Readying documentation for a negligent credentialing defense: Get your priorities straight

When faced with a negligent credentialing claim, two priorities are paramount regarding documents in the hospital’s or healthcare entity’s possession.

Priority 1: Preserve the integrity of documentation

Take steps to ensure that information does not go missing. In most organizations, a risk manager will place the relevant credentials file in a separate locked location while litigation is pending or ongoing.

It is also critical to make sure that documents are not altered once litigation is underway. Once litigation commences, relevant secured documents should only be viewed under circumstances where any alteration is impossible or would be immediately detected. For example, many medical staffs will only allow a secured document to be reviewed in the presence of a risk manager, MSP, hospital executive, or medical staff officer.

Loss or alteration of documents can lead to a legal claim of spoliation of evidence. This term refers to the intentional, reckless, or negligent withholding, hiding, alteration, fabrication, or destruction of evidence relevant to a legal proceeding. In some jurisdictions, intentional spoliation is considered a criminal act and can result in fines or jail time. Courts will sometimes rule that where spoliation has occurred, a jury can draw inferences or judgments that favor the opposing party. The theory is that when a party destroys or alters evidence, it may be reasonable to infer that the party had “consciousness of guilt” or other motivation to hide or misrepresent the evidence. Therefore, the jury/judge may conclude that the evidence would have been unfavorable to the party that acted improperly.

Priority 2: Maintain peer review privilege whenever possible

Handle credentialing documents in a confidential manner, and only release them to third parties at the direction of legal counsel. For example, the medical staff office should not release any documents in response to a subpoena or request for discovery without first checking with counsel. The hospital’s lawyers will typically move to block the disclosure of information that they believe is protected from such discovery.

While it may seem obvious not to release such information to opposing counsel without legal consultation, sometimes information is inappropriately released to parties working on the hospital’s defense. For example, the hospital may have a credentialing expert preparing to defend the actions of the hospital in court who requests the credentials file. This might seem perfectly appropriate to personnel in the medical staff office but could lead to the file’s discovery by opposing counsel. All requests for documents—regardless of the originating source—should be referred to hospital counsel.

In most cases, where information is to be shared with third parties, lawyers for the hospital will want the information sent through their legal office and not directly. This can help preserve another form of legal protection for documents referred to as attorney-client privilege, a privilege from discovery afforded to attorney work product. In the legal rules for the handling of documents, the work-product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel. It is a somewhat broader concept than attorney-client privilege, which generally includes only communications between an attorney and a client.

Source: Negligent Credentialing: Strategies for Reducing Hospital Risk