Ever consider why the ability to practice at a hospital is considered a “privilege” and not a “right”? That is because the hospital granting those privileges has broad discretion to grant, modify, suspend, or revoke those privileges. They are privileges, not rights, because the hospital has a duty protect itself and its staff and patients from the risks of the willful or negligent act of is medical staff. The granting or refusal of privileges is therefore a duty of the hospital. If the hospital fails to carry out that duty in an appropriate manner, it can be subject to liability for negligent credentialing. Because of this, the hospital’s actions in granting, modifying, suspending, or revoking privileges receive deferential treatment at any subsequent level of review, whether at a hearing, on appeal, or in subsequent litigation.
When a physician is faced with a potential threat of future action against his/her medical staff privileges, the physician should take immediate notice and action. Such a threat is frequently because of a slow-brewing storm built on multiple components. Whether the issue is disruptive behavior, quality concerns, administrative leadership changes or a backdrop of other political influencers, recognizing the issue and addressing it early is the best way to avoid a full-blown attack on your medical staff privileges and the need to defend yourself in a formal hearing process.
In 1986 President Ronald Reagan signed the Emergency Medical Treatment and Active Labor Act (EMTALA) into law. Since then, the application of the law has been expanded and refined. It was one of the first laws giving the government the authority to dictate certain operations of a hospital. While other laws and regulations such as the Anti-Kickback Statute and the Stark Law have become more of a focus for health care providers, EMTALA remains an area of active enforcement. All providers with hospital privileges should therefore be aware of its application.
The policy behind the law is fairly straightforward. Hospitals with emergency departments should not be able to turn away patients needing care because of their inability to pay (no more “wallet biopsies” as part of triage). Likewise, hospitals should not be able to “dump” patients on other facilities for reasons other than for advanced care.
The requirements of the law are also very basic. If a patient comes to an emergency department and requests an examination or treatment for a medical condition, the hospital must provide an appropriate medical screening exam, within its capability, to determine whether or not the patient has an emergency medical condition. The screening provided goes beyond simple triage, and must be performed by a clinical provider such as a physician, nurse practitioner, or physician’s assistant.
Health law is the federal, state, and local law, rules, regulations and other jurisprudence among providers, payers and vendors to the healthcare industry and its patient and delivery of health care services; all with an emphasis on operations, regulatory and transactional legal issues.