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    MEDICAL LEGAL ISSUESMEDICAL LEGAL ISSUES

    MARCY AUCLAIRMARCY AUCLAIRATTORNEY ADVISOR FOR HEALTH CARE LAWATTORNEY ADVISOR FOR HEALTH CARE LAW

    BUREAU OF MEDICINE AND SURGERYBUREAU OF MEDICINE AND SURGERY

    Phone: (202) 762Phone: (202) 762--30893089

    Email:Email: [email protected]@med.navy.mil

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    MEDICAL MALPRACTICEMEDICAL MALPRACTICE

    Why Claims are Filed:Why Claims are Filed:

    Upset with the SystemUpset with the System

    Devastating InjuriesDevastating Injuries

    Unreasonable ExpectationsUnreasonable Expectations

    Unexpected ResultsUnexpected Results

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    ELEMENTS OFELEMENTS OF

    NEGLIGENCENEGLIGENCE DutyDuty

    Breach of DutyBreach of Duty

    Resulting in an InjuryResulting in an Injury

    CausationCausation

    Reasonably ForeseeableReasonably Foreseeable DamagesDamages

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    DUTYDUTY Due CareDue Care Lowest Acceptable StandardLowest Acceptable Standard

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    Each physician may with reason and

    fairness be expected to possess or have

    reasonable access to such medical knowledge

    as is commonly possessed or reasonably

    available to minimally competent physicians

    in the same specialty or general field of

    practice throughout the United States, to

    have a realistic understanding of the

    limitations of his or her knowledge or

    competence, and in general to exercise

    minimally adequate medical judgment.

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    Establishing Standard of CareEstablishing Standard of Care

    Locality Rule (old rule)Locality Rule (old rule)

    Standard of Care established byStandard of Care established bypractice in a particular geographicpractice in a particular geographic

    areaarea

    Problem: Difficulty in getting Drs.Problem: Difficulty in getting Drs.

    to testify against their peers.to testify against their peers.

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    Establishing Standard of CareEstablishing Standard of Care

    National StandardNational Standard

    Presumes basic level of medicalPresumes basic level of medicaltraining and practicetraining and practice

    Resource Based Caveat:Resource Based Caveat:Standard of Care is expanded orStandard of Care is expanded or

    limited by available resourceslimited by available resources

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    Proving the Standard of CareProving the Standard of Care Expert WitnessesExpert Witnesses: Standard of Care is: Standard of Care is

    established by professionals in the field.established by professionals in the field.

    Easy to qualify as a witness; question isEasy to qualify as a witness; question is

    how much weight will jury give thehow much weight will jury give the

    testimony...testimony...

    Jury hears testimony from opposingJury hears testimony from opposingexpert witnesses and then must chooseexpert witnesses and then must choose

    which is rightwhich is right

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    Federal Tort Claims ActFederal Tort Claims Act

    28 U.S.C. 1346(b)28 U.S.C. 1346(b)...the District Courts.... shall have exclusive...the District Courts.... shall have exclusive

    jurisdiction of civil actions on claims againstjurisdiction of civil actions on claims against

    the United States for money damages accruingthe United States for money damages accruing

    on and after January 1, 1945, for injury or losson and after January 1, 1945, for injury or loss

    of property, or personal injury or death causedof property, or personal injury or death caused

    by the negligent or wrongful act or omission onby the negligent or wrongful act or omission onany employee of the Government while actingany employee of the Government while acting

    within the scope of his office or employment...within the scope of his office or employment...

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    FTCAFTCA

    Limited Waiver of Sovereign ImmunityLimited Waiver of Sovereign Immunity

    for:for:

    Deviations from Standard of Care,Deviations from Standard of Care,

    By Government Employees,By Government Employees,

    Acting within the scope of FederalActing within the scope of FederalEmploymentEmployment

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    Excluded ClaimantsExcluded Claimants

    FERES DOCTRINE:FERES DOCTRINE: Feres v.Feres v.

    United StatesUnited States, 340 U.S. 135 (1950), 340 U.S. 135 (1950)

    Congress Did Not Intend toCongress Did Not Intend to

    Waive Sovereign Immunity forWaive Sovereign Immunity for

    Suits by Members of the ArmedSuits by Members of the Armed

    ForcesForces

    Applies to Derivative ClaimsApplies to Derivative Claims

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    FERES DOCTRINEFERES DOCTRINE

    Unique Relationship BetweenUnique Relationship Between

    Service Members and theService Members and theGovernmentGovernment

    Other NoOther No--Fault MilitaryFault Military

    Compensation Schemes (PEB)Compensation Schemes (PEB)

    Negative Effect on Good OrderNegative Effect on Good Order

    & Discipline& Discipline

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    Military Claims ActMilitary Claims Act

    Similar to FTCA but applies OverseasSimilar to FTCA but applies Overseas

    No Judicial RemedyNo Judicial Remedy

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    Standard of CareStandard of Care

    FTCA: Apply the Law of theFTCA: Apply the Law of the

    Location of the TortLocation of the Tort

    MCA: Apply General Principles ofMCA: Apply General Principles of

    American LawAmerican Law

    Apply Federal Procedural LawApply Federal Procedural Law

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    Government EmployeesGovernment Employees

    Active Duty MilitaryActive Duty Military

    GS/GM/SES CiviliansGS/GM/SES Civilians

    Red Cross/Other volunteersRed Cross/Other volunteers

    Personal Services ContractorsPersonal Services Contractors

    (for purposes of FTCA only)(for purposes of FTCA only)

    Independent Contractors are NOTIndependent Contractors are NOT

    Government EmployeesGovernment Employees

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    Scope of EmploymentScope of Employment

    Must be performing authorized militaryMust be performing authorized military

    dutiesduties

    Training Affiliation AgreementsTraining Affiliation Agreements External resource Sharing AgreementsExternal resource Sharing Agreements

    Criminal Misconduct not CoveredCriminal Misconduct not Covered

    Moonlighting or Volunteer Work NotMoonlighting or Volunteer Work NotCoveredCovered

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    Statute of LimitationsStatute of Limitations

    Claim Must be Filed within 2 Years ofClaim Must be Filed within 2 Years of

    knowledge of existence and cause of theknowledge of existence and cause of the

    injury.injury.

    SOL continues until plaintiff hasSOL continues until plaintiff has

    information necessary to discoverinformation necessary to discover

    both his injury and its probableboth his injury and its probable

    cause.cause.

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    Litigation Under FTCALitigation Under FTCA

    Must Exhaust Administrative RemediesMust Exhaust Administrative Remedies(OJAG Code 15)(OJAG Code 15)

    MustMust File Suit Within 6 Months of Denial ofFile Suit Within 6 Months of Denial ofClaimClaim

    MayMay File Suit Anytime 6 Months AfterFile Suit Anytime 6 Months AfterPresenting Claim (Constructive Denial)Presenting Claim (Constructive Denial)

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    Personal LiabilityPersonal Liability

    Federal Employees Liability and TortFederal Employees Liability and TortCompensation Act (28 U.S.C. 2679)Compensation Act (28 U.S.C. 2679)

    Westfall LegislationWestfall Legislation

    FTCA is the Exclusive Remedy for NegligenceFTCA is the Exclusive Remedy for Negligence

    of Government Employees Acting in the Scopeof Government Employees Acting in the Scope

    of Employmentof Employment

    Protects Against Personal LiabilityProtects Against Personal Liability

    Removes individual & substitutes U.S. asRemoves individual & substitutes U.S. as

    defendant (28 U.S.C. 1442a)defendant (28 U.S.C. 1442a)

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    Avoiding ClaimsAvoiding Claims

    ConsultConsult -- because no one can do it allbecause no one can do it all

    Know what you dont knowKnow what you dont know

    Get help when you need itGet help when you need it

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    Avoiding ClaimsAvoiding Claims

    DocumentationDocumentation -- because peoplebecause people

    forget/lieforget/lie

    LegibleLegible Dont backdateDont backdate

    Document thought processDocument thought process

    Differential diagnosisDifferential diagnosis

    Informed consentInformed consent

    ConsultsConsults

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    Avoiding ClaimsAvoiding Claims

    Patient RelationsPatient Relations -- because technicallybecause technically

    good care is not enoughgood care is not enough

    ListenListen RespectRespect

    CommunicateCommunicate

    CareCare

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    TYPICAL CLAIMS SCENARIOSTYPICAL CLAIMS SCENARIOS

    Failure To Timely Diagnose Cancer:Failure To Timely Diagnose Cancer:

    Ensure appropriate diagnostic tests (scans, bloodEnsure appropriate diagnostic tests (scans, blood

    test, etc.) and/or referral is done and completed in atest, etc.) and/or referral is done and completed in atimely fashion.timely fashion.

    Be sure patient know exactly how the scheduling andBe sure patient know exactly how the scheduling andfollow up process works at the time the referral is madefollow up process works at the time the referral is madefor diagnostic tests or consults with a specialist.for diagnostic tests or consults with a specialist.

    Document the instructions given to the patient in theDocument the instructions given to the patient in themedical record.medical record.

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    Typical Claims ScenariosTypical Claims Scenarios

    Failure To Timely Diagnosis Cancer (Cont.)Failure To Timely Diagnosis Cancer (Cont.)

    At each clinic visit, make a point to review the lastAt each clinic visit, make a point to review the last

    several clinic visits and follow up with any tests orseveral clinic visits and follow up with any tests orreferrals that were ordered but not completed.referrals that were ordered but not completed.

    Be sure to document what specific advice andBe sure to document what specific advice andinstructions are given, especially all informationinstructions are given, especially all informationreasonably relevant to making an informed decision.reasonably relevant to making an informed decision.

    Computerized CHCS records are discoverable; itComputerized CHCS records are discoverable; itreflects patient appointments and all telephone contactsreflects patient appointments and all telephone contacts be sure to adequately document those phone calls.be sure to adequately document those phone calls.

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    Typical Claims ScenariosTypical Claims Scenarios

    Delay in Acting on Obstetric EmergencyDelay in Acting on Obstetric Emergency

    Know the specific fetal and maternal clinicalKnow the specific fetal and maternal clinical

    parameters beyond which intervention is required.parameters beyond which intervention is required.

    Notify senior staff immediately when any of the clinicalNotify senior staff immediately when any of the clinicalparameters are exceededparameters are exceeded

    Be vigilant in monitoring both mother and fetus whenBe vigilant in monitoring both mother and fetus whenembarking on an offembarking on an off--label use and/or dosage of alabel use and/or dosage of a

    particular medication.particular medication.

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    Typical Claims ScenariosTypical Claims Scenarios

    Failure To Recognize an EmergentFailure To Recognize an EmergentConditionCondition Important to formulate a differential diagnosis whenImportant to formulate a differential diagnosis when

    confronted with a significant new or worsening symptomconfronted with a significant new or worsening symptomwithin the context of an established chronic problemwithin the context of an established chronic problem

    Equally important that the new differential diagnosisEqually important that the new differential diagnosisbe documented in the patients medical record at thebe documented in the patients medical record at the

    time of the visit, along with whatever workup was donetime of the visit, along with whatever workup was doneto rule out any emergent condition on the list.to rule out any emergent condition on the list.

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    ADVERSE PRIVILEGINGADVERSE PRIVILEGING

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    FUNDAMENTAL PRINCIPLESFUNDAMENTAL PRINCIPLES

    Patient SafetyPatient Safety

    Quality Assurance / Risk ManagementQuality Assurance / Risk Management

    Individual Due Process RightsIndividual Due Process Rights

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    BUMEDINSTBUMEDINST

    6320.67A CH 16320.67A CH 1(Adverse(Adverse

    PrivilegingPrivileging

    Actions, PeerActions, PeerReview PanelReview Panel

    Procedures,Procedures,

    and Healthand Health

    Care ProviderCare Provider

    Reporting)Reporting)

    Talk

    to me

    or

    else!!

    I

    did

    it !!!

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    FIRST LEVELFIRST LEVEL

    PEERPEERREVIEWREVIEW

    (NON(NON--ADVERSE)ADVERSE)

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    Department HeadsDepartment Heads

    Clinical DirectorsClinical Directors

    QA Review (Occurrence Screens)QA Review (Occurrence Screens)

    ECOMS ReviewECOMS Review

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    ADVERSE PRIVILEGINGADVERSE PRIVILEGING

    DEFINITIONS

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    Adverse Privileging ActionAdverse Privileging Action

    The denial, reduction, suspension orThe denial, reduction, suspension or

    revocation of clinical privileges based uponrevocation of clinical privileges based upon

    provider impairment (professional,provider impairment (professional,

    behavioral, medical), misconduct, or lack ofbehavioral, medical), misconduct, or lack of

    professional competence.professional competence.

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    AbeyanceAbeyance

    The temporary removal of a privilegedThe temporary removal of a privileged

    provider from clinical duties while an inquiryprovider from clinical duties while an inquiry

    into allegations of misconduct or impairment isinto allegations of misconduct or impairment is

    conducted.conducted.

    An abeyance is not an adverse action.An abeyance is not an adverse action.

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    Denial of PrivilegesDenial of Privileges

    An adverse action taken by a privileging authority whichAn adverse action taken by a privileging authority which

    denies privileges to a provider when those privilegesdenies privileges to a provider when those privileges

    would normally be granted at the facility to a provider ofwould normally be granted at the facility to a provider ofsimilar education, training and experience occupying thesimilar education, training and experience occupying the

    same billet.same billet.

    Can only be imposed after the opportunity for a peerCan only be imposed after the opportunity for a peer

    review hearing has been afforded the provider.review hearing has been afforded the provider.

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    Summary SuspensionSummary Suspension

    The temporary removal of all or part of aThe temporary removal of all or part of a

    providers clinical privileges prior to theproviders clinical privileges prior to the

    completion of due process procedures.completion of due process procedures.

    Not reportable to the National PractitionerNot reportable to the National Practitioner

    Data Bank unless the final action is adverse.Data Bank unless the final action is adverse.

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    Suspension of PrivilegesSuspension of Privileges

    An adverse action temporarily removing allAn adverse action temporarily removing all

    or a portion of a privileged providersor a portion of a privileged providersclinical privilegesclinical privileges afterafter due processdue process

    procedures are completed.procedures are completed.

    Reportable to the NPDB.Reportable to the NPDB.

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    Reduction of PrivilegesReduction of Privileges

    An adverse privileging action whichAn adverse privileging action which

    permanently removes a portion of apermanently removes a portion of aproviders privileges.providers privileges.

    Can only be imposed after the opportunityCan only be imposed after the opportunity

    for a peer review hearing has been affordedfor a peer review hearing has been affordedthe provider.the provider.

    Reportable to NPDBReportable to NPDB

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    Revocation of PrivilegesRevocation of Privileges

    An adverse privileging action thatAn adverse privileging action that

    permanently removes all of a providerspermanently removes all of a providersclinical privileges.clinical privileges.

    Can only be imposed after the opportunityCan only be imposed after the opportunity

    for a peer review hearing has been affordedfor a peer review hearing has been affordedthe provider.the provider.

    Reportable to the NPDBReportable to the NPDB

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    Types ofTypes of

    providerproviderconduct thatconduct thatcould triggercould trigger

    Peer Review:Peer Review:

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    IMPAIRMENTIMPAIRMENT

    Any personal characteristic orAny personal characteristic orcondition which may adverselycondition which may adverselyaffect the ability of a provider toaffect the ability of a provider torender quality healthcare.render quality healthcare.

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    THREE CATEGORIES OFTHREE CATEGORIES OF

    IMPAIRMENTIMPAIRMENT

    PROFESSIONALPROFESSIONAL

    BEHAVIORALBEHAVIORAL

    MEDICALMEDICAL

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    PROFESSIONALPROFESSIONAL

    IMPAIRMENTIMPAIRMENT

    Deficit in MedicalDeficit in Medical

    Knowledge, Expertise orKnowledge, Expertise or

    JudgementJudgement

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    BEHAVIORAL IMPAIRMENTBEHAVIORAL IMPAIRMENT

    Includes unprofessional,Includes unprofessional,

    unethical, or criminalunethical, or criminalconductconduct

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    MEDICAL IMPAIRMENTMEDICAL IMPAIRMENT

    Conditions whichConditions which

    permanentlypermanently

    impede orimpede orpreclude apreclude a

    provider fromprovider from

    safely practicingsafely practicingmedicinemedicine

    Help Me

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    PEB POLICY AND PEERPEB POLICY AND PEER

    REVIEWREVIEW PEB Policy Letter 7PEB Policy Letter 7--94 requires all medical boards94 requires all medical boards

    involving MC officers to have a command evaluationinvolving MC officers to have a command evaluation

    of the physicians level of function and list ofof the physicians level of function and list of

    privileges as determined by peer review.privileges as determined by peer review. Per SECNAVINST 1850.4E, Para. 3304b, A medicalPer SECNAVINST 1850.4E, Para. 3304b, A medical

    corps officer in any grade will not be found unfit forcorps officer in any grade will not be found unfit for

    duty if he or she can perform satisfactorily in anduty if he or she can perform satisfactorily in an

    assignment appropriate to grade, qualifications andassignment appropriate to grade, qualifications andexperience.experience.

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    PEB POLICY CONT.PEB POLICY CONT.

    Paragraph 3304b also states a medical doctor willParagraph 3304b also states a medical doctor will

    have a review of clinical privileges with peer reviewhave a review of clinical privileges with peer review

    required before being found unfit.required before being found unfit.

    If a PA believes a provider has a permanent medicalIf a PA believes a provider has a permanent medicalcondition that impedes on his or her ability to safelycondition that impedes on his or her ability to safely

    practice medicine, adverse action should be initiated.practice medicine, adverse action should be initiated.

    No adverse privileging action required if PA believesNo adverse privileging action required if PA believes

    there is no impact on patient safety.there is no impact on patient safety.

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    OTHER ADVERSE ACTIONOTHER ADVERSE ACTION

    GROUNDSGROUNDS

    MISCONDUCTMISCONDUCT

    When there is a nexus between the act committed and theWhen there is a nexus between the act committed and thedelivery of safe patient care.delivery of safe patient care.

    VIOLATIONS OF UCMJVIOLATIONS OF UCMJ

    CIVILIAN CRIMINAL LAWCIVILIAN CRIMINAL LAWVIOLATIONSVIOLATIONS

    OTHER ACTS LISTED IN ENCL (2) OFOTHER ACTS LISTED IN ENCL (2) OFBUMEDINST 6320.67A /ChBUMEDINST 6320.67A /Ch--11

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    Drug AbuseDrug Abuse

    Alcohol AbuseAlcohol Abuse

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    Aiding or abetting the practice ofAiding or abetting the practice of

    medicine by an obviously incompetentmedicine by an obviously incompetentor impaired provideror impaired provider

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    SelfSelf--prescribing controlled medicationprescribing controlled medicationfor ones own use or for familyfor ones own use or for family

    members.members.

    Failure to report disciplinary action orFailure to report disciplinary action orsanctions taken by a professional orsanctions taken by a professional or

    governmental organizationgovernmental organization

    Failure to report malpractice awardsFailure to report malpractice awardsoccurring outside DOD facilitiesoccurring outside DOD facilities

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    Healthcare Integrity and Protection Data Bank (HIPDB)Healthcare Integrity and Protection Data Bank (HIPDB)

    Administered by DHHS, same staff that run NPDBAdministered by DHHS, same staff that run NPDB

    A new fraud and abuse data collection program forA new fraud and abuse data collection program for

    reporting certain final adverse actions taken againstreporting certain final adverse actions taken against

    health care providers, suppliers, and practitioners.health care providers, suppliers, and practitioners.

    The purpose of the HIPDB is to combat fraud and abuseThe purpose of the HIPDB is to combat fraud and abuse

    in health insurance and health care delivery and toin health insurance and health care delivery and to

    promote quality care.promote quality care.

    REPORTING OF MISCONDUCT

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    REPORTING MISCONDUCT CONT.REPORTING MISCONDUCT CONT.

    DOD 6025.13DOD 6025.13--R: SG responsible for reportingR: SG responsible for reporting

    adverse actions occurring on or after 21 Aug 1996.adverse actions occurring on or after 21 Aug 1996.

    Reportable Adverse Actions: UCMJ actions; adverseReportable Adverse Actions: UCMJ actions; adverse

    personnel actions (military and civilian); that arepersonnel actions (military and civilian); that areagainst a health care provider, supplier, or practitioneragainst a health care provider, supplier, or practitioner

    based on acts or omissions that affect the delivery ofbased on acts or omissions that affect the delivery of

    a health care item or service is reportable.a health care item or service is reportable.

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    ALLEGATIONALLEGATION

    An ALLEGATION can be a:An ALLEGATION can be a:

    PATIENT COMPLAINTPATIENT COMPLAINT

    PATIENT CLAIM OF MALPRACTICEPATIENT CLAIM OF MALPRACTICE

    SFSF--95 (Claims Form)95 (Claims Form)

    OCCURANCE SCREENOCCURANCE SCREENMEDICAL STAFF OBSERVATIONMEDICAL STAFF OBSERVATION

    CRIMINAL REPORTCRIMINAL REPORT

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    FORMAL INVESTIGATONFORMAL INVESTIGATON

    Unless the CO is confident that theUnless the CO is confident that the

    allegations are untrue or are of such a minorallegations are untrue or are of such a minornature that no adverse action would be takennature that no adverse action would be taken

    even if they were true, an investigation musteven if they were true, an investigation must

    be ordered.be ordered.

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    FORMAL INVESTIGATIONFORMAL INVESTIGATION

    REPORT MUST BE COMPLETEDREPORT MUST BE COMPLETED

    WITHIN 60 DAYS IF A PROVIDERSWITHIN 60 DAYS IF A PROVIDERS

    PRIVILEGES HAVE NOT BEENPRIVILEGES HAVE NOT BEEN

    PLACED IN ABEYANCE.PLACED IN ABEYANCE.

    IF A PROVIDERS PRIVILEGES WEREIF A PROVIDERS PRIVILEGES WERE

    PLACED IN ABEYANCE, THIS REPORTPLACED IN ABEYANCE, THIS REPORTMUST BE DONE WITHIN THE 28 DAYMUST BE DONE WITHIN THE 28 DAY

    ABEYANCE PERIOD.ABEYANCE PERIOD.

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    REMINDERREMINDER::

    THE INVESTIGATION IS ATHE INVESTIGATION IS AQUALITY ASSURANCEQUALITY ASSURANCE

    DOCUMENT PROTECTED FROMDOCUMENT PROTECTED FROM

    DISCLOSURE BY 10 USC 1102DISCLOSURE BY 10 USC 1102

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    INITIAL PRIVILEGING DECISIONINITIAL PRIVILEGING DECISION

    If privileges placed in abeyance, the CO mustIf privileges placed in abeyance, the CO must

    decide on or before day 28 to either reinstate ordecide on or before day 28 to either reinstate orsummarily suspend privileges.summarily suspend privileges.

    If privileges summarily suspended, a full and fairIf privileges summarily suspended, a full and fairhearing must be conducted.hearing must be conducted.

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    NOTIFICATIONNOTIFICATION

    If a CO summarily suspends a providersIf a CO summarily suspends a providersprivileges, written notice must be given toprivileges, written notice must be given to

    the provider within seven (7) days.the provider within seven (7) days.

    PANEL PROCEDURESPANEL PROCEDURES

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    PANEL PROCEDURESPANEL PROCEDURES

    If a provider elects a hearing, the hearingIf a provider elects a hearing, the hearingcannot take place sooner than thirty (30)cannot take place sooner than thirty (30)

    days after the provider receives the noticedays after the provider receives the noticeof suspension.of suspension.

    This can be waived ifThis can be waived if bothboth parties agree.parties agree.

    If a provider waives their appearance, theIf a provider waives their appearance, thehearing can take place anytime after thehearing can take place anytime after thewaiver is received in writing.waiver is received in writing.

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    PANEL PROCEDURESPANEL PROCEDURES

    At least 10 days before the panel hearing, the COAt least 10 days before the panel hearing, the CO

    must inform the provider:must inform the provider:

    Of the date, time and location of the hearingOf the date, time and location of the hearing That failure to appear at the hearing constitutesThat failure to appear at the hearing constitutes

    a waiver of appearancea waiver of appearance

    Of the rights and obligations of the provider atOf the rights and obligations of the provider at

    the hearingthe hearing

    Names of witnesses including expectedNames of witnesses including expected

    testimonytestimony

    Copies of all documents panel will receiveCopies of all documents panel will receive

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    RESPONDENTS HEARINGRESPONDENTS HEARING

    RIGHTSRIGHTS

    TO COUNSEL:TO COUNSEL:

    MILITARY MAY REQUEST JAGMILITARY MAY REQUEST JAG

    CIVILIANS AT OWN EXPENSECIVILIANS AT OWN EXPENSE

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    RESPONDENTS HEARINGRESPONDENTS HEARING

    RIGHTSRIGHTS

    TO CHALLENGE PANEL MEMBERSTO CHALLENGE PANEL MEMBERS

    REMOVAL FOR CAUSE ONLYREMOVAL FOR CAUSE ONLY

    TO CALL WITNESSESTO CALL WITNESSES

    TO SUBMIT EVIDENCETO SUBMIT EVIDENCE

    TO TESTIFY IN OWN BEHALFTO TESTIFY IN OWN BEHALF

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    Panel MembershipPanel Membership

    Must have at least 3 members, no more than 5.Must have at least 3 members, no more than 5.

    Panel membersPanel members mustmust be privileged providers!!!!!be privileged providers!!!!!

    The Chairperson of the Credentials Committee shouldThe Chairperson of the Credentials Committee should

    chair the peer review panel, unless:chair the peer review panel, unless:

    They have advised the CO on the caseThey have advised the CO on the case

    They have investigated the caseThey have investigated the case One member of the panelOne member of the panel shouldshould be from the samebe from the same

    specialty as the respondent.specialty as the respondent.

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    The RecorderThe Recorder

    At the time a panel is appointed, the PA must alsoAt the time a panel is appointed, the PA must also

    appoint a Recorder (a qualified officer) for theappoint a Recorder (a qualified officer) for the

    panel.panel.

    The Recorder presents documentary evidence,The Recorder presents documentary evidence,

    witness testimony, and addresses the panel.witness testimony, and addresses the panel.

    The Recorder may be a JAG.The Recorder may be a JAG.

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    The Legal AdvisorThe Legal Advisor

    A Legal Advisor may be appointed to the panel to adviseA Legal Advisor may be appointed to the panel to advise

    the panel members on issues of evidence and procedurethe panel members on issues of evidence and procedure

    onlyonly..

    The Legal Advisor should not actively participate in theThe Legal Advisor should not actively participate in the

    hearing accept when asked to advise on a specific issue.hearing accept when asked to advise on a specific issue.

    The Legal Advisor may not be present during panelThe Legal Advisor may not be present during panel

    deliberations.deliberations. The Legal Advisor should be drawn from a commandThe Legal Advisor should be drawn from a command

    different from that of the Privileging Authority.different from that of the Privileging Authority.

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    HEARINGHEARINGPROCEDURESPROCEDURES

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    PANEL PROCEDURESPANEL PROCEDURES

    NO RULES OF EVIDENCENO RULES OF EVIDENCE

    RelevancyRelevancy

    MaterialityMateriality

    CompetenceCompetence

    CumulativeCumulative

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    Recording the HearingRecording the Hearing

    The panel hearing must be recorded by aThe panel hearing must be recorded by a

    reliablereliable recording device.recording device.

    Only the Recorder (or other professionallyOnly the Recorder (or other professionally

    retained reporter) may use a recordingretained reporter) may use a recording

    device in the hearing.device in the hearing.

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    FINAL TRANSCRIPTFINAL TRANSCRIPT

    May be summarized, unless the action isMay be summarized, unless the action is

    appealed by the provider.appealed by the provider.

    Any appeal must be accompanied by aAny appeal must be accompanied by a

    verbatim transcript. Please number theverbatim transcript. Please number the

    transcript pages!transcript pages!

    STRONGLY RECOMMEND USE OFSTRONGLY RECOMMEND USE OF

    PROFESSIONAL COURT REPORTERPROFESSIONAL COURT REPORTER

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    Recommendationsmayinclude:Recommendationsmayinclude:

    -- Reinstatement (No conditions can be attachedReinstatement (No conditions can be attachedto a reinstatement; can recommend additionalto a reinstatement; can recommend additional

    training)training) -- Initial granting of privilegesInitial granting of privileges

    -- DenialDenial

    -- ReductionReduction

    -- SuspensionSuspension

    -- RevocationRevocation

    PEER REVIEW PANELPEER REVIEW PANEL

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    PEER REVIEW PANELPEER REVIEW PANEL

    REPORTREPORT

    A COPYA COPY MUSTMUST BE PROVIDED TO THEBE PROVIDED TO THE

    RESPONDENT AT THE SAME TIME ONE ISRESPONDENT AT THE SAME TIME ONE IS

    GIVEN TO THE COMMANDGIVEN TO THE COMMAND

    RESPONDENT HAS 7 DAYS TO COMMENTRESPONDENT HAS 7 DAYS TO COMMENTON THE PANEL REPORT. THE COMMENTSON THE PANEL REPORT. THE COMMENTS

    ARE FORWARDED TO THE PA.ARE FORWARDED TO THE PA.

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    CO FINAL DECISIONCO FINAL DECISION

    PA MUST MAKE HIS DECISION WITHIN 7PA MUST MAKE HIS DECISION WITHIN 7DAYS AFTER RESPONDENTS COMMENTSDAYS AFTER RESPONDENTS COMMENTSARE RECEIVED.ARE RECEIVED.

    MUST GIVE WRITTEN NOTICE OF THEMUST GIVE WRITTEN NOTICE OF THEFINAL DECISION TO THE RESPONDENTFINAL DECISION TO THE RESPONDENTWITHIN THAT 7 DAY WINDOW.WITHIN THAT 7 DAY WINDOW.

    IF ADDITIONAL TIME IS REQUIRED,IF ADDITIONAL TIME IS REQUIRED,CONTACT BUMED SJA FOR GUIDANCECONTACT BUMED SJA FOR GUIDANCE

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    CO FINAL ACTIONCO FINAL ACTION

    PA can agree or disagree with panels findingsPA can agree or disagree with panels findings

    and recommendations, but must take someand recommendations, but must take someaction to either reinstate, grant initialaction to either reinstate, grant initial

    privileges, deny, reduce, suspend or revokeprivileges, deny, reduce, suspend or revoke

    privileges.privileges.

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    PAs can nonPAs can non--concur with a panels findings,concur with a panels findings,

    conclusions and recommendations, but theirconclusions and recommendations, but their

    decision must be reasonably based on thedecision must be reasonably based on the

    hearing record and their reasons must behearing record and their reasons must be

    articulated in the final decision letter.articulated in the final decision letter.

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    APPEALAPPEAL

    DUE 14 DAYS AFTER FINAL DECISIONDUE 14 DAYS AFTER FINAL DECISION

    FORWARDED TO CHIEF, BUMED VIA PAFORWARDED TO CHIEF, BUMED VIA PA

    REVIEW STANDARDSREVIEW STANDARDS

    LIMITED TO APPEALED GROUNDSLIMITED TO APPEALED GROUNDS

    ABUSE OF DISCRETIONABUSE OF DISCRETION

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    APPEALAPPEAL

    Appeals are reviewed by M00J and theAppeals are reviewed by M00J and the

    Chief of the appropriate Corps.Chief of the appropriate Corps. Chief, BUMED makes the final call.Chief, BUMED makes the final call.

    The standard for decision on appeal isThe standard for decision on appeal is

    whether the decision of the PA was anwhether the decision of the PA was anabuse of discretion.abuse of discretion.

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    NPDB REPORTINGNPDB REPORTING

    Final actions resulting in denial, reduction,Final actions resulting in denial, reduction,

    suspension or revocation of a providerssuspension or revocation of a providersindependent practice are adverse actions thatindependent practice are adverse actions that

    are reported to the National Practitioner Dataare reported to the National Practitioner Data

    Bank by BUMED SJA.Bank by BUMED SJA.