Professional Practice Evaluation

#NAMSS23 Recap: Avoid a Negligent Credentialing Lawsuit

By Jon Burroughs, JD, MD, MBA, FACHE, FAAPL

Court is an excellent place to avoid, and by doing credentialing and privileging by the book and by your North Star, you can easily do so.

A negligence lawsuit involves the following four elements:

1. A healthcare organization’s duty to the patient to exercise reasonable care in performing credentialing and privileging.
2. A breach in the duty of care by a failure to act as a reasonable healthcare organization should.
3. That breach leads to a direct (causative) and proximate (foreseeable) injury to a patient.
4. The patient suffers an injury because of the breach in the credentialing and privileging process.

If all four of those elements are met, the patient (plaintiff) has a cause of action against the healthcare system for a remedy to their damages or injuries.

The key is “reasonableness” and not perfection. Nobody expects an organization to have unreasonable standards. The expectations are simply to act as a reasonable organization under the same or similar circumstances as defined by expert testimony and agreed upon by a jury.

The following are some of the key takeaways from the NAMSS 47th Educational Conference & Exhibition in Orlando, Florida, that will hopefully enable you to stay within the “reasonableness” boundaries and avoid ever having to see the inside of a court of law as a party to a negligence claim.

Key Takeaways

1. Follow Hugh Greeley’s 5 Ps: Your policy should be to follow your policy. In the absence of a policy, your policy should be to create a policy. This sounds like bureaucratic mush, but it will keep you out of court more than any other advice I know. If you have a good credentialing and privileging process, follow it to the letter. If it is inadequate, modify or update it. If you don’t have any adequate guidance for a situation you encounter, create a new policy to address it. Standardizing your credentialing and privileging processes, particularly for high-risk situations (e.g., aging physician, impairment, new technology, low volume, poor performance, poor conduct, etc.) is the best way to stay out of trouble and be fair to everyone.

2. If you smell trouble, ask for help. The healthcare organization’s counsel is there for all leadership (with the CEO’s consent) and should be liberally utilized in potentially high-risk situations such as poor references, lying on an application, poor conduct or performance, or utilizing a dangerous technology without sufficient training or infrastructure. If your sixth sense tells you that there’s a problem, trust your instincts and create a protocol for going up your chain of command to ask for help. Never go at it alone!

3. Render problematic applications for appointment and reappointment incomplete until you and the medical staff are satisfied that you can move forward. If you cannot move forward without a probable denial, conference with the medical staff and management as to whether you’d like the applicant to “go away” or go to a fair hearing and, likely, civil litigation thereafter. Ninety-nine times out of 100, it is better for everyone for the candidate to simply go away. The easiest way to do that is to either render the application incomplete with inferences to the applicant that it is in their best interests to withdraw the application or to create eligibility criteria for membership or privileges that the applicant simply will not be able to meet (assuming you apply it equally to everyone). Don’t go to war unless you have no other options. It is generally neither worth the cost nor the aggravation.

4. Move your credentials committee and MEC to professional committees with compensated leaders who commit to develop expertise in credentialing and privileging. The national trend is to professionalize these committees with individuals who are committed to doing credentialing and privileging “right.” “Right” means performing these functions in good faith (putting the interests of the public first) and knowing what the regulations, laws, accreditation standards, and policies are to be in full compliance. Longer terms of office, reasonable compensation, and committed leaders will save you time, money, and heartache later. Finally, you want to work with people who put their commitment to the safety of patients and the public over politics and are willing to make the right call, even when it is not politically expedient.

Follow these simple suggestions, and you can avoid an unnecessary day in court for you and your organization. They will thank you in the end.