Staff Privileges, Credentialing and Peer Review

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 credentialing / privileging medical staff and engaging in an ongoing and thoughtful peer review process.

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. If you have been denied staff privileges or have had your staff privileges suspended or terminated, our attorneys can help you appeal the hospital’s decision and seek to get your medical staff privileges reinstated, or help you obtain hospitals privileges.

Health Care Credentialing & Staff Privileges

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 Galvenston (1927), the U.S. Supreme Court held physicians do not have a constitutional right to hospital staff privileges. 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 the hospital board is under, and the rights you are entitled to, depends, in part, on whether the hospital is owned by the government or a private entity. If the hospital is government-owned, they are engaged in state action and, therefore, are 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, supervision, etc. by medical staff, applicants, and the public at large. Types of staff privileging matters include the following:

Peer Review

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: 1) actions were taken with the reasonable belief they were in the furtherance of quality care, 2) reasonable efforts were made to obtain the necessary facts, 3) adequate notice and a hearing is provided, and 4) there is a reasonable belief that the action is warranted by the facts. 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.


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