Defending against legal actions brought by patients for negligent peer review
In recent years, it has become common for patients to sue a hospital for negligent peer review when they bring a malpractice action against a physician. Their claim generally is that inadequate medical staff monitoring of an incompetent physician allowed a bad outcome in their care. These are referred to as corporate negligent suits, because the argument is that a properly run hospital would not have admitted or retained an incompetent practitioner on its medical staff. Claims of inadequate proctoring may be made to bolster such allegations and can have an impact where there was no FPPE, or where the focused review process appears to have been defective in some way and failed to detect substandard practice.
Some plaintiffs’ attorneys argue that all physicians should undergo a period of concurrent proctoring when they initially receive medical staff privileges. How else, they argue, can an institution truly know whether a physician is competent to exercise the privileges granted? These lawyers use the fact of a bad outcome (the event that has led to the malpractice suit) as proof that the need for proctoring existed. If proctoring had been properly undertaken, they argue, the patient might never have been injured. Of course, The Joint Commission and other accrediting agencies require that every physician newly granted privileges at a hospital undergo a focused review process. However, this confirmation of competence in granted privileges is typically carried out using a variety of vetting techniques, and concurrent proctoring is only one of the available methods.
Therefore, in creating credentialing policies and procedures, the medical staff should be careful not to imply that all newly privileged clinicians will be concurrently proctored if this is not the uniform practice at the institution. Plaintiffs’ attorneys often criticize medical staffs for failure to do concurrent proctoring if their policies do not make it clear that other forms of proctoring are acceptable forms of monitoring performance and establishing current competency.