Medical staff issues: When should a physician call a lawyer?

By Ann Truitt Hunsaker, Attorney

Frequently people ask themselves, "How sick am I and when do I call the physician?" Frequently, physicians find out that by the time they telephone the attorney and ask for legal advice, their legal position has been compromised or badly damaged.

Our experience has found this frequently to be the situation in relation to peer review activities of physicians in the hospital setting. Because physicians think of peer review as an activity in which physician peers review the care given to a patient to determine whether the care meets community standards, it is difficult to think of peer review as a technical legal process. This frequently leads to the misconception that neither the medical staff of the hospital nor the physician whose care is being reviewed need to involve legal counsel.

In fact, because the peer review process is a legal process much more than a scientific or medical process, attorneys should be involved at the outset. The statute passed by Congress, known as the Health Care Quality Improvement Act (HCQIA), was designed to encourage good faith peer review by providing immunity for physicians who conduct peer review and set out standards and protections for physicians whose work is reviewed in the area of due process. The statute, however, was enacted before the National Practitioner's Data Bank became operational. Because disciplinary actions are reportable events, the process and its outcome has become even more important to physicians.

The basic start for the peer review process for physicians is their Code of Professional Responsibility. The Code, section 9.10, provides that medical societies, hospital credentialing, utilization and peer review committees established to scrutinize physicians' professional conduct must balance a physician's right to exercise medical judgment independently with the obligation to do so wisely and temperately. Committees that perform peer review work, whether for a hospital or medical society, are called upon to act ethically and to observe the principles of due process of law.

When HCQIA was initially passed in 1986, Congress drafted the legislation to protect physicians who conduct peer review from allegations of antitrust law violations. Congress did not, however, give physicians who conduct peer review full immunity and unfettered procedures. A physician who is determined to have taken an adverse action against another physician in violation of his or her rights protected by the Civil Rights Act of 1964 is not immune to liability for damages. The courts have ruled that the immunity afforded physicians who conduct peer review is for damages and not for injunctive relief. Further, the immunity would not prevent the government from determining that the hospital medical staff failed to provide appropriate peer review under HCQIA and, for example, through a survey and certification by the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO), determine a deficiency of meeting the requirements in a particular peer review activity or hospital medical staff bylaws.

In order to invoke HCQIA's provisions for conditional immunity, the professional review action must have been undertaken (1) in the reasonable belief that if furthered the quality of health care; (2) after a reasonable effort to obtain the facts of the matter has been made; (3) after procedural due process protections; and (4) in the reasonable belief that after having conducted a reasonable investigation and satisfying the due process concerns, the facts warranted taking such action against the physician.

Many hospitals, medical staffs and medical societies do not follow HCQIA's explicit requirements regarding procedural due process. Even though HCQIA provides that a professional review body's failure to meet the conditions of any provision of the procedural requirements does not negate the immunity protection, many courts are beginning to review more closely whether the failure to meet the specific requirements provide a physician with sufficient due process protection.

HCQIA requires that adequate notice be given. Specifically, the notice must provide the proposed action to be taken, the reasons for the proposed action, that the physician has a right to request a hearing on the proposed action, the time limit (but not less than 30 days) in which the hearing has to be requested, and a summary of the physician's rights during the conduct of the hearing.

If the hearing is requested by the physician on a timely basis, the physician must be given notice of the hearing which includes the place, time and date of the hearing (which cannot be less than 30 days after the date of this notice), and a list of witnesses expected to testify on behalf of the peer review body.

The hearing is required to be held before an arbitrator mutually acceptable to the physician and the health care entity, a hearing officer who is appointed by the entity and does not have direct economic competition with the physician involved, or before a panel of individuals who are appointed by the entity and who are not in direct economic competition with the physician. The physician's rights are as follows:

1. To be represented by an attorney or other person of his or her choice.
2. To have a record made of the proceedings, copies of which may be obtained by the physician.
3. To call, examine and cross-examine witnesses.
4. To present evidence determined to be relevant by the hearing officer.
5. To submit a written statement at the close of the hearing.

Upon completion of the hearing, the physician has the right to receive the written recommendation of the arbitrator, officer or panel, including the basis for the recommendations, and to receive a written decision of the health care entity or medical society, including a statement of the basis for the decision.

In this day of economic credentialing where reports of adverse peer review action will be reported to medical licensure boards, managed care organizations and the National Practitioner Data Bank, it is important for physicians to pay attention to the HCQIA requirements and call their legal counsel before taking any steps, including attempts to discuss a settlement with the hospital or medical staff.

For more information about when physicians should obtain legal representation, contact McBrayer, McGinnis, Leslie & Kirkland at (859) 231-8780.

volume 4, number 1
Summer 2001