Skip to Main Content
January 01, 2021

Health Law Daily

Virtual Medical Staff Meetings in Light of COVID-19

AHLA thanks the leaders of the Medical Staff, Credentialing, and Peer Review Practice Group for contributing this feature article.
  • January 01, 2021
  • Erin Muellenberg , Polsinelli LLP
  • Tricia Shackelford , Williams Kilpatrick PLLC

Organized medical staffs have been a staple in the lives of physicians for a very long time. The Joint Commission recognized organized medical staffs as early as 1951. A medical staff is a body of practicing physicians organized for the purpose of self-governing its members, focusing on issues that include patient safety and quality of care. The typical hospital medical staff is comprised of physicians and other licensed practitioners with a rotating body of leaders that convene on a regular basis to discuss clinical quality, peer review, credentialing, privileges, and other issues related to the self-governance of the medical staff. Regular meetings, no less than monthly to be in line with best practices, are essential for the smooth operation of medical staff functions. As with all other industries, many health care functions are moving to virtual platforms, where feasible, in light of the COVID-19 health crisis currently facing the nation.

This article examines the issues facing a medical staff’s options to hold meetings virtually to continue functioning at optimal levels in light of the COVID-19 pandemic.

Authority for the Medical Staff to Hold Virtual Medical Staff Meetings

In the pre-COVID-19 world, there was a strong preference for medical staff meetings to be held in-person due to the camaraderie created by face-to-face interaction with colleagues, the tendency for dominant members of the medical staff to monopolize meetings when held virtually, and the proclivity for participants to be distracted when attending virtually. Now that medical staffs are faced with the challenges of the highly contagious COVID-19 virus and the corresponding need for social distancing where practical, virtual meetings are championed as the preferred format because they allow for increased participation and are more prudent from a public health perspective. COVID-19 has pushed the health care industry across the Rubicon on the legitimacy of virtual meetings and there is no going back. The COVID-19 pandemic has created one of the most rapid transitions to a “new” technology. We are facing the brave new world where meeting virtually will be strongly favored over in-person meetings.

The functions of a medical staff are governed by their bylaws, a document that sets forth the framework that guides the medical staff. Among these rules are provisions that govern how and when the medical staff meets. Sometimes, the rules and protocols set forth in an organization’s bylaws grow stale and actually work to hinder rather than promote the efficient function of the organization. The first step is for the medical staff to determine whether its bylaws allow for virtual meetings. A thorough reading of the bylaws is necessary to determine if they allow for meetings to be held by way of video conferencing or other virtual technology. If the bylaws do not currently provide for meetings to be held using virtual technology or if the provisions addressing virtual attendance at meetings are outdated, the medical staff should activate its bylaws committee to amend the bylaws (following the procedure set forth in the bylaws for their amendment) to allow for virtual participation in meetings by the members of the medical staff. When working to amend the bylaws to allow for the medical staff to conduct meetings virtually, the bylaws committee should consider the following:

  • whether a virtual meeting format will be mandatory or optional and when the format should change;
  • whether attendees have the option of attending meetings virtually or in-person;
  • how many meetings a medical staff member can attend virtually (if members have the option to attend in-person); and
  • the security requirements of the virtual meeting platform and any platform utilized for sharing sensitive documents.

Keeping Virtual Meetings and Electronically Distributed Documents Secure

Video conferencing is a powerful mode for conducting business. It allows for a group, such as a medical staff, to share important information in real-time and to solve problems together without having to be physically in the same place, which has become essential in the age of COVID-19. There are several major concerns with video conferencing such as meeting bombing and embedding malicious links into the meeting content. Meeting bombing occurs where an uninvited guest enters the meeting for the purpose of either listening to or disrupting the meeting. A person can “bomb” your video conference when you don’t require a password or if they learn the meeting password. Additionally, an attacker can plant malicious links into the chat function of the video conference and then coerce meeting participants to click on the link, allowing the attacker access to the unsuspecting participant’s system.

Privacy and security are of the utmost importance for medical staff meetings because of the sensitive nature of the issues presented. When crafting policies and protocols for virtual meetings, medical staff members should keep the following tips in mind:

  • Make sure that the conferencing platform the medical staff uses to host its meetings satisfies the enhanced requirements for telehealth conferencing. Platforms that are designed with the enhanced security features to protect sensitive health care information include (without limitation) Zoom for Healthcare, VSee, and GoToMeeting.
  • Password protect meetings to prevent meeting bombing. When possible, create a new meeting login ID for each monthly meeting and require each participant to have a unique participant ID. The host should ask each attendee to identify him or herself and not allow any unidentified attendee to participate.
  • The meeting host should utilize a “green room” or “waiting room” for participants and, for the greatest level of protection, the meeting host should disable the “Join Before Host” function and admit each participant individually. Ensure that the meeting host “locks” the meeting once all participants have joined. The host should expel any individual from the meeting who is not an invited participant if the hosting platform gives the host that ability.
  • Be aware that your computer microphone and video camera may be in the “on” mode upon entering the video conference. Participants may elect to turn off their cameras unless they are speaking and should always mute their audio unless speaking. The host often has the ability to mute participants who are creating an audio disturbance.
  • Many video conferencing platforms have the ability to record the meeting. A medical staff may want to record its video conference meetings for record-keeping purposes. If that is the case, then the bylaws should address how the recording will be stored and specifically prohibit the sharing of the recorded meeting with any party outside the medical staff without specific consent of the medical staff.
  • Security of documents disseminated to medical staff members before or during virtual meetings is paramount. The medical staff should distribute documents via secure or encrypted means whenever possible. Possible means for sharing documents via a trusted service include Dropbox, One Drive, Firefox Send, iCloud, and Google Drive. In circumstances where participants need to share their screen to share documents, the individual should be mindful to close all other applications and documents before activating the screen-sharing function to avoid the unwanted sharing of information.

If you are using a Software As A Service (SaaS) platform, ensure that there are security features built in to protect the security of your data and then make sure that these features are correctly configured. If the nature of the meeting is particularly sensitive, video conferencing may not be appropriate. There are some circumstances in medicine where there is no getting around face-to face contact, such as diagnostic functions and surgical interventions. The same is true for medical staff meetings. There will be situations of a nature so sensitive that face-to-face meetings are required. The reality is there is no video conferencing service that can guarantee the security of the communications or documents shared during the conference.

Sharing Medical Records During Peer Review Committee Meetings

Foundational to peer review is the ability to review the care provided to patients. There are several models for conducting peer review but one of the most common is the identification of certain patients or patient care episodes through pre-established criteria or indicators. Once identified for peer review, a peer practitioner is assigned to review the patient’s care to determine if the care was necessary, appropriate, and reasonable. If the case is identified for peer review as the result of an adverse event or near miss, the practitioner reviewing the case is charged with determining whether the event or near miss was avoidable. This initial review usually occurs outside a meeting and is the result of one practitioner reviewing the record and completing a worksheet followed by a peer review meeting where the patient’s care is discussed. On occasion, questions will arise that require collaboration to make a determination whether the care was appropriate. This may result in the committee seeking to review the record during a meeting.

With the electronic medical record comes the challenge of sharing the record during a peer review committee meeting without violating patient privacy or leaving a footprint in the record that later becomes discoverable. The convenience of virtual meetings with screen sharing provides a secure way to share certain portions of a record during a meeting and allows for collaboration and full discussion. Only one individual should be designated to access a record and then that individual should be charged with sharing his or her screen. Alternatively, if a case is known in advance, then the reviewing practitioner should arrange for the pertinent pages of the record to be printed, screenshots taken, or some other means where only pages taken from the record rather than the entire record are displayed in a meeting. With preplanning, the pages to be viewed can be redacted and prepared without concern regarding live viewing of the electronic record and the risk of inadvertently leaving notes or other evidence of the review.

While there is a desire to make notes on the record, highlight certain entries, or save a peer review worksheet in the record pending completion of the review, the risk of leaving a discoverable footprint outweighs the inconvenience of keeping notes separate. As a general rule, peer review documents should be kept separate from the electronic medical record. Practitioners reviewing medical records as part of the quality or peer review process of the organization should have a separate platform that is used to detail their findings, conclusions, and recommendations as a result of the review. Ideally, the platform should not have print capability or the ability to send the review to another device. Restricting the ability to access and/or maneuver the completed peer review findings will provide a layer of protection from inadvertently leaving the review vulnerable to inappropriate access or loss of confidentiality. The results of the review or peer review worksheet should never be left in the record and are best kept separate and on a secured platform.

Medical Staff Use of Secure File/Data Rooms for Peer Review

Secure files and/or data rooms are another means for review of confidential peer review findings and relevant portions of the medical record. The ability to share files in an environment where cybersecurity threats are minimized is essential to setting the stage for collaborative peer review. Digital technology has responded to the challenge faced when meetings are no longer in person. Secure file transfer is data sharing via a secure, reliable delivery method. This method of document delivery is necessary when sending confidential peer review documents to another secure location. However, if the documents are being sent to committee members without the benefit of secure storage by the recipient, then secure file transfer may not be the best option for your organization.

Many medical staff organizations are relying on a virtual data room to support their peer review committee meetings. A virtual data room is an online repository of information used for the secure storing and sharing of confidential documents. It is a good solution for providing a single source for viewing peer review documents and avoids the need to transmit the documents and files to an individual’s computer. Settings can be adjusted to prohibit printing or emailing of the documents but other precautions are necessary to prohibit screenshots, snips, or photos.

Use of any electronically available secure file or data room should include a confidentiality agreement that specifically prohibits screenshots, snips, photos, or other means of removing or copying the content for later viewing. Elements of such an agreement include an acknowledgment of the confidential nature of the documents of the meeting and an agreement to use a private and secure location when participating in a meeting. Also included in a confidentiality agreement is a prohibition on recordings, screenshots, or images of any of the documents and acknowledgement that failure to abide by the agreement may result in disciplinary action under the medical staff bylaws. If the bylaws do not already include a clause for disciplinary action in the event of a confidentiality breach, then consider adding one to give meaning to a confidentiality agreement.

Use of Recorded Meetings or Patient Encounters to Support Peer Review

COVID-19 has brought increased use of digital technology impacting the medical staff. Virtual meetings can be recorded and used in place of minutes and telehealth visits can be uploaded and become a permanent part of the medical record. The use of the recording feature for medical staff meetings should be carefully considered. The goal of confidential peer review is to encourage candor and free discussion of a practitioner’s performance and a patient’s care. Knowing that a meeting is being recorded can have a chilling effect on peer review and damage the benefits of free discussion. Moreover, there are circumstances where otherwise peer review protected meetings can become discoverable and the recordings used against the organization. A best practice is to announce at the beginning of a meeting whether the meeting is being recorded and to remind the participants of the confidential nature of the proceeding. Then, minutes of the meeting should be prepared and maintained as the record of the committee proceeding. If a meeting is recorded, the organization may consider destroying the recording, as a matter of practice, after the minutes have been approved.

Recorded telehealth visits have provided a reliable means for accomplishing peer review and proctoring of new practitioners or those under focused review. Accredited organizations have struggled with proctoring and monitoring of practitioners providing ambulatory care. The recording of telehealth visits to be used in peer review is invaluable to providing the ability to objectively view the interactions between the practitioner and the patient. If telehealth visits are solely recorded for the purpose of peer review then a policy may be developed that specifies how these recordings are handled. Any policy should address patient notification, storage of recordings as peer review records, use of the recordings, number of telehealth visits to be recorded for proctoring and monitoring, and destruction of the recordings.

While it is useful and convenient for retrospective review of a practitioner’s performance, recordings of telehealth visits that are kept are subject to later subpoena in a professional liability action. In the circumstance where a patient is unexpectedly hospitalized or dies within a short time following a telehealth visit, retrospective review of the recording of the telehealth visit may be determinative in the evaluation of the practitioner’s performance. Thus, the organization needs to consider whether these visits are to be recorded and develop a policy on the method of documentation for these visits.

Medical Staff Peer Review Hearings and Appeals

The fair hearings and appeal procedures cause angst among the legal profession when a virtual hearing is suggested. There is concern that the witness cannot be fully observed or that outside of the view on the screen the witness is being coached or reviewing information that is not properly before the hearing panel. However, comparing the alternative to a large room where individuals are seated at a distance and documents cannot be directly handed to a witness, the virtual alternative is far superior.

Simple steps such as having all parties use their camera to survey the entire room where they are seated leads to some assurance that they are in a proper environment to conduct the hearing. Additionally, having each party state on the record their location and that they are prepared to proceed virtually will similarly assist in acknowledging the formality of the proceedings and their individual obligation to act accordingly. Documents can be managed through a data room or in advance through secure transfer making them readily accessible to all involved.

Judicial hearings where parties and witnesses appear from non-court locations rarely occurred in the past and are now the norm. Past examples of such appearances include prisoners appearing from jail or experts from distant locations. However, with the increased use of video conferencing applications such as Zoom, Microsoft Teams, Google Meet, Webex, and others, remote hearings are common and are likely to remain. This requires learning new skills such as when to mute and unmute and avoiding distractions such as pets, calls, the doorbell, or children wandering in during a proceeding. The rules for conducting remote hearings are often handled by the hearing or presiding officer but there are certain things we need to remind our clients, such as how to dress and not to leave the visibility of the camera without requesting a break in the proceeding. As with other virtual meetings, the use of video conferencing technology for medical staff quasi-judicial hearings permits the proceedings to occur in a timely manner and can offer a more expeditious conclusion to the hearing due to the increased time that can be devoted without the need to travel.

Conclusion

Although adversity pushed us into the virtual world, our natural resilience and creativity has led to a “now-normal”1 that includes remote meetings through digital technology with the direct benefit of increased participation in meetings, renewed interest in peer review, and substantial cost savings compared to in-person meetings. With the resulting increased efficiency and economy in time and expenses, virtual meetings will likely remain for the foreseeable future.

Endnotes

1 Several months into the Pandemic our “normal” is no longer new—it is now.


Erin Muellenberg, JD, CPMSM, is a shareholder in the Polsinelli Health Care Law practice group ranked Tier 1, nationwide on the 2021 “Best Law Firms” list by the U.S. News and World Report. As the former director of medical staff services at a large hospital, she brings practical experience and “know-how” to her practice of medical staff law advising health systems, hospitals, and other health care organizations on all aspects of the medical staff organization and its governance process. Erin has written and lectured on a variety of health law topics, including credentialing, peer review, compliance, provider health and well-being, risk management, and the medical staff fair hearing process. She is an active member of the California and National Association of Medical Staff Services, the California Society of Healthcare Attorneys, and the American Health Law Association. Erin is currently serving as the Chair of the NAMSS Education Committee and is listed in Best Lawyers of America for 2021 and was recognized by the Daily Journal as a Top Healthcare Attorney.   

Tricia Shackelford, is Of-Counsel at Williams Kilpatrick, PLLC in Lexington, KY. Tricia graduated, cum laude, from the University of Miami School of Law in 1999 and started her legal career at Steel Hector & Davis, one of South Florida’s leading business and international law firms. After returning to Lexington in 2001, Tricia spent several years practicing with McBrayer, McGinnis, Leslie & Kirkland, in one of the Commonwealth’s premier health law practices. She also practiced with the health care team at Woodward, Hobson & Fulton and served as in-house counsel for Crown Medical Management—a full service medical practice management company. Tricia serves on the AHLA Medical Staff and Credentialing Leadership Committee and is on the Advisory Board for the Beaumont YMCA. She also served as the Chair of the Health Law Section of the Fayette County Bar Association and on the Board for the Lexington Medical Society Alliance as its Vice President and the Lexington Singers, the oldest continuously organized choral group in the United States. She previously served on the Friends of the Arts Board (Secretary and Vice President), the Board of Spindletop Hall, the University of Kentucky Faculty and Alumni Club (Secretary and Vice President), and Habitat for Humanity Board. She has published numerous legal articles—including co-authoring a Chapter of the Kentucky Health Law Handbook—and has been a frequent lecturer on a wide range of health law topics. Tricia resides in Lexington with her two children, Brennan and Beau. In her spare time, she enjoys spending time with her family, theater and the arts, music and singing, travel, cooking, yoga and fitness.


AHLA thanks the leaders of the Medical Staff, Credentialing, and Peer Review Practice Group for contributing this feature article: Lisa Marie Gora, Wilentz Goldman & Spitzer PA (Chair); Alexis Angell, Polsinelli PC (Vice Chair—Educational Programming); Robert Harrison, Stilling & Harrison (Vice Chair—Educational Programming); Julia Cassidy, Faegre Drinker Biddle & Reath LLP (Vice Chair—Member Engagement); Kristen Chang, McGuireWoods LLP (Vice Chair—Publishing); and Jeffrey Frost, Sutter Health (Vice Chair—Publishing).