Medical Staff Fair Hearings and Peer Review Investigations: Fair Hearings Not Always Fair, Part 1

Monday, January 24, 2022
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 a term of art used by different individuals and organizations to refer to an internal administrative-type hearing or a private hearing in a hospital or professional association. There are several different types of proceedings that are often referred to as "fair hearings." First, however, this blog will discuss those initiated and held by a hospital's medical staff under the medical staff bylaws.

Be sure to check back for part 2 of this blog series to find out about the recommendations to the subject of a hospital peer review hearing.


Establishing What a "Fair Hearing" is.


The term "fair hearing" has come into use because of the alleged guarantees of due process of law that are supposedly required by the federal Health Care Quality Improvement Act (HCQIA). Sometimes, state law requires a "fair hearing" before property, or a property interest may be taken. Property or property interest includes both quasi-property and property rights such as a medical license or hospital clinical privileges.

The constitutional requirement of due process includes two basic provisions:  1)  the right to full and timely notice and  2)  a hearing that is actually fair.

Often, such hearings do not appear to be fair, especially if the subject (or respondent) in such a hearing is attempting to represent himself. Therefore, representing yourself in such a hearing is not advisable.

One must know the procedural rules that apply to such proceedings and the legal cases that have interpreted or voided such rules. One should also have experienced this type of hearing to understand the medical staff's and hearing panel's goals. Finally, one must know how to organize and present evidence, both documents and the testimony of witnesses, clearly, concisely, and effectively. Someone who is not a lawyer and is not experienced in such hearings will rapidly find themselves in waters over their head.

In my 35 plus years of being involved in such hearings, from both sides and appeals of their decisions, I have developed several "maxims" that I have found to apply in virtually all medical staff fair hearings.


Indest's Maxims for Hospital Medical Staff Peer Review Hearings.

1.    The peer review process is different in every hospital.
   
2.    The hospital's resources are virtually unlimited, compared to those of the subject of the hearing.

3.    If you are likely to be the subject of a fair hearing, you need to obtain legal representation from the time of the first rumor that you may be;  don't wait.
   
4.    You must be represented by an experienced, knowledgeable health care attorney during the peer review process. The hospital and medical staff will be.
   
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.
   
7.    You may be offered an opportunity to resign prior to the commencement of any investigation or proceedings . . .
   
8.    But you will foolishly turn down this opportunity.
   
9.    There are many options and alternatives available early in the process, but only an experienced health care attorney will know them.
   
10.    A "fair hearing" is not fair.
   
11.    It may not matter what the peer review or fair hearing committee recommends if the hospital and its administrative staff are against you, but if it is favorable to you, it should help immensely.

12.    Those who judge you will not be your peers.
   
13.    The only rights you have are those in your medical staff bylaws (unless you are at a "public hospital" or in California)
   
14.    If you receive an adverse outcome decision from the fair hearing, the consequences will be lifelong and career-altering.
   
15.    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.
   
16.    Once a peer review proceeding is commenced against you, you will be in the most important fight of your career and possibly your life.
   
17.    You have no power, no control, and no leverage in this situation.
   
18.    You will have to spend lots of money to defend yourself properly, and you will not get it back if you win.
   
19.    If you think you will be successful in suing in court to have an incorrect result overturned, you are probably wrong.
   
20.    Court litigation can give you the leverage you need to obtain a favorable outcome in the peer review proceeding.

Familiarize yourself with the process, prepare for the hearing and you will have the best chance of coming out of the peer review without problems.  However, in a major 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 learn about some past important health care peer review cases.

Also, be sure to check back to read part 2 of this blog to find out, "Indest's Recommendations to the Subject of a Hospital Peer Review Hearing."



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. Suite 1000. Altamonte Springs, FL 32714, Phone: (407) 331-6620, Toll-Free: (888) 331-6620.


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1/24/2022

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