A
GUIDE
TO PHYSICIAN DISCIPLINARY HEARINGS
(Continued)
by Brock Phillips
Presentation
of the MEC's Case
Once opening statements are concluded, the Medical Executive Committee
("MEC") will commence the presentation of its case. It will call witnesses to
testify, and present relevant documents to support the recommendation of discipline.
During this process, the physician is entitled to question (cross-examine) the MEC's
witnesses after they have completed their remarks. The cross- examination of MEC witnesses
should generally be done by the physician's attorney or assisting colleague. This provides
a helpful psychological buffer between the defendant physician and the accusers.
It is also common for members of the judicial review committee to question the witnesses.
The defendant physician should pay close attention to their questioning as it often
provides insight into the thinking and inclinations of the committee.
Once all of the MEC's witnesses have testified, and the MEC has offered any documents it
wishes to submit, the presentation of the MEC's case is concluded. It will then be the
defendant physician's turn to present his or her case.
Presentation of the Defendant Physician's Case
As with the MEC, the defendant physician must present his or her case through the
testimony of witnesses and the presentation of relevant documents. Naturally, the
witnesses called and evidence offered will vary from case to case, depending on the
allegations.
In any but the most extraordinary case, the defendant physician should testify. The
defendant's testimony will likely be critical to the outcome of the hearing. Not only the
substance of the testimony is important, but how the defendant physician appears and
behaves can greatly help or harm the defense. For example, does the defendant physician
appear composed and thoughtful, or defensive and aggravated. Is he or she willing to
acknowledge genuine problems; does he have sound reasons for disputing questionable
criticisms? The defendant physician must plan and prepare this testimony with the greatest
of care.
The testimony of others
appearing on behalf of the defendant physician should also be carefully considered and
prepared. The physician and his or her attorney (or assistant) should meet with all
defense witnesses before the hearing to be certain they understand the issues and can
speak effectively and convincingly.
During the presentation of the
physician's case, his or her witnesses must be prepared for cross-examination by the
representative of the MEC, and for questioning by members of the committee. Again, it is
particularly important to adequately address any questions from committee members.
Once the defendant physician and supporting witnesses have testified, and any articles or
other documents which the physician wishes the committee to consider have been offered,
the physician will be finished with the presentation of the case.
Closing Statements
At the conclusion of the evidence, the hearing officer will offer each side an
opportunity to make any closing remarks. By custom, the MEC goes first, as it did with the
presentation of evidence, then the defendant physician speaks. This is the physician's
final opportunity to convince the committee members that he or she does not deserve the
discipline proposed. The closing remarks may be made by the defendant physician's counsel
or assistant, but often it is most effective if the physician speaks directly to the
committee at this time.
As part of the closing remarks, the defendant physician should underscore that if
discipline is imposed, it will have a significant and harmful impact on his or her
standing as a physician. It will be reported both to the National Practitioner Databank
and the state licensing board. It may trigger an investigation by the state which could
lead to limitations being imposed on the defendant's license, or even its revocation. It
will put a cloud on the physician's record which will have to be explained on every
occasion in which he or she seeks new or renewed hospital privileges. The committee
members should be urged that, given the severe consequences of the proposed discipline,
they must have a high degree of certainty the discipline is warranted before they approve
it.
Once the closing statements are
made, the hearing is adjourned and the committee will retire to deliberate. If a hearing
officer was appointed, he or she may attend the deliberations at the request of the
committee, but may not vote. When the committee reaches a decision, it will prepare a
written opinion explaining its ruling and the basis for that finding. If the decision of
the Judicial Review Committee is adverse to the physician, he or she may appeal to the
hospital's governing board, but such appeals rarely overturn the committee decision.
Success at a disciplinary hearing requires good advice and very hard work. The wise
physician faced with a judicial review committee hearing seeks counsel and prepares
thoroughly to present the best possible defense. These efforts will minimize the risk that
discipline will be imposed without a proper reason or purpose.
Copyright © 1993 by Brock D.
Phillips
Article may not be reproduced without permission of the author.
