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Defending Physicians' Medical Staff Privileges In Administrative "Peer Review" Proceedings

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DEFENDING PHYSICIANS’ MEDICAL STAFF PRIVILEGES

IN ADMINSTRATIVE “PEER REVIEW” PROCEEDINGS

 

 

April 2001

 

By Robert N. Meals

 

Robert N. Meals, P.L.L.C.

1000 Second Avenue, Suite 3500

Seattle, WA 98104

(206) 910-4862

 

 

 

 

ROBERT N. MEALS is a graduate of the College of the Holy Cross and the University of Pennsylvania Law School where he was an editor of the Penn Law Review.  He began his practice in 1972 as an associate with the Troutman, Sanders law firm in Atlanta, Georgia, and was a senior partner in the Atlanta litigation firm of Meals, Kirwan, Goger, Chesin & Parks for fifteen years until 1990 when he moved to Seattle to become of counsel to the firm of Culp, Guterson & Grader.  In 1976, he successfully defended the president of the Georgia Board of Medical Examiners against charges that he did not have either a valid medical degree or license.  Since then, he has defended hundreds of physicians and other healthcare professionals throughout the country in various civil, administrative and criminal proceedings affecting their professional lives, involving peer review, credentialing, licensing, medical staff privileges, antitrust, Medicare fraud and abuse, professional liability, exclusive contracts, DEA certification, FDA regulations and medical device patent matters.  He is a member of the American College of Legal Medicine, the American Health Lawyers Association, and the Health Law Section of the American Bar Association, and has spoken to various medical and legal associations about issues of importance to the medical profession.  He is currently treasurer of the Health Law Section of the Washington State Bar Association.

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

REPRESENTING THE PHYSICIAN:

CIVIL LITIGATION FROM COUNSEL FOR THE PHYSICIAN’S VIEWPOINT

(“HOW TO SURVIVE ON A VERTICAL PLAYING FIELD”)

 

Robert N. Meals

 

 

I.     INTRODUCTION

 

II.    BACKGROUND

 

III.  CORRECTIVE ACTION LITIGATION

 

        A.   LAWS GOVERNING “PEER REVIEW” DUE PROCESS PROCEEDINGS

 

               1.  HEALTHCARE QUAILITY IMPROVEMENT ACT OF 1986

 

2.      U.S. CONSTITUTION 14TH AMENDMENT DUE PROCESS (PUBLIC HOSPITALS ONLY)

 

               3.  JCAHO STANDARDS

 

               4.  STATE LAWS

 

               5.  MEDICAL STAFF BYLAWS

 

6.      DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES

 

B.     TWELVE OBSTACLES TO RECEIVING A “FAIR” HEARING

 

1.      INSUFFICIENT NOTICE AND SPECIFICITY OF CHARGES

2.      LIMITED DISCOVERY AND ABILITY TO PRESENT WITNESSES

3.      BIASED HEARING PANEL, APPOINTED BY THE HOSPITAL

4.      LIMITED RIGHT TO REPRESENTATION BY AN ATTORNEY

5.      UNREALISTIC TIME TO OFFER EVIDENCE RELATING TO COMPLEX MEDICAL CASES

6.      REVERSED BURDEN OF PROOF

7.      HEARSAY EVIDENCE

8.      NARROW STANDARDS OF CARE

9.      TERMINATION RECOMMENDATIONS

10.  REFERRAL BACK TO THE MEDICAL EXECUTIVE COMMITTEE

11.  FUTILE APPEALS TO THE BOARD

12.  LIMITED ACCESS TO COURTS

 

 

C.     SPECIAL PROBLEMS

 

1.      SUMMARY SUSPENSIONS

2.      ONE TO TWO YEAR “REAPPOINTMENT” PERIODS

3.      REPORTS TO THE NATIONAL PRACTITIONER DATA BANK

4.      REPORTS TO STATE MEDICAL BOARD

5.      CONFIDENTIALITY

6.      IMMUNITY

7.      ANTICOMPETITIVE MOTIVES OF PHYSICIANS WHO ARE IN DIRECT ECONOMIC COMPETITION WITH THE ACCUSED PHYSICIAN

8.      EXCLUSIVE CONTRACTS

 

CHECKLIST FOR DEFENDING PHYSICIANS INVOLVED IN MEDICAL STAFF PRIVILEGES PEER REVIEW HEARINGS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I.                   INTRODUCTION

 

Physicians are the backbone of the nation’s healthcare delivery system.  No other professionals receive more extensive education and training---between twelve and sixteen years, depending on the field of specialization, including college, medical school, internship, residency and fellowship---before they are ready to practice on their own.  However, virtually all of the intense training they receive is clinical in nature, which prepares them to become good doctors and specialists able to diagnose and treat complex diseases and injuries, but does not prepare them to deal with the myriad of legal issues facing them in their professional lives, once formal training is completed.  Physicians have a valid reputational interest in their medical education, training and experience, and a valuable property interest in their medical practice. A medical practice is actually a small business that is essential to the provision of medical services. This outline addresses some of the unique aspects of litigation involving an issue of critical importance to doctors: protecting the medical staff “privileges” that give them the right to practice at a hospital, without which most doctors would be unable to work, or even maintain their medical or surgical practices.  

 

Today, physicians are perhaps the most highly regulated professionals in our country. 

         They cannot practice without a medical license.  Once the license is granted, they are subject to the state’s Medical Practice Act, regulated by the “medical board,” known in Washington as the “Medical Quality Assurance Commission.” (“WMQAC”).

         They cannot prescribe drugs without a Drug Enforcement Administration (“DEA”) registration, which subjects them to complex state and federal regulations governing the dispensing of medication, especially narcotics.

         They cannot work at a hospital without being granted medical staff privileges, which used to be granted as a matter of course after obtaining a medical degree and license, but today has become a detailed, highly scrutinized process.

         When “privileges” are granted, physicians become further subject to:

 

(1)    The Medical Staff Bylaws

(2)    “EMTALA” --- (passed by Congress in 1986) --- the Emergency Medical Treatment and Active Labor Act (known as the “anti-dumping” law, it requires hospitals and doctors to evaluate and stabilize anyone who comes to the Emergency Room, regardless of their ability to pay for medical services.

(3)    “HIPAA”  --- (passed by Congress in 1997) --- the Health Insurance Portability and Accountability Act (regulations just being published to deal with privacy of patient records)

(4)    “HCQIA” --- (passed by Congress in 1986, effective on the states by 1989) --- the Health Care Quality Improvement Act, which an immunity statute that protects peer review organizations and doctors involved in peer review activities, but gives little or no protection to doctors who are wrongly accused of rendering poor quality care or of “disruptive behavior.”

 

         They cannot be paid for their services without signing agreements with Medicare, Medicaid, and other insurance organizations, including managed care companies, which subjects them to extremely complex  federal statutes and regulations governing Medicare, especially the “Fraud & Abuse” laws, as well as state regulatory schemes.

 

      This outline addresses specific problems involving the protection of medical staff privileges in administrative “peer review” proceedings.  These legal proceedings involve perhaps the most unfair process in existence today in the entire American legal system.  The process is sometimes known as “corrective action,” and often the outcome can be vital to a doctor’s entire career.  Unfortunately, peer review litigation is essentially a “carve out” from the rest of the legal system, based on the assumption that (1) only doctors have the necessary expertise to judge other doctors’ clinical work; (2) so a panel of doctors becomes the “jury”; (3) but the procedural rules that govern such hearings are delegated by busy practitioners to hospital administrators, who hire expensive consultants to craft rules that make it exceedingly difficult for an accused physician to prevail; (4) the rules vary tremendously from hospital to hospital, like separate fiefdoms; (5) and the law requires doctors undergoing peer review to “exhaust their remedies” in the corrective action process before they can go to court; but (6) when they get to court after an unfair process, judges rarely grant them relief because they do not have medical expertise and feel they are being asked to step into an arena where they do not belong.

  

 

       II.       BACKGROUND

 

Generally speaking, hospitals provide facilities, equipment, supplies and support staff, and physicians provide the clinical expertise necessary to diagnose and treat acutely ill patients.  Each depends the other in order to be able to provide appropriate medical services to patients.  All physicians who work at a hospital must be granted medical staff “privileges” to work at the facility.  “Privileges” is an unfortunate term.  A physician who performs competent work and behaves in a professional manner should have the right to work at a facility that is essential for them to maintain a medical practice. In some states, courts have held that a physician’s medical staff “privileges” are indeed a valuable property right that cannot not be terminated or restricted without “due process” or good cause.                                                     

 

Individual physicians must continually demonstrate that they meet the criteria for appointment or reappointment to the medical staff, and that they are qualified to be granted and maintain clinical privileges to treat patients at the hospital.  A clinical “privilege” is a grant of permission by a hospital and its medical staff for a physician to perform specifically delineated diagnostic or therapeutic procedures within defined limits, based on the physician’s documented training, experience and competence.  Sometimes one or more medical or surgical specialties will lay claim to a particular procedure or service, such as spinal surgery (orthopedists and neurosurgeons), or reading echocardiograms (radiologists and cardiologists).  The economic implications

associated with granting “privileges” to perform these contested areas of practice can lead to fierce “turf battles” among physicians.  A favorite way for one group of physicians to destroy one of their competitors is to criticize their clinical performance and accuse them of providing “poor quality care,” such that “corrective action” must be taken.  Frequently, that “corrective action” comes in the form of a recommendation that the physician’s medical staff privileges be revoked or terminated.  The purpose of corrective action is to eliminate incompetent physicians from practicing medicine, but all too often, the process is used to restrict competition, or to eliminate a physician who is envied and not well liked by his or her colleagues.  Unfortunately, even though the accused physician’s entire professional career is usually on the line in these proceedings, the law provides them fewer rights than those given to common criminals.

 

III.        CORRECTIVE ACTION LITIGATION

           

The term “corrective action” commonly refers to disciplinary proceedings by a hospital against a member of its medical staff.  Typically, the physician is accused of providing substandard medical care or engaging in “disruptive behavior.”  Frequently, economic, anticompetitive motives, instead of genuine concerns about the quality of care rendered to patients by the accused physician underlie these charges. 

 

                  Corrective action procedures vary tremendously from hospital to hospital, and corrective action litigation is truly anomalous in American jurisprudence.  Each hospital is like a separate fiefdom that makes up its own rules, embodied in the “Medical Staff Bylaws” relating how these matters will be handled.  Even though the hearing procedures are usually contained in the Medical Staff Bylaws, they are usually drafted by consultants paid by hospital administration to develop provisions that are designed to give the hospital an overwhelming procedural advantage in medical staff privileges litigation.  This “legislation” is usually presented to the medical staff at its annual meeting, at the end of a long day, where doctors, who are clinicians and not lawyers, vote to approve them without much input or thoughtful critical review.  Medical Staff Bylaws are generally dry, boring “legal” documents that are of little interest to busy, practicing physicians who believe they will never become the subject of an adverse peer review proceeding.  If and when they are accused, they are devastated to learn for the first time that their hearing “rights” are extremely limited, and that their chances of prevailing so they can continue to work at the hospital, even if they prove they are competent and innocent of the charges against them, are not very strong.

 

 

When defending a physician in this situation, the main points to focus on are:           (1) hiring the most qualified, independent, outside expert physician(s) possible to review the medical records in question and defend the accused physician;                 (2) disqualifying any biased physician from serving on the hearing committee selected by the hospital to try the case; and (3) building a record for a possible court appeal by objecting to any step in the process that is fundamentally unfair to the doctor.

 

A.    LAWS GOVERNING “PEER REVIEW” DUE PROCESS PROCEEDINGS

 

1.   HEALTH CARE QUALITY IMPROVEMENT ACT OF 1986 (“HCQIA”) --- This law, codified in 42 U.S.C. 11101 to 11152, is entitled “Encouraging Good Faith Professional Review Activities.”  It has been a boon to hospitals that have decided to terminate a physician from the medical staff, and a disaster for any doctor who is trying to defend his or her medical staff privileges and career from unfair attacks by hospital administrators and hostile “colleagues” on the medical staff.  In enacting HCQIA, Congress found that (1) the increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State; (2) there is a national need to restrict the ability of incompetent practitioners to move from State to State without disclosure or discovery of the practitioner’s previous damaging performance; (3) this nationwide problem can be remedied through effective professional peer review; (4) the threat of private money damage liability under Federal laws, including treble damage liability under Federal antitrust law, unreasonably discourages physicians and dentists from participating in effective professional peer review; and (5) there is an overriding national need to provide incentive and protection for physicians engaging in effective professional peer review. The Act was intended to protect the public from incompetent physicians by (1) providing immunity from liability for damages resulting from good faith peer review activities; and (2) establishing a central data bank that serves as a national repository for information related to professional competence and conduct, licensure status, and malpractice claims for physicians.  The problem is, the Act provides virtually no protection to physicians whose medical staff privileges are wrongfully terminated.  

 

                                                

                        Although HCQIA contains what appear to be certain procedural “due

                                 process” provisions, none of them are actually “rights” that an accused physician is entitled to receive.  Instead, it is only an immunity law that protects hospitals and the members of peer review committees from liability for damages, but provides no substantive or procedural protection to physicians who are accused of professional misconduct.  So the “due process” provisions are only illusory.  Congress passed the law in 1986, and unless a state “opted out” of its provisions by substituting its own version of the legislation, it became binding on all the states by 1989. Only California “opted out” and wrote its own statute governing peer review proceedings, codified in California Business & Professions Code 809 et seq.  While the California statute is a considerable improvement over the provisions of HCQIA---it provides accused physicians with certain procedural rights, instead of merely providing “safe harbor” immunity guidelines for hospitals and their peer review committees---it is a classic piece of compromise legislation resulting from negotiations between the state medical and hospital associations that still leaves the hospitals plenty of room to manipulate the process against accused physicians. Washington adopted HCQIA without change as of July 26, 1987.  See RCW 7.71.020. 

 

The courts have held that because HCQIA is an immunity statute, hospitals are not required to the provide the procedural “due process” steps described in the act, nor does the act provide any private right of action for physicians to claim they have been deprived of its so-called “due process” provisions.  See, Hancock v. Blue Cross-Blue Shield of Kansas, Inc., 21 F.3d 373, 374 (10th Cir. 1994) (“Congress did not intend to create a cause of action for the benefit of physicians to enforce the provisions of HCQIA.”); See also, Held v. Decatur Memorial Hospital, 16 F. Supp.2d 975 (physician had no private cause of action against a peer review group for violation of due process.)

 

Worse yet, HCQIA contains the following provision: “A professional review body’s failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of subsection (a)(3).” 42 U.S.C. 11112(b).  Accordingly, the 9th Circuit held, in Smith v. Ricks, 798 F. Supp. 605 (N.D. Cal. 1992), aff’d, 31F.3d 1478 (9th Cir. 1994), cert. denied, 514 U.S. 1035

(1995) that “The legislative history of the Act confirms that the [procedural due process] specifications within the Act need not be followed verbatim, and that the ultimate inquiry is if the procedures were ‘adequate.’” 798 F. Supp. At 611.                                                                                

 

Because judges are not doctors, they give great deference to whatever “administrative” peer review hearing procedures hospitals are willing to provide to accused physicians, however meager, and courts will not interfere with the final decision unless the doctor can prove convincingly that he or she has been the victim of an egregiously unfair process.  Thus, if there is only some credible expert testimony that is critical of the accused physician’s performance, courts will not overturn a hospital’s decision to terminate a physicians’ medical staff privileges, despite the fact it is widely recognized that there are many acceptable approaches to the medical and surgical management of patients.

 

HCQIA also established the National Practitioner Data Bank (“NPDB”), which became operational on September 1, 1990.  Among other things, it requires hospitals to report administrative review actions relating to professional competence or conduct that adversely affect the clinical privileges of a physician for a period longer than 30 days, or a voluntary surrender or restriction of clinical privileges while under, or to avoid, investigation.  Part of the problem with this legislation from a physician’s standpoint is that there is virtually no downside for hospitals for misreporting information to the NPDB, despite the fact that such “errors” can cause serious harm to a physician’s reputation and career.

 

2.       U.S. CONSTITUTION – 14TH AMENDMENT DUE PROCESS applies to public hospitals, but not to private for-profit, or community non-profit hospitals, where no “state action” is involved.  The good news is that public hospitals---mainly city and county facilities---are required to provide administrative hearing procedures that are fundamentally fair and meet constitutional due process standards.  The hearing procedures described in the Medical Staff Bylaws of these facilities are generally much fairer than those promulgated by private, for-profit or non-profit hospitals.

 

3.      JOINT COMMISSION ON ACCREDITATION OF HEALTHCARE ORGANIZATIONS (“JCAHO”) STANDARDS --- The JCAHO is a voluntary hospital accrediting body headquartered in Chicago, Illinois. It has developed general Medical Staff “Standards” for credentialing and peer review activities that hospitals are supposed to comply with.  The problem is, that if the hospital does not comply with the standards, there is no sanction that benefits the doctor, nor do these general “standards” provide any “rights” for physicians on the medical staff.  Essentially, they are toothless, non-binding “guidelines.”  Even though JCAHO standards are not “the law,” at least one court has looked to them as evidence of the appropriate standard of care. See, Johnson v. Misericordia Community Hospital, 99 Wis.2d 708 (1981).  It is also important to remember that although the medical staff is responsible for assessing the qualifications and ongoing capabilities of all physicians on the medical staff, the governing body (either the Board of Directors or Board of Trustees) is ultimately responsible for the care rendered to hospital patients.  See  Darling v. Charleston Community Memorial Hospital, 33 Ill. App. 2d 326, cert. denied 383 U.S. 946 (1966).

 

 

4.    STATE LAWS ---   The principal state laws that apply to physicians’ hearing rights are common law and statutory contract laws insofar as they can be used to enforce whatever hearing rights may be contained in the Medical Staff Bylaws.  The majority of jurisdictions have held that the Medical Staff Bylaws, when approved and adopted by the governing board, are a binding and enforceable contract between the hospital and the physicians on the medical staff.  See Islami v. Covenant Medical Center, 822 F.Supp. 1361 (“Iowa law is in accord with the majority view that the bylaws create and enforceable contract.”); Houston v. Intermountain Healthcare, Inc., P.2d 403 (Utah Ct. App. 1997); Virmani v. Presbyterian Health Services, 127 N.C. App. 71 (1997); Lewisburg Community Hospital v. Alfredson, 805 S.W.2d 756 (Tenn. 1991) (Hospital bylaws are an integral part of the contractual relationship between the hospital and its medical staff.  Under the bylaws, the physician was entitled to a hearing because the hospital took adverse action against the physician which “significantly reduced” his clinical privileges.); See also Balkissoon v. Capitol Hill Hospital, 558 A.2d 304 (D.C 1989) (“Thus, although the bylaws may create contractual rights the hospital’s obligation to act in accordance with its bylaws is independent of any contractual right of appellant.”)  The minority view is that the Bylaws do not create a contract per se between the hospital and its medical staff, but the hospital may be required to follow them. See Robles v. Humana Hospital, Cartersville, 785 F.Supp. 989 (N.D. Ga. 1992).  No case in Washington has ever decided this issue, but most hospitals recognize that they are obligated to provide whatever “due process” is written into the hearing procedures section of their individual medical staff bylaws.  The problem is, each hospital writes its own bylaws, and many bylaws contain features that make it extremely difficult for a physician to prevail at a peer review hearing.

 

5.   MEDICAL STAFF BYLAWS --- For the most part, these are the laws that govern corrective action proceedings.  The provisions vary tremendously from hospital to hospital, and are almost always heavily slanted in favor of the hospital and against the physician (the “vertical playing field”).  “Standard” “corrective action” described in the bylaws usually begins after a formal request, defined in the bylaws, has been made.  The request may originate with “quality assurance” peer review committees, hospital incident reports, or any person who knows facts on which an adverse recommendation may be made.  The Medical Staff Bylaws usually provide a procedure for an initial review of the facts by the Medical Executive Committee or an “Ad Hoc Investigating Committee” appointed for that purpose. If a formal investigation is recommended (it usually is), the committee will recommend disciplinary action against the affected physician.

 

Many times, during the investigative phase, the targeted physician is completely unaware of the investigative activity, or that the medical staff is preparing to recommend adverse action be taken against his or her medical staff privileges.  If formal charges are brought against the physician, he or she has the right to “appeal” (another poor choice of terms) the “adverse recommendation” by requesting a “fair hearing.” (an exceedingly self-serving term used by hospitals to describe what is often a very unfair process.  Of course, whether a legal proceeding is “fair” or not can only be determined at the conclusion of the process, not by labeling as such in the Bylaws).  The “fair” hearing procedures set forth in the Medical Staff Bylaws, constitute the only legal “rights” that an accused physician will be given by the hospital. 

 

6.  DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES --- It is a general and well-established rule that a physician cannot go to court and seek judicial relief from an unfair peer review process without first exhausting all the administrative remedies provided by the hospital.  See, e.g., Westlake Community Hospital v. Superior Court, 17 Cal.3d 465 (1976).  Because medical peer review proceedings are intensely technical in nature, they constitute an important “carve out” from the American legal system that essentially means that the only “hearing” a physician facing a disciplinary proceeding will receive is the administrative hearing in the hospital. Thus, the physician’s entire career is usually on the line at the “due process” hearing within the hospital, however unfair that process may eventually turn out to be.

 

B.     TWELVE OBSTACLES TO RECEIVING A “FAIR” HEARING ---  Physicians facing a “Corrective Action” disciplinary “due process” hearing often face a combination of some or all of the following obstacles.

 

1.  Insufficient notice and specificity of charges.  Fair peer review proceedings must begin with adequate notice to the accused physician.  The need for particularity in medicine is extremely important. It is very difficult to prepare an adequate defense when the physician does not know exactly what he or she is being charged with.  HCQIA provides only that the hospital notify the physician of the “reasons for the proposed action,” which hospitals have interpreted as vague conclusions, but not the specific basis for those conclusions.  Thus, the “Notice Letter” sent to the physician by the hospital or MEC usually contains few specifics about the criticism of the physician’s care.  Some hospitals provide only a list of patients or medical record numbers along with some vague complaints such as “poor judgment,” “poor surgical technique,” and “documentation,” and leave it up to the physician to guess which complaints pertain to which medical services in any particular medical chart.  This tactic also enables the hospital to inject new, more specific issues at the hearing for which the physician has not prepared a defense.  Even accusations such as “excessive lab tests” may not be adequate if the physician is left to guess which or how many lab tests were excessive.  Such vague allegations should be challenged before the hearing begins.  In Rosenblit v. Superior Court, 231 Cal. App. 3d 1434, the court held that a disciplinary

hearing was unfair because the hospital failed to provide the physician with adequate notice of charges, among other things.

     

2.   Limited discovery and ability to present witnesses.  HCQIA provides only that the physician be given a list of witnesses expected to testify at the hearing on behalf of the medical staff.  Because nurses are employees of the hospital, they cannot be interviewed  outside the presence of hospital counsel.  There is no subpoena power associated with a hospital peer review proceeding, and physicians are notoriously reluctant to testify on behalf of their colleagues when they know that it is “politically incorrect”; that is to say, when they know that hospital administration and powerful members of the medical staff want to terminate the accused physician’s privileges.  Thus, it is extremely difficult to obtain, much less present, important evidence through such witnesses.  Similarly, there is no authority to take depositions or engage in any formal discovery process.

 

Most Bylaws give the physician the right to inspect and copy any documentary information relevant to the charges, such as medical records, correspondence and committee minutes, at his or her own expense.  (Usually, the medical staff has a similar right to inspect and copy at its own expense any documentary information in the physician’s possession as well.)  The right to inspect and copy documents does not extend “confidential information” referring to other physicians under review.  This enables hospitals to treat similarly situated physicians in completely different, even discriminatory, ways.  For example, the medical staff may decide not to discipline a favored doctor who alters a record to indicate that a patient consented to surgery the patient did not authorize, but in another case decide that the medical staff privileges of a physician it does not favor should be revoked for doing the same thing.  Evidence of the first physician’s circumstances is deemed “not discoverable” and irrelevant in peer review world.  The case is about the accused physician and no one else.  Or the hospital may recommend that a surgeon’s medical staff privileges be terminated because of a “high complication rate,” but deny the accused physician any right of access to databases where information about other surgeons is kept.  No reported case has yet held that an accused physician involved in a peer review proceeding has a right to obtain

 “confidential peer review information” relating to the performance of any other physicians on the medical staff.  Finally, be sure to request copies of shorthand notes and tape recordings of important committee meetings, especially ones where the accused physician has been present and spoken.  These sources often contain helpful information that the hospital “forgot” to include in the written minutes.

 

3.   Biased Hearing Panel, appointed by the hospital.  It may seem inherently unfair for the adverse party to control the selection of the “jury” or hearing panel that will hear and decide the accused physician’s case, but in peer review proceedings, that is exactly how it works. The most important procedural safeguard is for the physician’s case to be heard before an unbiased hearing committee.  Unfortunately, because the members of the hearing committee are appointed by the Chief of the Medical Staff, the panel members who are selected are sometimes strongly biased in favor of the hospital, and occasionally---even worse yet---against the accused physician, which makes it practically impossible for the doctor to receive a “fair” hearing.  The most important thing a lawyer can do for a physician involved in a peer review proceeding is obtain a list of the members of the hearing committee before the hearing begins, and

thoroughly investigate their backgrounds, their relationships to the hospital and other members of the medical staff, and then voire dire the prospective panel members to determine whether actual bias or the appearance of impropriety should disqualify them from serving as members of the “impartial” hearing committee.  HCQIA provides only that the hearing shall be held before a “a panel of individuals who are appointed by the entity and are not in direct economic competition with the physician involved.”  But what if one of the panel members is the partner of one of the accusers?  What if one of the panel members has a lucrative contract with the hospital that the hospital has the right to terminate on short notice without cause, so in the event the panel member does not support the hospital’s view, he or she can be threatened with contract termination?  The lawyer for the physician must move to disqualify any prospective panel member who can be shown to be either actually biased against the physician, or whose relationship with the hospital or its witnesses is simply too close to permit the doctor to be fair and impartial under

 

 

the circumstances.  Suggestion:  Ask the hospital to appoint at least one doctor to the panel who is in the same specialty as the accused physician (e.g., orthopedic surgery) who practices some distance away from the hospital, who is clearly not in economic competition with the accused doctor.  A good rule of thumb to remember is, “the greater the distance away from the hospital the doctor practices, the more objective his or her judgment will be about another physician’s work.”

 

4.   Limited Right to Representation by an Attorney.  Incredibly, some Bylaws, particularly at major hospitals in Texas and for-profit hospitals owned by HCA, limit the right to counsel by allowing the lawyer to advise the physician, but not to speak at the hearing!  HCQIA provides “the physician involved has the right to representation by an attorney,” but some hospitals have construed this to mean that just because the attorney “represents” the doctor, that does not mean the lawyer has a right speak or present the case and ask the witnesses questions.  Invariably, doctors who are forced to present their case themselves perform abysmally and lose their case.  (This is understandable since most physicians have no legal training.  A doctor whose lawyer cannot speak is doomed.)  Make a record by strenuously objecting to such interference with the physician’s right to counsel.  If the hearing officer still will not let you speak at the hearing, then set up laptop computers in parallel and type the questions out in large fonts for the doctor to read from.

 

5.   Unrealistic time allowed to offer evidence relating to numerous, complex medical cases.  Hospitals sometimes list as many as thirty or more cases to demonstrate poor quality care in a peer review proceeding, and then ask the Hearing Officer or the Chairman of the Hearing Committee to arbitrarily limit the hearing to a couple of evening sessions, one for the medical staff and one for the accused physician.  (“Give ‘em a fair trial and hang ‘em.”)  Since the discussion of each case involves analysis much like a malpractice case as each expert testifies about the facts and the applicable standard of care, it is difficult to discuss more than four to five cases at best per session.  Counsel should insist on being given a reasonable amount of time to defend the physician and object to any arbitrary shortening of time that compromises the ability to present the defense.  The physician should not be forced to take shortcuts and speak the Federal Express salesman when presenting the defense upon which his or her entire career may turn.

 

6.   Reversed Burden of Proof.  Many Bylaws describe the accused physician’s burden of proof as follows:  “The physician who requested the hearing shall have the burden of proving, by clear and convincing evidence, that the adverse recommendation or action lacks any factual basis or that such basis or the conclusions drawn therefrom are either arbitrary, unreasonable, or capricious.”  This is unfair, and a virtually impossible burden for the doctor to meet.  The hearing committee should be asked to decide whether the physician is qualified and competent to hold the privileges granted, and the burden is on the medical staff to prove that the physician is not qualified or competent to continue having those privileges.  Counsel should object to any iteration of the burden of proof that phrases it like an appellate standard by placing the initial burden of going forward on the doctor, or that requires the Hearing Committee to uphold an adverse recommendation if there is any evidence that supports it, regardless of the weight of the evidence in the hearing record.

 

7.    Hearsay evidence.  Virtually every set of medical staff bylaws contains a provision to the following effect:  “The hearing shall not be conducted strictly according to rules of law relating to examination of witnesses or presentation of evidence.  Any relevant matter upon which responsible persons customarily rely in the conduct of serious affairs shall be admitted, regardless of the admissibility of such evidence in a court of law.”  Some hospitals will attempt to “prove” the case against a physician by simply introducing a copy of a rank hearsay report from an “outside” expert organization such as the American Medical Foundation in Pennsylvania, without producing for cross-examination the physician who reviewed the records and drafted the report.  This effectively deprives the physician of the right to cross-examine crucial adverse witnesses and must be strenuously objected to.  Most such reports are poorly prepared “hatchet jobs” that crumble when the author is cross-examined.  Another problem involves obvious hearsay contained in committee minutes that are often drafted, edited and “spun” by lay personnel in hospital administration, but this type of evidence is almost always admitted over objection.

 

 8.     Narrow “standards of care”.  Sometimes, a hospital will try to

              Prove its case by presenting expert testimony to the effect that the

              accused physician violated a “local” standard of care confined to within the hospital itself, or the city or county where the hospital is located, instead of a statewide, if not national standard of care.  This is nonsense.  In the 21st century, most bylaws call for physicians on the medical staff to be board certified or board eligible. These national certifying bodies have created uniform standards of care to evaluate the performance of physicians.   The state law governing the standard of care in medical malpractice cases generally does not apply in a peer review disciplinary proceeding.  Remember also that how one doctor would manage a particular case is not the definition of the “standard of care.”  The “standard of care” is a broad legal concept that describes what doctors generally do, and this includes not only the way a majority of doctors would manage a particular medical case, but also approaches to medical management used by a “respectable minority” of physicians.                                  

 

9.    Extreme “recommendations,” tantamount to “capital punishment.”  Invariably these days, the adverse “recommendation” at stake is complete revocation of all of the targeted physician’s medical staff privileges, which if upheld by the hearing committee, effectively spells the end of the doctor’s career.  Because so much is at stake, including society’s substantial investment in educating and training doctors, this remedy should be applied only in cases of clear, irremediable incompetence, where no other remedy is likely to work.  Lesser recommendations include warning letters, letters of reprimand (neither of which are reportable to the National Practitioner Data Bank), delay in advancement, probation, additional education, monitoring, proctoring, reduction, limitation, modification, or suspension of privileges to be lifted upon fulfillment of specified conditions.  The current trend in resolving “behavioral” issues is the require the physician to be evaluated by a mental health specialist, and if necessary, undergo counseling or instruction in “anger management.”

 

10.    “Referral back” to the Medical Executive Committee.  Many Bylaws contain a post-hearing provision that enables the medical staff to completely override a decision by the Hearing Committee that is favorable to the doctor, and essentially make a mockery of the entire peer review process.  In these Bylaws, the Hearing Committee’s decision and recommendations are not reviewed directly by the Board.  Instead, they are referred back to the Medical Executive Committee, whose adverse action prompted the hearing, for its “affirmance, reversal or modification of the decision.”  It is this second decision, made unilaterally, by the adverse party, in a secret meeting where the affected physician is not allowed to appear, that is fundamentally unfair and constitutes a clear violation of due process.  In the case of David Goldman, M.D. v. King County Hospital District No. 2, d/b/a Evergreen Hospital Medical Center, No. 96-2-01969-1SEA (Oct. 31, 1996) Judge Sharon Armstrong held that such a procedure in the Medical Staff Bylaws violated the procedural due process rights of the physician against whom adverse action had been taken, and remanded the case back to the hospital Board for further proceedings not inconsistent with her decision. (The case settled and the physician kept his privileges.)

 

11.   Futile appeals to the Board.  If the physician loses the case before the Hearing Committee, the case is essentially over.  Although all bylaws give the physician the right to appeal and adverse decision to the hospital Board, such appeals are always futile.  The Board of Directors or Trustees is composed essentially of prominent laypersons in the local community and one or two physicians who are perceived as political allies of the hospital. This “rubber stamp” body is not about to reverse any decision of its own Medical Executive Committee, particularly on a subject that lies beyond their expertise.  There are no reported decisions where a doctor who lost before the Hearing Committee ever persuaded the hospital board to reverse that decision on the merits.   

 

12.   Limited access to courts.  A physician who has lost his or her case in the administrative peer review process at the hospital has only limited scope of appeal in the courts.  Judges will not review the medical merits of a decision that has gone through the hearing procedures and been approved by the hospital board.  The only issues courts will review relate to material procedural irregularities that fundamentally compromise the “fair” hearing process, where justice demands that the errors be corrected.

 

 

                      

C.     SPECIAL PROBLEMS

 

1.      SUMMARY SUSPENSIONS 

 

All Bylaws contain provisions that permit certain designated persons, such as the hospital’s chief executive officer or the Chief of the Medical Staff, to summarily suspend a physician’s clinical privileges in situations where the physician presents a immediate and dangerous threat to patients.  These provisions are overused and abused today the point where the overwhelming majority of adverse actions now begin with a summary suspension of privileges, even in situations where the doctor poses no threat of harm to patients.  The prevailing rule appears to be, “Shoot first and ask questions later.”         

 

Some Bylaws provide that the physician whose medical staff privileges have been summarily suspended may “meet” with the Medical Executive Committee (without an attorney) within seven to fourteen days, and present his or her reasons as to why the summary suspension should be lifted (when the physician may not even know yet the exact basis for the summary suspension).  Other Bylaws contain no provision for interim relief at all, despite the fact that a summary suspension that lasts more than thirty days must be reported to the National Practitioner Data Bank, even when no hearing has been afforded to the affected physician.  The physician should demand to know the details of the basis for the summary suspension immediately, and further demand a “risk hearing” before the persons who took the action against him within seven to fourteen days, to test whether he or she in fact presents any threat of “imminent danger” to patient safety.  If not, the privileges should be reinstated pending the outcome of the standard peer review process.

 

If the hospital refuses to respond to these requests, counsel for the physician should seek an injunction in court to reinstate the physician’s medical staff privileges during the pendency of the administrative review process within the hospital. The petition should be supported by a well-qualified expert opinion that the accused physician’s performance met acceptable standards of care, and that her or she poses no risk of serious harm to patients.  While courts have generally upheld a hospital’s right to summarily suspend

a physician’s medical staff privileges when it can demonstrate that the doctor poses an immediate and serious risk of harm to patient safety, in the case of McMillan v. Anchorage Community Hospital, 646 P.2d 857 (Alaska 1982), the court refused to uphold the summary suspension of a physician where there was no charge of medical incompetence or “recognizable threat to patient care” that would require immediate action by the hospital.

 

2.      ONE TO TWO YEAR “REAPPOINTMENT” PERIODS    

 

JCAHO requires that the medical staff bylaws provide a process for “reappointment” to the medical staff and reappraisal of clinical privileges at established intervals, usually every one to two years.  As a result of the reappraisal, the hospital must decide whether to continue or terminate a physician’s medical staff privileges, and whether to reduce or continue the same scope of clinical privileges.  If a hospital decides not to renew a physician’s privileges, this is the same as a recommendation to terminate those privileges, and the physician is entitled to the same hearing rights described above.

 

 

3.      REPORTS TO THE NATIONAL PRACTITIONER DATA BANK 

 

HCQIA requires hospitals to report to the Data Bank any professional review actions relating to professional competence or conduct that adversely affect the clinical privileges of a physician for a period longer than 30 days.  Thus, it is imperative to resolve a summary suspension within 30 days, before the mandatory reporting requirements are triggered.  Once a report is made to the Data Bank, it can never be removed, and irreparable harm is done to the physician’s career.  Hospitals are also required to report to the Data Bank any voluntary surrender or restriction of clinical privileges while the doctor is under investigation.  A report to the Data Bank that a doctor resigned his or her medical staff privileges while under investigation is often more devastating than other situations, because the hospital will report the allegations for which there has been no challenge, so the assumption is, the allegations were all true.  If a there is any reasonable defense to the allegations supporting an adverse recommendation, the doctor must defend himself or herself in the administrative peer review hearing, no matter how unfair the process may seem, because it is generally the only way to salvage one’s career. 

 

4.      REPORTS TO THE STATE MEDICAL BOARD 

      

                                 HCQIA also requires hospitals to report to the medical licensing board the denial, revocation or other action that adversely affects the clinical privileges of a physician for more than 30 days, and to request information with respect to all physicians who have been granted privileges every two years.  Thus, there is an adverse outcome in a peer review action has a “ripple” effect, and leads to further investigations and disciplinary proceedings before the state licensing board.  However, the board usually makes its own evaluation of the physician’s work, and frequently decides not to take disciplinary action, particularly in cases where it is clear that the doctor is in fact competent, and lost medical staff privileges as a result of improper motives or unfair peer review proceedings.

 

5.      CONFIDENTIALITY  

 

Generally, peer review proceedings and documents are strictly confidential and are shielded from discovery and admissibility, particularly in civil malpractice actions.  There are a number of legal issues associated with peer review, including the confidentiality of the proceedings and information, their use in related legal proceedings, and the potential liability of physicians who participate in peer review proceedings.  Although all states have passed laws to address these problems, they vary significantly from state to state.  Generally, they define peer review and peer review bodies, identify actions that are immune from liability, and define the degree of confidentiality given to peer review records and proceedings. See RCW 4.24.250 which provides that the “proceedings, reports and written records” of peer review committees are not subject to subpoena or discovery proceedings in any civil action, except actions brought by the affected physician to challenge privilege restrictions.

 

Years ago, these statutes were intended to protect the reputation of the physician during the pendency of a peer review proceeding before the outcome of the matter was determined, and to shield this information from plaintiff’s malpractice attorneys.  Unfortunately, in recent years, hospitals have used confidentiality statutes to hamper a physician who is the subject of a peer review proceeding by making it difficult, if not impossible to obtain relevant information that could be helpful to the defense of the case.  The subject of peer review confidentiality has been litigated in a number of cases throughout the United States.  The focal issues concern the scope of protection offered by the confidentiality statutes, and whether a particular person, committee or document is protected, either by privilege or immunity, within the meaning of the statute.  Courts tend to construe these protections narrowly, within the express language of the statute.  These statutes do not prohibit a physician who appeals an adverse credentialing decision from introducing evidence from the administrative proceeding that resulted in a loss of medical staff privileges.

 

6.      IMMUNITY

 

In addition to the immunity provisions contained in HCQIA, Washington state statutes protect professional review committees and persons engaged in peer review activity from civil actions for damages.  See RCW 4.24.240.  In Morgan v. Peacehealth, Inc., 101 Wa.App. 750, 14 P.3d 773 (2000), the court held that a hospital was entitled to immunity under HCQIA for its actions in suspending and then revoking a physician’s privileges (a podiatrist) based on his refusal to undergo evaluation and counseling, which the hospital had sought to aid its investigation of complaints regarding patient care and unprofessional conduct.

 

Even if the hospital does not provide a physician in a peer review proceeding with all of the procedural steps referred to in HCQIA, it may still qualify for immunity from civil damage claims, if a court finds the procedures were “adequate.”  The test used in these cases is whether the hospital “made a reasonable effort to obtain the facts of the matter before curtailing the physician’s privileges,” and whether it had “a reasonable belief that the professional review action was in the furtherance of quality health care.”  This is seen as an “objective” standard such that any bad faith on the part of the hospital or persons who prosecuted the action is irrelevant. 

 

 

7.      ANTICOMPETITIVE MOTIVES OF PHYSICIANS IN DIRECT ECONOMIC COMPETITION WITH ACCUSED PHYSICIAN

 

                                 The medical profession is the most competitive in the world.  Physicians, not lawyers, are the masters of cutthroat competition. 

                                 “Turf battles” and “turf protection” are common terminology used in the medical profession.  All medical staffs are divided into two groups: the “In” group that controls its activities, and the “Out” group that does not.  The standard of care of care for the “Out” group is perfection; the standard of care for the “In” group is considerably less stringent.  If any physician’s medical records are reviewed closely enough, some aspect of care can usually be criticized.  Competitors have a particularly keen sense of what constitutes “unacceptable care.”  Everyone believes there are “bad apples” out there practicing medicine, so if a peer review committee determines a physician is incompetent, a judge will probably think that doctor was one of them.  There may be many reasons given for recommending termination of a physician’s medical staff privileges, but economic, “restraint of trade” motives underlie many of the peer review proceedings in the country today.  It has been said that approximately 75% of all peer review is called for non-medical reasons.  Unfortunately, HCQIA has essentially gutted antitrust and restraint of trade claims, even in cases where the action was obviously brought in bad faith, for economic, anticompetitive reasons.

 

8.      EXCLUSIVE CONTRACTS

 

In this situation, the hospital enters into an “exclusive contract” for the provision of certain services such as radiology, pathology or anesthesia, and restricts otherwise qualified physicians from having access to the hospital.  (These other physicians may “have” privileges, but they are not allowed to “use” them!)  If a physician who previously had privileges in an “open” staff is not included as a contractor or subcontractor in the exclusive contracting arrangement, his or her privileges are terminated (if the bylaws provide for such action), and no hearing rights are available.  The good news is that although such actions are obviously “adverse” in a real world sense, they are considered “administrative” in nature and are not reportable to the NPDB or state medical board. 

 

 

 

Exclusive contracts have been challenged on two grounds: (1) denial of due process, and (2) violation of the antitrust laws.  Physicians have lost every reported case, as the courts find that as long as the contract is not intended to exclude a particular physician or group of physicians from practicing at the hospital, but rather constitutes a legitimate business arrangement intended to assure quality and availability of medical services to patients, it passes muster.  The effect of the proliferation of exclusive contracting between hospitals and physician groups today is that physicians are gradually becoming de facto employees-at-will, and the significance of the medical staff privileges that have been the bedrock of their right to practice for so long is beginning to diminish.

 

      

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHECKLIST FOR DEFENDING PHYSICIANS

INVOLVED IN MEDICAL STAFF PRIVILEGES

PEER REVIEW HEARINGS

 

 

  1. OBTAIN A COPY OF THE MEDICAL STAFF BYLAWS AND REVIEW THE HEARING PROCEDURES.

 

  1. OBTAIN COPIES OF ALL MEDICAL RECORDS PERTAINING TO ACCUSATIONS OF POOR QUALITY CARE AND FURNISH THEM TO A WELL-QUALIFIED EXPERT FOR INDEPENDENT PEER REVIEW AS SOON AS POSSIBLE.

 

  1. IF THE BYLAWS PROVIDE FOR INTERIM REVIEW OF A SUMMARY SUSPENSION OF MEDICAL STAFF PRIVILEGES WITHIN 30 DAYS, THE PHYSICIAN SHOULD REQUEST ONE IMMEDIATELY.

 

  1. IF THE BYLAWS DO NOT PROVIDE FOR IMMEDIATE REVIEW OF A SUMMARY SUSPENSION, REQUEST A ‘RISK HEARING’ BEFORE THE MEDICAL EXECUTIVE COMMITTEE WITHIN 7 TO 30 DAYS TO DETERMINE WHETHER THE PHYSICIAN ACTUALLY POSES A SERIOUS RISK OF HARM OR ‘IMMINENT DANGER’ TO PATIENTS.

 

  1. IF A WELL QUALIFIED, INDEPENDENT EXPERT IS OF THE OPINION THAT THE PHYSICIAN DOES NOT POSE A SERIOUS RISK OF HARM TO PATIENT CARE, AND THE MEDICAL STAFF OR HOSPITAL REFUSES TO GRANT THE PHYSICIAN A RISK HEARING WITHIN 30 DAYS, PETITION THE SUPERIOR COURT TO ENJOIN THE SUMMARY SUSPENSION OF PRIVILEGES PENDING THE OUTCOME OF THE ADMINISTRATIVE HEARING PROCESS---OTHERWISE, THE HOSPITAL MAY SUBMIT A HIGHLY DAMAGING ADVERSE ACTION REPORT TO THE NATIONAL PRACTITIONER DATA BANK AND RUIN THE PHYSICIAN’S CAREER BEFORE THERE IS EVER ANY HEARING.

 

  1. DEMAND THAT A SUMMARY SUSPENSION BE BASED ON A REVIEW OF YOUR CLIENT’S WORK BY A WELL QUALIFIED, UNBIASED, OUTSIDE INDEPENDENT PEER REVIEWER---NOT SOLELY ON CRITICISM BY DOCTORS ON THE MEDICAL STAFF WHO ARE IN DIRECT ECONOMIC COMPETITION WITH YOUR CLIENT.

 

  1. NEVER ADVISE A PHYSICIAN TO RESIGN MEDICAL STAFF PRIVILEGES WHILE THERE IS AN ONGOING INVESTIGATION OR PROCEEDING.  THE ONLY WAY FOR A PHYSICIAN TO AVOID A DAMAGING, POTENTIALLY CAREER-THREATENING ADVERSE ACTION REPORT TO THE NATIONAL PRACTITIONER DATA BANK IS TO DEFEND AGAINST THE CHARGES IN A PEER REVIEW HEARING.

 

  1. MAKE A WRITTEN REQUEST FOR A HEARING, PURSUANT TO BYLAWS PROCEDURE (USUALLY WITHIN 7 TO 30 DAYS AFTER RECEIVING FORMAL WRITTEN NOTICE OF PROPOSED ADVERSE ACTION; IF DEADLINE IS MISSED, IT’S WAIVED AND THE ADVERSE RECOMMENDATION BECOMES FINAL).

 

  1. REQUEST A SPECIFIC STATEMENT OF ALL CHARGES AGAINST THE PHYSICIAN, AND THE DETAILED BASIS FOR EACH CHARGE MADE.

 

  1. OBTAIN EXPERT PEER REVIEWS FROM HIGHLY QUALIFIED MEDICAL SPECIALISTS ON BEHALF OF PHYSICIAN CLIENT TO CHALLENGE MEDICAL STAFF’S OPINIONS. (A “MUST” ITEM)

 

  1. REQUEST DISCOVERY OF ALL DOCUMENTS RELATED TO THE CHARGES AGAINST THE PHYSICIAN, INCLUDING REPORTS OF INVESTIGATIONS, MINUTES OF ALL COMMITTEE MEETINGS (AD HOC INVESTIGATING COMMITTEE, DEPARTMENT MEETINGS, AND MEETINGS OF THE MEDICAL EXECUTIVE COMMITTEE) THAT CONTAIN REFERENCES BOTH CRITICAL AND FAVORABLE TO YOUR CLIENT.

 

  1. OBJECT TO ANY CLAIMS OF “CONFIDENTIALITY” USED TO BAR ACCESS TO INFORMATION IN HOSPITAL DATA BASES, SUCH AS COMPARISONS OF COMPLICATION RATES, THAT MIGHT BE HELPFUL TO YOUR CLIENT; THE WHOLE PROCEEDING IS “CONFIDENTIAL” UNDER STATE LAW.

 

  1. OBJECT TO ANY BYLAW PROVISION THAT FORBIDS THE LAWYER TO SPEAK ON BEHALF OF THE PHYSICIAN DURING THE COURSE OF THE PROCEEDINGS.

 

  1. VOIRE DIRE (ASK QUESTIONS OF) THE MEMBERS OF THE HEARING COMMITTEE TO FERRET OUT ACTUAL BIAS AND MOVE TO STRIKE THOSE WHO ARE LIKELY TO BE UNFAIR.  REQUEST THAT AT LEAST ONE MEMBER OF THE IMPARTIAL HEARING COMMITTEE BE OF THE SAME MEDICAL SPECIALTY, BUT NOT IN DIRECT ECONOMIC COMPETITION WITH THE ACCUSED PHYSICIAN.

 

  1.  INSIST THAT THE MEDICAL STAFF BE REQUIRED TO PRESENT ITS CASE FIRST, BEFORE THE PHYSICIAN IS REQUIRED PRESENT A DEFENSE TO THE CHARGES.

 

  1. OBJECT TO ANY “BURDEN OF PROOF” THAT REQUIRES THE PHYSICIAN TO PROVE THAT THE ADVERSE ACTION OR RECOMMENDATION ‘LACKS ANY FACTUAL BASIS,’ OR THAT THE BASIS FOR DECISION WAS “ARBITRARY, UNREASONABLE OR CAPRICIOUS.”  THE MEDICAL STAFF SHOULD BE REQUIRED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT ITS DECISION WAS REASONABLE, WHILE THE PHYSICIAN SHOULD BE REQUIRED TO PROVE COMPETENCY, OR THAT THE ADVERSE ACTION THAT HAS BEEN RECOMMENDED IS UNREASONABLE.

 

  1. OBJECT TO ANY HEARSAY EVIDENCE THAT GOES TO THE HEART OF THE CHARGES AGAINST THE PHYSICIAN, ESPECIALLY WRITTEN PEER REVIEW REPORTS THAT ARE CRITICAL OF THE PHYSICIAN’S CARE.  BECAUSE THERE IS NO SUBPOENA POWER, INSIST THAT ANY WITNESS WHO IS CRITICAL OF THE PHYSICIAN TESTIFY IN PERSON; OTHERWISE THE ACCUSED PHYSICIAN IS DEPRIVED OF THE “RIGHT OF CROSS-EXAMINATION” CONTAINED IN ALL BYLAWS.

 

  1. OBJECT TO THE APPLICATION OF ANY NARROW, RESTRICTIVE, LOCAL “STANDARD OF CARE” TO YOUR CLIENT’S WORK; PREVAILING STANDARDS TODAY ARE BOTH STATEWIDE AND NATIONAL IN NATURE.

 

  1. OBJECT TO THE HEARING OFFICER OR HEARING PANEL PLACING UNREALISTIC TIME RESTRICTIONS ON PRESENTING PHYSICIAN’S DEFENSE.

 

  1. SINCE PRACTICALLY EVERY ADVERSE RECOMMENDATION IS TO REVOKE A PHYSICIAN’S MEDICAL STAFF PRIVILEGES, ARGUE THAT “CAPITAL PUNISHMENT” IS TOO SEVERE, AND THAT A CONSTRUCTIVE REMEDY, NOT A CAREER-THREATENING SANCTION, SHOULD BE APPLIED.

 

  1. OBJECT TO ANY “REFERRAL BACK” OF THE HEARING COMMITTEE’S DECISION TO THE MEDICAL EXECUTIVE COMMITTEE FOR FURTHER CONSIDERATION AND REVISION, BECAUSE THE LATTER IS THE ADVERSE PARTY.

 

  1. OBJECT TO THE HEARING COMMITTEE’S DECISION BEING CHARACTERIZED AS A NON-BINDING “RECOMMENDATION” THAT THE MEDICAL EXECUTIVE COMMITTEE, AS THE ADVERSE PARTY, IS FREE TO CHANGE UNILATERALLY IN A SECRET MEETING WHERE YOUR CLIENT DOES NOT HAVE AN OPPORTUNITY TO APPEAR.

 

  1. OBJECT TO PHYSICIAN BEING CHARACTERIZED AS THE “APPELLANT” IN ANY CASE WHERE THE PHYSICIAN HAS PREVAILED BEFORE THE HEARING COMMITTEE.

 

  1. OBJECT TO ANY REQUIREMENT THAT THE PHYSICIAN PAY FOR THE ENTIRE TRANSCRIPT OF THE PROCEEDING AS A CONDITION TO APPEALING THE DECISION OF THE HEARING COMMITTEE (OR MEDICAL EXECUTIVE COMMITTEE) TO THE BOARD OF DIRECTORS/TRUSTEES.

 

  1. APPEAL ANY ADVERSE FINAL DECISION TO THE SUPERIOR COURT, BUT ONLY ON THE GROUNDS OF UNFAIR PROCEDURE, NOT ANY SUBSTANTIVE ISSUES INVOLVING CLINICAL MEDICINE.  COURTS WILL NOT BECOME INVOLVED AS OVERSEERS OF CREDENTIALING DECISIONS MADE BY THE MEDICAL STAFF AND THE HOSPITAL’S GOVERNING BOARD.

 

  1. IF THE HOSPITAL SUBMITS A REPORT TO THE NATIONAL PRACTITIONER DATA BANK, DRAFT A FAIR AND ACCURATE COUNTERSTATEMENT TO SUBMIT TO THE N.P.D.B. THAT IS AS BENIGN AS POSSIBLE.

 

  1. IF THE HOSPITAL SUBMITS AN UNFAIR AND INACCURATE REPORT TO THE NATIONAL PRACTITIONER DATA BANK, FILE AND ADMINISTRATIVE APPEAL WITH TO THE SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES AND CONSIDER SUING THE HOSPITAL FOR LIBEL. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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