4/10/99

MODEL CONTRACT TO SUPPLEMENT/REPLACE HOSPITAL'S BYLAWS, RULES AND REGULATIONS

            Eric N. Grosch, M. D. and cosignatory physician, hereinafter designated, "emergency-physician," shall hold entitlement to all rights and privileges, including due process and appellate review, accorded to any other medical-staff member except for admission privileges and, in addition, have the additional rights and privileges described in the wording of the following supplement, which shall replace and supersede the corresponding passages in the medical staff bylaws and in any governing contract in respect to any penal, corrective or disciplinary action against the emergency-physician.

            The hospital agrees to compensate the emergency-physician for his work at a rate at least of $______/hour and at the prevailing rate if it increase from time to time.

            This agreement shall have a term of ________ years from the date of execution.  No restrictive covenant shall govern this agreement, either in respect to time or location.  If the corporation and hospital sever their mutual obligations, by mutual consent or if either party sever unilaterally, or if the corporation's agreement with the hospital expire or suffer cancellation, the hospital and emergency-physician shall maintain in force their independent mutual obligations under this agreement for the remainder of the term until severed by mutual agreement.

            The provisions of this agreement supersede and nullify any agreement whatsoever between any parties whomsoever which permits any person whomsoever, whether administrator, hospital governing body member, medical staff officer or member, or emergency-department director from removing the emergency physician from the emergency-department schedule for any reason whatsoever or arbitrarily, without either:

1. obtaining his written permission to remove him or

2. prevailing against him by due process, as defined in the due-process provisions contained in the bylaws, as amended by the wording of this supplement.

            The on-duty nurse(s) shall have responsibility for the choice of patients and timing in bringing patients from the waiting room to the emergency department proper, subject to modification at the emergency-physician's discretion.

            The hospital recognizes that the emergency-physician occupies the clinical "front line," that he bears primary responsibility for emergency patient-care, that he has insufficient time to deal with in-hospital conflicts and that conflicts with physicians on emergency-call and hospital employees do not fall within his purview.  The Chief of Staff shall establish a conflict-resolution back-up call rota, in effect 24 hours per day and confer his entire authority for conflict resolution to the designated physician on-call from time to time on that rota.  The emergency-physician may, at his sole discretion, refer to the designated physician on the conflict-resolution rota:

1) any complications in the primary-physician emergency-call schedule, such as claims from physician on the printed schedule about subsequent arrangements he may have made with another physician to cover him

2) any policy of the department, to which the primary physician on emergency call belongs, that the printed emergency-call schedule does not reflect

3) any disagreement about whether or not to admit a given patient to hospital from time to time

4) any other conflict that may arise

            Upon notification of any conflict, the designated physician on the conflict-resolution call-rota shall relieve the emergency physician of all duties related to such conflict and of all liability risk related to a decision to discharge a patient whom the emergency physician proposed for admission.  Neither the hospital nor any member of the medical staff shall impugn the emergency physician's clinical judgment or criticize him in any other way for his decision to call upon the designated physician on the conflict-resolution rota for any reason.  Neither the hospital nor any member of the medical staff shall impugn the emergency physician's clinical judgment or criticize him in any other way for his decision to admit a patient, whether the primary physician on emergency-call or the conflict-resolution physician or both or any hospital employee disagree with that decision.

            The emergency physician may, at his sole discretion, write admitting orders for a patient as a courtesy to the admitting physician but the admitting physician shall bear full responsibility for writing admitting orders and professional liability risk for errors in those orders in any case, while the emergency physician shall bear no risk whatever, either of blame or of liability for such errors.  Neither the hospital nor any member of the medical staff shall impugn the emergency physician's clinical judgment or criticize him in any other way for any aspect of admitting orders that he has written, whether the physician on emergency-call or the designated physician on the conflict-resolution rota or both or any hospital employee disagree with them or whether or not any such person believe that the emergency physician committed any error(s) in writing them.

            The hospital acknowledges that the emergency physician's alertness represents a valuable renewable asset that works to the benefit of patient-care. The emergency physician works, occasionally or often while fatigued, perhaps on the edge of human endurance, at the mercy of sporadic, random patient arrivals, so the emergency physician shall have the right, indeed the obligation, to enhance his alertness: to eat when a lull in patient traffic gives him a chance to eat and to sleep when a lull gives him a chance to sleep, at any time during his shift, at his sole discretion.  When patient care needs arise from time to time, the on-duty nurse(s) shall notify the emergency physician on-duty and keep a log of times of her notifications.  The emergency physician shall respond to such nursing notifications and shall enter the time of his response to each notification in the same log and authenticate the nurse's notification at the same time.  Supervisory authorities shall attribute to the nurse any documented delay between the arrival of a patient or his laboratory or X-ray results and her notification of the emergency physician and shall attribute only delays which occur after the nurse's notification to the emergency physician.

            The Chairman and each member of the Hospital Governing Body, the hospital administrator, Chief of the Medical Staff, emergency-department director, and Director of Nursing of ____________ Hospital and president and corporate medical director of  ___________ Emergency Services, shall all signify their assent to and obligation to abide by the wording and spirit of this agreement by signing in the spaces provided below.

QUALIFICATIONS FOR MEMBERSHIP

            Qualification for membership on the medical staff shall include documentation of the physician's professional education, training, experience, demonstrated competence, judgment, character and current capability; and good reputation sufficient to assure the medical staff and governing body that any patient he treats in the hospital shall receive an acceptable standard of medical care and professional skill.  Furthermore, the physician shall demonstrate the highest professional and moral character and integrity and adhere to the highest ethics of his profession. The hospital administrator and governing body recognize that a physician's fiduciary responsibility to his patients, to their health and to their welfare constitutes his primary and most important ethical obligation and that the hospital has a primary duty to support and aid the physician in fulfilling that obligation.

WHISTLEBLOWER PROTECTION CLAUSE

            The physician shall work cooperatively with others if possible and if doing so remains consistent with his ethical obligations but the hospital recognizes the primacy and dominance of the physician in matters relating to patients' care, health and welfare: the hospital shall understand that physicians do not always agree about proper treatment for a patient or proper practices in the hospital and the goal of providing high standards of medical care requires that any physician shall feel free to assert his views and "blow the whistle" when he finds treatment of any patient improper or any hospital practice negligent.  Considerations of harmony in the hospital must give way to patients' welfare:

            Each governing-body member, the hospital administrator, each medical-staff member and each ancillary-staff member shall diligently support any physician who makes his objections known, whether tactfully or not, and, in practical terms, none of those persons shall retaliate against him for his whistleblowing by:

1) refusing initiation or renewal of medical-staff privileges to any physician or

2) terminating any emergency physician who sees fit to blow the whistle to correct the performance of ancillary personnel, another physician or any other person in order to ensure reasonable pursuit of his primary fiduciary responsibility to his patients or

3) construing his whistleblowing as "inability to work cooperatively with others, or

4) construing his whistleblowing as failure to "get along" with hospital personnel or other physicians when he criticizes their work performance, or

5) censuring a physician for rudeness in extremis in the course of his trying to save a patient's life or health, or

6) threatening or interfering with the physician's hospital privileges, his contractual relationships with any entity or with any other aspect of his livelihood or professional relationships because of any circumstance surrounding the physician's fulfilling his ethical obligations, as he sees them.

            Substantial evidence of such retaliation shall remove any dispute between the hospital or its medical staff and the accused physician from the jurisdiction of all hospital bodies and place it instead in the jurisdiction of a court of law.

            Any physician shall have the authority immediately to remove any ancillary-staff member who interferes with his legitimate discretion or functioning.  The hospital shall provide for that ancillary-staff member's immediate replacement.  All hospital employees shall agree in writing to abide by those principles and their employment shall depend on their agreeing.  A hospital employee's failure to signify his agreement in writing shall constitute grounds for terminating him or for not hiring him initially.

Unique to Ascension Hospital:

NOTIFICATION OF CLAIMS

            Members of the Medical Staff shall be required to notify the hospital administrator immediately upon receipt of notice of any type of claim or action pending against them regardless of the nature of such claim or action and its anticipated final outcome.  A record of such claim or action and its ultimate outcome will be maintained in the practitioner's credentialling file.

CORRECTIVE ACTION FOR MARGINAL PRACTICE OR BEHAVIOR, DISREGARD FOR RULES, PHYSICAL OR MENTAL IMPAIRMENT, UNETHICAL CONDUCT - CHOOSING A REMEDY:

            An initiator of corrective action, namely, any officer of the medical staff, any chairman of a standing committee of the medical staff or the chairman of any clinical department, may initiate corrective action against any medical staff member for any professionally justifiable and substantial reason, defined in the textbook- or scientific-periodical literature of medicine, surgery, obstetrics, gynecology, pediatrics, medical ethics or etiquette, with the proviso that consideration of etiquette must yield if it conflict with operational necessity.

            The governing body and hospital administrator shall recognize that processes, not people, usually make quality, so they shall seek and correct flawed processes in hospital organization redesign them and observe for a reasonable time, no less than six months, to determine whether the redesign has produced the desired effect before presuming fault of an individual and pursuing him with penal intent.

            If they find the performance of an individual practitioner at fault, the medical staff may resolve the issue(s) by one or a combination of several methods.  The hospital hierarchy shall treat the practitioner with dignity throughout all corrective-action processes.  The choice of approach may depend on the urgency, recurrence, frequency or severity of the specific incident(s) as well as on the accused practitioner's cooperation.  Whatever the approach, the hospital hierarchy shall record all conversations in the context of any meeting and in any informal context, that relate to the issues between any two or more persons who have any decision-making power in the case.  Failure of any two such persons to record their conversation(s) that relate to the case in any context at any point in the proceedings, whether constructive or penal, shall receive treatment under the principles of zero-tolerance and shall constitute grounds for immediate exoneration of the subject practitioner:

1) the hospital shall apply the word-to-the-wise, blame-free, shame-free Total-Quality-Management approach by addressing that problem in an ongoing physician-performance improvement program, in which all physicians participate and which shall continue during the term of any contract between the hospital and physician.  The hospital shall not construe the physician's participation in a physician-improvement program as derogatory against him, nor shall the hospital report his participation in such a program to the National Practitioner's Data Bank, the Federation of State Medical Boards, or any other national, regional, state, local or other governmental regulatory or licensing agency.  The physician-improvement program shall incorporate at least the following essential steps:

a) Identify the perceived deficit

b) To ensure use of a realistic standard, verify that the perceived deficit represents a true deficit by reference to accepted standards of performance in an appropriate nationally-recognized data-base

c) Notify the physician of the verified deficit

d) Refine the issues by collegial discussion between the physician and all concerned parties to accumulate data in a constructive spirit of free and open inquiry: explore the thinking, reasons for actions, muster evidence pro and con from all parties

e) Reassess physician performance at least once per week according to consistent criteria

f) Feedback assessment to physician and discuss whether he needs to improve and ways he can improve further

g) Repeat the feedback cycle at least ten times

2) Only if those steps fail, administration, any member of the governing body or any medical-staff member may request to initiate penal action The initiator shall address his request for penal action, only in writing, to the hospital administrator.  Penal action shall proceed only with the advice and consent, by a two-thirds-majority vote of the medical staff as a whole.

            Within ten (10) days of receiving a medical-staff approval for penal action, the hospital administrator shall have organized or prompted the medical staff president or executive committee to have organized, a committee to investigate the allegations against the accused practitioner.  If the hospital administrator fail to complete those tasks within the allotted ten (10) days, he shall annul the penal action or obtain a time-extension from a court of law by showing reasonable cause why he has failed to do so.

            The investigating committee shall present a report of its conclusions, including an assessment of the cause, whether organizational and systemic or individual, attributable to the subject practitioner.  If organizational and systemic, the investigating committee shall refer the systemic issues to the hospital-administrator and relevant departments for resolution and dismiss all allegations against the tentatively accused practitioner.  If individual and attributable to the subject practitioner, the committee shall report on the urgency, recurrence, frequency or severity of the specific incident(s) in question, as well as on the subject practitioner's cooperation, or lack thereof, in the physician-improvement program to the medical executive committee.

            Prior to making any report, the committee shall inform the accused practitioner in writing of the specific charge(s) against him, which shall specify and limit their wording to relevant patient name(s), name(s) of accuser(s) and/or witness(es), specific allegation(s) and citations of relevant scientific standard(s), by reference to relevant citation(s) from the medical textbook or periodical literature or both, which allegedly justify the charge(s).  Notification of charges shall guarantee the accused practitioner's right to pre-hearing discovery of evidence, including, but not limited to, citation of scientific literature which provides a basis for the scientific validity of the charges against him, all documentation which purports to support the charges, as well as any evidence, which the accused may specify, at his sole discretion, of the hospital hierarchy's irrationally or oppressively proceeding against him, its application of any double standard, such as disparate or inconsistent treatment of similarly situated parties, different standards for similar situations, its proceeding undertaken for an improper purpose, such as to harass and all the evidence listed below under COMPOSITION OF HEARING COMMITTEE.  To that end, the hospital shall:

1. produce all:

a) internal memos that relate to his case

b) notes that relate to his case and

c) other written communications, formal and informal, that relate to his case

d) sound- or video-recordings of the entirety of every meeting, formal or informal, of two or more members of any and every hospital- or medical-staff-body whose members discussed the accused's case at any stage of the process, whether investigative, deliberative or otherwise, particularly if, but not only if, they proposed or discussed subjecting the accused to the penal peer-review process to which the charges relate

2) provide copies, at its own expense, of all such documentation to the accused.

            Failure of the hospital to provide the accused with such papers and audible and comprehensible copies of all such recordings within ten (10) days after notification of charges shall result in annulment of all charges that relate to the omission.  If discovery of the omission occurs after the proceeding has progressed, the hospital should annul the applicable charges and all related findings in retrospect.  Even the omission or inaudibility of a copy of one such recording among many shall suffice to result in such annulment by the just doctrine of zero-tolerance.

            After the accused practitioner has had reasonable time, at least thirty (30) days per charge, at his sole discretion, to examine that evidence and prepare his response(s) to the charge(s), the committee may interview him.

            Though the committee may invite the accused to discuss, explain or refute the allegations, it shall have the power neither to compel him to appear at the interview, to respond to its queries nor otherwise to speak if he does.  Neither the ad hoc committee nor the governing body nor any other agency shall have the discretion to construe evidence of guilt from his silence at this preliminary interview or in any other penal-action hearing.  All of the procedural rules provided in these bylaws with respect to hearings shall apply to this preliminary interview, including right to presence and advice of counsel, at all hearings.

            The investigative committee and the medical executive committee shall base penal-action allegations and charges against the accused practitioner only upon nationally recognized standards of care.  The investigative committee shall bear in mind the multiplicity of stylistic variations in patient care from community to community and the impracticality of a physician's knowing of local variations in advance.  Relevant citation(s) from the medical textbook literature, medical periodical literature, medical ethical literature and/or etiquette literature shall justify and accompany all charges.

            In particular, in the absence of such relevant supporting citation(s), no statement(s) from any source, including any medical-staff member or member of the hospital's ancillary staff, governing body or administration, analogous to or to the effect of the following shall support or justify any penal-action allegation:

A. "I do not feel comfortable with accused's patient-management."

B. "I do not feel confident in accused's patient-management."

C. "I find the accused's patient-management improper."

D. "I believe that the accused's patient-management should have consisted of (this) instead of (that)."

E. "We do not do things that way in these parts."

F. "The accused's personal style of interaction with patients and staff precipitated his removal."

G. "Patients have complained against the accused."

H. "The accused is quiet."

I. "The accused does not communicate."

J. "I don't have time to go into details."

            The hospital shall recognize and acknowledge the validity of the thinking of William Osler, in particular, that in Aequanimitas: a physician's thoughtful contemplation in a mood of equanimity in the service of patient-care positively benefits patients' welfare - a thinking physician is a quiet physician.  The hospital shall recognize the validity of no complaint whatever against a physician which directly or indirectly addresses his quietude or equanimity of mood or manner.

            Any patient-advocate or -representative who receives any complaint(s) about any aspect of a physician or his treatment or of any other nature whatever, without limit, shall refer the complaint soon enough to that physician to permit him to resolve it face-to-face with the complainant while the complainant remains on site.  If any person, whether physician or non-physician, including any patient advocate or representative, receives any such complaint(s) but does not refer such complaint(s) soon enough to the physician to whom the complaint(s) refer(s) to permit him to address the complainant(s) about the complaint(s) before the complainant(s) leave(s) the hospital that day, the complaint(s) shall have no validity in support of any penalty(ies) of any kind, including termination, against that physician, irrespective of whichever other person(s) whom notification of the complaint(s) reached initially, including the hospital administrator or chief of medical staff.

            The medical executive committee, after verifying the investigating committee's compliance with all strictures cited above, may reject or modify the request for penal action, issue a warning or letter of admonition or reprimand, impose terms of probation or requirement for consultation, or recommend reduction, suspension or revocation of clinical privileges or termination.  If the investigating committee, medical executive committee or governing body has failed to comply with any stricture cited above, the jurisdiction of the governing body and all hospital-based committees and bodies shall cease and the accused practitioner shall have the right to seek adjudication, in a court of law, of the investigating committee's finding(s), the medical executive committee's actions(s), including, but not limited to, its finding(s), recommendation(s), warning(s), letter(s) of admonition, reprimand(s), or governing body's final decision(s) or all the above.

            A medical-executive-committee's recommendation for reduction or revocation of clinical privileges, of staff membership or of termination shall entitle the accused practitioner to a hearing, subject to the following provisions:

COMPOSITION AND COMPETENCE OF MEDICAL-EXECUTIVE, INVESTIGATIVE AND HEARING- COMMITTEES

            When a hearing relates to a recommendation of the medical staff, the medical-staff president shall designate an outlying hospital, agreeable to the accused, as a venue for the hearing.  The medical-staff president of that outlying hospital shall designate at least twelve voting active members of the medical staff in good standing, all good physicians and true, none of whom shall have any professional relationship with the hospital of origin, to conduct the hearing.  The members of the ad hoc committee shall vote to appoint its own foreman.

            The ad hoc hearing committee's members shall fulfill the highest ethical standard of avoidance of conflict of interest and even of the appearance thereof.  Accordingly, no member of the ad hoc hearing committee shall:

1. have any commercial or business interest(s) in competition with the accused practitioner's interest(s)

2. have prior knowledge of the material issues in dispute;

3. have participated in any of the deliberations leading to preference of charges against the accused

4. have any personal friendship or acquaintance with any member or employee of the hospital of origin where the accused practices.

            The hospital of origin shall hire, at its own expense, an administrative-law judge to preside at each hearing of each deliberative body and ensure that each such body conduct its hearing according to established legal protocols.  The administrative-law judge shall adjudicate only matters of procedure, law and logic and leave adjudication of medical matters to the ad hoc committee proper, except for that of standard-of-care, mentioned below, under this article, which he shall determine with expert medical help.

            The hospital and its agents shall hold every practitioner on its medical staff to scientifically valid and realistic standards of care, performance and diligence.

            To prevent the hospital of origin and its agents from holding an accused practitioner to scientifically invalid, unrealistic or imaginary standards of care, performance and diligence, a physician's membership on the medical-executive committee or a physician's assigment as an investigator of a case against an accused practitioner shall guarantee to that accused practitioner the right to determine whether the medical practices of such members comply with standards to which the executive committee proposes, by its deliberation, charge(s), and recommended verdict(s), to hold the accused practitioner.

            A physician's appointment to and acceptance of membership on the ad hoc hearing committee which considers the accused practitioner's case shall guarantee to the accused practitioner the right to determine whether the practices of the members comply with standards to which the hearing committee proposes, by its discussion(s) and recommended verdict(s), to hold the accused practitioner.

            To those ends, the hospital of origin, for executive committee members and investigators, and the hearing-venue hospital, for ad hoc hearing-committee members, shall provide, for the scrutiny of the accused practitioner, or any person(s) he shall designate as his expert witness(es) and of his representative(s), access to originals, and, at either hospital's expense, to the same persons, copies of, documentation, including, but not limited to, the following:

1. to establish each physician's ethical track-record with respect to his own medical practice, each member's record of disciplinary actions by every state he has ever held a license, by any hospital where he has ever held privileges and by any medical society in which he has held membership. 

Such records shall include at least:

a. an official statement from each state licensing authority about each member, including all derogatory information

b. an official report of disciplinary actions from the Association of State Medical Boards, Euless, TX

c. an official report from the AMA

d. an official report from the

e. the personnel dossier, including, but not limited to, records of all prior or current disciplinary penal action hearings each member shall have undergone and any other record(s) of every hospital at which he has held privileges, including the hearing-venue hospital

2. to establish reasonable sufficiency of each physician's knowledge of the medical-scientific principles touching the case in dispute, the member's speciality, results of past examination-scores

3. the member's performance in cases similar or analogous to the case which forms the basis of accusations against the accused, as evidenced in all prior and current clinical charts of patients whom each member has attended in the hearing-venue hospital and all other hopsitals in which each member has held privileges

4. to facilitate the accused practitioner's access and inspection, a list of such patients, together with their respective diagnoses, whom each committee member shall have attended in each hospital.

5. to ensure reasonable standards of logical and scientific integrity of the various committee's deliberations and recommended verdict(s), the acused shall have discovery-access to transcripts of all deliberations.

            All parties shall apply customary confidentiality precautions to the above-mentioned scrutiny of patient medical records and physician penal-action disciplinary hearing-records.  If such precautions preclude the accused practitioner's inspecting original medical records, then, at its own expense or at the expense of the hospital of origin, each such hospital shall provide him a photocopy of each of as many of such records as he shall designate, at his sole discretion, with all patient identifiers removed, except for patient identification numbers.

            The accused practitioner may present evidence he derives from inspection of such charts at any point in the proceeding, including the appeal to the governing body, whether or not he has presented it prior to that time, since he may have no inkling before the ad hoc committee has rendered its recommended verdict whether it has applied a realistic standard of care in assessing his performance.

            On the basis of the same evidence, the accused shall have the authority to challenge for cause the appointment of, and remove, any member and as many of each member's successors as shall please him, without limit at his sole discretion.  The hearing-venue hospital shall have the joint obligation with each committee member to produce such objective evidence, which shall include, but not be limited to:

            In case of an ethics- or competence-challenged member's counter-assertion of his ethical purity and competence to judge the issues in question, the accused practitioner may, at his sole discretion, compel the member in question either to withdraw his membership on the ad hoc hearing committee or to undertake a written or oral examination or both on the subject matter at issue, administered by an independent expert, whom the accused practitioner may designate at his sole discretion and whom the hospital shall reimburse for that service according to any agreement it may make with the expert.

            The accused practitioner shall have the right peremptorily to challenge and remove a maximum of twelve members and their successors, in aggregate, over and above his challenges for cause.

            The accused practitioner shall have the right to challenge any standard of care which any hospital hearing committee propose by its charges, deliberations or verdict by submitting it to the presiding administrative-law judge.  The hospital of origin may elect to dismiss the related charge or reaffirm the charge by a counter-challenge.  If the hospital counter-challenge, the judge shall adjudicate the dispute with the advice of an independent expert, agreeable in advance to both sides, by comparison with the accepted standard of care, according to relevant scientific medical literature, and the standard of care which any index clinical chart indicates a member of the hearing committee practiced in his prior patient-management.

            The judicial action shall depend on the outcome of that adjudication, which falls into discrete categories:

1) The accused met an accepted standard of care, whether or not he met or exceeded the standard of care the charges proposed.

2) The accused failed to meet an acceptable standard of care

3) The accused has not shown that any index case of any adjuciting or investigating member shows failure to meet an acceptable standard of care.

4) A medical-executive-committee member's index case shows that he failed to meet an acceptable standard of care.

5) an investigating-committee member's index case shows that he failed to meet an acceptable standard of care.

6) An ad hoc hearing-committee member's index case shows that he failed to meet an acceptable standard of care.

            In case 1) and 3), the judge shall dismiss the charge related to the subject standard of care and the hospitals of origin and venue shall abide by that dismissal.  He shall resubmit the rest of the case to the sitting ad hoc committee to determine a recommended verdict.

            In cases 2) and 3), he shall affirm the charge as a recommended verdict and resubmit the rest of the case to the sitting ad hoc committee to determine the rest of recommended verdict.

            Whether case 1) or 2) pertain:

            In case 4), or 5), the administrative-law judge shall dismiss the case on the grounds of incompetent personnel.  At that point, the hospital of origin shall have the choice of accepting the dismissal or further pursuing the charges against the accused.

            If the hospital choose to pursue, it shall, in case 4), re-constitute its medical-executive committee and investigating committee from entirely different medical-staff members with clean hands, re-investigate the case and re-submit it to another ad hoc hearing-committee; in case 5), re-constitute a fresh investigating committee from medical-staff members with clean hands, re-investigate the case and re-submit it to another ad hoc hearing-committee.

            In case 6), the administrative-law judge shall direct the hospital of origin, if it choose to pursue, to re-submit the case to another ad hoc hearing committee.

            In each of cases 4), 5) and 6), the administrative-law judge shall direct the hospital to maintain logical consistency by submitting the index chart of the committee member who failed to attain an acceptable standard of care to the newly-constituted executive committee for investigation with a view to disciplining the challenged committee-member.  The administrataive-law judges engaged shall recuse themselves and the hospital of origin shall engage different administrative-law judges to preside at fresh hearing(s) of a new ad-hoc hearing committee at a separate, distant hearing-venue hospital consisting of medical-staff members who shall satisfy all the criteria for inclusion and subject themselves and their personnel and patient records to inspection provisions listed above and shall have had no knowledge of any charges against the accused prior to their appointment

REQUEST FOR HEARING

            Prior to taking professional review action that may adversely affect a physician's appointment to the Medical Staff or clinical privileges, the administrator shall give the physician written notice, by Certified Mail, of the proposed action and the specific charges which support the action.  The charges shall specify and limit their wording to relevant patient name(s), name(s) of accuser(s) and/or witness(es), specific allegation(s) and citations of relevant standard(s) which the accused allegedly violated and, hence, which allegedly justify the charge(s).

Exclusionary Rule:

            The Administrator shall have initiated a thorough investigation of the allegation(s) and verified the investigation committee's satisfaction with their validity, before proposing them.  Sufficient evidence of the administrator's irresponsibly notifying a physician of a charge shall consist in a showing of a conflict between the charge and available documentation. The administrator's irresponsible notification of the accused physician of a charge against him shall result in immediate dismissal of the charge notified, with prejudice and without possibility of subsequent recourse.

CONDUCT OF HEARING

            Every witness and every other participant in the hearing shall swear before the presiding administrative law judge, under penalty of perjury, to tell the truth, the whole truth and nothing but the truth.  If a witness suffer impeachment in the course of testimony before the ad hoc hearing committee, that committee shall disregard all of that witness's testimony as unreliable under the doctrine, falsus in unum, falsus in omnibus (false in one instance, false in all).

The hospital shall:

1) conduct all hearings strictly according to rules of law relating to the examination of witnesses, and the presentation of evidence.

2) proscribe the admission of hearsay evidence.

3) hire, at its own expense, a court reporter, who shall record  verbatim the entirety of all hearing deliberations touching the accused practitioner's case, including any closed-door deliberations, of the various hearing committees, including those of the executive committee, of the ad hoc hearing committee and of the governing body, meeting as a whole or in subcommittee(s).  Those verbatim transcripts shall, for all purposes, enter the official, on-the-record case archive.  The accused practitioner, his representative(s), and his expert witness(es) shall have access to all transcripts of all deliberations in the case archive, both his own and prior or concurrent cases touching other practitioners who serve as hearing-committee members for his case.

            The accused may have the right to attorney representation in the hearing whether or not the hospital elects attorney representation.

            The accused practitioner shall have the right to remain silent and no hospital authority or committee shall construe his silence as evidence of guilt of preferred charges.  With adequate representation, the accused practitioner shall have the right to confine his utterances to his testimony as a factual witness.

            No person, whether a member of any of the several hearing committees or not, shall discuss the case outside The context of hearing-committee hearings and deliberations.

            The hearing committee's conclusions shall relate strictly to the charges initially preferred.  If new issues arise during the hearing, the hearing committee shall table them and a separate hearing committee, composed of twelve active medical staff members of a different hearing-committee-venue hospital, who shall satisfy all the criteria for inclusion and voluntarily subject themselves and their personnel and patient records to inspection provisions listed above and shall also have had no knowledge of any charges against the accused prior to their appointment, shall address them in and separate subsequent inquiry and hearing.

            The Hospital shall bear the burden of proving the charge(s) against the accused practitioner by clear and convincing proof.

OBLIGATORY PREVALENCE OF LOGICAL PRINCIPLES IN ALL HEARINGS AND DELIBERATIONS

            The governing body, medical staff, including its hearing committees, appointed from time to time in hearing-venue hospitals, and the corresponding hospital administrators shall recognize that enlightened application of logic and reason and correct principles of dialogue distinguish civilized society from primitive, savagery, barbarity and the brute beast. Accordingly, they each, severally and collectively, endorse and embrace logical enlightenment.  In order actively to prevent introduction of fallacious arguments into the proceedings and avoid the danger which fallacy poses to enlightened revelation and pursuit of truth, the governing body, hospital administrator and medical staff agree that initiation of penal action against the accused shall oblige the hospital of origin to hire, at its own expense, a logician with an academic rank at least of full professor, agreeable to the accused, to participate in all investigations, hearings and deliberations and verify whether or not the other participants' thinking and arguments bear consonance with correct principles of logic.  He shall halt the proceedings by intoning, "point of logic!" if he detect any error or fallacious argument, to wit:

I. sophismata in dictione or sophismata in voce fallacies (semantic fallacies) oi para thn lexin

A. Æquivocatio or Homonymia (fallacies of ambiguity or equivocation) omwnumia

1. quaternio terminorum (fallacy of four terms)

2. fallacia compositionis (fallacy of composition) sunqesiV, non causa pro causa (fallacies of false cause) to mh aition wV aition tiqenai

a. fallacious generalization from parts to a whole

b. fallacious generalization from parts to a collection; confusion of distributive and collective

3. fallacia divisionis (fallacy of division) diairesiV

a. fallacious generalization from a whole to its parts

b. fallacious generalization from a collection to its parts

4. fallacies of immediate inference (paralogisms)

a. fallacy of illicit obversion (the wicked alternative)

b. fallacy of illicit conversion

5. fallacies of analysis

a. incomplete analysis

b. overlapping analysis

c. cross-analysis

B. fallacia amphiboliæ (fallacy of amphiboly) amfibolia

1. fallacy of rearranging operators

2. fallacy of extensional substitution in nonextensional contexts

C. fallacia figuræ dictionis (figure of speech) schmaV

D. fallacia prosodiæ proswdia or fallacia accentus (fallacy of accent): confusion arising from:

1. tone of voice

2. stress

3. context (selection)

E. fallacies of vagueness

1. undefined terms

2. omission of specificity

3. doublethink

4. argumentum ad nauseam (obfuscation)

F. fallacy of semantic questions

II. sophismata extra dictionem or sophismata in re oi exw thV lexewV

A. petitio principii or petitio quæsti (begging the question, seeking to prove an argument by presuming its truth a priori) to para to en arch lambanein h aiteisqai

1. assuming the conclusion

a. hysteron proteron (identity or inadvertent proposal of change which preserves the status quo) usteron proteron

b. circulus probando (circular argument)

2. assuming something universal to prove a particular

3. assuming a particular to show a universal:

4. dividing a proposition and assuming in detail

5. assuming one of two reciprocally involved facts to prove the other

a. fallacy of metaphysical conjectures

b. fallacy of fictitious conjectures

6. fallacia plurium interrogationum (to ta pleiw erwthmata en poien), fallacy of many questions or complex question

7. leading or declarative question

8. fallacious wisdom of hindsight (fallacy of the Monday-morning quarterback)

9. deterministic thinking

a. fallacy of metaphysical conjectures

b. fallacy of fictional questions

10. inconsistency (conflicting propositions)

a. Catch-22 (internal contradiction)

b. Irish Bull

B. assumptio non probata (false or unproven premise)

1. hypothesis contrary to fact

a. existential fallacy

b. antecedent contrary to fact

2. fallacia plurium interrogationum (fallacy of many questions or complex question) to ta pleiw erwthmata en poiein

3. half-truth

4. psychic pitfalls and ego defense mechanisms

a. attitudes

b. mind-set

c. thought-habit

d. stereotypes

e. acting out

f. rationalization (finding the good reason)

g. intellectualization (isolation)

h. fallacious denial

i. displacement

j. reaction formation (overreacting, tampering)

k. compensation

l. undoing

m. projection

n. selective amnesia

o. repression

p. emotional insulation

q. identification

r. introjection (conformity)

s. fantasy (wishful thinking)

t. regression

u. avoidance, procrastination, decision by indecision

5. fallacy of expanding rumor

6. special pleading:

a. fallacy of the impromptu definition

b. weasel-gambit (or weasel-word)

c. double standard

(1). arbitrary preference, favoritism

(2). obsequious appeasement

d enjoying an unfair advantage both ways

(1). planning for unfair advantage

(2). ex post facto

7. argumentum ad auditores (attitude fitting, hypocrisy, duplicity, lip service, cant)

8. false analogy

a. animism: imbuing abstractions or inanimate objects with life

b. personalization: imbuing abstractions or inanimate objects with human character

c. depersonalization: converse of personalization: treating humans as objects, often contemptible ones

d. The Great Jackass Fallacy: treating humans as beasts of burden (instrumental fallacy, theory X)

e. fallacy of false expertise

f. segmentation fallacy

9. fallacia a dicto simpliciter ad dictum secundum quid: from a saying [taken too] simply [ without restriction] to a saying according to what [it really is] that is, according to its truth as holding only under special provisos or restrictions, fallacy of accident (a rule that applies in general applies in every circumstance, oversimplification:

a. forgetful induction

b. slothful induction

10. fallacia a dicto secundum quid ad dictum simpliciter: from a saying according to what [it really is] - that is,according to its truth as holding only under special provisos or restrictions - to a saying [taken too] simply [without restriction] fallacy of converse accident, infer a generalization from a specific, unrepresentative instance, overgeneralization, to adlwV h mh aplwV alla ph h pou h pote h proV ti legesqai

a. neglected aspect

b. sample bias

c. hasty induction

(1). tabloid-, capsule- or slogan-thinking

(a). "Where there's smoke, there's fire"

(b). "That raises a red flag"

(c). "Perception is reality"

(2). Summation of zeroes

(3). gambler's fallacy

(4) error of meaningless statistics

(5) error of unknowable statistics

C. non sequitur (conclusion does not follow from premises, whether valid or not, fallacies of mediate inference)

1. conversion of an A-proposition (universal affirmative)

2. conversion of an O-proposition

3. fallacia consequentis (affirming the consequent) to para to epomenon

4. denying the antecedent

5. converting a conditional

6. negating an antecedent and consequent

7. asserting an alternative

8. fallacy of exclusive premises (two negative premises)

9. affirmative premises, negative conclusion

10. negative premises, affirmative conclusion

11. undistributed middle

12. ambiguous middle

13. fallacy of illicit process (fallacy of illicit distribution)

a. illicit process of the major term

b. illicit process of the minor term

14. contradicting a disjunct in a contrary disjunctive syllogism

15. affirming a disjunct in a subcontrary disjunctive syllogism

16. dilemmatic fallacies

a. consequents do not follow from antecedents in the major premise

b. imperfect disjunction in the minor premise

c. conclusion capable of rebuttal by a minor dilemma

17. unitary relational fallacies

a. confusion of an asymmetric relation with a symmetric relation

b. confusion of a nonsymmetric relation with a symmetric relation

c. confusion of an intransitive relation with a transitive relation

d. confusion of a nontransitive relation with a transitive relation

18. Compound relational fallacies

a. confusion of a symmetric transitive relation with any other

b. confusion of an asymmetric transitive relation with any other

c. confusion of a nonsymmetric transitive relation with any other

d. confusion of a symmetric intransitive relation with any other

e. confusion of an asymmetric intransitive relation with any other

f. confusion of nonsymmetric intransitive relation with any other

g. confusion of a symmetric nontransitive relation with any other

h. confusion of asymmetric nontransitive relation with any other

i. confusion of nonsymmetric nontransitive relation with any other

D. post hoc ergo propter hoc

1. confusion of necessary with sufficient conditions

2. fallacy of assumption of irreversible order

a. fallacy of insufficent positive correlation between two events

b. confusion of cause with effect

c. third factor

d. complex linkage: failure to recognize multiplicity of causes

3.fallacy of inappropriate extrapolation

4. statistical artifact

5. fallacy of overlooking alternative explanations

6. fallacies of inappropriate attribution of responsibility

a. fallacy of inappropriate evasion of responsibility

b. complaining about or seeking sympathy or compensation for self-caused injury

c. fallacy of inappropriate assignment of responsibility

d. fallacy of inappropriate attribution of blame

(1) scapegoating: Dreyfus syndrome (blaming a party wholly unconnected with an issue)

(2) blaming the victim

(3) killing the messenger

e. fallacy of inappropriate usurpation of responsibility (rescuer-syndrome)

E. ignoratio elenchi or ignoratio or mutatio conclusionis (Fallacies of irrelevance, arguing off the point) to adlwV para thn tou elegcon agnoian

1. straw man fallacy

2. red herring fallacy

a. humor, irony and sarcasm

b. extraneous or tangential matter (fishing expedition)

c. clamorous insistence on irrelevancies

3. fallacy of persistent objection

4. fallacy of perfection

a. I need all my ducks in a row before I can start

b. fallacy of spurious presumption of irrelevant complexity

5. fallacy of extension

a.exaggeration, substituting "all" for "some"

b.witch-hunt, demonization, horribilization, making a mountain out of a molehill, making a tempest in a teacup

c. putting words in an opponent's mouth

d. slippery-slope arguments

(1) precedent, thin-end-of-the-wedge, camel's-nose-in-the-tent, foot-in-the-door slippery-slope argument

(2) converse of false dichotomy.

domino-theory, snowball, genie-in-the-bottle, toothpaste-out-of-the-tube, all-hell-will-break-loose slippery-slope argument

(3) sorites, argument-of-the-beard, bald-man (falakroV), there-is-no-cutoff-point, no-place-to-draw-the-line, slippery-slope argument

(4) fallacious gradation of a discrete entitity

6. fallacy of false dichotomy (fallacious bifurcation, the all-or-nothing mistake, black-and-white thinking, thinking in extremes)

7. pettifogging

a. quibbling

b. making unreasonably fine distinctions (splitting hairs)

c. wrangling about trivialities

d. fallacy of pusillanimous exactitude

e. reversal: turning day into night: eclipsing an opponent's virtues by emphasizing his trivial or even imaginary faults or eclipsing the greater good by miring a discussion in trivialities

8. argumentum ad ignorantiam (argument on the basis of ignorance)

9. misuse of the mean

10. argumentum ad hominem (argument against the man)

a. abusive argumentum ad hominem

(1). name-calling

(2). character assassination (poisoning the well)

b. guilt by association

c. circumstantial argumentum ad hominem

d. argumentum ad personam (vested interest)

e. tu quoque (you too)

11. argumentum ad verecundiam (appeal to awe)

a. appeal to inappropriate authority

b. fallacious presumption of institutional correctness ("The King can do no wrong")

c. illegitimate institutional application of legitimate authority

d. self-righteousness (excessive self-esteem)

e. insolence of office (official arrogance)

12. argumentum ad misericordiam (appeal to pity)

13. argumentum ad populum (appeal to passion)

a. argumentum ad judicium (bandwagon fallacy appeal to herd-instinct, fallacy of prevalent proof)

b.slanting

(1). misuse of "purr-words"

(a). euphemism

(b). clichés

(c). prestige jargon

(d). pseudo-technical jargon

(e). pesumptive prefacing

(2). intimidating with snarl-words

(a). threat

(a). threat of disapproval

(b). argumentum ad risibilim threat of reputation diminution by ridicule

(g). argumentum ad baculum

(b). argumentum ad infernum: insult or curse)

(3). emotional misinterpretation

(a). emotional misinterpretation of emotionally neutral, terms

(b). fallacy of reference: taking general comments personally

c. fallacy of appeal to Old Adam

14. the big lie

15. argumentum ad lapidem (abandoning the discussion)

The hopital's governing body, administrator medical staff and agents shall acquaint themselves with logical principles, apply them diligently to all penal-action hearings and proceedings, disregard fallacies if they arise inadvertently and censure or expel those who insist on advancing them.

RULES OF DIALOGUE IN HEARING

            Several types of dialogue, herein dilineated, will likely occur.  The hospital shall recognize the importance of the types of dialogue because of the significant errors, misunderstandings misinterpretations, and fallacies of argumentation that an unannounced dialogue shift (dialectical shift) from one type to another may occasion.  All participants in the process shall adhere to correct principles of argument, herein set forth.

            Each of the hospital's agent-committees that participates in any phase of corrective action shall bear the burden of responsibility of announcing the type of dialogue at the beginning of its portion of the proceeding and whenever the dialogue-type shifts.  Each member of each such committee shall maintain a written list of commitments as the proceeding progresses and keep his list available to the accused and his counsel.  The accused or his counsel shall keep a commitment-list for the accused.  If any participant withdraws a commitment, he shall do so only for good and logical cause.  The logician shall determine the validity of all such commitment-withdrawals.

            The accused, his counsel, the logician and every other participant shall have the right to declare a failure to announce a dialogue-shift or failure of a committee-member to record a commitment on his commitment-list by intoning, "point of dialogue" or "point of commitment," whenever any of them detects such a violation.  Thereupon, the proceeding will halt and the parties shall resolve that dispute before proceeding with the hearing proper.

            As much as possible, participants of all phases of corrective action should confine their dialogue to the inquiry-fomat because it combines the virtues of scientific objectivty and exclusion of unsupported partisan opinion:

            The inquiry begins with an initial position of a certain lack of knowledge to overcome, proceeds in a cooperative context, applyies logical proof, where appropriate, to develop increments of knowledge by cumulative dialogue (i. e., each participant commits to a proposition only after he has satisfied himself that the given evidence has proven its validity, so he will usually not retract any commitment after he makes it), derives conclusions from premises that solid evidence can establish as reliable knowledge to the satisfaction of all parties to the inquiry and pursues a goal of proving a set of propositions by establishing as much certainty as the given evidence permits.

            Participants may find themselves drawn by force of circumstances into other  dialogue-forms that the hospital's committee-agents must recognize and announce as they occur.  For instance, the process of achieving satisfaction of all parties to an inquiry about any issue may involve persuasion-dialogue.  When it does, all participants must know of the change in dialogue-type.  All the other dialogue-types may involve persuasion from time to time.  Participants shall adhere to Walton's positive and negative rules of asymmetrical persuasion dialogue: the hospital bears the burden of proof and ultimate persuasion:

POSITIVE RULES OF PERSUASION DIALOGUE.

The positive rules of persuasion dialogue provide a normative model of good persuasion dialogue.

A. Types of dialogue, as above: Inquiry, Information-seeking, Persuasion-dialogue, Debate, Negotiation, Action-seeking, Educational.

B. All participants shall recognize the stages of dialogue:

1. Opening stage

            In the opening stage, the hospital's agenent shall specify the type of dialogue.

2. Confrontation stage:

            A dialogue arises from a problem, difference of opinion, or question to be resolved that has two sides.  The two sides constitute the issue of the dialogue.  In the confrontation stage, the hospital's agent shall announce the issue of the dialogue, subject to participants' agreement, so the goal of the dialogue is clear to all.

3. Argumentation stage

            The argumentation stage: each party has an obligation to contribute to or fulfill the goal of the dialogue by appropriate methods.  A participant has an obligation to make a serious effort to fulfill his own goal in the dialogue.  He also has an obligation to allow the other party to fulfill his own goal.  These obligations imply certain dialogue rules that require participants to take turns in an orderly fashion to give the other party a reasonable opportunity to reply to a question or make a point.

4. Closing stage: Occurs when the participants agree that the dialogue can end bcause they have fulfilled the goal of the dialogue or for other reasons.  Proper ways of closing a dialogue have implications for the rules of conducting a good dialogue.  A participant should not try to opt out illicitly just because things do not seem to be going his way.  Participants must continue to carry on a dialogue, following the rules, until they close it properly.

C. Five components of dialogue:

1. participants, called the proponent and the respondent, or some equivalent names.  For purposes of theory, a participant can be thought of as a set of propositions, or a repository of propositions that can be enlarged or diminished by adding or deleting propositions from the set.

2. Moves or speech acts: Participants take turns making those moves.

Locution rules: permissible locutions:

a. questions

b. assertions

c. presentation of evidence

3. Commitment-set gets attached to each of the participants.  As the sequence of moves in a dialogue progresses, a recorder must keep a record of each participant's set of commitments at each point in the sequence.  Commitments are propositions.  At each move, a participant can incur commitments, or retract previous commitments.

            A commitment-set is like a knowledge base or database.  It provides a collection of premises, a pool of data for information retrieval.

            Whenever a participant advances an assertion, he becomes committed to the proposition in the assertion.  Commitments need not arise conclusively through moves in a dialogue.  They can comprise presumptions already included in a participant's commitment-set prior to any moves in a dialogue.

            Commitment-rules specify how each type of locution leads to commitments.

a. Assertion of a proposition by a participant implies that this participant now has this proposition in his store of commitments.

b. If a participant asks a question or answers a question directly, the presuppositions inherent in the question enter his store of commitments.

c. Any participant may withdraw from a commitment by satisfying the burden of proof, if any, that underlies the contrary to his commitment and by withdrawing from the conclusions that depend upon those commitments for their validity.

d. Each side in a dispute shall list its commitments and the conclusions they support on a running list for both sides to see throughout the dialogue.

e. Once a participant has committed to a proposition, he may not later say "No reply" if asked about it.  He may not know whether A is true but if he has committed to A, then his commitment should guide his subsequent dialogue.

4. Rules of Procedure define the conditions under which moves are required, allowed, or forbidden during the course of the game at each characteristic type of move-situation set and agreed upon during the opening moves, or prior to the initiation of the sequence of dialogue. Game does not mean something frivolous or played for entertainment.  Rather, it is a two-person, or many-person organized, interactive, goal-directed activity-structure with a sequence of moves which each party takes a turn performing and the moves are governed by rules of procedure.

a. Dialogue rules:

All good dialogue has procedural rules.

The dialogue rules specify turn taking and other guidelines for when and who is allowed or required to advance locutions.

1) Every argument has two sides and each side deserves a fair evaluation.

2) He who asserts bears the burden of proof for the assertion.

3) He who asks a loaded question bears the burden of proof for the presupposition inherent in the question and his respondent may challenge the presupposition by demanding that the questioner meet his burden before requiring an answer to the question.

4) Turn-taking and other guidelines for when and who is allowed or required to advance locutions, e. g., Robert's Rules of Order

b. Question-and-Answer rules in dialogue: In reasonable dialogue one is obliged to try to give a direct answer to a question, if one knows the answer, and if the question is appropriate.  If one does not know the direct answer, or for some reason cannot give it, then one is obliged to be as informative as possible.  A question is presumably a sincere request for information.  The questioner expects, or hopes, that the answerer may have this information and be able to give it.  If the answerer does not give a direct answer, his opponent may perceive his reply as unhelpful or evasive.

1) Except for witnessing against oneself, a respondent's answer must cooperatively reflect what he honestly and truly thinks, if he has a definite opinion or commitment on the question.  To ensure the progress of reasonable dialogue such rules are matters of politeness and helpful collaboration, which are essential to the progress and success of a critical discussion.

2) Question-and-answer analysis:

A) Identify type of question:

(1) yes-no

(2) whether

(3) why

B) Identify and state question's presuppositions

            A presupposition of a question consists of a proposition the questioner presume the respondent can accept when he asks the question, so that the respondent becomes committed to all its propositions when he gives any direct answer.  Asking questions may be a form of asserting propositions in dialogue.  Asking questions can affect the answerer's position.

(1) Identify whether the presupposition is complex

(2) Identify whether the presupposition is loaded

(3) If (1) and (2) yes, identify whether question entails the fallacy of complex question.

C) Evaluate whether answer is direct

            A direct answer supplies exactly the information requested.  An indirect answer supplies only part of that information.  A reply may not be a direct or indirect answer.  Sometimes, a reasonable reply is to question the question.

D) Evaluate whether the question is fallacious or overly aggressive.

            (1) A question is overly aggressive when it attempts to force the answerer, by an unreasonable sequence of questions, to accept unwillingly presuppositions of the question unwelcome to the answerer. Unwelcome propositions mean propositions to which the answerer is not committed and to which he should not become committed because they are prejudicial to his side of the argument if the question attempts to preempt the answerer's acceptance of the unwelcome proposition by presupposing that the answerer already accepts it.

            When argument becomes too aggressive or personal, it tends to become less reasonable and more bellicose and poses the danger of precipitating a personal quarrel, hence, becomes especially dangerous and objectionable, for example:

Q: How long are you prepared to condemn this company to continued failure by your stubborn failure to change your disastrous policies?

            If the answerer gives a direct answer, as directed by the question, he is undone and discredited.

            Begging the question is an attempt to push on a respondent an argument or premise that he could accept only at the cost of prejudicing or destroying his own point of view in the issue of the dialogue.  Such questions are not sincere requests for information.  They are mischievous, aggressively posed with harmful presuppositions that may discredit the answerer if he attempts to respond directly.

(2) The Respondent may shift the burden of proof back onto the overly aggressive questioner to compel him to justify presuppositions he alleges in his loaded question, for example:

A: I do not accept your assumptions that my policies are disastrous or that my behavior has been stubborn.

Q: You haven't answered the question!  That's typical of your evasive tactics.

(3) If the answerer does not give a direct answer, then the questioner can accuse him of being evasive (committing an error of irrelevance) even if he has tried only to rebut an unwelcome presupposition of the question.  Such an accusation could make the answerer look guilty and evasive so the answerer must answer.  But what fair and reasonable rules of dialogue should regulate when and how an answerer must answer?

(4) Failure to give a direct answer should not necessarily be open to criticism as evasive or irrelevant.  To give a direct answer in such a case would be to fall into the questioner's trap.  Some questions ought to be answered reasonably by posing another question.

            A criticism always invites a reply, but a good, well-argued criticism in dialogue also shifts the burden of proof onto the proponent of the argument criticized.

(5) Reasonable dialogue should be open and encourage the asking of probing questions on all relevant aspects of a controversial issue.  The adversarial cut and thrust of pointed criticisms and forceful rebuttals is not, in itself, fallacious.  Adversarial interplay, which pits one argument against another reveals and enlightens through argumentation.

(6) The opponent should not criticize his adversary's arguments too aggressively either:

            Many valuable criticisms of argument do not completely refute the argument to make an important point of criticism.  To interpret them so strongly would imply an unwarranted dogmatism (itself an error).

            In arguments on controversial subjects, the reasonable critic must not necessarily show that an argument he criticizes is fallacious, logically inconsistent, or based on worthless evidence that can be rejected completely.  Most often, such strong refutation is not appropriate.  More often, the critic need only shift the burden of proof or show that an argument is open to reasonable doubt or lacks needed support and is open to questioning.  This weaker form of criticism is very often enough to persuade an audience to whom the argument is directed to change its point of view on an issue.  The critic may have no more to do to have achieved a worthwile objective.  (page 25)

(7) If the answerer has no firm commitment, he should reply "No commitment."

            If a person does not know the answer to a question, and he is forced to answer the question, 'yes' or 'no,' then the rule of dialogue that requires this direct answer commits a form of ad ignorantiam fallacy.  The answerer is unwisely forced to argue from his own ignorance.  Question-answering rules and conventions should not be so strict that the ad ignorantiam error is built into the rules.

            On the other hand, if we always allow an answerer the 'No commitment' option to any question, then [he] could always frivolously play the skeptic, if he wished, and say 'No commitment' in answer to every question.  Then the dialogue could go nowhere, and a truculent participant could prevent his companion in dialogue from proving anything or getting anywhere in his questioning.  An answerer could be as evasive as he wished, with no penalty.  That would not be conducive to reasonable dialogue either.

The solution to that arises from good-faith adherence to rules of relevance and cooperativeness.

c. Rules of relevance require that a participant not wander too far off the point (the goal of dialogue), or else he can be challenged.

d. Rules of cooperativeness require that a participant answer questions cooperatively and accept commitments if they reflect his position acurately.

e. Rules of informativeness require that a participant tailor his arguments to what his respondent knows or does not know.  A participant should provide enough information to convince his respondent but not provide more information than is required or useful for that purpose.

5. Goal of Dialogue or criterion of success, so that a particular type of sequence of moves, according to the rules, counts as a successful culmination or resolution of the dialogue: to prove a proposition, to explain a proposition, to obtain advice on a problem, to solicit help to carry out an action, or to obtain information.

Strategic (win-loss) rules: determine what sequence of locutions and logical operations constitute fulfillment of the goal of the dialogue.

a. Rules of proof: two kinds of proof may be involved.

1) Internal proof by a participant means proof by inferring a proposition from the other participant's concessions in the dialogue.  This is the primary method of persuasion dialogue.

2) External proof entails the introduction of new facts into the argument by appealing to scientific evidence or the expert opinion of a third party or group of expert sources.  Once a proposition is advanced by one participant on the basis of external proof and accepted by the other participant, it can then be appealed to as a premise suitable for an internal proof.

b. If the premises are plausibly true, then the conclusion is as plausibly true as the least plausible premise.

so,

c. If the arguer is committed to the premises, as part of his position, then he should be no less strongly committed to the conclusion.

d. If he rejects the conclusion while he is committed to acceptance of the premises, then the burden of proof is placed upon him to show why he does not accept the conclusion as plausible.

e. In scientific inquiries, the test of an argument is whether it can be falsified by contrary empirical evidence.

f. In disputation on controversial issues, where reasoned conviction is the best outcome one can hope for, the strength of an argument should be judged on how well it has fared in reasonable dialogue and free discussion against countervailing arguments.

            The goal is the end-point of a dialogue, the commitment-set is the initial point or basis of the dialogue, and the moves provide the connecting sequence that bridges the gap between the initial point and the end-point.

g. Each participant has an obligation to work toward fulfilling his own goal and to cooperate with the other participant's fulfillment of his goal.

            The reason that any argument can be criticized as a bad argument always comes down to failure to meet one of these basic obligations.  For example, the peer-review process, as defined in bylaws modeled on the JCAHCO's Guidelines, permits the hospital's power-hierarchy not to cooperate with the accused, thus to obviate any possible conclusion in favor of the accused by obfuscatory vagueness, particularly by omitting any a priori definition of the goal of the dialogue or criteria of a successful outcome.  The hospital can commit the fallacy of impromptu definition of the criteria of success ad infinitum and defeat the accused, irrespective of the facts at issue.

            These positive rules also imply negative rules that state prohibitions.

NEGATIVE RULES OF PERSUASION DIALOGUE

Opening stage

1. Reasonable standards of good argument shall prevent argument from deteriorating into the personal quarrel, characterized by each arguer's having a goal to attack or "hit" his opponent at all costs, using any means, whether reasonable, fair or not, aggressive personal attack, heightened appeal to emotions, a desire to win the argument at all costs bitter recriminations and loss of balanced perspective.

2. Unlicensed shifts from one type of dialogue to another are not allowed.

Confrontation stage

1. Unlicensed attempts to change the agenda are not allowed.

2. Refusal to agree to a specific agenda of dialogue prohibits continuing to the argumentation stage.

Argumentation stage

1. Not making a serious effort to fulfill an obligation is bad strategy.  Notable here are failures to meet a burden of proof or to defend a commitment when challenged.

2. Trying to shift your burden of proof to the other party, or otherwise alter the burden of proof illicitly, is not allowed.

3. Purporting to carry out an internal proof by using premises that have not been conceded by the other party is not allowed.

4. Appealing to external sources of proof without backing up your argument properly can be subject to objection.

5. Failures of relevance can include providing the wrong thesis, wandering away from the point to be proved, or answering the wrong question in a dialogue.

6. Failing to ask questions that are appropriate for a given stage of dialogue should be prohibited, along with asking questions that are inappropriate.

7. Failing to reply appropriately to questions should not be allowed, including replies that are unduly evasive.

8. Failing to define, clarify, or justify the meaning or definition of a significant term used in an argument, in accord with standards of precision appropriate to the discussion, is a violation, if the use of this term is challenged by another participant.

Closing stage

1. A participant must not try to force the premature closure of a dialogue until it is properly closed, either by mutual agreement or by fulfillment of the goal of the dialogue.

            Particupants shall recognize that persuasion-dialogue poses a challenge to maintaining objectivity, avoiding fallacious argument and avoiding deterioration into a personal quarrel.  If a personal quarrel occurs, the logician shall intone, "point of dialogue," the proceeding shall cease and participants shall re-initiate the proceeding in the inquiry-format.

            During the hearing-process, advocate(s) on either side of the dispute may subject the validity of articles or books cited in charges to collateral attack on legitimate scientific bases but the mere recency of one article over another shall not necessarily mandate its dominance over an earlier article.  For one article to override another in validity, its proponent must demonstrate objective evidence which addresses and refutes the earlier article's assertions and conclusions, seriatim.

            If the accused can justify his side of the conflict by legitimate reference to the medical literature, he shall prevail on the verdict relating to the corresponding charge.

            If a conflict in the medical literature over a material point arise in the course of penal‑action deliberations and if the accused prevail in that conflict, he shall also prevail on the verdict relating to the corresponding charge.  If the conflict persist among the hearing-committee members, despite all reasonable argumentation, then the hospital and its various hearing committees shall acknowledge and declare the issue equivocal, hence, resolved in the accused's favor on the basis of reasonable doubt of the validity of the charge related to the issue in dispute.

            If dispute persist between the accused and the united hearing committee over the validity of a point of contention, an impartial academic expert-physician agreeable in advance to both sides shall arbitrate the issue at the request of either side.

            The hospital and its various hearing committees shall acknowledge and declare any procedural complication which any article in the medical literature lists as a recognized complication as:

            1. characteristic of the procedure

            2. a complication which may predictably occur by chance a certain percentage of the time even in the best and most experienced of hands.

            Hence, the accused practitioner shall prevail on and enjoy exoneration from, any charge(s) related to a procedural complication(s) upon showing that said complication appears listed in the medical literature as a recognized complication.

                     The governing body, medical staff, their agents and committee(s) shall support and justify all conclusions arising from their penal-action deliberations by reference to relevant citation(s) from the medical-textbook- or periodical literature or both.

            Under the foregoing rules, the ad hoc  committee shall conduct the hearing on the accused practitioner's case.  The ad hoc committee shall base its verdict(s) solely and explicitly upon the charges which the executive committee originally preferred.  The findings and verdicts may relate to only a portion of the original charges but shall not include issues which the original charges did not include.  The executive committee shall recommend finding(s), restricted to the provisions of the ad hoc committee's verdict.  The executive committee may reject any of the ad hoc committee's verdict(s) of guilt against the accused on any issue but may not reject any finding or verdict in favor of the accused, though it may challenge it (see next paragraph).  The executive committee shall in no case supplement the ad hoc committee's verdict with any finding of its own against the accused.  The governing body shall shall affirm findings, restricted to the provisions of the executive committee's recommendation(s).  The governing body may reject any of the executive committee's recommendation(s) of guilt against the accused on any issue but may not reject any recommendation, finding or verdict in favor of the accused.  The governing body shall in no case supplement the executive committee's recommendation(s) with any finding of its own against the accused.

            The executive committee may recommend the ad hoc committee's verdict against the accused practitioner or challenge it.  If the executive committee challenge the validity or propriety of the ad hoc committee's proceeding or recommended verdict, the hospital of origin shall hire, at its own expense, with the approval of the accused and his representative(s), a second administrative-law judge to preside at a separate hearing on, and to adjudicate, that question.  To prevail, the executive committee must convince the second administrative-law judge by clear and convincing proof, that the ad hoc committee or executive committee had proceeded improperly or reached an arbitrary, unreasonable or capricious verdict.

            The governing body may affirm the executive committee's verdict or challenge it.  If the governing body challenge the validity or propriety of the executive committee's proceeding or recommended verdict, the hospital of origin shall hire, at its own expense, with the approval of the accused and his representative(s),a third administrative-law judge to preside at a separate hearing on, and to adjudicate, that question.  To prevail, the governing body must convince the third administrative-law judge, beyond reasonable doubt, that the ad hoc committee or executive committee or both had proceeded improperly or reached an arbitrary, unreasonable or capricious verdict.

            If the hearing committee(s) adjudge the evidence presented against an accused practitioner prove the case beyond reasonable doubt, it shall recommend and the governing body shall determine, a penalty against him which, to the gravity of each offense, proportionates according to a reasonable application of principles in a set of penalty guidelines which the medical staff shall frame in advance, for the edification and guidance of those bodies, on the basis of prior adjudications.  The accused and his representative(s) shall have access to the penalty guidelines and may challenge his assigned penalty on their bases before the first administrative-law judge, described above.

            The first administrative-law judge's finding that the ad hoc committee had proceeded improperly shall mandate the hospital's dismissing all the ad hoc and executive committee's recommended verdicts and instituting a new hearing before a newly constituted ad hoc committee, drawn from a separate, distant hospital medical staff, consisting of members who shall satisfy all the criteria for inclusion and subject themselves and their personnel- and patient-records to inspection-provisions listed above and shall have had no knowledge of any charges against the accused prior to their appointment.  The medical council shall present charges to the new ad hoc committee which shall consist only of the original charges or portion thereof and charges based upon any new facts revealed during the hearing(s) before the prior ad hoc committee.

            The case shall enter a court's jurisdiction if the hospital of origin fail to convene for the new hearing such new ad hoc committee in thirty (30) days from the date of that dismissal.

            The governing body and medical staff, each and separately, affirm and ratify the foregoing articles with the intent of ensuring that the conduct of fair hearings of accused practitioners in and on behalf of the hospital shall accord with American principles of law and fair dealing which govern our local, state and Federal laws and to which our national forefathers pledged their lives, their fortunes and their sacred honor.

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Chairman, Hospital-Governing Body                           Chief of the Medical Staff

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Member, Hospital-Governing Body                             Hospital-Administrator