Physician Medical Staff Privileges – Suspension Hearings
Physician Medical Staff Privileges – Suspension Hearings
Physicians typically have medical staff privileges at a hospital or other healthcare facility where the doctor can treat patients. Hospitals operate under certain accrediting agencies, most commonly The Joint Commission, which, along with state laws, require the hospital to adopt medical staff bylaws that provide for a fair hearing process consistent with “due process” if they intend to take a negative action against a doctor, such as trying to limit or revoke a physician’s medical staff privileges. If the purpose of a hospital’s due process rules is to get to the truth of the matter, then a fair hearing process is the only way to achieve such goals, but this process often is anything but fair.
Under the Fourteenth Amendment to the United States Constitution, property rights like hospital privileges cannot be removed without “due process.” Due process generally includes the right to a hearing, the right to present evidence, and the right to have the decision made fairly and without prejudice prior to the deprivation of a protected property interest. Due process is not just for the doctor and the doctor’s career, but also for the patients whom the doctor treats at the hospital or facility.
Medical staff privilege hearings are a big deal. A fair hearing can help prevent physicians from being unfairly suspended or terminated, causing financial loss to the physician and a disruption of her or his relationships with patients. Not only is the action reportable to the National Practitioner Data Bank, a publicly available record of disciplinary proceedings against physicians, but it can destroy a practice by preventing a physician from admitting patients to the only hospital in the local area. The action is also likely to become an issue when the physician applies for malpractice insurance, seeks to be re-credentialed by insurers, or applies for privileges at another hospital or ambulatory care facility.
Fair hearings are essential. The hospital/facility generally appoints a hearing officer to oversee the proceedings. Because this individual is typically appointed and paid by the hospital, this may create a conflict of interest in which the hearing officer is inclined to render decisions likely to result in reappointment in future matters, namely those in favor of the hospital, rather than the doctor. The hearing committee should consist of independent, unbiased doctors who practice in the same area. The doctor has a right to receive notice of the time and place of a hearing and to receive a written explanation of the reasons for suspension. The doctor also has the right to call and cross-examine witnesses and present evidence to rebut the allegations. But medical staff bylaws are often vague and ambiguous – they do not lay out the process for a fair hearing, appointment of independent committee members, what information (evidence) can be presented, when the (timely) hearing must take place, who must prove what facts, and other logistical issues. Instead of allowing the hospital/facility to make these decisions and the doctor having to react to them, it is often advisable for the doctor’s counsel to initiate this discussion immediately upon notice of a medical staff privilege problem.
Many hospitals/facilities suspend the doctor without due notice and then proceed with the due process hearing, leaving the doctor and the doctor’s patients without the ability to work together, potentially causing great harm not just to the doctor, but to the patients too. Some hospitals/facilities summarily suspend the doctor’s privileges and then do nothing, causing the doctor to have to seek a fair process hearing. Basic principles of justice and fairness in the medical staff fair hearing process does not happen. But early intervention by doctor’s counsel can result in agreement from the outset to established fair principals for a hearing (e.g. use of an independent dispute resolution service provider, like JAMS, ADR, American Arbitration Association, and even the American Health Lawyers Association.)
Further, after a hearing, the hospital’s governing body (the board of trustees) sometimes overrule the decision from the hearing, without explanation. How fair is that? Because hospitals have no incentive to change how they have been operating (get the pun?), the targeted doctor must take action and when the hospital will not act fairly, the doctor can and should report the hospital to the accrediting agencies (like The Joint Commission), and the state (usually the department of health or other regulatory body).
If you (physician) get into a predicament with a hospital or other healthcare facility, call us – we’ve dealt with these matters. Please contact Dawn at: dcoulson@eppscoulson.com.
Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. It is likely considered advertising. Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.
EPPS & COULSON, LLP
Attorneys admitted to practice in California, New York, Colorado, Texas, and Oregon
www.eppscoulson.com
www.companiescounsel.com