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Physicians-Pay Attention: Medical Staff Bylaw Changes Are Coming, Kentuckydoc, Vol. 2, Issue 1, 2010

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Kentucky doc, August 2010, Vol. 2, Issue 1
By Lisa English Hinkle, Esq., Partner in McBrayer, McGinnis, Leslie & Kirkland, PLLC

With the release of new standards for medical staff governance, the Joint Commission on Accreditation of Healthcare Organizations ("JACHO") has attempted to address and ameliorate the historic tension between hospitals and physicians in a way that will require most hospitals to substantially revise their Medical Staff Bylaws and revisit the relationship between doctors, hospital administration and the hospital's governing board. After seven years of contentious debate with both the AMA and AHA weighing in, the JCAHO's new standards are supposed to "contribute to patient safety and quality of care through the support of a well-functioning, positive relationship between a hospital's medical staff and governing body." Because physicians stand to lose substantial rights with the amendment of Medical Staff Bylaws, physicians should actively engage in the process and carefully evaluate the implications of conformance with the new standards, particularly in the area of credentialing and ongoing quality review to ensure that new procedures are fair and adequately understood.

To really understand what is at stake, physicians must be aware of the historic tensions between hospitals and physicians. For years, hospitals and physicians have maintained a symbiotic relationship where physicians need the equipment, staff and facilities of a hospital to practice their profession. In fact, many, if not most, insurance panels require physicians to be a member of a hospital medical staff for participation. Hospitals, on the other hand, cannot function without physicians, their patients and their professional skills: physician admissions drive hospital utilization. As many traditional hospital services have moved from the outpatient department to the physician office, hospitals and physicians have become competitive in a new way with the result that some hospitals have denied medical staff membership to physicians engaged in competing ventures. Tension between the two has evolved as hospitals have attempted to control access to hospital facilities and resources through things such as contacting exclusively with certain physician groups, closing hospital departments, limited access to specialty units like cardiac catheterization laboratories and the ICU, as well as surgical suites, all the while voicing concerns about quality, efficiency and cost-effectiveness. Physicians have not had many tools to address hospital actions. Thus, medical staff membership and the Medical Staff Bylaws have grown in importance.

As health care reform takes shape and reimbursement changes along with a new and national focus on quality of care, these factors create more pressure for hospitals to control their resources and limit access and use of their facilities. With these conflicting concerns, physicians must pay careful attention as hospitals and their medical staffs embark on revision of Medical Staff Bylaws to conform with the new JCAHO standards. To promote quality and safety, these new standards require that the medical staff be accountable to the hospital's governing body and require collaboration with hospital leadership to agree on rules and procedures that guide interactions in these matters:

The Medical Staff Bylaws are also required to establish procedures by which these tasks are accomplished. The details of the procedures may be set forth in policies.

While the JCAHO standards mandate many important items that the Medical Staff Bylaws must address, the most important area for physicians is in credentialing, as conformance with the standards requires ongoing assessment of the quality of care provided by individual physicians. While not mandatory, the standards also permit evaluation of the efficiency and resource use of individual physicians. While certain legal safeguards like the Americans with Disabilities Act, Federal Anti-trust Statutes, the Fair Credit Act, Medicare's Conditions of Participation, and state laws protect physicians in their relationships with hospitals, the legal relationship has yet to be defined by Kentucky law in a way that establishes a clear legal right to become a medical staff member and to maintain that membership. With the new focus on quality as well as the other factors that may b e considered, the re-credentialing process takes on even greater significance as a physician's individual right to retain medical staff membership becomes subject to more rigorous review.

While each hospital and its medical staff will likely initiate the review of Medical Staff Bylaws in a unique manner, most will consider the new JCAHO standards. Even though some of the new standards are favorable for physicians, including new limitations on the authority of medical executive committees, physicians must be actively involved in the process and pay particular attention to the credentialing process to ensure that fair procedures are established and that physicians are aware of the benchmarks that may be set for medical staff membership.

About the Author

Lisa English Hinkle is a partner in McBrayer, McGinnis, Leslie & Kirkland, PLLC. Her practice area is health care law. She can be reached at 859-231-8780 and lhinkle@mmlk.com.

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