A
GUIDE
TO PHYSICIAN DISCIPLINARY HEARINGS
(Continued)
by Brock Phillips
The attorney
can carefully review the charges and help the physician prepare the best possible defense.
The attorney can brief the physician on the hearing process, outline legal options, assist
in deciding what witnesses and evidence to present, and generally ensure that the
physician is fully prepared for the hearing.
If the accused physician cannot be represented by an attorney at the hearing, the bylaws
will permit a colleague to assist in presenting the defense. In the absence of counsel,
this is highly recommended. An assisting colleague can be invaluable at a disciplinary
hearing. This individual must be willing to invest the time to carefully prepare for and
attend the hearing, which can often involve multiple sessions. This is no small
undertaking, but the assistance can be critical to the defendant physician's success. A
colleague can often ask probing or controversial questions of witnesses or committee
members when it would be awkward or impossible for the defendant physician to pose the
same questions. A colleague will also be more able to maintain control and objectivity
when the defendant may be overwhelmed by emotion in response to the allegations.
Role of the Hearing Officer
The hospital will usually appoint a hearing officer to preside at the hearing.
Typically this is an attorney experienced in such hearings. This individual is not an
advocate for either side, and is charged with ensuring that the hearing complies with the
law, and is as fair as possible. The hearing officer controls the sequence of events at
the hearing, and rules on any disputes which may arise concerning testimony or documents.
If
no hearing officer is appointed, the chairman of the judicial review committee must
undertake the job of hearing officer. As the chairman is almost always a physician lacking
in training or experience with such hearings, this can be a disaster. Such an individual
is almost always unprepared for the responsibilities of hearing officer and will not be
knowledgeable about the due process rights critical to a legal and fair hearing. The
defendant physician should insist the hospital appoint a skilled and experienced hearing
officer if there is any doubt about whether this will be done.
Confidentiality
Disciplinary hearings are confidential and immune from discovery only so long as
attendance is limited to those with a proper purpose. Generally, this consists of the
members of the judicial review committee, the defendant physician and his or her attorney
(or assisting colleague), the attorney or physician presenting the case for the
MEC, the
hearing officer, a member of the administration, and the witnesses. No one else has a
legitimate reason to be present and ought to be barred. If others without an official
purpose are permitted to attend the hearing, the confidentiality may be lost. For this
reason, the hearing officer should excuse anyone who does not have a legitimate reason to
be present at the hearing.
Before the hearing commences, the hearing officer or committee chairman must also decide
whether to permit witnesses to remain in the hearing room while other witnesses testify.
Absent extraordinary circumstances, witnesses should be excused from the room until it is
their turn to testify. This prevents the witnesses from being influenced by the prior
testimony of other witnesses.
Structure of a Hearing
The typical sequence of events in a physician disciplinary hearing is:
1. Voir Dire (questioning) of the members of the judicial
review committee;
2. Opening statements;
3. Medical Executive Committee presents its case;
4. Defendant physician presents his or her case;
5. Closing statements
Voir Dire
Voir dire is the questioning of members of the judicial review committee (the jury) to
verify that they are impartial. The questioning should be done by the defendant
physician's attorney or assistant to minimize the risk that asking these questions might
alienate the committee members. The questions posed should tactfully probe whether the
committee members had any prior involvement in the investigation, and whether they might
be predisposed to decide the matter for or against the physician, for whatever reason.
If the answers of a member of the panel indicate a possible bias, the defendant physician
must decide whether to ask the hearing officer to excuse that member from participating in
the proceedings. This is a tactical decision in which the defendant physician must weigh
many factors, including any personal relationship with the member, the specialty and
expertise of the member, and possible alienation of the rest of the panel for exercising a
challenge. The actual request to excuse the committee member should be made by the
attorney or assisting colleague, to minimize the risk that this action might antagonize
members of the panel.
Opening Statements
Presenting an opening statement is optional. Indeed if the proceeding is not run by an
experienced hearing officer, the defendant physician may not even be offered the
opportunity to make an opening statement. If the opportunity is extended, the statement
should be given by the physician's attorney or assisting colleague. If it is not offered,
the physician should request the opportunity to make an opening statement. Typically this
would follow an opening statement made by the representative of the medical staff.
In general, the opening statement should be a brief summary, outlining how the physician
intends to refute the allegations and demonstrate that the proposed discipline is not
warranted. It should touch upon the highlights of the evidence the physician intends to
present through testimony and documents. In this manner, the opening statement frames the
issues for the committee and illustrates the topics that will be emphasized during the
presentation of the case.
(Continues......)
