Synergy - March/April 2013 - 14

industry feature

suited to handle this issue because evaluating
quality of care is one of the medical staff’s
primary purposes, and thus, it is qualified
to do so . Of course, depending upon the
severity of the problem, a decision will need
to be made as to what information may be
shared with HR, with the recognition that
sharing such information will probably allow
the information to become discoverable .

will generally not maintain protection if it is
taken out of the MSS file and is given to HR .
Much of the information in a physician’s
peer review file is generally protected by
state peer review privilege (if the state
has such a privilege) . If MSS shares peer
review material with HR, that peer review
material has now been used for a non-peer
review purpose and, as a result, is no longer
protected information . The information is
now discoverable like most information
in an employee personnel file (note:
exceptions apply to certain information such
as protected health information) .
In assessing the type of information that is to
be shared, the hospital must be cognizant of
certain information that may not be shared
between MSS and HR, such as information
from the National Practitioner Data Bank
(NPDB) . Federal regulations provide that
NPDB information is confidential and may
not be disclosed, and there are penalties
associated with violations .
Once a decision has been made as to what
information belongs where and how/if such
information will be shared, the final, yet
vital step is to decide whether HR or MSS
should handle an issue when one arises .
One component of this decision is how to
triage issues as they arise, and the other
component is to assign certain types of
problems to each department . The hospital
should establish a process that will allow a
problem to be captured when the problem
first occurs and then directed to the
appropriate person/department . Answering
the question as to who is best suited to
handle the particular type of information is
crucial, and if that can be sorted out before
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SYNERGY March/april 2013

a problem arises, the hospital will better
manage these issues .
For example, consider the case of an
employed physician, Dr . A . A report was
filed that alleges sexual harassment by Dr . A
toward members of the hospital’s staff . What
office is best suited to handle this issue? HR
is likely the best starting point based upon
these facts: (1) the situation involves hospital
employees; (2) federal law generally does
not recognize a state’s peer review privilege
in response to claims of discrimination; (3)
HR may be better versed in conducting a
sexual harassment investigation; and (4)
the medical staff may not be as effective in
balancing the competing interests . Upon
completion of the investigation, HR can
then provide its final report to the MSS
who can then consider the issues from the
perspective of the physician’s medical staff
appointment and privileges .
Consider another example: a report was
filed against employed Dr . B . The report
states that Dr . B is non-communicative, loses
his temper quickly, and is otherwise just
obnoxious . The MSS may be the best starting
point for this matter based upon these facts:
(1) physicians often interact better with their
peers; and (2) this matter may be able to be
resolved informally through the Practitioner
Effectiveness Committee . The underlying
information in this matter will not be able
to be shared with HR but, provided the
problem is resolved, there is really no reason
why it would need to be .
In another example, consider the case of
employed Dr . C who has a clinical quality
of care concern . The MSS is probably best

And last, but certainly not least, consider
the case of employed Dr . D . A report
was filed against Dr . D that states Dr .
D is performing unnecessary surgeries
and is improperly sharing patient health
information . The facts and circumstances
may indicate that this issue needs to
go directly to the hospital’s compliance
officer, or a decision may be made that
the compliance officer and MSS need to
conduct concurrent reviews .
Hospitals should review each of the above
situations and consider: (1) who handles
each type of information; (2) how will the
analysis/investigation/work flow; and (3) how
does the state privilege impact the potential
to share information .
Once a plan has been developed, hospitals
should create a hospital policy (applicable
to all components of the hospital) rather
than a medical staff policy (which only has
authority over the medical staff) that sets
forth the process and also clarifies the roles
of each office and the interplay between
offices . Keep in mind that once the policy is
in place, the policy will only be effective if
all players are appropriately educated as to
their respective roles and responsibilities .
This may sound like a lot of work, but it is
an important component of the fundamental
goal of every healthcare entity — creation
of a system that effectively supports the
provision of quality care to patients, not
only in today’s world, but in the integrated
healthcare world of the near future . ■

Catherine M. Ballard and Jennifer M. Nelson
Carney are partners in the Health Care Practice
Group at Bricker & Eckler LLP in Columbus, Ohio.
i
Although this article deals with physicians, the principles are the
same for any other provider who is employed but who is also granted
appointment and privileges, e .g ., dentists, podiatrists, psychologists,
advance practice nurses, physicians assistants .
ii
An additional growing issue is the ability to establish a peer review
process in the employment setting . That issue is outside the scope of
this particular article .
Synergy - March/April 2013

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