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Hospital Peer Review Defense

The hospital peer review process is generally instituted when a physician’s performance or behavior has been called into question.  In the most general sense, it involves the investigation and judgment of the physician by a committee of his/her peers.  A peer review can result in the revocation, suspension, or restriction of a physician’s hospital credentials and thus has the potential to seriously disrupt a physician’s medical practice, often bringing with it a cascade of legal consequences that can be devastating to a health professional’s practice and reputation.  The broad categories that most peer review issues fall into include Clinical Competence, Physical and/or Mental Impairment, and Disruptive Behavior.

If you are a physician facing the prospect of a peer review due to any of the issues referenced above, the earlier you seek help from an experienced healthcare law attorney, familiar with the peer review process, the better you will be able to protect yourself from potentially devastating consequences.

An understanding of the peer review process, and its consequences, is important for any physician faced with the prospect of a peer review.  The peer review process is guided by State and Federal (HCQIA) laws, which are included and expounded upon in an individual facility’s medical staff by-laws and credentialing paperwork.   Sometimes a facility’s by-laws are not so faithful to the State and Federal laws, and sometimes the medical staff will just fail to follow their own bylaws altogether.  It is essential that an affected physician hire an experienced healthcare law attorney to guide them through the peer review process and ensure that they are being afforded due process.

As mentioned above, the consequences for a physician are much broader than whether he will retain his ability to work at a particular hospital.  Many peer review actions result in a report to the National Practitioner Databank (“Databank” or “NPDB”) , a national clearinghouse of information regarding physician misconduct.  An NPDB report stating that a physician was subject to discipline by peers will be reported to the Texas Medical Board (“Board”), and can be the basis for an investigation and disciplinary action by the Board.  The NPDB report will also be available to other hospitals where the physician holds privileges, any facility where the physician applies for privileges, and any insurance networks the physician belongs to.

Below is a short and very general account of the peer review process.

Informal Resolution

Sometimes problematic clinical or behavioral performance by a physician will be addressed early and informally by the hospital through the chief of staff or a departmental chair.  The subject physician may be approached with the alleged performance issue and offered a warning or counseling on the issue.  Sometimes the physician will be asked to complete a performance improvement plan or some type of voluntary remediation.  The biggest consideration when considering even “informal” action is whether it constitutes an action that is reportable to the NPDB.

Complaints of impaired behavior can also be handled informally by the hospital, whether it be an informal resolution that would allow the physician to take a leave of absence and seek treatment, or a requirement for a physician to undergo an evaluation.  Any such agreement should not be entered into without a clear answer on whether it would result in a report to the NPDB.

The level to which an attorney can be directly involved in these informal negotiations can be limited by hospital policy or even by the client’s own defense strategy.  However, even as an advisor or observer of the process, an experienced healthcare law attorney’s preparation, guidance, and counsel can be invaluable in helping to guide the process to the client’s advantage.

When informal disposition is not available, either because the proceeding has advanced beyond that stage, or because the alleged conduct or performance is perceived as too serious, the matter will often proceed to the formal investigation and fair hearing stage.

Investigation

The peer review process takes place in two stages: the investigation and fair hearing.

Investigations are typically initiated by another physician, an ad-hoc committee, or the medical staff’s Medical Executive Committee (“MEC”) after a poor patient outcome, a report of disruptive behavior, a complaint of impairment, or as the cumulative result of several such events.

Depending on the severity of the incident or conduct, the MEC may also decide to immediately and summarily suspend the physician’s privileges.  This usually occurs in situations in which the physician’s care or behavior is alleged to constitute an imminent threat to patient safety.  A suspension of privileges that stays in effect for more than thirty days results in an NPDB report.

At the beginning of an investigation, the MEC should notify the physician in writing of the allegations. If the investigation is related to medical care, the MEC will then send the relevant medical records out for external peer review by medical professionals in the same field as the physician. After these reviews are complete, the MEC or an investigative panel, made up of other physicians, will then interview the physician.

During the hospital’s investigation, the physician’s ability to actively defend against the allegations against him/her is limited.  The physician’s access to medical records is usually restricted by the hospital.  The physician may not be allowed to talk to or cross-examine adverse witnesses.  The hospital will even limit the direct participation of the physician’s lawyer during the investigative process.

When the investigation is concluded, the MEC will consider the evidence and make a recommendation. If the recommendation is to drop the allegations, the peer review ends. Often, however, the MEC may also attempt to modify, suspend, or revoke a physician’s privileges.  If so, the MEC must timely notify the physician in writing of the reasons for its recommendation and inform the physician of his or her right to request a fair hearing.  In Texas, physicians also have the right to attempt to mediate the dispute with the MEC and hospital. If  the physician decides to just resign his/her privileges during the ongoing investigation, it will result in a NPDB report.

Fair Hearing

If the physician does not agree to the MEC’s recommendation, they may request a fair hearing.  A fair hearing is usually conducted at the hospital before a panel of physicians who are on medical staff.  The panel should not include any physicians who are in direct economic competition with the physician.

The parties will appoint a fair hearing officer to oversee the hearing.  The hearing officer’s role is to resolve disputes between the physician and the hospital regarding the admissibility of evidence and hearing procedure. A hearing officer should also ensure that the hearing is conducted in compliance with provisions of the Federal Health Care Quality Improvement Act (“HCQIA”). The HCQIA requires that the hospital provide a physician certain due process rights, and a failure on the hospital’s part to provide these rights could result in the hospital and MEC losing its statutorily granted immunity from certain types of lawsuits.

These due process rights include:

  • Allowing representation by an attorney or other person of the physician’s choice;
  • Having a record made of the proceedings;
  • Permitting the physician to call, examine, and cross-examine witnesses;
  • Giving the physician the opportunity to present evidence determined to be relevant by the hearing officer, regardless of admissibility in a court of law; and
  • Allowing the physician to submit a statement at the close of the hearing

In addition, the medical staff bylaws or state law may provide other procedural rights for the physician, such as limited discovery. After the hearing, the panel will provide its recommendation to the MEC, who can either uphold or modify the panel’s recommendation. If after the fair hearing the MEC decides to proceed with a recommendation adverse to the physician’s privileges, medical staff bylaws usually allow the physician to appeal the MEC’s decision to the hospital’s governing board. It is only after the governing board upholds the recommendation that the adverse action becomes final and a Databank report containing the MEC’s recommendation is generated.

Contact a Hospital Peer Review Attorney

The peer review process is a nuanced and sometimes very contentious process, and the results of a peer review can severely and adversely affect a physician’s ability to practice.  It is important that a physician involved in the peer review process retain experienced legal counsel with knowledge of both state and federal peer review laws. Even during the early investigative phase, an attorney is able to assist the physician in his interactions with the hospital, with an eye toward a subsequent fair hearing or law suit.  An attorney can also be necessary to ensure that the hospital conducts the process in accordance with state and federal laws, and to preserve evidence of any illegal motives behind the peer review.

The consequences of an adverse action on a physician’s privileges will follow a physician around for years, regardless of where he or she practices.  If your privileges have been temporarily suspended by a hospital, or you are under investigation, it is imperative that you contact an experienced health care law attorney immediately.