When 30 Days Is Not 30 Days

When is 30 days not 30 days?

Concerned about a surgeon’s skill, a hospital ordered him to “have five bowel surgery cases proctored,” specifying no time limit.  After a month, when the surgeon hadn’t met the five-case requirement, the hospital filed an adverse report with the National Practitioner Data Bank.

The statute states that a hospital “shall report” a professional review action “that adversely affects the clinical privileges of a physician for a period longer than 30 days.” 42 U.S.C. § 11133(a)(1)(A).  A proctoring requirement meets the standard of “adversely affecting” privileges.

The surgeon sued the hospital for damages and sought a preliminary injunction requiring the hospital to submit a retraction—a “Void Report”—to the Data Bank, on the grounds that his proctoring requirement wasn’t reportable.  The hospital asked the court not to issue the injunction and argued that the proctoring requirement was reportable because it lasted over 30 days.

Was the proctoring requirement reportable?  The court hasn’t yet formally decided, but on February 8 it gave the strongest of indications that the answer will be a resounding NO, as it granted the surgeon’s request for the preliminary injunction.

Why wasn’t the requirement reportable?  The explanation is that the 30-day determination must be made on the basis of what the hospital’s order says rather than on how the facts later develop.  In this case the hospital’s order simply required five proctored cases, with no specific time limit.  The surgeon could take a week, a year, or even longer and still meet the five-case requirement.  So the hospital’s order did not meet the statute’s 30-day standard.

The case is Walker v. Memorial Health System of East Texas, No. 2:17-CV-00066-JRG (E.D. Tex., Feb. 8, 2017).

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