Synergy - September/October 2014 - 14

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matters, "proctoring" outside the initial
or new privileging context, or engaging in
tasks other than observation and reporting,
is in fact "supervision."37 More specifically,
the AMA report defines supervision as
the "imposition, usually involuntary and
usually subsequent to an adverse event, of
significant consultation, oversight, or close
monitoring of a physician who has privileges
and whose clinical competence, cognitive
skills, procedural skills, or outcomes have
been called into question."38 Supervision,
moreover, is "usually limited to particular
competencies under question and may
apply to any site of service."39 Therefore, the
AMA report explains, "whereas proctoring
is a credentialing tool, supervision is an
element of peer review."40 The AMA report
notes that this distinction is driven in part by
relevant legal authorities, including the Clark
case and the NPDB Guidebook.41
Under this proctoring-supervision
dichotomy, one reaches divergent results
about the "proctors" in Clark and Brintley.
Because the physician in Clark was limited
to observing and reporting on another
physician for purposes of assessing the other
physician's qualifications for initial medical
staff privileges, the physician indeed acted as
a "proctor." But given their more expansive
authority to intervene and exert other forms
of control over a fully privileged medical
staff member's treatment, the physicians in
Brintley were "supervisors," despite their
description as proctors. As the AMA report
suggests and as noted above, the legal
importance of these distinctions is that one
form of oversight does not raise the risk of
incurring malpractice liability or having to
report to the NPDB (the oversight in Clark);
at a minimum, the other form does raise
these risks, along with the general risks of
liability that come with taking an action to
restrict a provider's privileges or credentials
(the oversight in Brintley).
Perhaps of most importance to hospitals,
The Joint Commission's conditions of
accreditation do not, contrary to common
perception, require proctoring or otherwise
delineate proctoring and other types of
provider oversight. Instead, they more
broadly require that all new members of
a medical staff and current members who
request new privileges, in addition to all
medical staff members with "performance
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issues," undergo a period of "focused
professional practice evaluation" (FPPE).42
"Direct observation" is one method of
FPPE review, but so are chart review,
simulation, and discussion with other
individuals involved in patient care.43 The
FPPE standard does not specifically discuss
when and under what circumstances FPPE
should entail intervention or other facets
of oversight that could raise malpractice
liability and NPDB reporting concerns. But
speaking to another recurring legal issue that
arises with proctoring-the issue of disparate
treatment in Brintley-the FPPE standard
does require consistent implementation of
FPPE in accordance with the criteria and
requirements set by the medical staff.44
In addition to the case law examples discussed
in this article, the foregoing sources are
useful in conceptualizing proctoring. Given
the varying vocabularies for proctoring and
the contexts in which these vocabularies are
used, conceptualization is key to creating a
framework within which interested parties can
implement proctoring policies and procedures.

Practical Considerations
Even within a single institution, proctoring
is rarely conducive to a one-size-fits-all
approach. Nevertheless, one can distill
generally applicable considerations from the
foregoing discussion to aid in constructing or
overhauling a medical staff's proctoring policy.
At the outset, all interested parties should
agree on a common vocabulary. Whether they
make the distinction between "proctoring"
and "supervision," as the AMA Council on
Medical Service suggests, or some other
terminology (e.g., "observational proctoring"
versus "interventional proctoring"), the parties
should identify and define the concepts they
will use to describe provider-to-provider
oversight. To this end, the parties should codify
their preferred terminology and definitions
in the medical staff bylaws or policies and
procedures so that everyone, from the
proctor to the personnel responsible for NPDB
reporting, has a central reference point.
Ideally, medical staffs should further ensure
that all proctors are medical staff members
on the medical staff committee responsible
for proctoring. This will facilitate the
maintenance of immunity from damages
under the HCQIA and also under analogous

state laws and other state laws that cloak
the records and proceedings of peer
review committees with confidentiality.45
If, however, a proctor is not a member of
the relevant medical staff committee, and
perhaps not even a member of the medical
staff, the medical staff committee should
make a formal request to the proctor to serve
in that capacity to maximize the likelihood of
protection under these laws. Assurance that
such protections are in place may have the
added effect of incentivizing an otherwisereluctant provider to serve as a proctor.
Indeed, where service as a proctor is not
a mandatory condition of medical staff
membership, interested parties should
create enough incentives to spur providers
to participate in proctoring arrangements. As
Clark indicates, concerns about malpractice
liability may be a major deterrent to
proctoring, but the reputational impact of
associating with a provider of questionable
competence or professionalism and the
time and energy commitment also may
discourage proctoring.46 Perhaps more than
anything else, remuneration of some kind by
the institution responsible for medical staff
credentialing and privileging functions may
alleviate these concerns. Such remuneration
could take the form of liability coverage
or a stipend, which CMA advises should
fall within fair-market-value range.47 Clark
and other case law suggest that payment
for proctoring may increase malpractice
liability exposure, but it is not evident that
such payment, by itself, is dispositive of
such liability.48
Finally, on an operational level, interested
parties should ensure the fair and consistent
implementation of proctorships. This does
not mean that all proctorships should be
alike, but it does mean that proctorships
should resemble each other in sufficiently
comparable circumstances and that an
articulable basis and supporting evidence for
a proctorship should exist. Especially where
medical staffs appoint specific individuals as
proctors, medical staffs should confirm that
proctors are free of bias or animus, such
as racial prejudice, toward the proctored
provider. And in the event that conflicts like
those in Brintley arise between the proctor
and the proctored provider, medical staffs
should have procedures in place to respond
to such conflicts and reassess the proctorship
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