Credentialing, privileging, and litigation
Litigation from credentialing and privileging disputes is on the rise and has allowed physicians to challenge long-standing credentialing and privileging policies and processes. The following excerpt from Legal Strategies for MSPs & Physician Leaders describes the basics of civil litigation as it relates to credentialing.
It is important that medical staff leaders, MSPs, and all other hospital staff that participate in the process of credentialing and privileging, peer review, and other medical staff leadership functions have a clear understanding of the basics of civil litigation that affect such important processes.
Negligent credentialing, corporate negligence, and other types of negligence claims are civil litigation suits referred to as tort law. Torts may be intentional, such as an injury caused to another person during a physical altercation; or negligent, such as a significant misdiagnosis. A key point is that the harm must be “legally recognized.”
There are three basic types of torts:
- Intentional torts
- Negligence
- Strict liability
Most malpractice claims are based on negligence. Negligence is the type of tort that most people think of when they hear the term “malpractice.” Most courts define negligence using four elements that must be proved by the plaintiff:
- Duty, or the obligation that one person owes to another person. For example, a physician has a duty to only perform procedures that he or she is properly trained and qualified to perform; a hospital has a duty to provide safe, quality patient care.
- Breach of duty by a practitioner or an organization by failing to abide by a reasonable duty or standard of care; a determination that the practitioner/hospital failed to fulfill their duty to the patient.
- Cause of injury. The breach was the actual and proximate cause of the plaintiff’s injury. Proximate cause reflects whether the patient’s outcome was changed as a direct result of a breach in the standard of care. The most complicated part of proving negligence is proving proximate cause.
- Damages/harm the patient suffered (physical or emotional) as a result of the negligent act. Was the damage within the scope of duty owed by the practitioner/ hospital?
Duty is often described as what a reasonably prudent person would or would not do in similar circumstances. For example, a reasonably prudent physician would not perform an operation without the appropriate education, training, and competency.
Duty can also be imposed by statutes, an organization’s bylaws, etc. Failure to follow the organization’s bylaws can result in potential corporate negligence claims if the plaintiff is able to prove that the failure to follow the organization’s bylaws (or policies) “caused” the harm to the patient.