Physician employment and peer review
As hospitals and health systems continue to employ more physicians, special considerations must be taken into account with the peer review process. Rachel Remaley, JD, a partner at Horty, Springer & Mattern, P.C., in Pittsburgh, Pennsylvania, recently discussed the peer review issues relevant to dealing with employed physicians.
Q: How are employers integrating into the peer review process?
A: Working with thousands of hospitals around the country, we see a variety of different methods for integrating the employer into hospital/medical staff peer review. That's because this is still a developing field. After all, physician employment by hospitals has only been on the steep rise for a decade or so. And, since 99% of the time, physicians who are on medical staff and are employed by health systems are great doctors, we've only had a small number of employed doctors with significant issues come through the peer review process. We just have not had that much opportunity to hash out some of these issues. As these cases come through, we see health systems creating, on an ad hoc basis, the best solutions they can.
For example, one issue that has been readily identified is the need for the employer to become aware of a peer review issue with an employed physician early in the peer review process—not after the issue has been in the review process for days, weeks, or months. But, how does the employer even come to know there is an issue? Through the traditional medical staff process, somebody might report a concern, whether it's done as a complaint, an incident report, or when a case "falls out" because something happens. The issue may be reported straight to the medical staff office through some peer review-protected reporting mechanism, or it might be reported directly to the department chair. There have been a variety of avenues for how that could get into the peer review system but not all of them would involve notifying the hospital itself, for example, through notification of a hospital representative like the CEO or the CMO.
Q: How do you recommend employers stay informed of peer review actions?
A: One method that we have seen be largely successful in integrating the employer into the peer review process is a triage body of medical staff leaders. Every time cases are referred into the process for medical staff peer review, this triage body looks at the concerns, determines if it's a conduct, clinical, or health issue, and then decides how to best handle it. This group might incorporate somebody who is a hospital representative, like the CMO which provides up-front notice to the hospital of the concern's existence and its status in the peer review process.
When there are conduct issues involving an employed physician, a lot of places are leaning toward having the employer getting intimately involved in the matter because the employer is in a better position of leverage to deal with conduct issues. So, the triage body could decide that all conduct issues involving an employed physician will be referred directly to the employer to be handled.
On the other hand, when the reported concern involves a clinical performance issue, even if the employer is notified at the outset that an issue has been reported, the employer is probably not particularly suited to review clinical issues. They don't necessarily have a team of physician reviewers lined up waiting to do case reviews. So, in that case, the employer might be on notice of the issue, but the triage body might decide that the issue is best sent through the medical staff process to be reviewed because that's where the expertise is to look at medical issues.
There are other cases when maybe the triage body asks itself not just if it's a clinical concern or a behavioral concern, but also whether the employer has a particularly strong interest in how the matter is addressed. As noted before, there are certain kinds of cases like sexual harassment claims, in which an employer would have a very significant interest because of the risk of liability for sexual harassment in the workplace. So in those cases, the employer might always want to step in and immediately deal with it under the employment contract.