Risk Management and Medical Liability
A Manual for Indian Health Service and Tribal Health Care Professionals
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Section Eight: Issues of Provider Competence
There are five activities that relate directly to the issues of provider competence. A full discussion of each activity is beyond the scope of this Manual, but their importance warrants a brief overview.
- Credentialing and Privileging: Although it is not a panacea, sound credentialing and privileging is the foundation for defining the level of competence of all health care providers. Credentialing and privileging flaws can emerge as a major contention during a malpractice legal preceding. The Indian Health Service (IHS) has published credentialing and privileging standards,1 and all health care accrediting organizations scrutinize this process carefully. Every IHS facility should be familiar with the Agency’s requirements. These references are noted in Section XX of this Manual.
- Continuing medical education: The current competency of a provider to perform a particular treatment or procedure is often called into question during malpractice litigation. It is the responsibility of every provider to maintain sufficient knowledge and expertise in the respective area of his/her discipline. The provider who uses outmoded therapies will have little defense if an adverse outcome occurs and the affected patient seeks compensation. Required training and experience, as well as continuing medical education should be carefully documented. The Joint Commission on Accreditation of Health Care Organizations (JCAHO) requires participation in continuing medical education for all individuals with delineated medical staff privileges. In addition, most medical boards now require ongoing maintenance of proficiency and recertification rather than an initial lifetime certification.
- Practice standards/guidelines: Both the plaintiffs and defendants at malpractice trials most frequently rely on the testimony of expert medical witnesses to define the standard of care for the case in question. The other major source of information is the medical literature, including both authoritative texts and journal articles. Now more than ever, practice guidelines are also being used by both sides in malpractice cases. Practice guidelines are defined by the Institute of Medicine as “systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances.” The Agency for Healthcare Research and Quality (AHRQ) has published a series of Clinical Practice Guidelines, and numerous other specialty societies and provider organizations have advocated the use of guidelines to improve the quality of care. The AHRQ’s National Guideline Clearinghouse website currently contains more than 1840 sets of guideline summaries available to practitioners, and the IHS also maintains a list National Comprehensive Guidelines on the Agency website (see Section XX Selected Resources for website links).
When a guideline becomes the standard of care is not clear. Because they indicate at least a potential standard of care and are based on expert opinion, clinical practice guidelines can bear on malpractice litigation. Malpractice litigants must prove that they have been injured by medical management that failed to reach a reasonably expected standard. It would follow that providers who comply with a guideline that sets forth a standard of care would have a b defense in a malpractice case (exculpatory evidence). Failure to comply with a guideline might, in turn, be evidence of negligence and might constitute inculpatory evidence. It therefore behooves the practitioner to be familiar with practice guidelines appropriate to his/her specialty or discipline.
- Peer review: Health care providers have the ominous responsibility of assessing the performance of their peers on an ongoing basis. Similar to CME, medical staff members are required to participate in the measurement, assessment, and improvement of the clinical activities of those individuals with delineated medical staff privileges. It is easy to praise our co-workers for their positive contributions to quality patient care, but it is often stressful to define and acknowledge below standard care. Nonetheless, quality assessment and risk management requirements make this an essential task. All health care providers should be willing to accept peer recommendations for personal performance improvement.
- Impaired physician: Physicians (and other health care providers) may become unable to perform their duties for any number of reasons including physical illness, mental impairment, or substance abuse. However, because most physicians who participate in rehabilitation programs do so because of substance abuse, the term “impaired physician” has become synonymous with impairment due to some form of drug or alcohol abuse. The prevalence of chemical dependency among physicians is about the same as it is for the general population, between 8-12%. Without help or intervention, impaired physicians run the risk of harming their patients and certainly themselves.
As a concerned colleague, it is not the individual practitioner’s responsibility to determine whether or not a fellow practitioner is impaired or providing below standard medical care. Good quality assessment programs should hopefully identify providers who are performing below par for whatever reason. Medical staff bylaws should afford mechanisms to bring these issues to the attention of the appropriate hospital or clinic authorities to ensure that patients are protected and the affected physician receives the help he/she needs. Multiple legal and ethical issues increase the complexity of helping potentially impaired physicians. Confidentiality rules must be observed, and sensitive information should be carefully documented and shared only with those individuals who have a right to know. Legal counsel should be obtained in most cases to ensure federal regulations are being followed.
1 The 1995 IHS Circular No. 95-16, Credentials and Privileges Review Process for the Medical Staff is being revised and converted into a Manual Chapter due for release in 2006.
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