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Nick Healey
Hello and welcome to Beyond the Bylaws: The Medical Staff Show. This is Husch Blackwell LLP's podcast covering the legal and regulatory aspects of hospital medical staffs. We're focusing on the important but sometimes confusing world of medical staff legal issues. I'm Nick Healey, a health care regulatory partner at Husch Blackwell, and I am in my third decade of working with hospital medical staffs.
00;00;25;00 - 00;00;36;19
Nick Healey
Before we dive in, I'd like to note that nothing in this podcast constitutes legal advice, and the views expressed in this podcast are mine or those of our special guests, and not those of Husch Blackwell.
00;00;36;21 - 00;01;11;27
Nick Healey
Okay, welcome to Beyond the Bylaws, Husch Blackwell's medical staff bylaws and other medical staff issues podcast. I am Nick Healey. I'm a health care regulatory partner at Husch Blackwell, and I have a very special guest with me today, someone whom I've worked with for many, many years. Deb Wade. I'm going to let you introduce yourself, but, I'll say that Deb has been a delight to work with for several decades now, which makes me feel old, and makes me feel like it's a little bit unfair that I reflect those years
00;01;11;27 - 00;01;12;28
Nick Healey
and you do not.
00;01;13;01 - 00;01;29;18
Deb Wade
Well, obviously, I'm not on video. So I've been in medical staff services since 2010 and again, yes, I've worked with Nick since oh gosh, 2012 and Nick, you've been invaluable to our hospital and to me as a medical care professional. So I appreciate that.
00;01;29;21 - 00;01;48;07
Nick Healey
I am always happy to work with the hospital that you work for. And, particularly very happy to work with you. Deb, I, I do appreciate that you always have your heart in the right place when it comes to medical staff issues. I've said many times that medical staff professionals are on the front lines of patient safety.
00;01;48;07 - 00;02;15;25
Nick Healey
And notwithstanding challenging circumstances, in some situations, you have always exemplified that. So hats off to you. And, generally, hats off to all medical professionals who are on the frontlines every day. So what we are going to talk about today, I'm very happy to say, is something that's very much a frontline issue for medical staff, professionals, who deal with confidential and privileged information on a daily basis.
00;02;15;25 - 00;02;40;09
Nick Healey
We are going to talk about the confidentiality and privilege protections that apply to a lot of the information that medical staff, professionals deal with, that they take in, that they create, that they disseminate among the medical staff, and the various demands or requests that are made for that information, again, on a daily basis from different parts of the hospital or outside the hospital.
00;02;40;09 - 00;03;15;10
Nick Healey
And, measures that medical staff, professionals can and should be taking to safeguard the confidentiality and privilege protections for that information. Deb, I know this is an issue you and I have talked about a lot. I'm curious on a percentage basis, how much time do you think it takes you to deal with requests for information from various parts of the hospital or outside that you ultimately have to turn down because, the information is subject to some type of confidentiality or privilege protection.
00;03;15;12 - 00;03;28;03
Deb Wade
Nick that's an everyday occurrence, usually from employees that are looking for information that lives in our medical staff files. And once once that's in our medical staff files can be given out to anyone else. Right?
00;03;28;05 - 00;03;36;05
Nick Healey
Okay. So you have to come up with creative and kind ways of letting people down easy. How well is that usually received?
00;03;36;07 - 00;03;59;29
Deb Wade
It usually depends on who you're talking to. And sometimes if you give them the reasons for that, they are quite nice and sound likes and and and understand her medical staff appreciate it, but staff isn't always so willing. We have a large number of employed medical staff and and our staff here kind of has the idea that since they're employed, the information belongs to everyone.
00;03;59;29 - 00;04;26;03
Nick Healey
So I think that's a yeah, that's an interesting point because we're talking about a lot of these requests coming from inside the hospital. Right. And I know that we've discussed before, a perception among hospital employees that, well, we're all part of the same organization. We're all part of the same team. Therefore, anything that would protect or prevent you from disclosing this information outside the hospital doesn't apply to me because I'm inside the hospital.
00;04;26;03 - 00;04;40;14
Nick Healey
So I should have, you know, full access to this information, which isn't true, by the way, but in your view, what's the most important thing, that a hospital can put in place to ensure that those boundaries are respected?
00;04;40;17 - 00;05;07;04
Deb Wade
That's a good question, because I get it from all the way from employees up to, you know, up to the upper level of management. So I think it's just letting everyone know that the medical staff process is protected and confidential. And, when the office here says that we cannot provide documentation or information, that there is a very good reason for it, and I just don't know, a really good reason to get that way, to get that out.
00;05;07;06 - 00;05;36;22
Nick Healey
Yeah, it is tough. I know we've also talked about, you know, the tone being set from the top. Right. And that if upper administration is, you know, firm in their respect for the protections and privileges that apply to medical staff information and, you know, the separation of church and state from that perspective, that it really does help, set the tone and prevent those requests and, and ultimately situations in which you can't provide that information that helps, those not to get ugly.
00;05;36;29 - 00;05;54;27
Nick Healey
So, you know, like in a lot of situations and a lot of organizations, leadership is is crucial. And educating, you know, from the top down definitely makes a difference. So I guess, you know, one thing I would say is it's an issue that every hospital I've ever worked with has, has dealt with some deal with it better than others.
00;05;54;27 - 00;06;19;21
Nick Healey
And, you know, it is a constant, not battle, that it's a constant, educational process to ensure that information is flowing the way it's supposed to and that it is not being widely disseminated because we are talking about not just confidential, but but sensitive information, both from a patient perspective and from a physician reputational perspective. Quality, improvement perspectives.
00;06;19;27 - 00;06;47;03
Nick Healey
This deals with disciplinary issues for physicians. And so it's it's something that, you know, the medical staff particularly has a great stake in making sure is, you know, that confidentiality and privilege is respected, but it also can be some of the most valuable information to other people in the organization. And so the, you know, the demands or the the need for that information and the desire to, have it disclosed to different parts of the hospital is is pretty high.
00;06;47;10 - 00;07;21;00
Nick Healey
One great example is physicians that are employed by, the hospital medical staff. Information concerning those positions is routinely requested by the administrators who are managing those employed physicians. And in a lot of situations that that information cannot be provided to those, administrative people simply because they are outside the medical staff process. And although it would be very helpful for them to have it, there are protections against that information being provided to any employer, whether they're inside the hospital or outside.
00;07;21;00 - 00;07;48;25
Nick Healey
And so that can be a real flashpoint, and can be very difficult to deal with for a lot of hospitals. You know, another one might be payer credentialing for employed physicians or contracted physicians who are still ostensibly independent, but for whom the hospital does billing and collecting payer credentialing specialists within the hospital may want that information in order to facilitate getting those physicians or other providers credentialed with payers so the hospital can get paid.
00;07;48;27 - 00;08;11;21
Nick Healey
And, you know, in some situations, it's not feasible to provide that information because it still retains that confidentiality, and peer review privilege. So, a lot of situations in which this information can be very valuable, but, you have to make sure that you're observing those protections and those restrictions on disclosure. And that's not going to rub everyone the right way all the time.
00;08;11;24 - 00;08;15;10
Nick Healey
So I'm sure you'd concur, with that.
00;08;15;12 - 00;08;16;14
Deb Wade
It’s a tricky line.
00;08;16;17 - 00;08;41;02
Nick Healey
It’s a tricky line for sure. Okay. So just to dive into the meat of what we’re talking about, generally we're talking here about information that is created or received by the medical staff office. That is covered by what I’m going to term peer review privilege was. And those look different in every state. There’s a variety of different information that falls under that, those protections.
00;08;41;02 - 00;09;23;17
Nick Healey
But generally it provides confidentiality and potentially privilege protection information such as credentialing, corrective action proceedings, including but not limited to, hearings or investigations, and quality improvement activities, and the protections the peer review privilege laws provide, are generally that the information is not discoverable or admissible in many types of litigation, like malpractice cases. So if you have evidence of a peer review that was done, regarding a specific physician's care by the medical staff, then if that physician is sued for malpractice, that information is not required to be disclosed.
00;09;23;20 - 00;09;54;12
Nick Healey
From the medical staff files to the plaintiff in that lawsuit. There are exceptions to that. It can be in the information itself isn't necessarily privileged or protected. If it can be obtained from what's called an original source. So simply because the information exists in medical staff files, if it wasn't created by the medical staff or received or created in a medical step process, then it can be gotten from, the source that originally created it.
00;09;54;12 - 00;10;24;03
Nick Healey
And so there are ways for plaintiffs to get that type of information. But if the peer review is performed solely within the auspices of the medical staff, then it's likely going to be confidential or privileged and won't be able to be disclosed or, subpoenaed or anything like that in a malpractice case. I also do want to make a distinction between privileged and confidential, because different types of information can be subject to, a peer review privilege, which means which is essentially a protection.
00;10;24;03 - 00;10;48;14
Nick Healey
It's not required to be disclosed if it's, subject to a discovery request or a subpoena in a lawsuit, as opposed to confidential, which means that the person that is holding the information is required to maintain the confidentiality of it. But under some circumstances, it can be subject to being discovered in a lawsuit through a discovery request or subpoena.
00;10;48;15 - 00;11;26;10
Nick Healey
I always think of confidentiality as a burden on the individual, that or entity that has the information they are required to keep that information confidential and not disclose it. And privilege is more of a shield. If you hold privileged information, you are not required to produce it. If it's, subpoenaed or subject to a discovery request. So it's kind of a fine distinction, but it's one that, can make a big difference if the information that you have is confidential and you get a discovery request for it, and other information is privileged, and you get a discovery quest for it, you're going to treat that stuff differently.
00;11;26;14 - 00;11;52;22
Nick Healey
And one example of confidential information that isn't necessarily privileged is quality management information, as opposed to peer review information, such as information that's generated by a hearing that is generally going to be privileged from not required to be disclosed, pursuant to discovery requests. So I'm curious, from your hospital's perspective, do you draw good lines around or boundaries around those two types of information?
00;11;52;25 - 00;12;00;27
Deb Wade
We certainly try to. And I'll just say that we have a really good medical staff attorney that helped this out. Was that when there's any question.
00;12;01;00 - 00;12;05;18
Nick Healey
And I'll have to get his number or her number afterwards. So if I have any questions, I'll.
00;12;05;18 - 00;12;06;00
Deb Wade
Send it to.
00;12;06;01 - 00;12;29;18
Nick Healey
You. Okay. Fair enough. I'm curious. I mean, I know that the hospital you work with, the quality management or branch of administration isn't necessarily the same. It works very closely with. But it's not under the same auspices as the, or in department as the the medical staff office. And so when information is required to be shared between the two of them, how does the flow of that information look?
00;12;29;18 - 00;12;44;13
Nick Healey
What what do you do to make sure that privileged information isn't necessarily being disclosed outside the medical staff processes, but quality management information is being drawn into the peer review or medical staff processes.
00;12;44;15 - 00;12;52;12
Deb Wade
That's also a pretty fine line. And we we try to kind of stay in our own lane. But again, sometimes the two, the two do need.
00;12;52;14 - 00;12;56;11
Nick Healey
You guys have policies covering the different types of information.
00;12;56;13 - 00;13;00;11
Deb Wade
We do and they probably need looked at. But yes, we do have some policies.
00;13;00;14 - 00;13;07;21
Nick Healey
Does quality management or quality improvement information. You know specifically feed into medical staff processes?
00;13;07;24 - 00;13;17;10
Deb Wade
Not always. From my standpoint, it doesn't come into my office. For the most part, it does go to medical staff leadership, but then it kind of gets lost, I think that way.
00;13;17;13 - 00;13;26;06
Nick Healey
Okay. And I'm assuming that quality management information, quality improvement information can go up through administrative channels as opposed to medical step channels too.
00;13;26;08 - 00;13;28;04
Deb Wade
It can and it does sometimes. Yeah.
00;13;28;10 - 00;13;50;07
Nick Healey
Okay. And you know when we talk in a minute about waiver, that's that's going to be important because if information is generated, I mean, if the Quality Improvement Department is operating on behalf of the medical staff pursuant to a policy that says, you know, when the quality improvement or quality management department is is doing these things, it is acting as an arm of the medical staff.
00;13;50;08 - 00;14;19;28
Nick Healey
You know, you have a much stronger argument that that information can be considered privileged if it is reporting up through, administrative channels, even though it may be doing similar things. That information is likely not going to be considered privileged, at least under the peer review privilege laws. It may be confidential from a quality management or quality improvement perspective, but the purpose for which the information is created or used can make a big difference to whether it has confidentiality protections or privilege protections.
00;14;19;28 - 00;14;49;02
Nick Healey
So, you know, making sure those processes are well laid out in policies or procedures can be really important to preserving the protections that apply to that kind of information. So anyway, other exceptions to the confidential outing and privilege that may apply to this kind of medical staff information, negligent credentialing claims, although it's, you know, in a lot of cases, it's not a an exception that is written into the peer review privilege law that actually sets out the medical staff peer review privilege.
00;14;49;02 - 00;15;31;20
Nick Healey
Courts have found that plaintiffs in a negligent credentialing case wouldn't be able to prove their claim if they weren't allowed to have access to this information, and so courts have created an exception in a lot of states for negligent credentialing claims and plaintiffs in those cases to get access to that type of information. It can also be required to be produced in federal civil rights claims, such as that someone was discriminated against on the basis of race when applying for medical staff, membership or privileges, and in other states, medical staff information can be shared with other governmental entities that are involved in quality review like regulatory agencies, the state Medical board, nursing board, those
00;15;31;20 - 00;15;55;21
Nick Healey
kind of things, accreditation organizations, and peer review committees for other health care entities. However, those exceptions are not written into every statutes or every state's statute, peer review, privilege, statute. And so that kind of leaves us with having to find workarounds or trying to weigh whether any particular disclosure is, is going to cause more harm than good.
00;15;55;21 - 00;16;19;01
Nick Healey
So those can be tricky, especially in states that don't have a really well-developed or tightly written peer review privilege law. And I know that you get requests fairly regularly from regulatory agencies like the Board of Medicine for information on, you know, physicians for some complaints that may be filed. How do you deal with that? How do you balance those those things?
00;16;19;03 - 00;16;34;07
Deb Wade
Well, again, I talk to my medical staff attorneys, but we typically do wind up providing information to them when it within those boundaries. And as you know, I visit with you regularly on those to make sure that we're we're following what we need to do.
00;16;34;08 - 00;16;48;04
Nick Healey
Have you ever had, a situation in which, you know, you weren't able to provide information to a regulatory agency like the medical board, and, and they pushed back and, and really were at rest of about it. And and how did you handle that if it's happened?
00;16;48;06 - 00;16;53;15
Deb Wade
I haven't in my, in my tenure here, which I'm glad for.
00;16;53;17 - 00;17;19;22
Nick Healey
Wyoming being a small state, it's good to have friendly relationships with the regulators, like the Wyoming Board of Medicine. And I know that you do have a great relationship, particularly with the executive director there. So, you know, that can really help, I think, smooth those conversations along. I think in some other states that are larger, it's harder to have that kind of relationship with regulators because there's just they have a lot more things to do and a lot more hospitals.
00;17;19;29 - 00;17;27;05
Nick Healey
But where you can foster that personal relationship, it really does help. And I know you've benefited from that over the years.
00;17;27;07 - 00;17;32;15
Deb Wade
Definitely. And I think if it's a mutual trust level, which which is very much appreciated.
00;17;32;16 - 00;17;56;01
Nick Healey
Yeah, that's a good point. You know, I think as long as the regulator has a strong sense that you are trying to do the right thing when you are dealing with medical staff information and that, you know, the purpose of not disclosing is not necessarily to frustrate the regulatory agency in doing their job, but to follow the law, but also to protect patient safety.
00;17;56;01 - 00;18;13;06
Nick Healey
And also the not needlessly harm the reputation or privacy or interest of the positions, or the medical staff numbers. I think as long as everybody assumes that we're all operating in good faith, those conversations can be, a lot more pleasant.
00;18;13;08 - 00;18;14;01
Deb Wade
Exactly.
00;18;14;01 - 00;18;39;13
Nick Healey
So every state has passed its own version, feared and private, which was. And some are stronger than others. Florida has a reputation for not necessarily having strong peer review protections. Other states have no exceptions to their peer review privilege laws, Wyoming being one of them. Where you are, Deb, it's a very specifically written statute. It doesn't outline any exceptions.
00;18;39;15 - 00;19;04;07
Nick Healey
It simply requires that information or data that is created, received, generated by a medical staff committee is considered confidential and privileged. It doesn't have any the exceptions for sharing with regulatory agencies. There's no specific exception for negligent credentialing in the statute, although there is, a case that creates that exception. So, you know, some other state that they're on.
00;19;04;09 - 00;19;30;19
Nick Healey
They're really if you've seen one peer review privilege law, you've seen one peer reviewed privilege law. But I think the intent of all of those laws is the same. It's generally to promote candid discussions among medical practitioners about, you know, their peers, professional conduct and quality of medical care in particularly in a hospital. And I know that that actually is from many discussions with physicians and medical staff.
00;19;30;19 - 00;19;51;20
Nick Healey
I know that they take that very seriously. And I know you've seen that too. Deb, I'm curious, the medical staff at your facility, having worked with them, I know that they do take that very seriously, but are there examples that you can think of in which, you know, physicians have gone out of their way to protect the confidentiality and privilege of that kind of information and steps they take to do that.
00;19;51;27 - 00;20;11;20
Deb Wade
I'm very lucky that they do. I don't know that I can can recall a particular instance, but I do know that that my medical staff leadership is very, very careful with that. We've had many conversations about it. They will push back on administration or whoever's asking for information to make sure that that is followed.
00;20;11;22 - 00;20;26;00
Nick Healey
I'm just curious, but having worked with medical staffs for a long time, if that protection was weakened, how do you think that would change? You know, the quality of conversations, within the medical staff about peer review or, quality improvement issues.
00;20;26;03 - 00;20;34;06
Deb Wade
If it wasn't the state level, I think that my medical staff would still probably try to maintain that same level unless it's challenged.
00;20;34;11 - 00;20;52;16
Nick Healey
Okay. So so basically they would continue to try to do the right thing and use the information to have robust discussions, candid discussions about, medical staff members and their professional conduct and quality of care. You don't think that they would be chilled in their discussions? You don't think they would shy away from it at all?
00;20;52;18 - 00;21;11;13
Deb Wade
I don't think my current medical staff leadership would. I think that they want to do the right thing, and hopefully medical staff leadership going forward will always want to do that. And I guess that's, wait and see what happens if it if it does come to pass. But I hope not because it does put a different light on things, I think.
00;21;11;20 - 00;21;39;10
Nick Healey
Yeah. No, absolutely. So there are different types of statutes that provide peer review privilege protections. I think we've already talked about quality improvement. A lot of states also have professional standard review organization statutes which provide confidentiality and privilege. We've talked about the medical staff peer review privileges that apply to, hospital medical staff committees that are dealing with professional conduct or quality improvement.
00;21;39;16 - 00;22;15;22
Nick Healey
Interestingly, professional standard review organizations statutes can apply to hospitals, but they can apply outside the hospital, too. They can apply to, medical societies. They can apply to, sniffs or other medical facilities that have physicians or other practitioners who are meeting in an organized way to try to improve the quality of care, patient safety information generated by a patient safety organization created under the Patient Safety Quality Improvement Act, which there aren't very many of in Wyoming.
00;22;15;22 - 00;22;16;29
Nick Healey
Is that right?
00;22;17;02 - 00;22;19;15
Deb Wade
Not that I know. Well, I don't know myself.
00;22;19;22 - 00;22;33;18
Nick Healey
Well, I've always thought that the Patient Safety Quality Improvement Act in an industry that is simply overrun with acronyms, the Patient Safety Quality Improvement Act, or Piscatella has to be one of the worst. I really don't like that one.
00;22;33;21 - 00;22;34;26
Deb Wade
I would agree with that.
00;22;34;28 - 00;22;59;25
Nick Healey
Yeah. So health care quality improvement Act, also provides protections for National Practitioner Databank reports. Interestingly, and I know that you and I have talked about this, but there's a perception that the Health Care Quality Improvement Act, or Hecka, provides essentially creates a federal peer review privilege, which is inaccurate. There is no federal peer review privilege.
00;22;59;27 - 00;23;23;28
Nick Healey
Only covers NP information that is reported to the National Practitioner Databank. And I think a lot of people think it's a lot more broad than that. But yeah, that is a relatively limited scope. But interestingly, it is, at the federal level, it has some fairly significant penalties if you violate that, confidentiality. So pick was definitely one to consider.
00;23;24;00 - 00;24;10;26
Nick Healey
There's also information in a lot of medical records or not medical records and a lot of peer review, information that is subject to the privacy protections of HIPAA, because it's protected health information and another great source of protection or privilege for medical staff information is the attorney client privilege. So if you are communicating information to your medical staff attorney in order to get legal advice, or they are communicating information back to you in the form of legal advice, then the information that is communicated is subject to the attorney client privilege and is not required to be generally produced in lawsuits and basically in response to discovery requests or subpoenas.
00;24;10;26 - 00;24;35;00
Nick Healey
However, I think it's also worth noting that a lot of people have a perception that simply because a lawyer is involved in a meeting or attends a meeting that covers everything with the attorney client privilege and the reality is, it doesn't the it only covers information that is communicated to an attorney or by an attorney in the form of, or to obtain legal advice.
00;24;35;07 - 00;24;55;06
Nick Healey
And so to the extent that, you know, medical staffs have an attorney present during all of their meetings, but the attorney isn't really there for anything more than creating the illusion of having an attorney present or everything being subject to the attorney client privilege. It's not going to be effective to, protect the information that's disclosed in the meeting.
00;24;55;14 - 00;25;13;05
Nick Healey
Another privilege might apply, but simply having an attorney there is not going to be enough. And I'm curious to have you seen people or have you seen medical staffs or administration in hospitals? Have you seen that happen where they figure, oh, we've got an attorney here. Everything we say is, is privileged.
00;25;13;07 - 00;25;30;19
Deb Wade
I think that that a perception sometimes and and reminders are probably always on orders, as you know, that that's not necessarily the case. And I know that, but it seems to know a bunch of people that, you know, it would be just a haze on the ground so that we're good with whatever we say.
00;25;30;21 - 00;25;49;09
Nick Healey
Yeah, it is a pretty widespread perception, but not always accurate. You can get people in trouble sometimes because they think they're having a privileged conversation, and it turns out it's not. So I've seen some fairly interesting meeting minutes that have to be disclosed to the other side in a lawsuit that people thought were covered by the attorney client privilege.
00;25;49;11 - 00;26;12;17
Nick Healey
So remember, it's only information that is conveyed to an attorney for the purpose of obtaining legal advice or the the legal advice that comes back. I mean, you can always argue that, well, they needed all the information that was disclosed in order to formulate legal advice, but I think a court may look skeptically on that. So be careful that relying too heavily on the attorney client privilege in that respect.
00;26;12;19 - 00;26;43;12
Nick Healey
So there's different types of information that are covered by these peer review privilege protections. All of these are things you deal with on a regular basis. So credentialing information, peer review information, quality improvement information and PDB reports and potentially risk management although that doesn't generally fall into your department. But going through those credentialing let's say applications and then re applications, what you get in primary the primary source verification process.
00;26;43;12 - 00;26;58;27
Nick Healey
Do you do you segregate the credentialing information in a specific file according to the type of protection that may apply to it? If you consider everything to be subject to the peer review privilege? How do you how do you deal with that?
00;26;58;29 - 00;27;27;15
Deb Wade
Well, here is where is that goes when we kind of consider, once it has said credentials file that it is confidential and protected. And if that's challenged then you would contact you to what we do have there. We don't have quality information in with our credentials file. So that but we do have that separated. And again as you mentioned, if something is public information, such as going to the Board of medicine to to look at a license, anyone can do that.
00;27;27;15 - 00;27;41;00
Deb Wade
So that's not necessary a confidential saying. But no, we don't have it all separated. But we do know that there's things like a peer review and that, you know, no one can see that the Side-By-Side credentials committee and medical staff leadership and the board.
00;27;41;03 - 00;28;16;19
Nick Healey
Credentials files are an interesting insight, I guess I would say, in any case, because a lot of that information is is painstaking to collect and to verify. And so other departments in the hospital, like HR, is you have an employed physician or a peer credentialing. That's the stuff that they don't want to have to duplicate. If you're going to have to get it in the first place, then they would like to have access to your credentials file in order to simply get that information for their purposes, which is perfectly reasonable from a, you know, human nature perspective.
00;28;16;19 - 00;28;43;15
Nick Healey
Nobody wants to reinvent the wheel. And so it makes a lot of sense. But in a lot of situations, credentialing files can be, where the rubber meets the road in terms of access and request for that information by other departments. And potentially, if your state does have a waiver doctrine so that things can be covered by the peer review privilege, unless they are used for some other purpose, in which case they lose that privilege.
00;28;43;15 - 00;29;13;21
Nick Healey
You may end up by disclosing some of the information from a credentialing file. You may end up essentially losing the peer review privilege as to the whole file. So it really is something that you should have very tightly crafted policies about in order to make sure you're not inadvertently disclosing things from a credentialing file to other parts of the hospital that, may end up making the entire credentialing file essentially not privileged, not subject to the peer review privileges.
00;29;13;21 - 00;29;16;25
Nick Healey
So definitely something good to keep in mind.
00;29;16;28 - 00;29;32;29
Deb Wade
Always rather on the side of caution. You know, I can give you an example just really quickly. A years ago, our HR department came to me and wanted a copy of a background query result. And I, I did not provide it.
00;29;33;00 - 00;29;35;09
Nick Healey
How did that go over.
00;29;35;11 - 00;29;44;25
Deb Wade
Well it, it, it was questioned all the way up to the, the CEO's office and and they finally wound up having to procure their own.
00;29;44;27 - 00;30;07;12
Nick Healey
Gotcha. Okay. Fair enough. And, and I think, you know, administrators especially can look at the cost of duplicating those things and really push back and be like, why are we doing this? Why are we, you know, why are we spending money to have created something that exists in another part of the hospitals files? And, you know, there are ways to essentially prevent that duplication from happening?
00;30;07;14 - 00;30;40;10
Nick Healey
In a lot of situations, the medical staff credentialing applications will start with the medical staff and people like you, Deb, are the ones who put a lot of the time and effort into creating those, those credentialing files and, and doing the primary source verification. But if the demographic and basic information was created by a different part of the hospital, let's say it started an HR or payer credentialing and then it was shared with the medical staff, instead of going for the medical staff to the other department, then everyone else would have access to it.
00;30;40;10 - 00;30;57;08
Nick Healey
There wouldn't be a question about whether it's subject to the peer review privilege, because it probably wouldn't be. And then stuff in the credentialing trial that was added on later by the medical staff that wasn't needed by those of the departments you know, that would be subject to the peer review privilege protections, and it wouldn't cause so many issues.
00;30;57;08 - 00;31;18;07
Nick Healey
You wouldn't have that risk of a waiver claim. So I think a lot of those situations are, you know, there are ways to deal with them, unfortunately. You know, because medical staff, the medical staff office often takes the laboring or in those things, you don't, you know, if you only kind of reimagined the, the process and did it slightly differently, I think he could avoid that one of those things.
00;31;18;07 - 00;31;36;02
Nick Healey
But tradition is that the medical staff office is the one that starts those processes. And so that's where a lot of the battlegrounds are, which is a shame. I do want to talk about risk management for a second. And when we talk about risk management information, what we're talking about here are things like root cause analysis. You know, something goes wrong in the hospital.
00;31;36;02 - 00;32;07;17
Nick Healey
There are various entities, or various parts of the hospital that may have an interest in finding out what went wrong and why. The medical staff, if it's a medical staff provider, is definitely one. Quality management would be another. But in a lot of situations, particularly where there's patient harm or a near miss, the risk management department may want to do a root cause analysis and determine for its own purposes, usually, I mean, it can have a quality improvement or process improvement perspective, but a lot of times it's, loss prevention.
00;32;07;17 - 00;32;28;22
Nick Healey
And even though it's something that if the medical staff did it, it may be subject to peer review, privilege protection, if it's done by the risk management department. It probably isn't going to be covered by the peer review privilege or any other medical staff protection. And I think a lot of people again, it's a process issue.
00;32;28;24 - 00;33;00;11
Nick Healey
If parts of that were done by risk management first, under essentially the attorney work product doctrine or attorney client privilege, then it could potentially be disclosed to the medical staff, and the medical staff could use it for its own purposes, after which time it would be the information that was created by the medical staff. On top of that, root cause analysis may be subject to or protected by the peer review privileges, but if it's in the risk management department, that root cause analysis is usually not going to be covered by those privileges.
00;33;00;15 - 00;33;21;24
Nick Healey
And so I think in a lot of those situations, you know, again, thinking about the process, thinking about where something should start and if you are jeopardizing the privileges that may apply to those things, I think that can really stand you in good stead. Dave, I'm curious about your interactions with risk management. How does that generally go?
00;33;21;27 - 00;33;38;26
Deb Wade
Not not well, they don't typically share a lot with me. They do with the medical staff again. But then as you're talking, I'm wondering if we're if we're missing something there, because it doesn't go to a missing meeting per se and be discussed there.
00;33;38;26 - 00;33;59;09
Nick Healey
And I guess, again, it's, you know, depends on the purpose for which these things are created. If it is solely for a loss prevention, you know, or for the risk mitigation purpose, then it it may not gain anything by going through the medical staff, but if it deals with a medical staff member, then thinking about whether the medical staff should have a role in creating the root cause, analysis is probably a good idea.
00;33;59;12 - 00;34;22;28
Nick Healey
Exactly. And then in a lot of situations, you're going to get requests from outside the hospital. So we've kind of talked about the request from inside the hospital, but you're going to potentially get requests from outside the hospital for, you know, medical staff information, whether through subpoena discovery requests, licensing board civil investigative demands, you can have a request by the Secretary of the Department of Health and Human Services for background information.
00;34;22;28 - 00;34;55;10
Nick Healey
If you submit an Ncpdp report or a National Practitioner Databank report and the physician seeks review by the secretary of that report, the Secretary of Department of Health and Human Services can ask for the background information. So there's lots of different places outside the hospital that those requests can come from that when you're dealing. I mean, the most you know, we talked about licensing board requests, but after that, probably the two most frequent ones that you're going to be dealing with are subpoenas and discovery requests.
00;34;55;10 - 00;35;13;12
Nick Healey
It's the hospital is is part of litigation. It would be quest reproduction or, you know, interrogatories, those kind of things. And if the hospital's a third party, it's going to be a subpoena. But how do you how do you deal with that? What's your process for dealing with subpoenas and discovery requests from medical staff? Information?
00;35;13;14 - 00;35;38;20
Deb Wade
All of those typically do go through our quality department. And of course banana for that information. If we have a subpoena for something and the quality department is is handling it, I'm certainly hoping that they're talking to those attorneys. And, if it's something that is generated to this office that doesn't go through quality, then then again, I'm working with our medical staff attorney for that.
00;35;38;22 - 00;35;56;13
Nick Healey
Gotcha. Okay. Is there a particular type of legal proceeding you see more than others? I mean, is that generally, you know, requests for information and medical cases or have you seen any family law, immigration, criminal, those kind of requests come through.
00;35;56;15 - 00;36;12;16
Deb Wade
The immigration typically. I wouldn't get involved with that at all because that typically doesn't doesn't hit a credentials file. To the best of my knowledge, a lot of times I'm not even told shrunk by the quality department for what? Why they're looking for what they're looking for.
00;36;12;18 - 00;36;41;00
Nick Healey
Okay. Fair enough. So I guess you know we're kind of thinking that this is a topic where confidentiality and privilege, medical stat information is a topic we could go on for a long time. And you know I think we've covered the highlights. I am wondering the if you could wave a magic wand and you could improve one thing about the information sharing the confidentiality and privilege issues that come up at your hospital.
00;36;41;01 - 00;36;48;10
Nick Healey
If you could wave a magic wand and and solve one of them, what would it be? And and how would you solve it?
00;36;48;12 - 00;37;11;00
Deb Wade
I think it's just getting as you say it comes from the top. And having administration get the word out to all of the staff at the hospital that the medical staff office is information central, and that there's reasons why we can't give them the information that they're looking for. Yeah, I'm still waiting for that since 2010.
00;37;11;03 - 00;37;19;27
Nick Healey
Patience is a virtue, and it's one you have in spades. There's so you as as is your sense of humor. So lose neither. Please.
00;37;20;00 - 00;37;21;26
Deb Wade
Oh, never. Yeah. Okay.
00;37;21;28 - 00;37;43;27
Nick Healey
All right. Even though there's lots we could talk about on this particular topic, I think we're going to draw it to a close there. I do want to thank Deb Wade, medical staff professional extraordinaire at an acute care hospital in Wyoming who I've worked with for many years, for her time and sharing her expertise and experiences. And we will be back in a couple of weeks with the next episode.
00;37;43;29 - 00;38;07;29
Nick Healey
So tune in and thanks everyone for listening.