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Legal Reports: Courts Expect Careful Credentialing

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Legal Reports: Courts Expect Careful Credentialing

By Tom A. Augello, CRICO

Related to: Ambulatory, Emergency Medicine, Primary Care, Obstetrics, Other Specialties, Surgery

More states add “negligent credentialing” to the liability for hospitals and other groups that don’t adequately review a provider’s past.

Commentators

  • John Cassidy, Esq.; Ficksman & Conley; Boston, MA
     

Transcript

Hospitals and group practices are under increasing pressure to verify the credentials of providers who work in their facilities. Attorney John Cassidy of Ficksman and Conley in Boston has more, in this month’s Legal Report.

Public expectations are changing in regards to what is reasonable for a hospital, an HMO or even a group practice to be expected to know about physicians who work in their facilities. Minnesota has recently joined twenty-seven other states in recognizing a cause of action against hospitals for negligent credentialing; only two states, Delaware and Kansas, have rejected such a cause of action and twenty states have not yet weighed in.

In the Minnesota case of  Larson v. St. Francis Medical Center, the plaintiff initially sued two physicians who were brothers, James P. and Paul S. Wasemiller. The allegation was failure to properly diagnose and treat complications of gastric bypass surgery.  After learning that the principal surgeon, James Wasemiller, failed his surgical board exams three times and had several other lawsuits filed against him, the plaintiff added a claim against the St. Francis Medical Center for negligent credentialing.                           

The Minnesota District Court, the trial court in which the case was pending, sent two questions to the Court of Appeals.  The first question was whether Minnesota recognizes an action for negligent credentialing.  The Appeals Court held that Minnesota does not recognize a cause of action for negligent credentialing. The court noted that the confidentiality mandate of the Minnesota peer review statute ‘limits the evidence that could be used to support or defend against such a claim in a manner that appears to affect the fundamental fairness of recognizing such a claim.”
The second certified question asked whether the Minnesota peer review statute granted hospitals  immunity from liability or a limit on their liability for a claim of negligent credentialing. The Appeals Court held that the statute does not grant immunity, but does limit the liability of a credentialing body to situations in which it acted without having a reasonable factual basis to support its action.

Neither party appealed the answer to the second question about immunity, but the Larsons appealed the other question to the Minnesota Supreme Court—the question of whether patients can sue hospitals for negligent credentialing. 

The Minnesota Supreme Court agreed with the plaintiff and reversed the lower appeals court, establishing a cause of action for negligent credentialing in Minnesota, and adding to the list of states in America that allow these lawsuits.

The answers to these two questions embody the inherent friction between peer review statutes, which are intended to enhance the credentialing process by making it confidential, and claims for negligent credentialing, which are designed to expose deficiencies in the credentialing of a particular physician.

The practical result of establishing a cause of action for negligent credentialing is that hospitals and other credentialing bodies will become more stringent.  Physicians can enhance their chances of being credentialed by carefully completing the application.  Be sure all of the requested information is clearly set forth.  References to other documents, such as CV’s, are increasingly frowned upon and will almost certainly delay the application.  Any gaps in prior credentials should be identified and explained. Those issuing credentials will want to feel confident that their “action or recommendation” is being made with the “reasonable belief” that it is “warranted by facts known to it after reasonable efforts to ascertain the facts” were made.  Applications which are incomplete or bear the earmarks of sloppiness or evasiveness will not instill the necessary confidence and will be either denied or delayed.

We must expect that as more public attention is focused on the credentialing process, hospitals and other credentialing bodies, such as HMO’s and group practices, will enact and, perhaps more importantly, enforce tighter credentialing procedures. The days of hospitals automatically recredentialing a physician based upon long tenure or dedication to the institution are likely coming to an end. Likewise, applications for so-called emergency or temporary privileges will receive closer scrutiny. In this way, patient safety concerns are paramount, as they should be.

 


November 1, 2007
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