Feeling personally attacked during peer review inquiries, EPs might claim the investigation is a sham, is harassment, or that the investigator holds a personal grudge.
However, an emotional response is detrimental to the EP, cautions Karin M. Zaner, JD, a director at Dallas-based Kane Russell Coleman & Logan PC, who frequently represents physicians facing peer review investigations.
“You don’t want your explanations to signal to a third party that you are a problematic person,” she explains. “The reality is that peer review happens all the time.”
Zaner says the best approach is “to be the most reasonable, credible person in the room. If a nurse is crying and pointing fingers at you, you need not respond in kind.”
A better approach is for EPs to answer all possible questions anyone could have regarding the allegation that they didn’t meet the standard of care.
“The worst responses I see are chock full of finger pointing,” Zaner says. “If you are hostile and blaming other people, then it looks like a fight.”
Taking an adversarial approach may be tempting, but it can backfire quickly. “The reality is, the more you fight, the more they fight back,” Zaner says. Instead, EPs should give all the information that’s needed to provide assurance. “In the long run, this is better because you will end up with more of a benign report,” Zaner adds.
Here are some actions by EPs that have needlessly complicated the peer review process:
- The EP resigns in the middle of an investigation.
“That’s the worst thing you can do,” Zaner says. Leaving in the middle of an investigation, or even an inquiry, has an unintended consequence. It means the hospital then is required to report it to the National Practitioner Data Bank.
“What you want to do is hold on, don’t panic, and get some legal help,” Zaner says. It might be that the hospital ultimately closes the case against the EP. If the EP wants to resign at that point, he or she can do so without triggering a Data Bank report.
“Reporting stays with you until the end of your career. The stakes are really high, because it’s a permanent effect on your record,” Zaner warns.
- The EP refuses to cooperate with the committee’s recommendations.
“The best story you can have is that the hospital raised the issue and the EP completed whatever it was they wanted, and the hospital found no issues,” Zaner says. The hospital might ask the EP to have a certain number of cases retrospectively reviewed, require proctoring, require preapproval for cases, or sign a behavior agreement. “The best thing to do is cooperate with the hospital and give them the assurances they need,” Zaner says. “But get legal assistance, as these often are reportable.”
Once the required action is completed, the matter might be resolved. “The EP gets a seal of approval from the entity that raised the issue in the first place. That is your golden standard. To anyone looking at it in the future, it just looks like a matter that was dealt with,” Zaner says.
- The EP tries to go it alone.
As soon as the EP knows a peer review is focused on him or her, says Zaner, “a call to a qualified peer review lawyer absolutely makes sense.”
The attorney can make it less likely that privileges or credentialing are curtailed or lost, or mitigate the effect of reporting that may occur as a result of actions taken against the EP. “If I had a choice, I would rather have an EP with a few minor malpractice settlements than action taken on privileges,” Zaner advises. “That is a more serious issue.”
A well-informed EP is more likely to respond in a way that’s helpful, rather than hurtful. “When the whole process is mysterious, that causes the EP to be nervous and lash out,” Zaner says. The key is to come at it with a reasonable, credible explanation for what happened, and willingness to collegially work things out, if possible.
“If you know you had a bad month in the ER, and situations happened that were difficult, it might just be something that needs to be explained,” Zaner notes.
There is a chance that the EP’s explanation might be sufficient, and can clarify what happened. “If it’s a tech, nurse, or other EP accusing you, you can say, ‘I understand how this may have been misperceived, but here’s what happened,’” Zaner suggests. “It might go away, or might end up being something less draconian than when they misunderstand the facts.”
Since it’s not a malpractice case, EPs facing peer review typically don’t reach out to a lawyer right away. Once they do, it might be too late to avoid serious repercussions. “If you only call at the end of the process, you have missed a lot of opportunities to resolve it beforehand,” Zaner says. “Any negative actions taken are now set in stone.”
- The EP threatens a defamation suit, only to find out there’s no legal ground to stand on.
A common reaction from EPs is, “They shouldn’t be able to do that.”
“But the reality is that in the courts, in the area of peer review, there is so much immunity and privilege,” Zaner says. “Your lawsuit after the fact is not one you want to bring.”
Not only will the lawsuit be dismissed due to immunity, the EP might also end up liable for the hospital’s attorney fees. “It’s a real David and Goliath situation that does not bode well,” Zaner warns. “It leaves you in a place with no good options when it all goes south.”
- Karin M. Zaner, JD, Director, Kane Russell Coleman & Logan PC, Dallas. Phone: (214) 777-4203. Cell: (214) 236-9956. Fax: (214) 777-4299. Email: firstname.lastname@example.org.