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:
- Denial of staff privileges
- Suspension of staff privileges
- Termination of staff privileges
- National Practitioner Data Bank appeals