August 1, 2004 Newsletter

ALLAN TOBIAS, MD JD HEALTHCARE CONSULTING AND LAW

MEDICAL STAFF COMPLIANCE  

I recently read a short article by a well known hospital consultant who spoke about medical staff compliance.  His articles usually carry a lot of weight with medical staffs but the physicians that read it do not understand that he and his organization get their money from hospitals.  Hospitals send their medical staff members to his courses and come back indoctrinated into the tenet of the hospital.  The courses are not unbiased but only tell the physician what the hospital community wants the physicians to be told.   

In one of his latest articles he discussed medical staff compliance.  I sent the article to a friend who is very knowledgeable in medical staff matters as he is past president of the California Medical Association and also a past member and Chair of the American Medical Association medical staff section.  He recommended that I write an article on the subject.  I must confess I have been remiss of late in writing articles for a variety of reasons.

The consultant wrote that the government is cracking down on corporate compliance and that the hospital would be remiss if that didn’t include the medical staff.  That is a leap of faith since there is no such federal compliance standard that implicates the medical staff.  The compliance that the government is after is related to billing.  I agree that the medical staff has a say in this, but not in the same way as was written.  The individual physicians have a duty to code their charts correctly and not allow the hospital coders to put things in that are not true.  If a physician signs his/her name to a chart, they are saying the diagnosis is true.  If they then change to upgrade the case on matters that are questionable, they can be opening themselves up to a Medicare fraud case.  If the medical staff member did undercode and by telling a true diagnosis, the hospital would get paid more, this should be done.  Do Not Lie.  

The hospital consultant states that the medical staff compliance policy should have standards and monitoring systems to promote member compliance with laws and regulations.  He goes on to state the policy should have compliance with the hospitals,

 Keep your policies simple and to the point.  Do not agree blindly to hospital rules that you have never seen nor read.  There is no problem with this if the hospital and the Board will inform you of all their bylaws, rules and regs along with their policies and when they change them.  Otherwise, the medical staff is agreeing to policies that may be against their interest.  

The hospital consultant then goes on to state that the medical staff policy should require the review of key processes in those areas that the independent medical staffs have control.  I could not agree with this more strongly.  It is imperative that the medical staff bylaws, rules and regs and the policies be fluid and change as the needs of the medical staff and not the hospital change.  There is no regulation anywhere, except in the minds of some narrow minded hospital CEOs, that there be any conflict of interest statements.  When one puts this in the medical staff bylaws, you lose the ability as individuals to compete in an open market.  In the last week of July, 2004, the Federal Trade Commission and the Justice Department commented on the CON process and how it

The consultant goes on to recommend that the medical staff be oriented to the medical staff bylaws and rules.  This should be done with all new applicants.  They should all be given copies of the bylaws, be given the opportunity to ask questions about them and only then sign that they have read them.  The new member should never agree to something that they have not read.  That includes the hospital bylaws and rules that affect the medical staff members.

He recommends that there be procedures for reporting suspected problems.   Again, we agree.  Too often physicians are accused of being disruptive when there is no mechanism for them to channel their frustrations with the hospital not providing adequate care.  If there are adequate procedures for reporting lapses with reporting the result back to the complainant, without retaliation if the policies are followed, that is good for the patient and the physicians.  

The hospital man believes that it is the duty of every member of the staff to report their fellow physicians for what is done in their offices and other non-hospital environment.  If what is being done in the non-hospital setting has the ability to negatively affect patient care it should be reported, but not to the hospital.  It is none of the hospital’s business.  The mechanism to report those physicians exists in every state and they should be reported to the Medical Board of the state.  Patient safety is of prime concern.  

His last statement is that the corrective action portions of the bylaws identify the process for dealing with the compliance issues.  This is true, if there were any true compliance issues.  As you can see, I don’t believe there are any.  The hospital consultant believes that compliance means the medical staff should be compliant with the wishes of the hospital.  Compliance means nothing of the sort.  As stated above, compliance only means monetary truth, not compliance with the unilateral rules of the hospital.   

It is because of individuals like this who influence the medical staff overtly and at the same time are covertly being paid to do so by the hospital, that all medical staffs should be allowed and actually have and pay for their own attorney for matters like bylaws and other issues of possible conflicts of interest between the hospital and medical staff.  

The best example of this was the recent case at Community Hospital in Ventura, California.  The hospital unilaterally put in conflict of interest policies and confiscated the medical staff funds so the staff could not hire an attorney.  The physicians paid privately for their own attorney. The result to date has been the hospital lost physicians, patients, money in legal fees and lost revenue, their CEO, and Medical Director.  Most importantly there is now an awareness in the California legislature, which passed a bill stating medical staffs are independent.  

In another article on his site, a physician employee of his wrote to push for the streamlining of the bylaws.  This is fine.  However, the bylaws should NOT be streamlined by taking important matters such as peer review out of them and putting them into policies which may be changed and the medical staff not being aware.  When something has the ability to affect all on the staff, it should not be easy to change and should require a vote of all to change it.  

As I end this short article, I want to emphasize that whenever someone tells you that you must do something always follow the Willie Sutton Law.  When asked why he robbed banks, he answered “That’s where the money is”.  You do the same.  Look for the true and not the offered motivation.

Please subscribe for free and read my every two week medical updates at www.medicalaw.net. 

Archive

DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.