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INTRODUCTION

The most difficult problem in health care quality control is evaluating and improving the quality of physician services. The difficulty is due party to the lack of detailed objective standards for medical decision making and party to the legal independence of physicians. The law is very reluctant to allow nonphysicians to judge the competence of physicians. This has resulted to allow nonphysicians to judge the competence of physicians. This has resulted in the delegation of almost all physician monitoring to different types of peer review committees. Unfortunately, peer review committees are reluctant to discipline incompetent or impaired practitioners. (This is true of all licensed professionals; periodic analysis of lawyer peer review committees demonstrates the same reluctance to discipline.) The failure of the peer review process means that merely holding a valid professional license is not an assurance of competence. This has led to the recognition of a legal duty to look beyond the license of a physician when determining the physician's competence.

The most detailed procedures for evaluating physician competence have been developed by the JCAH. While these standards apply only to member hospitals, they provide a useful benchmark by which others charged with ensuring physician competence may judge their efforts. This chapter reviews these JCAH requirements and expands upon them by examining certain additional precautions that increase their legal effectiveness. The discussion is structured around the needs of hospitals, although it also applies to the needs of group practice or HMOs. Because of the growing importance of HMOs, their legal duties are briefly reviewed before the general discussion of physician monitoring.

There are three types of HMOs: (1) the open panel HMO, (2) the closed panel HMO, and (3) the group practice HMO. The legal duty to supervise is somewhat different for each of these types.

The open panel HMO is just a variant of conventional medical insurance. The patient pays a fixed fee to the HMO but is not restricted in the choice of a physician. The individual physician may choose to refuse to treat the patient, but the HMO agrees to pay any physician who does treat a patient covered by its plan. If the HMO exercises no right of control over the choice or performance of a physician, it has no duty to oversee the physician. It is this lack of authority to select or supervise that determines the extent of the duty to ensure the physician's competence. For example, if the open panel HMO reimbursed only those physicians who followed a detailed protocol when treating HMO patients the HMO would have a duty to ensure that this protocol met the medical needs of the patients.

In the closed panel HMO, the patient is given a list of private practitioners in the community who have agreed to abide by the HMO's restrictions on patient care. These restriction may range from a prearranged fee structure to detailed guidelines on the use of specialty consultants and hospitals. The HMO limits the patient's choice of physician, and this limitation is absolute if a particular specialty is represented by only one person on the list. In a closed panel HMO, there is a significant duty to ascertain the professional competence of the panel of physicians. This duty derives from the restrictions that the HMO imposes on physician selection and practice. By preempting the patient's right to choose a physician, the HMO assumes the responsibility of selecting a competent physician.

The group practice HMO is a special type of closed panel arrangement in which the HMO contracts with (or is owned by ) a physician group practice that provides all the medical services. HMO members may make up the bulk of the practice's patients, or they may be only a part the patient population. In either situation, the HMO subscriber is limited to obtaining care from members of the professional group and, in most cases, is arbitrarily assigned to a specific physician. In this situation, the patient has little or no choice in physicians. This means that the HMO duty to oversee the competence of the physicians is very important. The physician group can be directly liable for the physician's actions if it employs them. It will (like the hospital) be liable for failure to select or monitor the physicians properly, even if they are technically independent contractors. In addition, the HMO may be liable for failing to ensure that the physician group properly carries out its duty to ensure the competence of the physicians in the practice.

The physician group practice will be directly liable for the actions of all employee physicians. Physicians who are partners in a practice (or shareholders in a professional corporation) will have a shared liability for all injuries that occur in the usual course of rendering medical care. There is additional liability for intentional tors outside of the practice of medicine. This liability requires that the practice be on notice that the tort is being committee and that it not intervene to stop the actions.

For example, a Texas case extended this liability to damages for alienation of affection when a member of the group practice began to make advances to a woman patient. The patient's husband became aware of the advances and complained to other members of the group practice. When the advances were ultimately successful, the husband sued the practice. The court awarded damages, finding the group practice liable for breaching its duty to see that its member behave in a professional manner. (While the court was not specific on this point, it is reasonable to assume that, if the woman had not been a patient, there would not have been any duty to prevent the advances.)

Corporations that hire physicians to provide employee health services have a duty properly to assess the qualifications of those physicians before hiring them. There is also a continuing duty to ensure that proper care is rendered to the employees, although in some states the employer will be shielded from liability by workers' compensation statutes. The duty to monitor becomes very difficult in the case of company physicians because there may not be any other physicians to supervise them. In this situation, the employer should arrange for an outside physician or physician group to carry out medical audits on employee medical records.

Whatever the structure of the group practice, it shares with hospitals many of the duties to screen and monitor physicians. In the following sections, these duties will be examined in the context of the granting and maintenance of hospital privileges. Since many group practices have more physicians and larger facilities than a small hospital, it is necessary for them to set up formal mechanisms to review the qualifications and performance of their physician staff.


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