A
GUIDE TO PHYSICIAN DISCIPLINARY HEARINGS
by Brock Phillips
Hospital
disciplinary hearings are becoming more and more common as hospitals and medical staffs
respond to increasing pressure to identify and solve quality of care problems. Hearings
may also be triggered by unfair charges prompted by economic competition, personality
clashes or other improper motives. In this climate, physicians who have never encountered
credentialing difficulties of any kind may find themselves the target of a peer review
inquiry, culminating in a hearing before a judicial review committee. The purpose of this
article is to provide practical advice on how these hearings work, and how best to present
a defense at such a hearing.
Initial Investigation
Hospital disciplinary concerns are usually first investigated at the departmental
level. If the department recommends discipline, the matter will be referred to the medical
executive committee ("MEC") for further investigation and recommendation. During
this process, the physician whose care is in question will usually have a number of
informal meetings with investigative committees.
If the MEC agrees discipline is appropriate, it will send a letter to the physician
informing of the recommended discipline and explaining the right to a judicial review
committee hearing. This letter usually includes a deadline for the physician to notify the
MEC if he or she wishes a hearing. Depending on the facts in dispute and the nature of the
recommended discipline, the defendant physician may wish to pursue the right to a hearing.
Assistance of an Attorney is Vital
The first step a physician must consider when facing discipline is whether to be
represented by counsel. It is a serious mistake not to seek the assistance of an attorney
as soon as written notice of recommended discipline is received from the MEC. This is true
for several reasons.
First, under a relatively new law (Business and Professions Code ßß 809 et seq.)
physicians are entitled to numerous procedural safeguards, including access to all
relevant evidence and the right to question hearing panel members for bias. However, only
an attorney with experience in medical staff affairs can best advise the physician of
appropriate decisions and actions to ensure these rights are effectively exercised.
Second, by training and experience, physicians are not prepared to represent themselves at
adversarial hearings of this type. In addition to the disadvantage caused by lack of
experience in such proceedings, the defendant physician will likely find his or her
judgment and objectivity impaired at the hearing by the very personal nature of the
allegations, and the emotions evoked when accused of professional shortcomings by peers.
Attorneys experienced in health care matters are trained to function in this setting; they
understand the law as well as the process, and can present the facts and issues in the
light most favorable to the defendant physician.
The
third reason to get counsel is that the consequences of an adverse result at the hearing
can be so severe. Any reduction or loss of privileges for quality of care reasons will be
reported both to the National Practitioner Data Bank and the Medical Board of California.
Such actions can trigger an investigation by the State into the status of a physician's
license, and can create difficulties whenever the physician seeks new or renewed
privileges at any other hospital, or pass through the credentialing process with third
party payors. Physicians who approach such hearings casually and without the best possible
advice are gambling, not just with their privileges at the facility conducting the
hearing, but with their privileges everywhere, as well as with their license.
Whether the
defendant physician will be permitted to have an attorney present at the hearing will
depend on the medical staff bylaws. State law does not require hospitals to permit
physicians to be represented by counsel at disciplinary hearings, and there is
considerable variation in bylaws on this issue. Law does require that if the physician is
not permitted to be represented by an attorney at the hearing, then the medical staff may
not be represented by counsel at the hearing either.
Even when counsel will not be permitted to attend the hearing, the defendant physician
should always seek the assistance of an attorney. This is especially important given that
the medical staff virtually always uses hospital counsel to prepare for the hearing.
Physicians who do not seek the assistance of an attorney before the hearing will be at a
profound disadvantage throughout the proceedings.
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