BNA: Ninth Circuit Affirms Judgment for Hospital, Holds HCQIA Immunity Barred Doctor's Suit

Fox v. Good Samaritan Hospital LP, 9th Cir., No. 10-15989, unpublished 2/3/12

Key Holding: Summary judgment for hospital on basis that HCQIA barred doctor's lawsuit based on suspension of privileges is affirmed.

Key Takeaway: HCQIA immunity applies to hospital professional review action based on doctor's refusal to follow hospital rules where his competence was not at issue.


A California doctor was not able to overcome the presumption that the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. §§11101-11152, granted a hospital immunity for suspending the physician's privileges, a federal appeals court Feb. 3 said in affirming summary judgment for the hospital (Fox v. Good Samaritan Hospital LP, 9th Cir., No. 10-15989, unpublished 2/3/12).

The U.S. Court of Appeals for the Ninth Circuit, in an unpublished opinion, said that, although it found it distressing that defendant Good Samaritan Hospital LP (GSH) waited six years to raise the HCQIA defense, the hospital nevertheless was entitled to immunity in an action brought by Dr. Richard Fox.

This action arose in 1999, when GSH suspended Fox's privileges due to his refusal to comply with a newly enacted hospital rule that required that a physician's designated backups hold the same set of privileges as the physician.

Fox sued GSH and others in federal court in 2004, alleging various causes of action based on his suspension. He also alleged that the hospital's real reasons for suspending his privileges were to retaliate for his previous criticism of patient care at the hospital and to impose a monopoly on the provision of pediatric intensive care services.

District Court Action
The U.S. District Court for the Northern District of California granted the defendants' motion for summary judgment after finding that, although the peer review proceedings that led to the suspension of Fox's privileges did not concern Fox's competency, the HCQIA reached actions taken based on a physician's refusal to follow hospital administrative rules.

The court found that the suspension of Fox's privileges for failure to comply with the alternate coverage rules was a professional review activity within the meaning of the HCQIA and that it was based on the “professional conduct of an individual physician.” The court further found that Fox failed to rebut the presumption that the hospital met the standards for application of the immunity provision.

It later denied Fox's motion for reconsideration and held that the defendants were not entitled to recover costs and attorneys' fees (126 HCDR, 7/2/10).

HCQIA Applied
A hospital is entitled to HCQIA immunity for any “professional review action” taken based on a physician's competence or professional conduct, as long as the hospital afforded the physician adequate procedural protections, the Ninth Circuit said in its decision.

The court found, contrary to Fox's argument, that GSH's action fell within this definition because Fox's professional conduct motivated GSH's decision to suspend his privileges. “A doctor's failure to comply with a rule of the hospital where he practices unquestionably implicates his professional conduct, whether or not he agrees with the rule,” the court wrote.

Additionally, the court said, GSH's failure to offer Fox a formal administrative hearing did not preclude the hospital from claiming HCQIA immunity because “a hearing was not necessary under the unique circumstances of Fox's case.”

Fox did not dispute that he failed to designate backups with identical privileges, as the hospital required. Therefore, a hearing geared toward resolving factual issues would have done nothing to help Fox's case or the hospital's decisionmaking process, the court said.

Fair Procedure
GSH's offer to allow Fox to challenge the rule in informal hearings before the hospital's executive committee and board of trustees provided a fair procedure under the circumstances, the court said.

It also held that GSH's failure to report Fox's suspension to the National Practitioner Data Bank, as required by 42 U.S.C. § 11133(a)(1), did not foreclose HCQIA immunity in this instance. A failure to report forecloses immunity only if the secretary of health and human services publishes the hospital's name in the Federal Register, which did not happen in this case, the court said.

Finally, the court said the lower court did not abuse its discretion in denying GSH's motion for costs and attorneys' fees because the HCQIA defense was available to the hospital at the outset of the litigation and was not asserted “until after nearly six years of costly discovery and multiple rounds of motion practice.” None of these expenses of time or money would have been necessary had the defendants timely raised the HCQIA defense, the court said.

James Alfred Hennefer, of Hennefer Finley & Wood LLP, San Francisco, represented Fox. Thad A. Davis, of Ropes & Gray, San Francisco; David C. Hall, of Hall Prangle & Schoonveld, Chicago; Michael A. Hurwitz, San Jose, Calif.; David Perrault, of Hardy Erich Brown & Wilson, Sacramento; and George A. Shannon Jr., of Shannon Martin, Houston, represented the defendants.

The court's opinion is available here: http://op.bna.com/hl.nsf/r?Open=mapi-8r8lw4.

BNA: CMS's Hospital Compare Website Adds Central Line Bloodstream Infection Data

The Centers for Medicare & Medicaid Services Jan. 26 posted data on central line-associated bloodstream infections (CLABSI) occurring in hospital intensive care units to its Hospital Compare website.

The data were based on three months of hospital reporting (January 2011 through March 2011), and they will be updated quarterly. The website allows users to compare an individual hospital's performance in a variety of categories against a national benchmark rate.

Roughly 248,000 bloodstream infections occur in U.S. hospitals annually. Many result from use of a central vascular catheter, also known as a central line, according to the Centers for Disease Control and Prevention.

“This is a milestone for patient safety that begins to make hospitals accountable for the two million patients who are infected each year,” Lisa McGiffert, director of Consumers Union's Safe Patient Project, said in a Feb. 1 statement. “Finally, Americans in all 50 states will be able to find out how well their hospital prevents these particular infections.”
Consumers Union, the nonprofit advocacy arm of Consumer Reports, said it has called for the release of hospital CLABSI data since 2004, and it has worked with other advocacy groups to mandate hospital infection reporting in 30 states.

The Medicare hospital Fiscal Year 2011 inpatient prospective payment system final rule required all hospitals to begin reporting CLABSI data to the CDC's National Healthcare Safety Network by Jan. 1, 2011. The data were then shared with the Hospital Compare website.

Hospitals currently report bloodstream infections occurring in a surgical setting to the CDC, and those data are expected to be posted to the Hospital Compare website in 2013.


The Hospital Compare website is at http://www.hospitalcompare.hhs.gov/. The FY 2011 Final Rule is at http://www.gpo.gov/fdsys/pkg/FR-2011-08-18/pdf/2011-19719.pdf

BYOD: Physicians' Use of Mobile Devices Seen As Improving Care, but Bringing New Risks

Attorneys Mike Overly and Chanley T. Howell of Foley & Lardner LLP discuss the ways in which personal mobile devices will influence healthcare delivery

Physicians' use of personal mobile devices to treat patients could improve efficiency and reduce cost to providers, but also could pose liability and security risks, attorneys with Foley & Lardner LLP said Jan. 23 during a webinar hosted by the law firm.

Speaking at Foley's webinar on “Emerging Issues in Health Information Technology,” attorneys Mike Overly and Chanley T. Howell, partners at Foley & Lardner, identified how new mobile device trends could both benefit and hurt health care organizations.

On the benefit side of the trend, use of personal devices, such as smart phones, iPads, and other mobile devices, allows physicians to be in communication 24/7 with patients and other physicians, and enables “tremendous” cost savings, Howell, with the firm's Jacksonville, Fla., office, said.

For some hospitals or physician practices, allowing the use of personal mobile devices also can give the organization a competitive business advantage, Howell added.

According to Howell, this growing “bring your own device” (BYOD) trend should be addressed by health care organizations immediately by drafting policies that are easy for employees to understand and anticipating issues that could arise in the future.

Liability Risks
Despite the benefits, liability risks associated with employee use of personal mobile devices are increasingly becoming an issue that needs to be addressed by new health care organization policies, Overly, with the firm's Los Angeles office, said.

According to Overly, the BYOD trend could create liability risks due to:
• personal devices mixing business and personal data;
• risks to information security in personal devices;
• software licensing issues;
• risks associated with shared use of a device with nonemployees; and
• potential risks of an employee disposing of the device inappropriately.

Additionally, mobile device applications used in health care settings that are created by international companies also could pose risks to physicians and consumers, because international data use agreements are different than domestic data use agreements, Overly said.

January 30, 2012

amednews: AMA offers online CME to help with health IT

The Web-based tutorials will educate physicians about analyzing workflow in their offices before they buy any systems.

Pamela Lewis Dolan, Jan. 30, 2012.

The American Medical Association has released three online tutorials aimed at helping physicians implement health information technology into their practices.

The tutorials include videos, downloadable tools and best practices for health IT in a physician practice. They are being offered when many doctors are looking at technology for the first time because of federal incentive programs aimed at increasing physician adoption and use of health IT tools.

Each seven- to 10-minute tutorial is focused on understanding workflow and what changes to expect with new technologies.

The three tutorials offered are:

• E-prescribing. This series will explain the benefits of electronic prescribing and the quality, safety and efficacy compared with paper prescribing. The series identifies opportunities to improve medication management and efficiencies through e-prescribing.



• Pre-visit planning. This tutorial will help physicians implement technology that provides full patient information before a visit. Benefits, including reduced waiting times and improved efficiencies, will be explained.



• Point-of-care documentation. This will guide doctors in making decisions about the hardware used during an office exam. It also will explain the information that should be collected during an exam, as well as the format used to document it.

The AMA said the tutorials will explain the best ways to implement new technology.

"Physician practices may need to redesign and reorganize their office routines so that they can successfully and efficiently adopt health IT," said AMA President Peter W. Carmel, MD.

The CME-accredited tutorials are free. They are an addition to the AMA's library of CME-accredited tutorials, including those launched in May 2011 aimed at helping physicians earn incentives for e-prescribing and meaningful use of EMRs.



ADDITIONAL INFORMATION:

CME-accredited tutorials on health information technology from the American Medical Association (www.ama-cmeonline.com/health_it_workflow)

Let NAMSS Help you Reach your Goal To Become Your Own Advocate in 2012

MSPs perform an integral role in keeping health care organizations running smoothly and ensuring the highest-quality patient care. All too often, however, MSPs do not have access to the types of development courses that will help them progress in their careers. Designed for MSPs at every stage of their career, NAMSS’ newest classroom course, Becoming Your Own Advocate, is a comprehensive interactive program designed to help you increase your professional credibility and achieve your goals within your organization. Visit our website for more information on this live offering on January 27 and 28 2012 in Las Vegas, Nevada at the Aria Resort and Casino.

For more information visit our website: http://www.namss.org/Education/CEOpportunities/InPersonCourses/BecomingYourOwnAdvocate/tabid/361/Default.aspx

Credentialing for Multiple Accrediting Bodies: Help is Here!!!

Do you perform credentialing for entities with more than one accrediting body and need help in keeping all the various accreditation standards straight? We hope that this upcoming webinar series with NAMSS and Stanford University Medical Center’s Debra Green will help you. Visit our website for more information:

http://www.namss.org/MemberCenter/NAMSSStore/tabid/70/pid/315/Comparative-Differences-of-Regulatory-Standards-Webinar-Bundle-w-NAMSS-Membership-Glossary.aspx

To further complement this webinar series, NAMSS also offers “The NAMSS Comparison of Accreditation Standards” which provides you with “plain-language” interpretations of the credentialing standards in a side by side format for easy comparison of The Joint Commission, NCQA, Healthcare Facilities Accreditation Program, DNV, URAC, the Accreditation Association for Ambulatory Health Care, as well as the Medicare Conditions of Participation. Visit our website for more information on this handy reference:

http://www.namss.org/MemberCenter/NAMSSStore/tabid/70/pid/300/2012-NAMSS-Comparison-of-Accreditation-Standards.aspx

Update on The Joint Commission's Sentinel Event Alert on Health Care Worker Fatigue

The Joint Commission has issued a sentinel-event alert saying drowsy health professionals are likelier to be involved in adverse events than their well-rested counterparts. The commission advised the more than 6,500 hospitals and other health care organizations it accredits to take steps to mitigate the risks of such fatigue

Nine ways to give rest to the weary health care worker

In a December 2011 sentinel-event alert, the Joint Commission offered advice to help health care organizations prevent fatigue-related adverse events:

• Review policies to ensure that they address extended work shifts and hours.



• Assess hand-off procedures to ensure that they protect patients adequately.



• Invite staff to take part in designing work schedules to minimize potential
  for fatigue.



• Offer tips to fight fatigue, such as doing things that involve physical action, talking with other people, taking short naps and drinking coffee only when tired.



• Educate staff about sleep hygiene and the effects of fatigue on patient safety.



• Offer opportunities for staff to express concerns about fatigue.



• Use a system of independent second checks for critical tasks and complex patients.



• Consider fatigue as a potential contributing factor when reviewing all adverse events.



• Ensure that the nap room is cool, dark, quiet and comfortable; provide eye masks and ear plugs; and let workers turn off pagers between shifts.

Source: "Sentinel Event Alert Issue 48: Health care worker fatigue and patient safety," The Joint Commission, Dec. 14, 2011 http://www.jointcommission.org/sea_issue_48/