Our Partner, Chris Sharp, was a presenter for the American Health Lawyers Association webinar, “Best Practices for Medical Staff Investigations” held on April 26, 2022. Mr. Sharp has devoted a substantial amount of his practice since 1988 to the defense of physicians in hospital medical staff peer review Fair Hearings. His extensive experiences and advocacy for physicians contributed to a lively exploration of topics with opposing views from hospital attorney, John Synowicki of Polsinelli law firm. The Introduction for the presentation follows:
The Healthcare Quality Improvement Act of 1986 (“HCQIA”) provides facilities and individual participants with qualified immunity from liability if they provide the practitioner with the statutory minimums of due process in the Medical Staff Bylaws, and if the action is taken with the reasonable belief that it is necessary to promote quality health care. Those minimums include : (a) Notice of Hearing stating the specific charges against him or her and a list of witnesses who are expected to testify against the Physician; (b) the right to confront and cross-examine the witnesses testifying against him or her; (c) the right to be represented by an attorney; (d)the right to call witnesses and present other evidence in his or her behalf; (e) the right to file a Written Statement after the close of evidence in the case; and (f) the right to have a record made of the proceedings.
The Joint Commission has also promulgated performance standards for Medical Staff Bylaws which expand on some of the HCQIA minimums. MS 01.01.01 Standards 30 -36 and PS 10.01.01 directly involve the peer review hearing process. One important standard under PS 10.01.01 is that the appointed hearing committee have members who are “unbiased” which is designed to eliminate committee members who were personally involved in the patient case(s) under review or in the preliminary processes leading up to the fair hearing. Financial interest is also listed as a bias, and it may be argued that a hospital-employed or contracting physician should be eliminated for his or her financial bias in favor of the hospital’s administration, especially in cases where the administration leadership has demonstrated a bias against the effected practitioner or expressed desire for an adverse outcome against him or her.
The qualified immunity granted by adherence to HCQIA standards is difficult for the affected physician to overcome in a suit against the facility or the participants in the fair hearing process. The cost in terms of time and money to wage a legal battle is a significant barrier to seeking redress for wrongful peer review in the courts for all but the wealthiest of physicians. In addition, physicians who sue hospitals may be stigmatized for life in seeking credentials from another hospital.
Knowing these barriers exist can serve to encourage administrators and Medical Staff leaders in some cases to take extra-hearing measures to ensure that the outcome will be adverse to the Physician. Many of these measures can be taken behind the scenes in private conversations with hearing panel members or MEC members or testifying employed witnesses. Obviously, the physician has no knowledge of these contacts and no means of discovery.
The “fundamental fairness” of the process can be easily subverted, deliberately or unintentionally, by this kind of misconduct, and all the participants must be sensitive to this issue and exercise extreme caution and diligence to insulate the participants and the process from inappropriate influences. The goal of peer review is to produce a decision that is properly based upon the credible evidence admitted in the hearing.
What follows is a more detailed review of some examples of the potential bias-producing actions, as well as suggestions of some Bylaw provisions and/or countermeasures that might effectively protect the process and the physician.
