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Quality Aspects: Prof'l Licensing, Institution Licensing, Internal Q Control, Hosp. Liab.

Prof'l Licensing of Practitioners

  1. License Bd
    1. Similarly Sit'ed Prof'ls
      1. License & set entry reqts 2 protect pub. health
      2. Discipline 4 incompetence / malpract.
    2. Using Expert Testi.
      1. No need if specif. reg. being viol'ed
      2. Need experts otherwise
    3. Draw Line & Approp. Scope of Pract.
    4. Evid. Stand. 2 Revoke Dr.'s License
      1. Clear & convincing stand.

Licensing of Institutions

  1. License v. Certif.
    1. License
      1. Can care 4 patients (pat.'s)
    2. Certif.
      1. Process 2 get paid 4 Medicaid/care/cal
  2. Joint Commission on Accreditation of Healthcare Org. (JCAHO)
    1. Priv., 4 profit, & vol. accreditation of health care facilities
  3. Dif. Institutions
    1. Acute Care Hospitals
      1. Pat.'s very sick & not stay long
      2. License
        1. Meet basic serv. & needs reqts
        2. Dept of Health Serv's 4 CA (DHS)
          1. Rev. phys. structure & operation
          2. Survey health facility
      3. Fed. certif. 2 partic. in Medicare/caid prog.
        1. Pract'ly need b/c
          1. Lots of pat.'s R under the prog.
          2. HMO K w/hosp's w/certif.
        2. HCFA K w/DHS so DHS surveys 4 them 2
        3. Fed Survey
          1. Pat. care oriented so look @ need, actual care prov'ed, & pub. survey instrument in reg.
          2. Looks @ severity & scope of viol.
          3. Enforce by
            1. Term. Medicare prov'er
            2. Receiver / temp. mgmt
            3. Deny payment of any pat.
            4. Ban any new adm'ing pat.
            5. Civil $
        4. JCAHO's accreditation, then deemed status so not need sep. survey 4 certif. of Medicare
          1. Full 3 yrs
          2. Conditionally accredit
          3. Less than full
          4. Type 1 accreditation where need 2 fix prob. w/in 90 days
      4. No / low oversight after license & accredit
    2. Transitional Care / Sub Acute Care (CA)
      1. Interm btwn acute & SNF
      2. Lwr in cost than acute
    3. Skilled Nursing Facilities (SNF)
      1. Long term care
        1. Less sick than acute
        2. Dr. only comes every 30 days
        3. Gen'ly sep. from acute but could B in hosp. as sep. unit
      2. License is same reqt as acute care
      3. Fed survey certif.
        1. Filed w/in 14 days when res.'s enter
        2. Compl'ed 4X / yr / when res.'s conditin changes
        3. Res. assessment protocal (RAP) focus on specif. need
        4. Actual written care ID'ing prob's, goals, & intervention
      4. Operational dif. from acute
        1. No org.'ed med. staff
        2. Mostly C.N.A. & LVN instead of RN's
        3. Need licensed skilled adm. by bd of examiners of nursing home adm'or (BENHA)
  4. Disciplinary Axns
    1. Interm. Sanctions of Citation Sys. in CA (only 4 SNF)
      1. Class B
        1. Dir. / imm. rel. 2 health, safety, / sec. of healthcare res.'s
        2. Fine from $0-1k
      2. Class A
        1. Imm. dang. / subst'l probability of death /
        2. Serious harm 2 res.'s
        3. From $1k - 10k
      3. Class AA
        1. Class A req's +
        2. Viol. was dir. prox. cause of res.'s death
        3. 1st viol. in 1 yr, $10k - 25k
        4. Repeat viol. of same reg., fine can B 3X
        5. Can start license revocation
    2. Impact of Citation
      1. In priv. civil litig., est. neg. per se, inference of neg., / rebuttable presumption (CA)
      2. DHS has rt. 2 revoke license
      3. Citation on adm'ors record
      4. Incentive 2 pay fine w/in 15 days, b/c then pay only 50%
    3. Appealing Citations
      1. Class B
        1. Appeal w/in 15 busi. days
        2. Go 2 informal citation rev. conference (CRC) /
        3. Adm. law judge (ALJ) evid. hrg
        4. Can appeal CRC 2 ALJ
        5. If dislike ALJ
          1. Elect binding arb. by AAA /
          2. File writ of adm. mandamus
            1. Rev's adm. records w/subst'l evid. stand.
            2. Upholds dec. if any credible evid. in record is cause
      2. Class A / AA
        1. CRC w/in 15 days /
        2. File axn / appeal 2 municipal ord. ct.
          1. File w/in 60 mo. that DHS ans's
          2. No rt 2 jury
          3. Appeal 2 superior ct. then appellate
    4. K'al Arb. Cl. of Condition of Adm. Form 4 SNF & Other Institutions
      1. Binding & can't appeal unless fraud by arb'or w/opponent
      2. No cap on damages
      3. Either in CCC / AAA form

Internal Quality Control

  1. Risk Mgmt
    1. All Hosp's Have This
      1. Look @ all potential source of liab.
  2. Quality Assurance (QA)
    1. Subset of Risk Mgmt
      1. Focus only on clinical care prov'ed
      2. ID prob's in care & way 2 improve
  3. Peer Rev.
    1. Subset of QA
      1. CA hosp's have aff. legal duty 2 take rsbl steps 2 ensure Dr's competence
      2. Must B ongoing
    2. Ways
      1. Chart rev. / random med. selected & rev'ed /
      2. Screening mech. by clinical indicators w/QA (credentialing process described in next section)
  4. Immunities
    1. Can't B Waived
    2. CEC §1157
      1. Record & prcg of med. staff & hosp. 4 incr.'ing care is immune from discov.
      2. Immunizes any entity of peer rev. under B & P Code 805 (QA & peer rev.)
        1. Med. / prof'l staff
        2. Healthcare serv. plan reg.'ed / tech'l legal plan
        3. Any med., psychological, dental / podiatric prof'l soc. w/25% eligible licentiates & nonprofit
        4. Committee org.'ed by entity of more than 25 licentiates of same class fn.'ing 4 purpose of rev'ing
      3. Exception if
        1. Case is Dr's clinical priv. being revoked
        2. Med. bd. of CA (CMA) can access record through investig. subpoena
        3. Blab loophole where peer rev.'er can vol'ly discl.
    3. Communication Immunities
      1. Abs. immunity 4 anyone communicating w/ peer rev. 2 aid eval. of qualif., fitness, charact., / insurability of dr. / others (CA Code 43.8)
      2. Abs. immunity 4 comm'n in initiation / course of any prcg auth'ed by law & rev'able by chp. 2 of civ pro (CA Civil §47)
        1. For Credentialing / disciplining, med. bd / peer rev. protected
        2. Dr's D/P hrg rts.
    4. HCQIA (Health Care Q Improvement Act)
      1. Optional 2 comply but can give peer rev. immunity from civil lawsuits
    5. Peer Rev. Activities Immune in Suit 4 $ Against Hosp.
      1. After jud'al rev. of peer rev. + overturn dec.
      2. Abs. immunity 4 proced.'ly fair & subst'l evid. dec.
      3. Even if not, still immune if axn was taken
        1. W /o malice
        2. After rsbl effort 2 get fact +
        3. Rsbl belief axn was warranted
      4. Even if not, still immune from all liab. except econ. damages if
        1. A 805 report was made
        2. After record of med. staff +
        3. Axn not knowingly & intentionally taken 4 purpose of injuring a person / infringing person's rts

Hosp's Liab.'s

  1. Insitutional Neg. & Corp. Neg.
    1. Institutional Neg. 4 Hosp's Own Neg.
      1. Fail 2 follow own policy & proced. / stand. of care
      2. Est'ing stand. of care
        1. Expert W
          1. Gen'ly from same spec.
          2. CA, only req. as long as render testi. helpful 2 jury
          3. CA, if ER, then must B 1 who actively pract.'ed in ER as last 5 yrs. as expert testi.
        2. Prof'l stand.
        3. Pharm. by description
        4. Clinical pathways / guidlines
        5. Equip.
        6. Own hosp. proced. & policy
    2. Corp. Neg.
      1. Hosp. has legal duty 2 take rsbl steps 2 insure med. staff's competence
        1. Must investig. about dr.'s perf. in hosp. / other hosp's
        2. Credentialing peer rev. / initial appt'ment
        3. JCAHO req's reappt. every 2 yrs. & QA every day
      2. Med. bd. licensture axn not dispositive
        1. Hosp. can prevail even if med. bd. didn't b/c hosp. has higher stand.
        2. Hosp. can pursue indep'ly as long as rationally rel'ed 2 pat. care
      3. Legal duty 2 hosp. only if pat. was in hosp.
  2. Vicarious Liab.
    1. Liab. of Institutional D 4 Dr's Neg.
      1. HMO gen'ly liab.
      2. Hosp. liab.
      3. IPA s.t. liab.
    2. Dif. Theories 4 Hosp's Liab.
      1. Control Test
        1. Rel. btwn dr. & hosp. 2 see control
        2. Terms of K
        3. Not have 2 B empl. rel.
      2. Ostensible agency / apparent auth. (CA)
        1. Expectation of pat.
        2. Holding out by hosp. of dr. as ee & treat as ee 2 the world
        3. Pat. looks 2 hosp. as care, not 2 indiv. dr.
      3. Recharact. of Indep. K'or as Empl. Rel.
        1. If indep. k'or can B charact'ed as empl. rel.
        2. Rt 2 control test by factors
          1. Work 4 1 Er.
          2. Dir. of ee
          3. Training
          4. Integ.'ed 2 busi.
          5. Er. req. render serv. pers'ly
      4. Inherent Fn.
        1. Hosp's basic serv. like ER, pathology, radiology, etc. is inherent so hosp. liab. 4 dr's neg.

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May 6, 1997

Ms. Haeji Hong

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