Featured column: Use "investigation" appropriately in your bylaws

The words you choose can make the difference between well-written bylaws that protect the medical staff and bylaws that set the medical staff up for disaster. In particular, medical staffs need to be cautious with "investigation" because the word is frequently and incorrectly used outside the context of investigation, fair hearing, and appeal.

I frequently see bylaws that state, “This committee is to investigate…” or “A practitioner will be investigated upon…” Investigation, in regard to bylaws, has a narrow definition. It describes the evaluative activity authorized by the medical executive committee (MEC) to determine whether it should recommend corrective action for a particular physician.
The National Practitioner Data Bank (NPDB) mandates that medical staffs report physicians for various reasons, such as:

• A physician’s privileges are terminated for reasons of incompetence or poor conduct
• A physician’s privileges are suspended for more than 30 days for reasons of incompetence or poor conduct
• A physician resigns while under investigation
  Thus, the decision to conduct an investigation should be carefully considered and only initiated by a committee (i.e., the MEC) rather than an individual

If a practitioner resigns while under routine peer review, or even while undergoing a focused review, it is not reportable because the physician is resigning while undergoing collegial performance improvement activities. Although the findings from these activities may eventually cause the peer review committee to recommend to the MEC that it consider taking corrective actions against the physician, the peer review committee’s activities are not considered an investigation.

Once the peer review committee recommends that the MEC take corrective action, the MEC may request that a separate subcommittee conduct a formal investigation to determine whether the recommendation is warranted. It is only at that point that the medical staff crosses the bright line between collegial performance improvement and corrective action. If this line is crossed, a practitioner’s resignation will lead to a mandatory report to the NPDB.

Use the word “evaluation” or “review” when describing collegial performance improvement in your bylaws. Reserve the word “investigation” for those rare occasions when the MEC truly needs this information and analysis to determine whether corrective action is warranted.

Do you have any great bylaws-writing tips or challenge you’d like to share with us? E-mail associate editor Liz Jones at ejones@hcpro.com.

Mary Hoppa, MD, MBA, CMSL
Senior Consultant
The Greeley Company