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 Hearing
• Medical Review Hearing
• Credentials Hearing
• Medical Staff Hearing
• Disciplinary Hearing
• Credentials Committee Hearing or
• Ad Hoc Committee Hearing
1. The peer review process is different in every hospital.
a. Medical staff bylaws are different.
b. Hearings are different (attorneys may not even be able to participate).
c. The burden of proof may be placed on the physician.
d. Investigation and appeals process may be different.
2. The hospital's resources are virtually unlimited. a. Hospitals may use certain experienced companies as part of the process that have a tendency to favor the hospital. b. 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. c. The hospital and medical staff will have unlimited access to hospital employees and documents.
3. You need legal representation from the time of the first rumor you hear that a complaint has been filed or a matter is being investigated. a. DO NOT "wait and see what happens." b. 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.
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.
a. If the hospital administration identifies you as a "bad physician," "troublemaker," or "disruptive physician" you are in serious, serious trouble.
b. Your prior cases may be reviewed and scrutinized retrospectively for problems that were "overlooked."
c. Every poor result or outcome will be analyzed.
d. 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.
e. Any patient complaints over insignificant matters that would have previously been handled in a routine way, will now be handled as significant events.
You will probably be offered an opportunity to resign prior to the commencement of the investigation . . .
7. But you will foolishly turn down the opportunity to resign.
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.
a. The resources are stacked in favor of the hospital and administration.
b. Peer review proceedings are very expensive (for all parties).
c. The burden may be and can be placed on you to prove you are currently clinically skilled and competent.
d. 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:
i. Proceedings initiated by your competitors;
ii. Complaints made by your competitors;
iii. You allegedly bringing in too many cases (monopolizing the procedure rooms or operating rooms);
iv. You bringing in the wrong cases (too many Medicare, etc.);
v. One medical group controlling the whole department (in absence of an exclusive contract);
vi. You being accused as an "overutilizer" (you use too many hospital resources);
vii. You being accused as"cherry picking" the best cases (all non-indigent or non-Medicaid cases);
or viii. You refusing to participate in managed care plans.
e. 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).
f. You may find the same individuals on:
i. The Investigation Committee
ii. The Peer Review/Hearing Committee
iii. The Appeals Committee
iv. The Board of Directors/Trustees (responsible for final recommendations)
g. You may have a gag order and not be allowed to talk to witnesses or potential witnesses to help you prepare for your case.
10. It may not matter what the peer review or fair hearing committee recommends.
a. 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). b. 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. Consequences include:
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:
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.
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.
Indest's Recommendations for the Subject of a Hospital Peer Review Hearing
- You must ensure that your medical staff bylaws contain true "due process" rights for accused physicians.
- You should attempt to have state legislation passed that requires all hospitals to afford physicians certain due process rights in peer review proceeding similar to what California has done.
- The Medical Staff should never allow hospital administration (or the hospital parent corporation) to force them to adopt medical staff bylaws changes which eliminate or limit the hearing rights or due process rights of a physician who may be the subject of an adverse decision.
- The peer review committee (fair hearing committee) should have its own independent legal advisor in all hearings. This must be someone other than from the law firm which represents the hospital.
- You must treat the peer review process like you would a civil trial against you for medical malpractice.
- If you are the subject of a peer review proceeding, immediately retain experienced, knowledgeable health care counsel to represent you.
- Also, immediately retain a litigation attorney who has experience in this type of civil litigation. File suit immediately if the matter is not proceeding fairly and in accordance with medical staff bylaws and state laws.
- 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.
If you are currently the subject of a peer review or clinical privileges hearing, call (407) 331-6620 or (850) 439-1001 to speak with one of our health law attorneys.