Are You Under Review? Here’s What You Need to Know About Clinical Privileges Hearings
Monday, November 11, 2019
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
term "fair hearing" is used by different individuals and different
organizations to refer to an administrative hearing or a private hearing
in a hospital or professional association. There are a number of
different types of proceedings that are often referred to as "fair
hearings," including clinical privileges (or peer review) hearings,
which allow a physician who has had his or her clinical privileges
revoked to be reviewed.
This type of hearing can also be referred to as:
• Privileges HearingThe
physician that is subject to these hearings is not a hospital employee,
does not have a direct contract with the hospital, is not a member of a
group with an exclusive contract, but does have clinical privileges at
the hospital (based on proven clinical skills and competence to perform
certain defined procedures in a hospital). When a hospital finds that a
physician with clinical privileges is no longer competent (in the eyes
of the hospital), a hearing will be conducted aimed at stripping the
physician of his or her clinical privileges. This process (especially
the litigation involved) can get ugly, and it is important for the
physician in question to obtain the counsel of a health attorney who has
experience in dealing with clinical privileges hearings.
• Fair Hearing
• Medical Review Hearing
• Credentials Hearing
• Medical Staff Hearing
• Disciplinary Hearing
• Credentials Committee Hearing or
• Ad Hoc Committee Hearing
The Basic Rundown of Clinical Privileges Hearings.
1. The peer review process is different in every hospital.
staff bylaws are different; hearings are different (attorneys may not
even be able to participate); the burden of proof may be placed on the
physician; Investigation and appeals process may be different.
2. The hospital's resources are virtually unlimited.
may use certain experienced companies as part of the process that have a
tendency to favor the hospital. The hospital's personnel and attorneys
will do all of the work and provide all of the support for the medical
staff and peer review committee. The hospital and medical staff will
have unlimited access to hospital employees and documents.
You need experienced legal representation as soon as you hear that a
complaint has been filed or a matter is being investigated.
DO NOT "wait and see what happens." DO NOT think that you will be an exception.
You must be represented by an experienced, knowledgeable health care
attorney during the peer review process. The hospital will be so why not
be equally prepared?
5. The "nonconformist" or "trouble maker" will be forced into a hearing situation.
The guy everyone likes won't be.
6. If hospital administration (including nursing staff) is out to get you, you will be gotten.
the hospital administration identifies you as a "bad physician,"
"troublemaker," or "disruptive physician" you are in serious, serious
trouble. Your prior cases may be reviewed and scrutinized
retrospectively for problems that were "overlooked." Every poor result
or outcome will be analyzed. You will be written up for everything that
happens, even for things for which others would not be written up.
Incidents where you were just "joking around" will be written up as
sexual harassment. Any patient complaints over insignificant matters
that would have previously been handled in a routine way, will now be
handled as significant events.
7. You will probably be offered an opportunity to resign prior to the commencement of the investigation.
There are many options and alternatives available early in the process,
but only an experienced health care attorney will know them. Options
a. Agreement not to admit, treat or perform certain procedures;
b. Taking a leave of absence;
c. Assessment by an independent organization (P.A.C.E., C.C.A.T.);
d. Agreement to undertake additional training; or
e. Resignation (prior to any proceedings being commenced).
9. A "fair hearing" is not fair.
resources are stacked in favor of the hospital and administration and
peer review proceedings are very expensive (for all parties). The burden
may be placed on you to prove you are currently clinically skilled and
competent. There may be external motivations, other than quality
(especially in cases of tenured professors, senior physicians and
Certain motivations are economical in nature and can be identified by:
suspended pending investigation/hearing and the suspension goes over 30
days, then a report to the National Practitioner Data Bank (NPDB) is
required (which means there will be a report to your state medical board
or licensing authority).
- Proceedings initiated by your competitors;Complaints made by your competitors;
- You allegedly bringing in too many cases (monopolizing the procedure rooms or operating rooms);
- You bringing in the wrong cases (too many Medicare, etc.);
- One medical group controlling the whole department (in absence of an exclusive contract);
- You being accused as an "overutilizer" (you use too many hospital resources);
- You being accused as"cherry picking" the best cases (all non-indigent or non-Medicaid cases);
- You refusing to participate in managed care plans.
You may find the same individuals on:
you may have a gag order and not be allowed to talk to witnesses or
potential witnesses to help you prepare for your case.
- The Investigation Committee
- The Peer Review/Hearing Committee
- The Appeals Committee
- The Board of Directors/Trustees (responsible for final recommendations)
10. It may not matter what the peer review or fair hearing committee recommends.
Board of Directors/Trustees can and will overrule the conclusions and
recommendations of any peer review hearing (with the input of hospital
administration and hospital attorneys). The peer review committee must
make solid, unequivocal findings supported by evidence, as well as,
strong, precise well-reasoned conclusions and recommendations. Make sure
that you ask them to do this and that you (or your attorney) present to
them a proposed recommendation or report.
11. The consequences to you of an adverse outcome will be lifelong and career-altering.
National Practitioner Data Bank (NPDB) Reports, which are national, on
file for 50 years, very difficult to get corrected or voided and also
reported to your state medical board;
b. State licensure action (in every state in which you have a license);
c. Medical specialty associations will commence proceedings if they hear of an adverse outcome;
d. You will unlikely ever get clinical privileges at another hospital;
e. You may lose medical malpractice insurance coverage;
f. You may be dropped from the panels of many HMOs, managed care plans and insurers;
g. Contracts with employers and insurers may require you to report this (so that you can be terminated).
Once a peer review proceeding is commenced, it's not just going to go
away, and none of your friends on the Executive Committee or Board of
Trustees is going to make it go away.
Once a peer review proceeding is commenced against you, you will be in
the most important fight of your career and possibly your life.
14.You have no power, no control and no leverage. Get some:
a. Assemble an experienced legal team;
b. Begin preparing early and seriously;
c. Get established, credible experts;
d. Sue the hospital and certain individuals involved, if circumstances permit;
Consider "political" or "public relations" avenues like letters to
other physicians or patients, full page newspaper ads, getting your
state or county medical society involved, or having a state legislator
introduce a bill to require due process in all hospital adverse actions.
15. You are going to have to spend lots of money to properly defend yourself and you will not get it back if you win.
16. If you think you will be successful in suing in court to have an incorrect result overturned, you are probably wrong.
17. Court litigation can give you the leverage you need to obtain a favorable outcome on the peer review proceeding.
yourself with the process, prepare for the hearing and you have the
best chance of coming out of the peer review without problems. However,
in a really serious case, where many records are being reviewed and the
allegations appear to be very serious, then it is most important to
retain an experienced health care attorney at the earliest opportunity.
Listen to your attorney’s advice, you will be in for the fight of your
Click here to read about some important health care peer review cases.
Don’t Wait Until It’s Too Late, Contact a Health Law Attorney Experienced in the Process of Peer Reviews.
you are the subject of a peer review proceeding, immediately retain
experienced, knowledgeable health care counsel to represent you. The
attorneys of The Health Law Firm have experience in most, if not all,
types of "fair hearings" involving health care issues and health care
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About the Author:
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The
Florida Bar in Health Law. He is the President and Managing Partner of
The Health Law Firm, which has a national practice. Its main office is
in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law
Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407)
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