Negligent credentialing: Is the danger growing?

May 4, 2007

A rising number of claims is also a problem for doctors, especially in malpractice cases.

Key Points

It's complicated enough when a patient who's been injured in the hospital sues her treating physician, but it gets more complicated still when she also sues the hospital for credentialing that physician in the first place.

From a series of seminal cases beginning in the 1960s, negligent credentialing, as this kind of claim is formally known, has become a growing problem for both hospitals and physicians. At least 32 states now recognize a hospital's duty to exercise reasonable care in granting privileges. And recent cases in Georgia, Minnesota, New York, and Rhode Island have kept this form of corporate negligence before the courts.

What's fueling the rise in credentialing-related claims, especially those that are coupled with straight-up malpractice suits?

Those on the other side take a very different view of the matter. There are more negligent credentialing claims, they argue, because there's more negligent credentialing going on-this despite the myriad hospital peer review protections in place that are supposed to encourage frank and honest assessments of physician applicants and reappointments.

Even those who aren't members of the trial bar think there's some truth to this argument. "There's no question that there's inadequate credentialing taking place around this country, and patients are being placed in harm's way as a result," says FP and attorney Todd Sagin, vice president and national medical director of The Greeley Company, a healthcare consulting company in Marblehead, MA. Although Sagin gives the current tort system low marks for handling such problems, he thinks that patients who've been harmed as a result of bad credentialing should receive some form of compensation.

At least in the current system, though, that's not always easy to do. Negligent credentialing claims are far easier to bring than they are to win, especially in states with strict peer review protections. These make it difficult, sometimes impossible, for plaintiffs to get the confidential information they need to make their case, even during preliminary hearings. And even when they can get that information, their case is far from a slam-dunk. "If a hospital can show that it was following appropriate internal and The Joint Commission standards, the court usually won't let the case go forward," Sagin says.

Still, despite such obstacles, negligent credentialing cases have moved forward successfully, which has not only made hospitals nervous but doctors as well. Certainly, because of them, physicians face a higher degree of scrutiny, whichever side of the credentialing review desk they find themselves sitting behind. And if they end up in a combined malpractice-negligent credentialing case, they face an even grimmer prospect: defending themselves against evidence that most courts would have ruled out of bounds in a straight-up malpractice trial-prior malpractice verdicts and settlements, past disciplinary actions, and so forth. Unless the malpractice and negligent credentialing claims are decoupled and tried separately, as some defense attorneys have succeeded in doing, such evidence is very much in bounds.

Focusing on the latest and, in some ways, most far-ranging negligent credentialing case, we took a look at how this and other issues are affecting doctors and the hospitals they treat patients in.