Facts You Need to Know About Clinical Privileges and the Peer Review Process (Part 1 of 2)
Tuesday, June 11, 2019
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
The 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.
Medical 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.
Hospitals 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.
3. 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.
4. 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.
If 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.
8. There are many options and alternatives available early in the process, but only an experienced health care attorney will know them. Options may include:
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.
The 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 minorities).
Certain motivations are economical in nature and can be identified by:
If 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:
Additionally, 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.
The 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.
a. 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).
12. 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.
13. 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: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.
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;
e. 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.
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.
Familiarize 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 professional life. 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.
If 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 providers.
At the Health Law Firm we provide legal services for physicians and other health care providers. This includes nurse practitioners, nurses, dentists, psychologists, psychiatrists, mental health counselors, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions. We also represent physicians and health care providers in complex litigation in both state and federal courts.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
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) 331-6620.
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