OUTPATIENT RISKS

OUTPATIENT RISKS

The Risk Solutions Magazine Summer 2015

WHATS NEXT IN PATIENTSAFETY

PEERINGWWere a clinic. We dont need to do peer reviews. Thats been the prevailing attitude of clinic administrators and practitioners for many years. But its a mindset thats beginning to change.

The reason? The litigation landscape is expanding to include parties previously ignored by those seeking legal compensation for adverse medical outcomes.

Increasingly, more people in more places are being held liable, and that includes clinics, says David Glaser, an attorney at Minnesota-based law firm Fredrikson & Byron. Glaser has noticed an increasing number of clinics implementing peer review processes. Some of the larger practices might even have a full-time risk manager or quality assurance manager, who might work proactively with data mining to examine disparate practice patterns, he says.

The goal: improving qualityAccording to the American Medical Association, medical peer reviews exist to promote the highest quality of medical care, as well as patient safety. Glaser says everyone involved in a peer review should begin with the understanding that the process is intended to improve overall organizational quality within the clinic. And while a peer review can become emotionally charged, Glaser says that having an established methodology in place will ultimately be helpful.

If youre following a procedure for peer review thats already established, that process can facilitate some awkward but necessary conversations, he says.

Be aware of state lawsOne common misconception is that there is protection to prevent embarrassment by those who might offer criticism

of a colleague during a peer review. Thats simply not the case, Glaser says.

Most laws allow the reviewed practitioner access to the data, he explains. What laws are designed to prevent is the disclosure of information to a patient who could use critical comments as evidence. There is some protection against a defamation claim, as long as the statement is made in good faith, but the statement wont be a secret from the subject physician.

In addition, while some call peer review a privilege, it is perhaps better described as a protection. A privilege can generally be waived. In many states, it is a crime to disclose peer review data, so it is not like many other privileges under the law.

Glaser also says that state laws vary widely and can be difficult to interpret. Its important to remember they

were written by members of the legislature, not by doctors, he says. These laws typically have highly technical requirements, and they generally protect only deliberations and documents created by the process. And they may or may not allow medical boards access to data for example, Kansas, Wisconsin and South Dakota explicitly allow board access.

Even the membership of review committees is sometimes dictated by state law. For example, in South Dakota, in a hospital, you can have a peer review committee consist of physicians or administrators, or both, Glaser says. In a clinic, the committee can only consist of physicians. But in Minnesota, its OK to have administrators on a clinic committee.

A growing number of providers at outpatient treatment locations are finding value in formalized peer review processes.

INWARD

OUTPATIENT RISKS

18 / Brink / Summer 2015

PEERINGIntellectual consistencyWhile Glaser feels that most reviews should be an internal process, he suggests there may be times when an outside evaluator is helpful, especially if litigation or employment action is being considered. You can hire a doctor as an independent reviewer, but make sure its someone who doesnt know any of the players involved and has no allies in the organization, Glaser says.

And its important to review your review in every peer review that is conducted. You need to ask yourselves if youre being fair and intellectually consistent, he says. You must ensure youre treating all practitioners equally. For example, if you fire a physician and dont report it to the state medical board, that doctor could come back and claim the termination was for another reason, perhaps one in which he or she receives legal protection, such as age or gender. If you didnt make

a report to the state medical board initially, its a lot harder to go back and say the firing was really about quality of care.

Reviewers should familiarize themselves with mandatory reporting obligations to their state medical board, the National Practitioner Data Bank (NPDB), insurers, accountable care organizations (ACOs)and others. Furthermore, Glaser urges everyone to keep an open mind during a peer review. Remaining open to all possibilities, including non-payment for adverse events, will likely increase the value of the candid discussions that occur within the process, he says.

Well worth the effortEven though conducting peer reviews can add to administrative tasks, taking away time from clinic activity and causing occasional conflict or awkwardness among colleagues, Glaser is still a

proponent of the process. Its an excellent tool as part of overall risk management, he says. Having regular peer reviews is a good idea, for the simple reason that we all learn from our mistakes, and we all need to engage in healthy self-examination if were going to get better.

JULIE KENDRICKis a freelance writer in Minneapolis, Minn.

Starting a peer review process? Consider these questions:

/ Will you wait until there is an adverse clinic incident, or will you conduct peer reviews randomly?

/ When will you use a summary suspension?

/ What is your definition of an investigation? Remember, resignation during an investigation may be reportable.

/ Will you use peer review for your hiring process? For evaluating a new employee? For behavioral issues?

/ When will you tell the subject that he or she is under review?

/ Who will conduct the investigation?

First-century peer review The first documented description of peer review is in the Ethics of the Physician, written by Ishap bin Ali al-Rahawi, a Syrian physician who lived from 854931 A.D. The first-century physician encouraged the creation of duplicate notes during patient consultations, and those notes were reviewed by a local medical council of other physicians. If their review was negative, the practicing physician could face a lawsuit from a maltreated patient.

Source: Ray Spier. The history of the peer-review process. Trends in Biotechnology. 2002;20(8): 357-358.

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