Intro (00:01):
Welcome to Health Law Talk, presented by Chehardy Sherman Williams health law. Broken down through expert discussion, real client issues and real life experiences, breaking barriers to understanding complex healthcare issues is our job.

Conrad Meyer (00:24):

And good morning everyone, or good afternoon whenever you’re listening to this podcast. Another episode of Health Law Talks with your hosts, Conrad Meyer. Roy Bellina. Roy, good morning.

Rory Bellina (00:38):

Good morning.

Conrad Meyer (00:40):

Two experienced healthcare lawyers bringing you the latest and greatest in healthcare law or policy. Right?

Rory Bellina (00:45):

Yeah. Today we’ve got an interesting topic.

Conrad Meyer (00:48):

We act what we actually do. I think it is interesting. It’s kind of timely in some respects for me, but what is it? What’s on the slate today?

Rory Bellina (00:56):

Yeah, so I think a topic that we get a lot and it comes up more and more as you see physicians get a little bit later in their career and they’re investing in different things, particularly surgery centers or ancillary services, is this concept of economic, economic credentialing and maintaining their medical staff privileges within that and their ownership

Conrad Meyer (01:21):

Too. And absolutely. When you say the word economic credentialing, I don’t know people understand what that means. What does that mean?

Rory Bellina (01:30):

Yeah. So to you, and I think that there’s, I think there’s a hard and fast definition of what economic credentialing is, but it’s the concept of remaining credentialed or remaining to have your privileges, or even so far as being an owner in a center based on essentially the economics of what you bring to

Conrad Meyer (01:51):

That center, how much you bring in, Correct. Right. Correct. How many cases you do, what you bring to the table. Correct.

Rory Bellina (01:56):

And it could be valued at number of cases, reimbursement rates, just total profit that can be brought to the center based on cases that you’re performing and referring in. So there’s definitely different ways to measure it and there’s regulatory issues with it. But you see it come up with moose ancillary services and surgery centers because it kind of has to be measured and done otherwise, you know, could run into financial problems within that

Conrad Meyer (02:26):

Center, or in the case in some cases, if you’re lucky enough to still have a private hospital with physician ownership in that context. So surgery centers, private hospitals, the ones that are still left Sure. Post aca. Right. And other ancillary services or entities that have physician ownership in.

Rory Bellina (02:45):

And I think it, it’s a good way to explain this to our listeners is to explain how this starts. And it typically starts with if you’re offered a piece of ownership, what happens after that?

Conrad Meyer (02:57):

So for, we’ll start, the easiest, the easy one is the hospital. Right? Okay. So you have a private hospital that is physician owned and you’re brought in, and of course it’s a hospital. So it’s a business. It’s a business. And in order to make the business run, you need to have cases. And so through how do you ensure that your physician owners who are reaping the benefits of ownership through a distribution of profit of the hospital? Correct. Also bring in the cases to the hospital for that revenue. And

Rory Bellina (03:37):

Can you even

Conrad Meyer (03:38):

Do that and can you even do that? Can you do that right, under a regulatory scheme? So technically you can’t under a regulatory scheme under even if it’s just a private hospital with no Medicare or Medicaid, because usually your state has some sort of an anti kickback law like Louisiana does. Correct. So to get around, I guess, or to skirt the issue, you couch the number of cases in terms of patient quality and you put in your bylaws that each physician must do a certain number of cases in order to meet competency for patient safety. I mean, there’s a reason for that too. Okay. Yeah.

Rory Bellina (04:16):

What’s the reason for putting in there a floor on a number of cases that a surgeon must send do or perform at the center?

Conrad Meyer (04:24):

It, it’s couched in quality and it’s couched in pace and safety. So in other words, we wanna make sure that Dr. John Doe or Jane Doe has the ability to provide the professional medical services in a very safe and competent manner. And the only way we can ensure that you can do that is through the number of cases that you perform. So just like anything else, I mean the more cases you do, the better quality or the better competence that you have because you’re doing it more. And we can see we, meaning the administration or the medical officers can see that that doctor is doing X amount of cases. So if there’s no complications, no callbacks, nothing like that, then you realize the doctor, hey, that person is competent. However, it also meets the business need of that facility because you’re bringing in the revenue, right?

Rory Bellina (05:14):

You can kind of benchmark, if Dr. Doe is doing, if he’s required to do 20 cases and we expect to be reimbursed X, right. 20 times x is, that’s how much we can expect to get if we bring him on as an owner.

Conrad Meyer (05:27):

Correct.

Rory Bellina (05:28):

Okay. If I’m the government or a state agency though, do I think that that runs foul of a volume based?

Conrad Meyer (05:38):

Well, absolutely. Absolutely. You’re basically, you’re telling someone they have to bring in X amount of cases in order to make the revenue but it, I guess it’s skirting the issue because you’re do, you’re couching in our patient safety, but in the same sentence, you’re also requiring revenue to come in the hospital, which remember you can’t pay any remuneration for patients

Rory Bellina (06:05):

For volume

Conrad Meyer (06:06):

Or volume or volume basement. Right. Correct.

Rory Bellina (06:08):

And this is requiring a volume based

Conrad Meyer (06:11):

Commitment. Correct.

Rory Bellina (06:13):

Right. And so in your experience, have you run into any issues with it outlined as you described patient safety, but it has a floor of X amount of cases per month or

Conrad Meyer (06:26):

Per year? I think the issue comes in to play when you’re the administration and you’re seeing the numbers and you have physician owners who aren’t meeting the criteria, but yet are getting profit distributions. And so in your mind you’re thinking, well, this doctor kind of behind the scenes, you’re not, Again, it’s sort of this unwritten unspoken rule that, hey, I need Dr. John Doe, you know, who’s supposed to be doing 20 cases, this doctor’s doing five or 10, but yet getting profit distributions. Again. When you look at all the doctors on the owner’s side, how do you think those other owners are gonna feel if they see this one doctor not up to snuff, he’s not, he or she’s not doing the number of cases. Do they want to give that doctor a check every

Rory Bellina (07:18):

Distribution? So is it really patient? Are you really concerned about patient safety?

Conrad Meyer (07:22):

I think you are. I don’t think it’s just about profits. I think that there’s a general feeling that you want to have you in order for your hospital to be able to survive, you know, need to be able to hold yourself out to the public is something of a very high quality to ensure that high quality, I think it meets both standards. I think by doing the number of cases, you can show competency, you can work within the guidelines of the hospital. So therefore you can advocate to the public that yes, we have a very high quality, competent physician staff member to that does cases here. And in the same token, in the same side of the coin, you can then ensure a revenue stream within the hospital that would be viable not only for just survival, but also for a profitability in a sense. And nobody can really, How can you question that? In other words, if I’m a government regulator, if I’m the DOJ or if I’m the ag coming in and in my bylaws I say, you know, must do 20 cases at this hospital to ensure patient safety and competency, who am I? How can I attack that?

Rory Bellina (08:34):

That’s true. That’s true.

Conrad Meyer (08:35):

Well, wait a minute. What if I knew you could

Rory Bellina (08:39):

Go ahead. Okay, what if you must bring in X amount of revenue?

Conrad Meyer (08:43):

That’s different.

Rory Bellina (08:44):

Okay. Totally different

Conrad Meyer (08:46):

To, because now you’re putting a dollar figure

Rory Bellina (08:48):

On it. Now we’re putting a value figure on it. Because you could change it for each specialty.

Conrad Meyer (08:53):

Yes.

Rory Bellina (08:53):

Each doctor,

Conrad Meyer (08:55):

Well, that was my next question. Or

Rory Bellina (08:56):

How much they invest, If they invest more, do they get to do less cases or less dollar amounts?

Conrad Meyer (09:02):

Well that, and that was where I was going with that. Okay. So now what if the bylaws said, Well, neurosurgeons only have to bring in two cases, right?

Rory Bellina (09:11):

Because their reimbursements are so

Conrad Meyer (09:13):

Much high end. Well, I think then you get into trouble.

Rory Bellina (09:18):

So your recommendation would be to bring in everyone under the same threshold of a minimum amount of cases, no matter the specialty.

Conrad Meyer (09:28):

It’s neutral

Rory Bellina (09:29):

To meet the, not to meet, but to feel comfortable that you can’t be called out on a volume-based remuneration.

Conrad Meyer (09:38):

Yes. And that way it’s neutral revenue neutral. Well, it’s not revenue neutral, but in other words, it’s a neutral number. But here’s the problem. Here’s here’s where you’re gonna run up an issue on that. So let’s just say I’m the neurosurgeon and I’m told on the bylaws that say the number is 10 cases, this is mean, I’m

Rory Bellina (10:02):

Just 10 cases per

Conrad Meyer (10:03):

Year pull, pulling something out of the air, right? And my revenue on 10 cases happens to generate 10 million, $10 million. Whereas maybe some money else is revenue on 10 cases only $500,000. And yet I have the same percentage of ownership as the person who only has $500,000 of revenue versus my 10 million. How do you think I’m gonna feel?

Rory Bellina (10:26):

Yeah, I mean you’re gonna feel that you either don’t either do as much cases over there, or you should be getting more because you bring more value to the center. Which,

Conrad Meyer (10:35):

So how do you manage that if you’re the administrator at the hospital, as you’re the lawyer to the hospital and you get the call, what do you tell? I mean, have you seen this before, Rory? Yeah. I mean, what do you say?

Rory Bellina (10:47):

It’s come up a lot. It’s come up in a lot of conversations predominantly that I see with surgery centers, because you have these surgery centers that are built, they typically take a fair substantial investment to get off the ground, to get depending on the type of the center, if there’s any licensing that needs to be done, , and then staffing it, the equipment, all that. So there’s a significant upfront cost and then you wanna recoup that cost as soon as possible. So the question comes up, well, we’ve recouped that cost and like you said, we’ve got this one doctor who has a 5% ownership and he does one case over here because he has an ownership at another place where he’s got a bigger ownership interest or he lives far away or whatever it may be. That’s where it comes up. And like said, you’ve got doctors there to get her frus frustrated because they’re doing a lot more volume, a lot more cases at this surgery center. You’ve got another doctor who they never see, but they’re all getting the same check or distribution every quarter.

Conrad Meyer (11:55):

So then you we’re treading into the economic credentialing.

Rory Bellina (12:01):

So you get the call from the administrator that says Conrad, Dr. John Doe is, he’s done one case here this past year. He’s not meeting the bylaws that say he has to do 10. Can I kick him out?

Conrad Meyer (12:16):

And that’s when, Well first off, I wanna see the bylaws, right? You wanna make sure and then are the bylaws, I guess what you would say economically neutral? In other words? In other words, by having the same number of cases. I have an argument to say that this is the bare minimum you must meet in order to be competent and ensure patient safety at this hospital. I mean, it would sort of be riding a bike if I rode a bike once a year and decided, well hey, I’m just gonna ride this bike one day, one day a year, versus if I rode a bike 10 days out of the month every month out of the year, who do you think would be more proficient? Right? I mean, I guess it’s riding a bike. But I mean still, I think the more times you do things, there’s an argument to say that the measures in that facility, whether it’s a surgery center, whether it’s a hospital, whether whatever it is that you’re gonna be, well more, you’re gonna be well versed in that facility’s culture in their methodology. And that they themselves will in turn see your competency.

Rory Bellina (13:22):

So let me change the facts that I just gave you. got a doctor who is now

Conrad Meyer (13:28):

How love when you do this,

Rory Bellina (13:30):

I don’t know what kind of doctor, He’s a general surgeon.

Conrad Meyer (13:35):

Yeah.

Rory Bellina (13:35):

Fixes, breaks and bruises and that kind of thing. And he’s is meeting the requirement , but he’s meeting just that requirement and

Conrad Meyer (13:45):

He’s the bare minimum

Rory Bellina (13:46):

And he’s bringing low reimbursement cases, . And he’s still getting the same distribution as the neurosurgeon who’s bringing the high reimbursement cases. All the doctors are talking, they’re mad. You’ve got your neurosurgeon who says, I’m gonna sell and I’m gonna go across the street because I’m gonna get a bigger piece of the pie. What do you do in that situation?

Conrad Meyer (14:10):

That’s a tough call. That’s a real tough call. I’m gonna try to motivate my lower performing physicians into coming in and doing more cases and I’m going to,

Rory Bellina (14:26):

But how do you do that? If this general surgeon who comes in and he’s doing 10 , if he does another 15 or 20, that might be another $10,000 to him. It’s not worth his time. He’s doing fine. Just doing the minimum and getting his distribution every quarter. How do you that?

Conrad Meyer (14:48):

I think that’s a tough not to crack. Okay. I mean, that’s really hard. So the only thing I can do is bring that person in, sit them down and say, Look, you need to try to motivate them to bring in more work into the facility and really focus on the fact that not only do we have the highest patient standards and the highest of the lowest readmit rate or the lowest infection acquired infection rate but that this is a business too. It’s not just that this is a business and the business is not gonna run itself if you just walk away and hope the lights stay on.

Rory Bellina (15:28):

Now, having that conversation though, are you concerned that your administrator’s going to essentially be saying, You’re not bringing enough volume or value here and you’re gonna have an improper termination and you’re threatening to terminate

Conrad Meyer (15:45):

This? No. No. Cuz you don’t do it like that. I mean, if the bylaws say that you have to bring 10 cases in, then that guess what? If that person’s bringing 10 cases in, there’s really nothing I can do.

Rory Bellina (15:54):

So how do you get ’em out?

Conrad Meyer (15:56):

Well, you can’t, unless it’s done through I mean, , right? Unless you’re targeting someone. Sure. But the only way you can really, honestly, the only way that you’re gonna be able to do that is if, one, they don’t renew their privileges and two either they’re incompetent, they’re impaired, they have a behavior issue that threatens patient safety. I mean, that’s really the only two ways. Oh, the only two ways to do it.

Rory Bellina (16:19):

So at that point, your administrator just has to be aware of here are the ways that they could be terminated. And unfortunately, some of the administrators are probably gonna be looking for that then because they want to get that low producing physician out.

Conrad Meyer (16:33):

I think unconsciously. Yeah. Yeah. I don’t think anyone would ever admit that.

Rory Bellina (16:39):

No, of course

Conrad Meyer (16:40):

Not. But I think unconsciously, if I know that one of my doctors who’s a lower gross margin physician who only does the bare minimum to get by, you’re, you’re

Rory Bellina (16:49):

Gonna be checking all of his notes

Conrad Meyer (16:50):

And checking everything. Because I mean, remember now if they’re impaired, if they’re disruptive, if they’re do incompetent anything that jeopardizes patient safety, right? That’s an actionable effect. I mean regard any physician would. Sure. I mean, it doesn’t matter if it’s the highest margin, the lowest margin. Sure. But let me just say this. I mean I agree with you. If I’m looking at something a little more closely, it’s gonna be the one who’s gonna lower margin, right?

Rory Bellina (17:15):

Correct. And I think that you’re having administrators that will look and see, was he late on his notes, did he?

Conrad Meyer (17:21):

And they will never admit that. You will never get them to admit that. They’ll never say that. But they’ll actively doing it. Correct. Because if I’m, for example, say I’m the top one of the top three grossing physicians at that facility, do you think the administrators heavily looking at the notes or the competency level of that position versus the guy or the girl who’s doing the bare minimum to stay qualified under the

Rory Bellina (17:43):

Bylaws? Absolutely not. No. No, they’re, they’re gonna look for a way to legally get out the doctor doing the low amount of cases.

Conrad Meyer (17:53):

And I mean, that happens all over the country. It happens everywhere. I’m sure it happens not just in hospitals, but I’m sure in regular workforces. I mean, if you have someone that is feel, might be a liability, but you can’t terminate ’em on grounds, you’re trying to find other ways to do it.

Rory Bellina (18:09):

Sure. So let’s say you represent the doctor who has now been terminated. He is the low producing or low volume case.

Conrad Meyer (18:19):

I know where you’re going with this. And

Rory Bellina (18:20):

He comes to you and says, Hey, they kicked me out. I was doing what the bylaw says, right? They said, I was late on notes and I think this is a weak way that they, they’ve terminated me for what are my options? What can I do here?

Conrad Meyer (18:35):

So at that point, obviously you wanna copy the bylaws, you want a copy of whatever the MEC has, the medical executive committee has in terms of the delinquencies of whatever the charge is, if it’s failing to do the medical records timely, or if it’s botching up the surgery order so you’re delaying other surgeries and that it could affect patient safety, whatever the issue is, you need to see what are the requirements did or she violate those requirements? Because I think it’s really hard to defend yourself on an economic credentialing and they’re kicking you out over competency issues and you’ve actually violated those competency issues. I mean,

Rory Bellina (19:20):

Even if it’s the most technical thing, I didn’t wear purple scrubs on Thursday and they kicked me out for that. The smallest thing. That’s why always when I’m meeting with someone or talking with someone and they’re looking into investing in or doing something like that, and it always says, it’s always gonna say in their buy-in, I agree to abide by all the rules, policies, procedures, by always ask for a copy of that. Because you don’t want something to be snuck in there. And I always use the purple scrubs as my example, just cuz it’s easy is you don’t want something to be snuck in there that they could, You have no clue that you’re violating it and you’re that guy doing the low amount of cases and they get you on it, Conrad, where purple scrubs last Thursday, you violated the bylaws, you’re out.

Conrad Meyer (20:07):

I agree with that. And what else? That’s tell on the flip side, not just the Doctor Rory, but administrators and CMOs I tell, make sure that you actually read your bylaws so that when you do decide to take action, you do it properly. I can’t tell you the number of times where I’ve gotten calls after the fact of administrators or CMOs, chief medical officers, or even MEC, who have taken action on a physician after the fact. And we’re getting to the point where they not, that physician is requesting a panel, a hearing, a fair hearing through the bylaw process. And I asked him, Well, tell me led up to the request for fair hearing. And they go through, Well, we noticed this, we did an investigation. And so wait time out, timeout. What do the bylaws say you must do? And then suddenly when you look at what the bylaws require and what was done, they didn’t follow it. So in other words, say for example, the bylaws say that in order to start an investigation, sometimes they don’t say this, but that you must give the agreed practitioner some notice through MEC is hereby starting an investigation and the bylaws require that, but you didn’t do it. Well then guess what you have, have not given that aggrieve doctor notice. So I tell administrators, physicians who are part of the process, know your bylaws, know what you need to do, and usually get the attorney for the hospital involved at the front.

Rory Bellina (21:47):

Because usually you prepare the bylaws for, I keep using Surgery center as an example. When they’re getting started. Yes. When they’re bringing people in and

Conrad Meyer (21:55):

They

Rory Bellina (21:56):

Put ’em away, it goes in a filing cabinet and it’s never looked at again. And then when you want to get someone out, or if you’re having an issue or if you get someone out and then they get an attorney involved and you find out you didn’t follow your own bylaws and then you’ve got a huge issue because then you get into issues of, well a lot of bylaws will have different things. I was talking with someone recently, a lot of bylaws will have, Well if you’re terminated for cause we get to reduce, or if you’ve got shares, we need to buy them back. We get to reduce the value of it.

Conrad Meyer (22:31):

That’s true for evaluation. Correct. On a redemption. I got

Rory Bellina (22:34):

It. But if you’re terminated without cause, right, then you get the full value. Full value. So I think that that becomes very important because you don’t want get into a situation where, okay, we’ve got Dr. Conrad, he didn’t wear the purple scrubs on Thursday. That’d

Conrad Meyer (22:47):

Be a terrible rule,

Rory Bellina (22:48):

By the way. I know. I just uses, well I’m an LSU fan, so I use it for that reason, and I use it because it’s ridiculous. Ridiculous. But it’s simple to understand that there could be something in the bylaws that

Conrad Meyer (23:00):

Is ridiculous,

Rory Bellina (23:01):

Don’t know about. But did the administrator put it in there purposefully to have a golden ticket to get someone out? Did they put in there a little safety parachute for them to get anyone,

Conrad Meyer (23:12):

You know, sound like a Willie Wonka

Rory Bellina (23:14):

. True. And I lost my train of thought. Now that

Conrad Meyer (23:18):

You, I threw the Willie Wonka, I caught you guy. Got you. Well now

Rory Bellina (23:21):

I lost my train

Conrad Meyer (23:22):

Of thought. But you know what, Wait, I wanna tell you this though. So the problem, now you have a due process issue if you didn’t follow that, right? Yes. And you might have to unwind what you’ve done and go back. Correct. Cause remember there are time limits. So in other words, once an adverse action has been taken on the privileges of a physician, that physician usually in the bylaws has some time period to request a fair hearing. And you have to go through proper notice. So in other words I think it’s some bylaws, most I say 30 days or something like that. And that in the way that the physician must request a fair hearing is very specific that you have to send a letter to the CEO requesting fair hearing. And I recall in one case, I’ll give you an example, the doctor emailed, emailed the, the ceo and nothing was ever done. The

Rory Bellina (24:18):

CEO never got the email.

Conrad Meyer (24:20):

Well, no, I think the CEO got the email. But in the bylaws it didn’t say the notice must be by written certified mail. So in other words, the email, according to the bylaws, did not suffice. Now, if I brought that to court, I guarantee you a judge would look at me or look at the CEO sideways and say, You’re telling me that you knew about this in an email and you’re telling me you didn’t have notice? Sure. That’s kind of silly. Right? But that kind of specificity, you don’t wanna have to go to court on that. Right? I mean, you want to get it done right from the beginning.

Rory Bellina (24:52):

And if you’re back on the administrator side, and if you want to get someone out, you really wanna make sure that it’s done properly. Because if you don’t, now I know where I was going before. If you don’t, there could be a situation where it’s now, it changes from a terminated with cause to a terminated without cause. Yeah. And then you’re paying them more than you expected to on redeeming at their units or their

Conrad Meyer (25:17):

Shares. Well, one thing in Louisiana through the Granger case, I dunno if you’re familiar with that case. That case is Supreme Court case. It dealt with medical staff bylaws. And it laid out now by jurisprudence that the Supreme Court now has said the bylaws in Louisiana are contractual. So before Granger, pre grazier, they were not considered a contract. Now it’s a contract. So I tell administrators and physicians, what if it’s a contract? You have to abide by the four corners of that bylaw agreement. And so if the bylaw agreement says you must do X and you fail to do X, you have breached that contract. And I agree with you, it gets dusted off right after, you’d have to wait probably the formation, right? Sure. And then nobody sits down to go through it and say, Hey, let’s look at this. We might need to revise this. And it could be anything. It could be from your patient safety competency number of cases to your due process and fair hearing plan process. Right? Sure. So man, it it’s,

Rory Bellina (26:26):

And you could brought up revising. That’s a good point. Is you know, could get into a situation where you realize that you need to change your bylaws because you do have physicians that are not doing enough cases to meet patient safety, or frankly, they’re not doing enough cases to keep the lights on. And so you have to go into your bylaws and revise them. But then at that point, if you don’t think about these issues on the front end, are you gonna have enough votes to revise your bylaws because the doctor with the low amount of cases might not vote for it and he might be able to hold up a change that’s gonna affect him if he kind of sees what’s coming.

Conrad Meyer (27:07):

True. I mean, that’s very true. So why try to get it on the front end is what you’re saying?

Rory Bellina (27:13):

Yeah. The point that I was making with that kind

Conrad Meyer (27:15):

Of do it at the beginning

Rory Bellina (27:16):

Narrative is you really want to put in protections on the front end. And

Conrad Meyer (27:20):

Let me ask you this, cuz I know this happens. So say you have a client that calls you and you’re doing a surgery center, how often when you sit down and say, Okay, okay guys, girls, here we go, we’re gonna need, and what kind of entity we’re doing here, We’re doing an operating agreement, we’re doing, what are we doing here? And then it comes down to, okay, as far as the facility goes, we need to have some sort of bi-law provisions. And usually when they get to that, when you get to the bylaw, Oh guys, we have to girl, have to have some bylaws here. What sort of reception do you get when you say at that point,

Rory Bellina (27:52):

That’s the part where they’re like We’ll get to that, or we could take care of that later. No one ever wants to do that cuz it’s usually time consuming. A lot of talking back and forth. It’s an expensive document to just prepare. So a lot of times when I bring that up, they say, Well,

Conrad Meyer (28:09):

Let’s just download it from Google, right?

Rory Bellina (28:11):

Yeah. Let’s just get formed with the Secretary of State and get us our tax ID and we’ll figure out the bylaws and then we’ll figure it out as usually we never do it.

Conrad Meyer (28:21):

Like the worst mistake. Sure.

Rory Bellina (28:23):

Worst mistake. Sure. Cause you’re losing out on protections that you need to have in place for

Conrad Meyer (28:28):

Yourself. I mean, I give you the, I can’t remember the case. It wasn’t oh man, it was a Texas case and I don’t know it, I can’t remember off the top of my head the name of the case. But basically I was a cardiologist who was doing catheterizations in the cath lab and he had a higher mortality rate than normal. And the chief medical officer, or was it the chief medical officer, was maybe the chief of cardiac surgery came in who was also a competitor. Summarily suspended the guy because he said, you no more, no more cath for you. You can’t do any more caths or what have you. Somaly suspended the guy and then ultimately through the suspension he got kicked out. Okay. Well, he sued the facility on economic credentialing because they didn’t and do in lack of due process and the bylaws because the summary suspension that was issued by his, basically his alleged chief competitor and the chief of cardiology was not a person listed in the bylaws that could issue a summary suspension. So basically it was improperly issued by a competitor, what the jury awarded,

Rory Bellina (29:48):

I do

Conrad Meyer (29:48):

Not 300 million plus. Now it got ultimately knocked down. Sure.

Rory Bellina (29:53):

But still the

Conrad Meyer (29:54):

300, Do you wanna go to a trial and then

Rory Bellina (30:00):

And pay interest until the appeals

Conrad Meyer (30:02):

Are up? Man, it’s terrible. So I that was one example. Aurora of the point of that is that

Rory Bellina (30:07):

Follow the bylaws, the follow your own bylaws, have bylaws, make sure you know what they say. If you don’t know what they say

Conrad Meyer (30:14):

That you don’t download from Google, please. Right.

Rory Bellina (30:17):

And make sure that you’re really thinking everything through. And look, it happens all the time. If you need to get a doctor out because they’re low performing or

Conrad Meyer (30:28):

Whatever, or

Rory Bellina (30:29):

Whatever the case may be, you have to talk to someone to find out if you can do it, how you could do it while being comfortable with the risk associated with it. Because odds are, if you terminate the lowest hanging fruit, the doctor who’s doing the lowest amount of cases, they’re gonna know it and they’re probably not gonna be happy with it. And they’re probably gonna get an attorney involved and say, This is economic credentialing. I was wrongfully terminated. You’re violating the state anti kickback statute and I’m going after you now. So you have to be very comfortable with your own bylaws to be able to defend how you got this

Conrad Meyer (31:04):

Document. And that’s where knowing your bylaws correct is very important. That’s where knowing where you have the teeth, so you have the bear, the minimum case number for patient safety, which I think anyone, any of us agree yes. Would be appropriate as a defense. I

Rory Bellina (31:19):

Mean, you could have some more subjective things in there that Right.

Conrad Meyer (31:22):

You maybe the number of callbacks for acquired infections and that could be under safety issue your continued upkeep of certain maybe cme. Sure. I don’t know bylaws that really get into that. Weeds.

Rory Bellina (31:37):

Have you ever seen a situation though? And I can’t think that I, Have you ever had a situation where a doctor’s kicked out, they challenge it and the surgery center provides the criteria on why the doctor was kicked out. And then that doctor in turn says, Well, everybody’s doing that. No one’s doing their notes on time. We’ve all got this callback rate or this complication rate. I think, again, this goes back to the theme of our conversation today is that are you comfortable saying that okay, Dr. John Doe, he really was low at the bottom and no one else is having these issues.

Conrad Meyer (32:16):

Well, if the administrator calls me and tells me that fact scenario, the lawyer in me is gonna tell the administrator that you need to apply the bylaws evenly. Correct. So you can’t cherry pick rules and say, Right, if everyone else is having callbacks. And guess what, those folks need to be on notice too. Otherwise you’re why? You’re opening yourself up,

Rory Bellina (32:39):

You’re picking out, you’re finding a reason to get him out. And these doctors know they all talk and they all, they’re not stupid. They all know that, Oh, this is a rule in our bylaws that no one follows, but they’re just using it against me because I don’t do cases there.

Conrad Meyer (32:53):

Well, one thing that you can do, and I think it’s good, is if you don’t do it the front end, you can always take the bylaws, do a revision and do a vote. You do a vote, say, Look, we’re gonna, in order to continue our record of great patient safety and low hospital acquired infections and low callbacks, we wanna up the case number from whatever, 10 to 20 or whatever it might be and vote. And if everybody votes for it, then there’s no issue then now you have a new baseline. But I agree with you, I think it’s best to do that in the front end. Sure. Because as you progress, you sort of figure out who’s doing what. And the only other option you have, if it’s not the number of cases, remember, is if are they impaired? Right? Are they disruptive? Right. Or they incompetent.
(33:36)
Right. Because then you could do your F P P E or O P P E. We can get it. That’s a whole nother conversation then. And I’ll be candid with you, I’ve never had a doctor come to me and tell me that, Hey, we have an economic credentialing problem. Because usually what I say is, Okay, tell me what’s going on. And it’s always some competency issue. It’s always, Oh, they made me do an O P P. I had to go to this program and get evaluated and the recommendation was that I do X, Y, and Z. And I’m like, Well then what do you want me to do? I mean, you got called out on competency, you got evaluated, they told you the recommendation, follow the recommendation. Right.

Rory Bellina (34:17):

But basically, I think that the takeaway here is that right. You can’t tie in your owners to bringing in a certain dollar amount or

Conrad Meyer (34:29):

Threshold. You’re gonna get bit

Rory Bellina (34:31):

In trouble for doing that. So if the financials are not working for that physician, you cannot base your decision on that. Now, in the back of your mind, is that one of the factors? Yes. It probably is for some administrators. I know it is. But you have to be able to defend it in other ways

Conrad Meyer (34:50):

And that’s how you defend it. Correct. Correct.

Rory Bellina (34:53):

So have good bylaws. Make sure that you don’t violate economic credentialing in that way.

Conrad Meyer (34:59):

Well, as usual, Rory, you give sound advice. If I was a doctor, I’d be your client. Thank you. ,

Rory Bellina (35:08):

Same for you. Thank

Conrad Meyer (35:09):

You. Well, thank you. Well, look, I think that’s gonna wrap it up for another episode of Health Law Talk here at Chehardy Sherman Williams. We have enjoyed this episode and look for the next one coming up soon. We’ll get this up in the air shortly. Enjoy. Have a great week.

Intro (35:23):
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