New York Medical Staff And Hospital Privileges Attorney
Healthcare attorneys with our firm represent physicians in disputes involving hospital privileges and peer reviews, and adverse reports to the National Practitioner Data Bank.
When hospitals grant physicians and other medical staff members hospital privileges, these privileges may not be taken away or limited without due process (in case of public hospitals) or “fair procedures” established hospital by-laws and protocols (in case of private hospitals). Federal and state laws require all hospitals to develop fair procedures for dealing with issues of medical staff privileges.
Under federal law, to qualify for immunity under the Health Care Quality Improvement Act (HCQIA) a hospital must give the physician adequate notice and fair hearing procedures as well as appellate review mechanisms.
HCQIA is the principal federal statute that applies to the issue of medical staff appointments. The statute provides basis principles that define what qualifies as “fair procedure”.
The first such principle is adequate notice. The physician must be notified in writing that an action against him has been proposed as well as the reasons for the action. Also, the notice must state that the doctor has the right to request a hearing and any time limits that may apply, and a summary of his rights in the hearing.
The notice can’t be vague; it should specify the issues at hand so that the physician is able to adequately respond to them. Therefore, if the hospital’s problem is the physician’s inappropriate behavior, the notice should provide details of what the physician allegedly did. Furthermore, the hospital must define the rules of staff conduct so that it is clear what is and is not appropriate.
Notice must also give the physician enough time to prepare for the hearing. Under HCQIA, this means at least thirty days from receipt of notice to request a hearing. The hearing itself should be held no less than thirty days from the notice of hearing.
Preparation for the Hearing
The hospital should provide the physician with supporting evidence for their position. This usually includes documentation, medical records, and witnesses’ statements. If the hospital fails to disclose adequate information in a way that give the physician ample opportunity to respond, the physician should at least be permitted to see the medical records of patients whose care is in question. If the physician does not have the opportunity to review these documents prior to the hearing, the hospital must provide the documents at the hearing and the physician should request an adjournment to allow more time to review the documents. Also, under HCQIA, the hospital must give the physician the list of all witnesses expected to testify at the hearing.
Some cases involving adverse action do not result in a full hearing and the matter may be resolved on written submissions. However, in many cases, especially where the adverse action is serious, the physicians may and do exercise their right to a hearing by a hospital hearing committee. The hearing committee is made up of three to five impartial physicians who are members of the same hospital’s staff. Impartiality sometimes may be difficult to guarantee and is often a matter of contention. However, at the very least, the physicians of the hearing committee should not have participated in the initial case review which led to the decision to conduct the hearing.
After the hearing, the committee members will decide whether there are sufficient grounds to uphold an adverse action and will make the appropriate recommendation to the medial board.
At the hearing the physician must have the opportunity to present evidence in support of his position and to hear and challenge the evidence presented against him. The hearing committee has considerable latitude in deciding how the presentation of evidence should proceed as long as the process is fair as these issues greatly depend on particular hospital policies.
Some hospitals adopted hearing procedures that seriously limit the physician’s rights during the hearing. The more restrictive the policy is, the more likely it is to be overruled by court if the physician decides to sue.
Most hospitals, however, do allow physicians the following rights:
- The right to be represented by an attorney;
- The right to have a record of the hearing;
- The right to call, examine and cross-examine witnesses;
- The right to present relevant evidence;
- The right to make a stamen at the end of the hearing;
- The right to receive the written recommendation and the hospital decision.
These rights may vary from hospital to hospital, especially the right to cross-examine witnesses, however, many courts will not uphold exceedingly restrictive procedures.
A physician who is dissatisfied with the outcome of the hearing may have the right to appeal the decision, such right depending on the hospital rules. In most cases these appeals are directed to an appellate review committee of the hospital in writing within the time period specified by hospital bylaws. The appellate review committee members should be impartial; it should not have any members who would personal and economic reasons to be biased against the physician. The appellate review committee will review written submissions and will make a recommendation to the full governing body, which in turn will decide on the action to be taken.
What If The New York Physician is Not Satisfied With The Final Decision
The next step for a New York physician who is dissatisfied with the decision of the appellate review committee is to escalate the case to the Public Health and Health Planning Council (PHHPC). This is the necessary next step before going to court if the physician wishes to reinstate staff privileges but not if the physician wants to sue the hospital only for money damages or if the suit is based on civil rights violations (in these cases, the physician may bring suit directly to court).
If you are a New York or New Jersey physician facing a intrahospital investigation or adverse action, contact our attorneys today to discuss your options.