Ever consider why the ability to practice at a hospital is considered a “privilege” and not a “right”? That is because the hospital granting those privileges has broad discretion to grant, modify, suspend, or revoke those privileges. They are privileges, not rights, because the hospital has a duty protect itself and its staff and patients from the risks of the willful or negligent act of is medical staff. The granting or refusal of privileges is therefore a duty of the hospital. If the hospital fails to carry out that duty in an appropriate manner, it can be subject to liability for negligent credentialing. Because of this, the hospital’s actions in granting, modifying, suspending, or revoking privileges receive deferential treatment at any subsequent level of review, whether at a hearing, on appeal, or in subsequent litigation.
When a physician is faced with a potential threat of future action against his/her medical staff privileges, the physician should take immediate notice and action. Such a threat is frequently because of a slow-brewing storm built on multiple components. Whether the issue is disruptive behavior, quality concerns, administrative leadership changes or a backdrop of other political influencers, recognizing the issue and addressing it early is the best way to avoid a full-blown attack on your medical staff privileges and the need to defend yourself in a formal hearing process.
But, if you are suddenly confronted with an action that prevents you from exercising your medical staff privileges at a hospital (such as a precautionary or summary suspension), immediate action should be taken. Some initial steps to consider include:
- Obtain a full written explanation from the Medical Executive Committee (“MEC”) of the basis for the action.
- Obtain a current copy of the Medical Staff Bylaws and any related policies (e.g., credentialing policy, disruptive physician behavior, fair hearing and appeal procedure, etc.).
- Request complete copies of any medical records on which the action is based and evaluate those records for any standard of care or documentation concerns.
- Consider engaging an attorney immediately to advise on your rights and options.
- If a summary suspension is likely to last longer than 30 days, consider taking a voluntary leave of absence prior to the end of the 30 days to avoid an event which is then reportable to the National Practitioner Databank. (Note: this decision should be undertaken only after considering the various ramifications and consulting with legal counsel).
DUE PROCESS AND BURDEN OF PROOF
The actions of a hospital’s Medical Executive Committee (MEC) and governing body are controlled by the language of the Medical Staff Bylaws and related policies. Medical staff processes and the mechanisms by which privileges are granted and/or limited or suspended demand due process. Actions of the MEC or the hospital with respect to privileges cannot be arbitrary or capricious. Where those actions are not in compliance with the requirements of the Bylaws, the affected physician should challenge the violations of procedural due process.
The ongoing review of a physician’s credentials and internal quality assurance are required by federal and state law as well as The Joint Commission whenever hospitals grant medical staff privileges, both at the initial credentialing and any recredentialing point. All medical staff issues must provide procedural due process and a right to a fair hearing to physicians. In general, this means advance notice of any concerns and the opportunity to implement appropriate corrective action prior to impacting the physician’s privileges. Due process is foundational to all procedural aspects of any medical staff issue. However, the Medical Staff Bylaws and any related policies adopted under those Bylaws govern the specifics of the process, procedures, and timelines for credentialing and fair hearing.
When a physician’s privileges are challenged or an action is taken to limit the physician’s privileges, the physician has certain rights under the Bylaws (or related policies). At the initial stage of any investigation, those rights may be more limited than later where a formal hearing is pending. That is usually because the Bylaws or Credentials Policy do not provide for discovery and due process prior to the request for a hearing. For example, if the hospital suggests that the investigation is part of the hospital’s right to informally review cases (or part of OPPE), there are no steps in the Bylaws or policy to challenge those steps. Although a physician should obtain legal counsel immediately if there is a risk of an adverse action against his/her privileges, legal counsel is often barred from attending meetings or participating in discussions with the hospital’s medical staff leadership at that point.
Even after a hearing is requested, although the Bylaws or policies usually provide specific document discovery, the available discovery is very limited. And the burden of proof that is present in most legal matters brought before the courts, is frequently (if not always) shifted by the Bylaws or policies to the physician seeking the hearing. This is very different from the presumption of innocence and the burden of proof in civil and criminal cases. Although it seems contrary to due process and fair hearing, the physician must prove that the hospital’s action or proposed action against the physician’s privileges is arbitrary, capricious, or contrary to the evidence. That is an extremely high standard and difficult to satisfy when the actions of the hospital receive the deferential treatment referenced above.
In challenging the actions of the MEC or hospital, a physician must “specifically identify misrepresentations or omissions of fact as well as the time, place or manner in which they were made.” See Cedars Healthcare Group, Ltd. v. Mehta, 16 So.3rd 914, 917 (Fla. 3d DCA 2009). Merely alleging that the hospital provided incorrect or incomplete charts for peer review is not sufficient. Alleging a breach of Medical Staff Bylaws similarly is not sufficient to support a challenge to the hospital’s peer review action. But the allegation of the hospital’s intentional withholding of relevant records while representing during the peer review hearing that it provided all the records is sufficient grounds to challenge the hospital’s peer review process.
CONFLICT OF INTEREST
Although medical staff processes and procedures are rooted in the foundation of due process, it is naïve to think that all medical staff issues are fairly and impartially considered and that the actions taken are rational. It is essential to recognize the various conflicts of interest that arise once an action has been imposed or is being recommended to the governing board of the hospital. The hospital acting through its various administrators, including most often a Chief Medical Officer, a Chief Operating Officer, and a Chief Executive Officer, may not be able to set aside their opinions and strong urge for self-preservation. “Doing the right thing” can be blurred by personal relationships, either with the physician who is suspended or other physicians who may be competitors of the suspended physician. The MEC and its various members are all physicians who also may be competitors of the suspended physician.
For these reasons, in most hospitals, it is very difficult to impanel a group of reviewers who have no conflicts of interest and have the skills and expertise to judge the performance of the suspended physician. As a result, assuring a fair and independent evaluation of the event that resulted in suspension often requires the use of external peer reviewers. Even then, those reviewers are hired by the hospital and have inherent conflicts in their ability to render a fair and impartial assessment of the case. The case is often framed up by the hospital with a limited set of medical records and questions designed to elicit favorable responses from the reviewer. And, where an initial report from the hospital’s external reviewer is considered inadequate to support the hospital’s desired outcome, the hospital can request clarification and revisions that favor the intended outcome.
Regardless, a physician being threatened with adverse action should challenge the qualifications of any external reviewer that does not have the appropriate skills and expertise in the type of case in question and the specialization of the suspended physician. In Florida, and in many other states, standard of care experts must be qualified to render expert opinions in court and the same standard should apply in medical staff peer review processes. For a specialist to qualify as a standard of care expert in Florida, the specialist must have devoted professional time to active treatment of the medical condition that is the subject of the event during the 3 years immediately preceding the date of the occurrence. If an expert cannot be qualified in that manner, the expert’s opinion should be challenged. And the affected physician should consider early on whether to submit the opinions of his/her own experts.
All this of course suggests that an adverse recommendation or summary/precautionary suspension is a fait accompli once issued. Fundamentally this should not be the case, and it is not always the way the matter is ultimately resolved. Regardless, it is critical that the affected physician immediately begins to develop an offensive, not defensive, approach to the matter. Obtaining support for his/her standard of care using respected experts is one way to accomplish this. Eliciting the support of other members of the medical staff may also prove effective.
Hospitals are granted significant latitude in the granting and terminating of privileges. The burdens imposed upon physicians under the hospital’s Medical Staff Bylaws are significant and the rights afforded the physicians are not always designed to achieve a level playing field. Physicians are at a disadvantage the moment the hospital decides to take or recommend an action that affects the physician’s privileges. Asymmetric information and rights to that information as well as the burdens of proof combine to create significant challenges. But, once a hospital’s action becomes a final adverse action, it becomes reportable to the National Practitioner Databank and the Board of Medicine. Therefore, physicians should take these issues seriously and immediately consult with legal counsel with expertise in managing these types of cases.