Cases & Commentaries

Collegiality vs. Competence

Commentary By Todd Sagin, MD, JD

The Case

A 91-year-old man with coronary artery disease
was taken to the operating room (OR) for semi-elective repair of a
10-cm abdominal aortic aneurysm (AAA). The procedure was relatively
uneventful, and the infrarenal aneurysm was repaired. The
patient’s estimated blood loss was more than 1000 cc, and he
received 2-3 units of cell saver blood. As the fascia was being
closed, the surgeon noted pooling of blood in the surgical field.
The patient’s abdomen was re-explored, at which time he began
bleeding profusely from multiple sites, including the surgical
wound, endotracheal tube, nasogastric tube, and intravenous
catheter sites, all consistent with the development of disseminated
intravascular coagulation (DIC).

The surgeon mechanically reinforced the
anastomosis sites, but they continued to bleed. Surgeons assisting
with the case, as well as the anesthesiologist, recommended packing
and closing the abdomen to tamponade the bleeding and transferring
the patient to the ICU for further medical management. The
attending surgeon opted to give blood products and continued to
attempt local control of the bleeding with little success. The
patient was finally closed and transferred to the ICU 6 hours after
the DIC was first noted. He had received more than 20 units of
blood products and was acidotic on multiple pressors. At this time,
the attending surgeon left the hospital, and the patient was
managed primarily by the chief resident.

The next morning, the patient continued to
require multiple pressors and a bicarbonate drip and had fixed
pupils. The attending surgeon opted to bring the patient back to
the OR for a second look. He found clotted blood but no treatable
lesions; no interventions were undertaken. The patient subsequently
had progressive hypotension, did not respond to resuscitative
measures, and died.

The attending surgeon was known to have had
multiple surgical complications in previous cases, and had been
formally investigated twice for inability to meet the standard of
care. Given his seniority, longevity, and respected position in the
medical center, his credentials were never formally restricted;
rather, it was informally requested that he not perform certain
procedures, including AAA repair.

The Commentary

This scenario raises many questions regarding the
clinical management of complications in this unfortunate patient.
However, the focus of this case discussion is on the
hospital’s responsibility to protect patients through
rigorous credentialing of its clinical practitioners.

The case presentation tells us that this
attending surgeon has had multiple surgical complications in his
past. Enough concern was raised about the appropriateness of care
in these instances that the surgeon had been the subject of two
formal investigations. Such investigations are typically carried
out when compelling evidence convinces the medical staff to
consider restricting or terminating a practitioner’s clinical
privileges. The scenario implies that, despite evidence that should
have resulted in such restrictions, they were not imposed in
deference to the surgeon’s “seniority, longevity, and
respected position in the medical center.” Such deference
places collegiality above the institution’s duty to protect
patients, and it is an all-too-common practice.

The informal understanding described in the
scenario fails patients in several regards. By leaving this
physician’s privileges intact, there is a risk that he may
deviate from the agreement without OR personnel realizing he is
violating an informal restriction. Hospitals should have in place a
mechanism whereby OR staff cross-check scheduled procedures against
the attending surgeon’s approved privileges.(1) In this circumstance, such a check would have shown a
surgeon still holding his vascular surgery privileges, including
the privilege to repair AAAs. The failure to formally restrict this
surgeon’s privileges also means that his clinical
deficiencies are not reported to the National Practitioner Data
Bank (NPDB).(2) The
NPDB was created to protect patients by assuring that concerns
regarding clinical competence and conduct serious enough to cause
one institution to restrict or terminate privileges are broadly
disseminated to other institutions. The informal nature of the
agreement reached with this surgeon may well have been motivated by
a desire to avoid such an NPDB filing—a very common
tactic used by medical staffs, which puts patients at risk at other
institutions that may be unaware of the practitioner’s
clinical deficiencies. Various government reports on the
effectiveness of the NPDB have highlighted considerable
under-reporting, which significantly undermines the utility of this
tool.(3,4)

The decision of this hospital’s medical
executive committee (MEC) to construct an approach to this
surgeon’s deficiencies that did not involve privilege
restrictions is a violation of Medicare’s Conditions of
Participation (5) and
policies of the Joint Commission on Accreditation of Healthcare
Organizations (JCAHO).(1)
Both bodies clearly require that privileges be granted based on
evidence of adequate education, training, experience, and current
competence. Peer review activities at this hospital clearly found
this surgeon not currently competent to perform AAA
procedures, notwithstanding a presumably long history of prior
success. In the face of this evidence, it is the duty of the
hospital board, acting on recommendations of the medical staff
credentialing and executive committees, to appropriately restrict
the doctor’s privileges.

It is certainly difficult to tell a respected
colleague who, after arduous medical training, has spent years
diligently serving patients and the medical community that he no
longer performs at a level that warrants a grant of full clinical
privileges. Fellow physicians are acutely aware that such a
determination is now likely to be widely disseminated (at the
least, through the NPDB), with serious undesirable consequences for
that physician's career. Medical staff leaders may also be fearful
that their colleague will sue them, claiming that privilege
restrictions were placed for motives other than the assurance of
quality care. Such a concern is not unfounded: many medical staff
members are aware of cases such as Poliner v. Presbyterian
Hospital of Dallas
(6), in
which the jury returned a stunning judgment of $366 million against
the hospital, the chair of internal medicine, the chief of
cardiology, and the director of the catheterization laboratory. In
this case, a jury was convinced that a suspension of privileges was
imposed on Dr. Poliner to interfere with his business rather than
to promote patient safety.

The alternative strategy—allowing a culture
of collegiality to trump a culture of excellence and patient
protection—is not without risk from the medicolegal
perspective. Recent years have seen rapid growth in lawsuits
against hospitals and medical staffs for negligent credentialing
and peer review. While most of these suits seem to be fishing
expeditions by hopeful plaintiff attorneys, increasing numbers of
judgments have gone against hospitals. In addition, emerging legal
precedent would allow a hospital that credentialed a member of its
medical staff to sue other hospitals or physicians who did not
appropriately reveal clinical concerns about that clinician when
asked for references. In Kadlec Medical Center v. Lakeview
Anesthesia Associates
(7),
the claim is that the defendants failed to inform Kadlec Medical
Center or the Washington State Medical Board about the
applicant’s dismissal for drug diversion and history of
practice while impaired, despite inquiries about the
clinician’s competence. The United States District Court for
the Eastern District of Louisiana refused to dismiss the case and
held that there was a duty to disclose that appears to have been
breached. Litigation in this case is ongoing.

Medical staff and board leaders are often unaware
of the requirements of rigorous credentialing, the legal
requirements of NPDB reporting, and the details of credentialing
and privileging regulatory standards. All hospitals should have
robust programs to thoroughly educate members of credentialing and
peer review committees on their responsibilities and the best
practices for carrying out their duties. When feasible, members of
credentials committees should serve terms long enough to accumulate
experience and institutional memory of prior peer review incidents
or interventions. In addition, many medical staffs have moved to
create centralized multidisciplinary peer review committees that
are responsible to make sure this work is done
effectively.(8)
Peer review performed at the department level has a poor track
record in many hospitals. Too often, asking close colleagues,
partners, or direct competitors to perform peer review results in
an ineffective process and avoidance of uncomfortable collegial
interventions or needed corrective action.

Peer review is perceived by most physicians as a
threatening, potentially punitive undertaking. Doctors often resist
imposing practice restrictions on colleagues because they perceive
such restrictions as harmful to members of their professional
fraternity. They fail in these circumstances to consider not only
the potential harm to patients, but also the harm to a colleague
who goes on to injure a patient and who must live with the
consequences—such as guilt and depression, lawsuits, and the
lost confidence of colleagues and patients. Physicians today feel
besieged by the world outside the medical community. The epidemic
of litigation; unwelcome scrutiny by governments, payers,
employers, and patients; and incessant and escalating demands on
their time and resources motivate physicians to “circle the
wagons” and “watch our backs.” However, truly
caring about our colleagues means performing peer review vigorously
and with integrity. The challenge for our medical staff leaders is
to build a non-punitive culture of excellence (8) in our hospitals that supports physicians, but never
at the expense of patients.

Take-Home Points

  • Federal statutes and JCAHO standards
    require that a physician’s privileges be restricted or
    terminated when that clinician no longer possesses current
    competence in a procedure(s) for which privileges have been
    granted.
  • Efforts to avoid appropriate privilege
    restrictions put patients at risk and do a disservice to the
    physicians involved as well as the medical communities in which
    they practice.
  • Medical staff leaders should be
    adequately trained in the challenges and nuances of effective
    credentialing and peer review.
  • Medical staffs should strive to create a
    culture of excellence and patient safety and move away from the
    historic perception of peer review as a punitive activity.

Todd Sagin, MD, JD
Vice President and National Medical Director
The Greeley Company

References

1. 2006 Comprehensive Accreditation Manual for
Hospitals: The Official Handbook (CAMH). Oak Brook Terrace, IL:
Joint Commission Resources; 2006.

2. National Practitioner Data Bank. NPDB-HIPDB
Web site. Available at:
http://www.npdb-hipdb.com. Accessed
February 27, 2006.

3. Managed Care Organization Nonreporting to the
National Practitioner Data Bank: A Signal for Broader Concern.
Washington, DC: Office of the Inspector General, US Dept of Health
and Human Services; May 2001. Publication OEI-01-99-00690.
Available at:
http://oig.hhs.gov/oei/reports/oei-01-99-00690.pdf.
Accessed February 27, 2006.

4. HHS Agencies' Compliance with the National
Practitioner Data Bank Malpractice Reporting Policy. Washington,
DC: Office of the Inspector General, US Dept of Health and Human
Services; October 11, 2005. Publication OEI-12-04-00310. Available
at:
http://oig.hhs.gov/oei/reports/oei-12-04-00310.pdf.
Accessed February 27, 2006.

5. The CMS' Interpretive Guidelines for the
Hospital Conditions of Participation. Marblehead, MA: HcPro Inc;
2005.

6. Poliner v Texas Health Systems. No.
3-00-CV-1007-P (ND Tex August 27, 2004).

7. Kadlec Medical Center v Lakeview Anesthesia
Associates
. No. Civ A 04-0997 (ED La May 19, 2005).

8. Smith MA, Marder RJ, Sheff R. Effective Peer
Review: A Practical Guide to Contemporary Design. Marblehead, MA:
HcPro Inc; 2005.