Jun 14 2019

Courtroom Success 2019-15: Morrison Mahoney Partner Bill Smart Prevails in Hospital Credentialing Hearing

Morrison Mahoney Partner Bill Smart prevailed in a hospital credentialing matter on behalf of our client, a tele-radiologist. The hospital's Credentials and Medical Executive Committee (MEC) had voted to recommend that the Board of Trustees deny our client’s reappointment to the medical staff following a seven-figure malpractice settlement that arose from care at another facility. Pursuant to the credentials’ policy, we requested an evidentiary hearing to contest the MEC's recommendation before a three-member panel comprised of medical staff members from different specialties.

 In consultation with its Chief of Radiology, the MEC’s recommendation to deny reappointment was largely based upon a review of our client’s malpractice payment history as reported by the National Practitioners Data Bank (NPDB) and compared to the history of other radiology staff members at the hospital. We argued that reasonable conclusions about safety and competence to exercise clinical privileges cannot be drawn from the NPDB alone, and that a more robust inquiry was required. Via our client, an expert witness and relevant exhibits, we  presented evidence that the case underlying his most recent malpractice payment was defensible on the merits, and was only settled to avoid personal liability that was estimated to be in excess of $20,000,000. Significantly, and to his credit, the hospital’s Chief of Radiology candidly changed his opinion during the course of the hearing. Following deliberations, the panel recommended in favor of reappointment after concluding that we had met our burden of proof "by clear and convincing evidence" that the MEC's recommendation was not supported by credible evidence.

The hospital's Board of Trustees ultimately sided with the panel, approving our client’s reappointment to the medical staff for a two-year term. Notably, the denial of reappointment—or the withdrawal of our client’s application for privileges under the circumstances—is an “adverse clinical privileges action” that would have been separately reportable to the NPDB in addition to the malpractice payment upon which the MEC's recommendation had been based. Avoiding adverse clinical privileges actions is important because they can have a significant negative impact on the physician’s ability to practice or obtain privileges and employment.     

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