinous malpractice suits. A few states have enacted damage caps to limit what plaintiffs can claim. Expensive malpractice insurance has become ubiquitous for health care professionals. Many physicians have been suspected of practicing defensive medicine, or over-diagnosing for their own protection from suits. Defensive medicine resembles the tendency of special education teachers to write IEPs that ensure student progress. Layers of bureaucracy weigh on health care systems. Much of this exists as liability protections. Again, this parallels how schools have to handle special education.

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Improvements?

So, has litigation improved either field? In education, programs for students with special needs have expanded opportunities for equitable education. The expansion stems directly from litigation. However, special education has not solved the dearth of opportunities waiting for students with special needs after high school. At the same time, the expense of special education—including the continuing need for defense against further litigation—mires the most vulnerable school districts.

Health care has improved in many ways in recent decades, but most of these improvements are tied to technological advancements rather than litigation. Technological innovations also have contributed to increases in costs. The surge in bureaucracy does more to protect health care systems than patients, but patients have indirectly benefitted somewhat from the precautions litigation has made necessary. Patient behavior continues to drive the incidence of illness, but widespread health education campaigns have made some impact in behaviors such as smoking. Litigation has aided the creation of such public campaigns through pressure on lawmakers.

Imperfect Analogues

Education and medicine aren’t perfectly analogous, so certain comparisons can’t be made fairly. Despite differences, each field has had to respond in similar ways to changes in society. Pressure from litigation is just one of these changes. Other changes have involved how each field interacts with the public it serves. Schools and hospitals have increasingly become de facto social service providers for needy communities. Educators and physicians have had to become wary of their reputations via online ratings sites and their presence in social media in general.

Experts in both fields have their positions challenged by what information parents and patients find online. These similarities might be more analogous than similarities wrought by litigation.

Although the effects of litigation have been different in the two fields, the response in each field has been noteworthy. Litigation more or less created special education. The burgeoning field has improved equitable opportunities while creating logistical quagmires for schools. Outcomes for students have been limited by factors schools can’t control, thus derailing some of the idealistic aims of litigation. Poor outcomes haven’t lessened the burden special education law places on schools.

Meanwhile, public perception of how malpractice has affected medicine differs from the actual effects. Litigation has affected physician practices more than it has affected costs. Patient care has improved through technology more than through legal mandates. Protections have improved vicariously through the threat of litigation, but this might be inadvertently affecting how physicians offer treatment.

Assessment

Overall, litigation has complicated each field by adding layers of protective bureaucracy. Improvements in quality might not be commensurate with the effort expended. Often what the public gains in protection is loses in simplicity and effectiveness. These fields exemplify this maxim.

ABOUT

Jeffrey M. Hartman is a former teacher who blogs at http://jeffreymhartman.com/

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RISK MANAGEMENT, LIABILITY INSURANCE, AND ASSET PROTECTION STRATEGIES FOR DOCTOR AND ADVISORS

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Medical Practice and Health 2.0 Risk Management is Now a Part of Financial Planning for Doctors

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About Us

Our ME-P Editor, Dr. David Edward Marcinko MBA CMP™, is a nationally recognized healthcare financial and business advisor to physicians, clinics, hospitals and medical practices. Based in Atlanta Georgia, as a Certified Medical Planner™, Dr. Marcinko leads the industry delivering expert financial and managerial advice to all healthcare entities and stakeholders regarding managed care contracting, operations, strategic planning, revenue growth, health 2.0 business modeling and physician litigation support.

Dr. Marcinko is a sought-after author and speaker with three-decades of expert healthcare consulting experience. He has authored hundreds of healthcare business, finance, economics and management articles and dozens of text books. He is a chosen speaker among prominent national healthcare groups and financial services associations.

Committed to addressing the needs of each client, Dr. Marcinko and the iMBA Inc team takes great pride in personally leading every consulting team that produces effective response time and measurable results for satisfied colleagues and corporate clients www.MedicalBusinessAdvisors.com 

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That’s why the R&D efforts of our governing board of physician-directors, accountants, financial advisors, academics and health economists identified the need for integrated personal financial planning and medical practice management as an effective first step in the survival and wealth building life-cycle for physicians, nurses, healthcare executives, administrators and all medical professionals.

Now – more than ever – desperate doctors of all ages are turning to knowledge able financial advisors and medical management consultants for help. Symbiotically too, generalist advisors are finding that the mutual need for extreme niche synergy is obvious.

But, there was no established curriculum or educational program; no corpus of knowledge or codifying terms-of-art; no academic gravitas or fiduciary accountability; and certainly no identifying professional designation that demonstrated integrated subject matter expertise for the increasingly unique healthcare focused financial advisory niche … Until Now!

Enter the Certified Medical Planner™ charter professional designation www.CertifiedMedicalPlanner.org

Assessment

And so, for all financial services professionals interested in the fast-moving healthcare advisory space: Medical Practice and Risk Management is Now a Part of Financial Planning for Doctors

Certified Medical Planner

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