Credentialing has always been an important part of the hiring process for physicians. As important as it is, it often remained in the background without much scrutiny. That’s beginning to change, and Legal Editor Frank Reardon explains how.
In the old days, if an important physician leader wanted someone hired, they got hired, without much question. And in some institutions, the tendency to rubber-stamp a recommendation lingers somewhat. But as scrutiny of the health care industry has increased, attention has also turned toward credentialing. This is the result of several factors.
One is a spate of recent high profile cases involving physician behavior where the court of public opinion felt that action should have been taken against these physicians long ago - based upon past behaviors. These incidents fed into the opinion that the medical profession took care of one another. Where was the credentialing process?
Similarly, more and more legal cases are being filed against physician groups and hospitals alleging negligent hiring. These cases represent a new theory of liability against the corporation and its officers in cases that were traditionally just run-of-the-mill medical malpractice. These cases allege that the physician group or hospital should not have hired the physician based upon his track record.
Again, these allegations feed off the high profile cases where doctors with a large number of medical malpractice claims move from hospital to hospital or state to state. For example, we recently had a medical malpractice case that was amended to add a count for negligent hiring against the hospital when it was learned that the physician being sued for a negligently performed surgery had “flunked” his boards several times.
The third factor that has increased public and professional scrutiny of the credentialing process is a recent trend attacking the peer review statutes in general. Traditionally, in Massachusetts and other states, peer review has been privileged; the theory being that it was best for society to have the profession police itself. In order to have a frank and open review of a case, the parties have to be sure that a patient’s lawyer or government agency cannot find out what they said. The credentialing process is part of that statutory protection in many states. As the courts erode the extent of the peer review privilege, the protection given to the credentialing process is also eroding.
This erosion seems to be tied to a phenomenon that we have seen in our practice. That is, the courts’ apparent desire to treat the medical profession like any other employee/employer. Hence they seem more willing than ever to take away any special protections they may have. This includes the physician’s personnel files.
Overall it seems more likely than ever that an institution or physician practice’s credentialing process for new physicians must stand up to scrutiny from the outside. As a result, it is very important that you ensure you have a credentialing process in place that you are proud of.
Obviously it is critical that you comply with whatever steps are outlined in your institutional credentialing policy—and document that you did—such as: confirming the prior staff privileges history of the applicant; checking with state and governmental agencies about his or her track record of disciplinary and litigation actions; and perhaps even checking with prior insurers to see if those companies have any information which would shed light on that individual’s ability to provide care in your institution. In some special circumstances you may want written verification of an applicant’s credentials.
“Rubber-stamping” is not acceptable. You need to dot your I’s and cross your T’s. Make sure that the person you are allowing to treat patients at your institution is someone you will be happy to support if a claim for negligent hiring or credentialing is raised against your organization.
