Recently, there has been an upsurge in attention to the notion of “precautionary suspension.” It is suggested that hospitals and medical staffs should impose such suspensions when patient safety is at issue but an investigation has not confirmed that a practitioner’s privileges or membership should be restricted. Proponents of this approach assert, dangerously, that such a precautionary suspension does not require either a report to the National Practitioner Data Bank (NPDB) or an administrative hearing, because the suspension is not considered a professional review action. 

Medical staffs would be wise to tread very carefully around this approach. It does not matter what name is given to a suspension if the action’s effect is to limit in any waya practitioner’s ability to exercise freely his or her clinical privileges. This is equally true of California’s state laws governing adverse actions against physicians and certain other practitioners. Moreover, adverse action should never be taken solely for punitive purposes. Rather, such actions, which can have catastrophic impact on a practitioner’s career, should be reserved solely for those instances when the actions of the subject practitioner could jeopardize the immediate safety of another person.

I.          The NPDB’s Reporting Requirements

Contrary to the assertions of precautionary suspension proponents, whether or not an investigation has resulted in a conclusive determination about a practitioner’s competence or conduct has no bearing whatsoever on whether and when an NPDB report must be filed. Rather, the test for filing these reports turns on (a) the length of time an adverse action is in effect and whether or not the adverse action is based on reasons related to the practitioner’s professional competence and adversely affects his or her clinical privileges;1 or (b) whether or not he/she surrenders his/her privileges while under investigation or to avoid one. 

The NPDB Guidebook’s2 description of when a report is required makes no mention of an explicit or implicit requirement that an investigation result in a conclusive determination of professional incompetence or misconduct prior to filing a report. Rather, the Guidebook clearly states that a report is required when a “professional review action” is

based on reasons related to professional competence or conduct, adversely affecting clinical privileges for a period longer than 30 days; or voluntary surrender or restriction of clinical privileges while under, or to avoid, investigation. (Emphasis added.)

Further, the NPDB defines a “professional review action” to include an action or recommendation of a health care entity:

(1) taken in the course of professional review activity;

(2) based on the professional competence or professional conduct of an individual physician, dentist, or other health care practitioner which affects or could affect adversely the health or welfare of a patient or patients; and

(3) which adversely affects or may adversely affect the clinical privileges of the physician, dentist, or other health care practitioner. (Emphasis added.)

A “precautionary suspension” is inconsistent with the NPDB reporting requirements. The mere fact that a hospital has not conclusively determined that a practitioner is incompetent or engaged in unprofessional conduct does not mean no report is required. Instead, if (1) action is taken during the course of professional peer review activity (which does not necessarily mean an investigation); (2) the professional conduct or competence of a practitioner could affect adversely the health or welfare of a patient or patients; and (3) the action adversely affects the practitioner’s clinical privileges, then the reporting requirements above are triggered if the action lasts for the required time period.

Don’t be fooled: precautionary suspensions don’t enjoy any special treatment or exceptions to these rules. Irrespective of what you call the action, if it meets the above tests and results in a restriction of privileges for more than 30 days, then an NPDB report must be filed within 15 days thereafter. 

California’s Summary Action Reporting Requirements:

Nor is there room for non-reportable precautionary suspensions in California Business and Professions Code Section 805, which sets forth the requirements for reports to the California Medical Board (805 Reports). Actions that take immediate affect before practitioners have the right to exercise their full hearing and appellate review rights, and which are finalized by the governing board of the hospital, are considered to be “summary action.” Precautionary suspensions by definition are summary actions because they take immediate affect as described here. 

Section 805 (b), sets forth the time frames in which an 805 report must be filed if a practitioner’s clinical privileges, medical staff membership, membership in certain professional associations or employment is restricted, suspended or terminated for a medical disciplinary cause or reason. Section 805 (a)(6) defines a medical disciplinary cause or reason to mean

that aspect of a licentiate's competence or professional conduct that is reasonably likely to be detrimental to patient safety or to the delivery of patient care. (Emphasis added.)

Thus, a conclusive determination that patient safety will be adversely affected by a practitioner’s professional misconduct or incompetence is not required before reporting requirements are triggered under California law. 

For summary actions, Section 805 (e) requires that an 805 report be filed within 15 days following the imposition of summary suspension of staff privileges, membership, or employment, if the summary suspension remains in effect for a period in excess of 14 days. Thus, because a precautionary suspension is summary by nature, if it is in effect for longer than 14 days, an 805 report must be filed with the California Medical Board that such action was taken. Further, practitioners subject to such reports are automatically entitled to the hearing rights set forth in California Business and Professions code Section 809 et seq.

Entities and certain individuals in California who fail to heed Section 805’s requirements do so at their own peril; Section 805 imposes strict civil monetary and criminal penalties on individuals who are required to file 805 reports but negligently or intentionally fail to file them. 

Conclusion

Hospitals and their medical staffs should consult legal counsel whenever they consider taking adverse action against a practitioner even if that action is precautionary in nature.  Contrary to the proponents of “precautionary suspension,” the existence of conclusive determinations of professional incompetence or misconduct has no bearing on whether and when regulatory reporting requirements or hearing rights are triggered.

If you have questions about precautionary suspensions or other corrective actions, please contact Lowell C. Brown or Patricia M. Kosich or the Arent Fox attorney who normally handles your legal affairs.

Patricia M. Kosich
kosich.patricia@arentfox.com
213.443.7521

Lowell C. Brown
brown.lowell@arentfox.com
213.443.7516

1The NPDB Guidebook defines clinical privileges  to include privileges, membership on the medical staff, and other circumstances (including panel memberships) in which a physician, dentist, or other licensed health care
practitioner is permitted to furnish medical care by a health care entity.

2http://www.npdb-hipdb.hrsa.gov/npdbguidebook.html