Cases & Commentaries

Collegiality vs. Competence

Commentary By Todd Sagin, MD, JD

The Case

A 91-year-old man with coronary artery disease was taken to the operating room (OR) for semi-elective repair of a 10-cm abdominal aortic aneurysm (AAA). The procedure was relatively uneventful, and the infrarenal aneurysm was repaired. The patient’s estimated blood loss was more than 1000 cc, and he received 2-3 units of cell saver blood. As the fascia was being closed, the surgeon noted pooling of blood in the surgical field. The patient’s abdomen was re-explored, at which time he began bleeding profusely from multiple sites, including the surgical wound, endotracheal tube, nasogastric tube, and intravenous catheter sites, all consistent with the development of disseminated intravascular coagulation (DIC).

The surgeon mechanically reinforced the anastomosis sites, but they continued to bleed. Surgeons assisting with the case, as well as the anesthesiologist, recommended packing and closing the abdomen to tamponade the bleeding and transferring the patient to the ICU for further medical management. The attending surgeon opted to give blood products and continued to attempt local control of the bleeding with little success. The patient was finally closed and transferred to the ICU 6 hours after the DIC was first noted. He had received more than 20 units of blood products and was acidotic on multiple pressors. At this time, the attending surgeon left the hospital, and the patient was managed primarily by the chief resident.

The next morning, the patient continued to require multiple pressors and a bicarbonate drip and had fixed pupils. The attending surgeon opted to bring the patient back to the OR for a second look. He found clotted blood but no treatable lesions; no interventions were undertaken. The patient subsequently had progressive hypotension, did not respond to resuscitative measures, and died.

The attending surgeon was known to have had multiple surgical complications in previous cases, and had been formally investigated twice for inability to meet the standard of care. Given his seniority, longevity, and respected position in the medical center, his credentials were never formally restricted; rather, it was informally requested that he not perform certain procedures, including AAA repair.

The Commentary

This scenario raises many questions regarding the clinical management of complications in this unfortunate patient. However, the focus of this case discussion is on the hospital’s responsibility to protect patients through rigorous credentialing of its clinical practitioners.

The case presentation tells us that this attending surgeon has had multiple surgical complications in his past. Enough concern was raised about the appropriateness of care in these instances that the surgeon had been the subject of two formal investigations. Such investigations are typically carried out when compelling evidence convinces the medical staff to consider restricting or terminating a practitioner’s clinical privileges. The scenario implies that, despite evidence that should have resulted in such restrictions, they were not imposed in deference to the surgeon’s “seniority, longevity, and respected position in the medical center.” Such deference places collegiality above the institution’s duty to protect patients, and it is an all-too-common practice.

The informal understanding described in the scenario fails patients in several regards. By leaving this physician’s privileges intact, there is a risk that he may deviate from the agreement without OR personnel realizing he is violating an informal restriction. Hospitals should have in place a mechanism whereby OR staff cross-check scheduled procedures against the attending surgeon’s approved privileges.(1) In this circumstance, such a check would have shown a surgeon still holding his vascular surgery privileges, including the privilege to repair AAAs. The failure to formally restrict this surgeon’s privileges also means that his clinical deficiencies are not reported to the National Practitioner Data Bank (NPDB).(2) The NPDB was created to protect patients by assuring that concerns regarding clinical competence and conduct serious enough to cause one institution to restrict or terminate privileges are broadly disseminated to other institutions. The informal nature of the agreement reached with this surgeon may well have been motivated by a desire to avoid such an NPDB filing—a very common tactic used by medical staffs, which puts patients at risk at other institutions that may be unaware of the practitioner’s clinical deficiencies. Various government reports on the effectiveness of the NPDB have highlighted considerable under-reporting, which significantly undermines the utility of this tool.(3,4)

The decision of this hospital’s medical executive committee (MEC) to construct an approach to this surgeon’s deficiencies that did not involve privilege restrictions is a violation of Medicare’s Conditions of Participation (5) and policies of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).(1) Both bodies clearly require that privileges be granted based on evidence of adequate education, training, experience, and current competence. Peer review activities at this hospital clearly found this surgeon not currently competent to perform AAA procedures, notwithstanding a presumably long history of prior success. In the face of this evidence, it is the duty of the hospital board, acting on recommendations of the medical staff credentialing and executive committees, to appropriately restrict the doctor’s privileges.

It is certainly difficult to tell a respected colleague who, after arduous medical training, has spent years diligently serving patients and the medical community that he no longer performs at a level that warrants a grant of full clinical privileges. Fellow physicians are acutely aware that such a determination is now likely to be widely disseminated (at the least, through the NPDB), with serious undesirable consequences for that physician's career. Medical staff leaders may also be fearful that their colleague will sue them, claiming that privilege restrictions were placed for motives other than the assurance of quality care. Such a concern is not unfounded: many medical staff members are aware of cases such as Poliner v. Presbyterian Hospital of Dallas (6), in which the jury returned a stunning judgment of $366 million against the hospital, the chair of internal medicine, the chief of cardiology, and the director of the catheterization laboratory. In this case, a jury was convinced that a suspension of privileges was imposed on Dr. Poliner to interfere with his business rather than to promote patient safety.

The alternative strategy—allowing a culture of collegiality to trump a culture of excellence and patient protection—is not without risk from the medicolegal perspective. Recent years have seen rapid growth in lawsuits against hospitals and medical staffs for negligent credentialing and peer review. While most of these suits seem to be fishing expeditions by hopeful plaintiff attorneys, increasing numbers of judgments have gone against hospitals. In addition, emerging legal precedent would allow a hospital that credentialed a member of its medical staff to sue other hospitals or physicians who did not appropriately reveal clinical concerns about that clinician when asked for references. In Kadlec Medical Center v. Lakeview Anesthesia Associates (7), the claim is that the defendants failed to inform Kadlec Medical Center or the Washington State Medical Board about the applicant’s dismissal for drug diversion and history of practice while impaired, despite inquiries about the clinician’s competence. The United States District Court for the Eastern District of Louisiana refused to dismiss the case and held that there was a duty to disclose that appears to have been breached. Litigation in this case is ongoing.

Medical staff and board leaders are often unaware of the requirements of rigorous credentialing, the legal requirements of NPDB reporting, and the details of credentialing and privileging regulatory standards. All hospitals should have robust programs to thoroughly educate members of credentialing and peer review committees on their responsibilities and the best practices for carrying out their duties. When feasible, members of credentials committees should serve terms long enough to accumulate experience and institutional memory of prior peer review incidents or interventions. In addition, many medical staffs have moved to create centralized multidisciplinary peer review committees that are responsible to make sure this work is done effectively.(8) Peer review performed at the department level has a poor track record in many hospitals. Too often, asking close colleagues, partners, or direct competitors to perform peer review results in an ineffective process and avoidance of uncomfortable collegial interventions or needed corrective action.

Peer review is perceived by most physicians as a threatening, potentially punitive undertaking. Doctors often resist imposing practice restrictions on colleagues because they perceive such restrictions as harmful to members of their professional fraternity. They fail in these circumstances to consider not only the potential harm to patients, but also the harm to a colleague who goes on to injure a patient and who must live with the consequences—such as guilt and depression, lawsuits, and the lost confidence of colleagues and patients. Physicians today feel besieged by the world outside the medical community. The epidemic of litigation; unwelcome scrutiny by governments, payers, employers, and patients; and incessant and escalating demands on their time and resources motivate physicians to “circle the wagons” and “watch our backs.” However, truly caring about our colleagues means performing peer review vigorously and with integrity. The challenge for our medical staff leaders is to build a non-punitive culture of excellence (8) in our hospitals that supports physicians, but never at the expense of patients.

Take-Home Points

  • Federal statutes and JCAHO standards require that a physician’s privileges be restricted or terminated when that clinician no longer possesses current competence in a procedure(s) for which privileges have been granted.
  • Efforts to avoid appropriate privilege restrictions put patients at risk and do a disservice to the physicians involved as well as the medical communities in which they practice.
  • Medical staff leaders should be adequately trained in the challenges and nuances of effective credentialing and peer review.
  • Medical staffs should strive to create a culture of excellence and patient safety and move away from the historic perception of peer review as a punitive activity.

Todd Sagin, MD, JD Vice President and National Medical Director The Greeley Company

References

1. 2006 Comprehensive Accreditation Manual for Hospitals: The Official Handbook (CAMH). Oak Brook Terrace, IL: Joint Commission Resources; 2006.

2. National Practitioner Data Bank. NPDB-HIPDB Web site. Available at: http://www.npdb-hipdb.com. Accessed February 27, 2006.

3. Managed Care Organization Nonreporting to the National Practitioner Data Bank: A Signal for Broader Concern. Washington, DC: Office of the Inspector General, US Dept of Health and Human Services; May 2001. Publication OEI-01-99-00690. Available at: http://oig.hhs.gov/oei/reports/oei-01-99-00690.pdf. Accessed February 27, 2006.

4. HHS Agencies' Compliance with the National Practitioner Data Bank Malpractice Reporting Policy. Washington, DC: Office of the Inspector General, US Dept of Health and Human Services; October 11, 2005. Publication OEI-12-04-00310. Available at: http://oig.hhs.gov/oei/reports/oei-12-04-00310.pdf. Accessed February 27, 2006.

5. The CMS' Interpretive Guidelines for the Hospital Conditions of Participation. Marblehead, MA: HcPro Inc; 2005.

6. Poliner v Texas Health Systems. No. 3-00-CV-1007-P (ND Tex August 27, 2004).

7. Kadlec Medical Center v Lakeview Anesthesia Associates. No. Civ A 04-0997 (ED La May 19, 2005).

8. Smith MA, Marder RJ, Sheff R. Effective Peer Review: A Practical Guide to Contemporary Design. Marblehead, MA: HcPro Inc; 2005.