The traditional structure of a hospital and its relationship to its medical staff is changing. However, whether the hospital is private or public, two core responsibilities remain ever constant: The hospital board of directors, or its equivalent, has the primary responsibility of both 1) credentialing/privileging medical staff, and 2) engaging in an ongoing and thoughtful peer review process.
Credentialing refers to the board’s role in documenting the medical staff applicant’s licensure, education, skills, knowledge, training and ability to practice. Privileging refers to the scope and content of professional services the physician is authorized to provide within the hospital.
In Hayman v Galveston (1927), the U.S. Supreme Court held that physicians do not have a constitutional right to hospital staff privileges. However, not having a right to staff privileges does not mean you are not entitled to due process and other protections.
To determine the level of scrutiny in which the hospital board is under, and the rights for which you are entitled, depends in part on whether the hospital is owned by the government or a private entity.
If the hospital is government owned, it is engaged in state action and, therefore, is considered a state actor. As a state actor, the hospital board is required to follow the Fourteenth Amendment, thus ensuring that persons applying for staff privileges are afforded due process and equal protection.
However, private hospitals are not required to follow the twists and turns of the Fourteenth Amendment during either the credentialing or privileging process.
Private hospitals, nonetheless, are required by Medicare Conditions of Participation (CoP), the Affordable Care Act of 2010 (ACA), state law and the Joint Commission to evaluate applicants fairly. This fair process ensures medical staff applicants are afforded basic safeguards of reasonable and consistent review, notice of any deficiencies and an opportunity for a fair hearing before the board. A fair hearing generally requires the ability to present evidence to establish your credentials and appropriate level of privileges.
The board’s decision regarding credentialing and/or privileges should be weighed against the common good of the hospital and public. The board’s core function is to ensure the safety of patients and the delivery of high-quality medical care to the public.
If the board follows the applicable guidelines and demonstrates the process was fair, the courts will generally uphold the decision of the hospital board. However, there are many decisions made by hospital boards that lose sight of the core function of providing high-quality medical staff to ensure quality medical care. Often bias, economic decisions and unreasonable attitudes leak into the process, creating potential liability on behalf of the board.
Hospital boards can be sued for issues relating to the credentialing and privileging process, training and supervision by medical staff, applicants and the public at large.
Types of staff privileging matters include the following:
The peer review process is a core function of the hospital board and requires the board to establish a process by which medical staff members are regularly reviewed and monitored.
The Health Care Quality Improvement Act of 1986 (HCQIA) (42 U.S.C. § 11101 et seq.) requires each hospital board to establish a peer review process. The peer review process and the National Practitioner Data Bank (NPDB) are designed to work together and ensure that incompetent medical staff is identified, remediated if possible, and when necessary reported to the NPDB.
Those persons participating in the peer review process are afforded immunity (see section 11111(a)) if the following processes are followed:
Often the peer review process is clouded by ill-will, economic bias and personal dislike. In those cases, the decision-maker(s) and the decision may not be protected by the court.
If the peer review committee takes action based on unfairness, in furtherance of their own collective interests, personal bias or discriminatory motive, they may be subject to antitrust lawsuits, economic damages, defamation/libel and other tort-based damages.
Whether you are a medical staff applicant or a medical staff member, you are entitled to certain basic rights. These rights include the right to be represented by counsel, the right to present evidence, and often the right to a fair and impartial hearing with the ability to call witnesses and cross-examine witnesses.
For 35 years, we at Chapman Law Group have focused solely on physicians, pain management specialists, nurses and nurse practitioners, and other licensed healthcare professionals within the healthcare sector across the U.S., for matters including staff privileges, peer review, and credentialing.
Chapman Law Group has four national offices: Detroit, Michigan; Miami and Sarasota, Florida; and Los Angeles/Southern California. We are here to advise you on the best defense for your situation. Call us for a consultation.
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Physicians who fail to follow this CMS rule could face credential revocation for up to five years — and a medical career essentially destroyed.
If you are confronted with a challenge to your hospital staff privileges or by a potential adverse hospital credentialing matter, the professional licensing and regulatory affairs attorneys at Chapman Law Group are here for you.
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