Synergy - July/August 2014 - 12

INDUSTRY FEATURE

breached these independent duties
owed directly to Browning and Mitchell
as patients at SEMC. The "negligent
credentialing" causes of action include
allegations that SEMC failed to exercise
prudence in granting or continuing staff
privileges, failed to conduct reasonable
peer review, failed to protect appellees
Mitchell and Browning from known
incompetent medical care, and
otherwise failed to save appellees
Mitchell and Browning from medical
treatment (surgery) of an unnecessary
and experimental nature.18
Since Browning, at least 27 states have found
a cause of action for negligent credentialing:
Alabama, Alaska, Arizona, California,
Colorado, Florida, Georgia, Hawaii, Illinois,
Indiana, Michigan, Minnesota, Mississippi,
New Mexico, New York, North Carolina,
Ohio, Oklahoma, Pennsylvania, Rhode Island,
Tennessee, Texas, Vermont, Washington,
West Virginia, Wisconsin, and Wyoming.
Two state courts have rejected negligent
credentialing claims: Delaware and Kansas.19
A review of some of these cases is in order:
In Frigo v. Silver Cross Hospital and Medical
Center,20 the Illinois Appellate Court upheld
a claim for negligent credentialing. This
case alleged negligence in performing a
bunionectomy on an ulcerated foot that
resulted in osteomyelitis and the subsequent
amputation of the foot. Under the hospital's
bylaws and rules, a podiatrist was required
to successfully complete a 12-month
podiatric surgical residency training
program, pass at least the written portion of
the board certification exam, and provide
documentation of having performed at least
30 procedures. The podiatrist performing
the surgery did not meet these criteria at
the time of appointment or with subsequent
reappointments.
In reviewing and upholding the finding of
negligence by the lower court, the appeals
court found three elements necessary for
negligent credentialing:
1. The hospital failed to meet the
standard of reasonable care in the
selection of the physician it granted
medical staff privileges to whose
treatment provided the basis for the
underlying medical malpractice claim.
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2. While practicing pursuant to
negligently granted medical staff
privileges, the physician breached the
applicable standard of care.
3. The negligent granting of medical staff
privileges was a proximate cause of
the plaintiff's injuries.21
In Insigna v. LaBella,22 the Supreme Court of
Florida dealt with the issue of an imposter
who appropriated a deceased physician's
identity and obtained hospital privileges in
the deceased physician's name. The court
said, "[W]e find, as a matter of public policy
that hospitals are in the best position to
protect their patients and, consequently,
have an independent duty to select and
retain competent independent physicians
seeking staff privileges."23
The Minnesota Supreme Court reversed
a ruling by the Court of Appeals in a case
involving knowledge of prior conduct by
a physician credentialed by the hospital.
The physician in question had 10 prior
malpractice suits, had been disciplined by
the state medical board, and had failed his
board certification exam.24 In upholding a
negligence claim, the Minnesota Supreme
Court indicated that "negligence could be
shown on the basis of what was actually
known or what should have been known at
the time of the credentialing decision."25
The Supreme Court of Idaho held that
"[h]olding that [the Idaho immunity statute]
grants immunity for credentialing decisions
would be an expansion of that statute
beyond its wording."26
The Massachusetts Superior Court recognized
the tort of negligent credentialing, finding
that "[a] hospital does have a duty to exercise
reasonable care in granting privileges to
physicians who practice medicine at the
hospital, and that its failure to do so will
result in harm to its patients."27
The Supreme Court of Utah held in 2010
that the state peer review statute does not
bar a claim for negligent credentialing.28
Following that decision, the legislature
passed and the governor signed a statute
that states, "It is the policy of this state that
the question of negligent credentialing,
as applied to health care providers in
malpractice suits, is not recognized as a
cause of action."29

While several new or relatively new Joint
Commission medical staff standards relate
to the credentialing process, two are most
pertinent to the negligent credentialing
question:
MS.4.10: The [hospital] collects
information regarding each practitioner's
current license status, training,
experience, competence, and ability
to perform the requested privilege.
MS.4.15: The decision to grant or
deny a privilege(s), and/or to renew
an existing privilege(s), is an objective,
evidenced-based process.
With those standards in mind, let us turn
our attention to strategies that will protect
the hospital against claims of negligent
credentialing. First and foremost, the
hospital must have a well-defined process
for determining professional competence,
which should include, but not be limited
to, an evidence-based evaluation program.
The hospital should review practice patterns,
patient complaints, morbidity and mortality
data, peer evaluations, specific cases, and
adverse outcomes. The hospital also should
collect performance data also to include
length of stay, readmissions, procedure
appropriateness, autopsy results, tissue analysis,
complaints from patients and employees,
and reports of disruptive behavior.
Obviously, the hospital should develop
policies and standards to include medical staff
bylaws and rules and regulations delineating
the process and standards for credentials,
appointment, and reappointment. The hospital
should have a good training program for
medical staff leadership, including heads of the
medical executive committee, the credentials
committee, and other peer review committees.
The hospital should ensure the board
understands its obligation to be actively
involved in the credentialing process
and provide appropriate oversight and
monitoring. After all, the governing board
has the final say regarding who has medical
staff membership and privileges. The hospital
also should make sure the board understands
that Joint Commission M.S. Standard 3.10
requires that the board provide oversight
and active monitoring. It is important to
understand that active monitoring means
ongoing, not periodic, monitoring. ■
Continued on page 14
Synergy - July/August 2014

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