Medical Staff Fair Hearings and Peer Review Investigations: Fair Hearings Not Always Fair, Part 2

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

If you are a physician, nurse practitioner, psychologist, clinical pharmacist, oral surgeon, ophthalmologist, or other licensed health professional with clinical privileges in a hospital, chances are that one day you will be subject to a peer review investigation or Medical Staff Fair Hearing.  It may be a simple one-time matter based on a patient complaint or adverse outcome, or it may be a lengthy process involving a large number or your cases and records.

Be sure to read part 1 of this blog series for more information and to learn about the "Maxims for Hospital Medical Staff Peer Review Hearings."



A Notice of A Peer Review Must Be Treated Seriously.

Regardless of the source, or how petty or meritless it may seem, the health professional who is the subject of the peer review must treat it seriously.  The actions you take may resolve the matter at a preliminary stage or it may cause an escalation to a hearing, adverse action, and a National Practitioner Data Bank (NPDB) Report, with career-ending results.


Indest's Recommendations to the Subject of a Hospital Peer Review Hearing.

1.    You must ensure that your medical staff bylaws contain true "due process" rights for accused physicians.
   
2.    You should attempt to pass state legislation requiring all hospitals to afford physicians certain due process rights in peer review proceedings similar to what California has done.
   
3.    The medical staff should never allow hospital administration (or the hospital parent corporation) to force them to adopt medical staff bylaws changes that eliminate or limit the hearing rights or due process rights of a physician who may be the subject of an adverse event decision.
   
4.    Take any, and every opportunity offered to you to provide input (assisted by your attorney) for any investigation, committee meeting, or review of your case. Do not stonewall these. Give written input and appear to answer questions. But make sure that your information is objective and not accusatory of others.
   
5.    The peer review committee (fair hearing committee) should have its own independent legal advisor in all hearings. But, again, this must be someone other than the law firm representing the hospital.
   
6.    You must treat the peer review process like you would a civil trial against you for medical malpractice and prepare for it accordingly.   
   
7.    If you are the subject of a peer review proceeding, immediately retain experienced, knowledgeable health care counsel to represent you.
   
8.    Also, immediately retain an attorney who has experience in this type of internal hearing. A plaintiff's personal injury attorney is not the right kind of attorney to represent you in this matter.
   
9.    File suit immediately if the matter is not proceeding fairly and in accordance with the medical staff bylaws and state laws. Again, this is a place where a plaintiff's civil litigation attorney can help your defense team.
   
10.    If your hearing procedures/peer review procedures are not in your medical staff bylaws, make sure that both the medical staff bylaws and the hearing procedures state that the hearing procedures have the same force and effect as the medical staff bylaws.
   
11.    You will need to hire outside experts in the medical areas that the hearing panel will examine.
   
12.    Research and locate authoritative medical texts, journal articles, and studies that support your treatment in each case.
   
13.    Begin analysis of each case, patient, or record that will be used against you in the hearing. For example, prepare a summary of the patient's history and the necessity for the procedure(s) and an explanation of what you did and why you did it.

14.    You will need witnesses who support your character and professional skills. These will include referring physicians and those who have examined or treated your patients after you did. Start contacting these.
   
15.    Character witnesses who can testify about your contributions to the community, your charity work, etc., will also be needed.
   
16.    You will have to spend a great deal of money to defend yourself properly, including the costs of expert witnesses to testify on your behalf. But this will be the most critical expenditure of your life.

You should think of a "fair hearing" as similar to a medical malpractice trial and plan accordingly.
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 medical staff peer review hearings. 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. Listen to your attorney’s advice, you will be in for the fight of your professional life.

Click here to read my prior blog on medical staff peer review fair hearings to learn more about the process. 
 
Lastly, be sure to read part 1 of this blog to learn more.


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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