Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
Every year, thousands of physicians engage in peer review of other physicians. This is done by the physicians as part of their responsibility to the hospital at which they have been granted medical staff privileges. If a physician has exhibited problems (e.g., in quality of care, substance abuse, or disruptive behavior), it is likely that many physicians on the medical staff with that physician will be involved in the peer review process of that physician. This section focuses on protecting those “peer reviewers” (and the hospital for which they are acting as quality control agents). This is necessary because often physicians whose privileges are reduced or revoked file a lawsuit alleging, among other things, antitrust violations, libel or slander, tortious (“wrongful”) interference with business, or breach of contract. Physicians who engaged in the peer review are often named as defendants in those lawsuits.
Mistake 1 Failing to Follow Medical Staff Bylaws
All too often, peer review committees act without having first reread the medical staff bylaws. By acting first, significant damage to the process can occur, which becomes evident only too late (e.g., in a lawsuit). These missteps can be as basic as: (1) failing to give a potentially affected practitioner required notice in advance of a meeting or hearing or (as has actually happened) failing to give the affected practitioner notice in the method prescribed by the medical staff bylaws (e.g., “registered mail, return receipt requested”) and (2) failing to notify an affected practitioner of his or her rights after an adverse action or process.
Action Step Physicians who are members of a peer review committee should always reread the medical staff bylaws before taking any action to ensure that the required steps are followed. Failure to do so could be held to be a breach of contract, at a minimum, and possibly worse.
Mistake 2 Voting on Adverse Actions That Affect a Competitor
Any peer review committee member who is a direct competitor of the physician whose privileges are being reviewed runs a huge risk in participating as a voting member of the committee. Because of committee assignments, a direct competitor may well be on a committee that is preparing to vote on an action that could adversely affect the privileges of a practitioner. For the sake of that committee member competitor, the process, and the hospital, the competitor physician should not only abstain, but also absent himself or herself, from the meeting prior to voting.
It is even more problematic if the competitor physician appears to be the “leader” of the investigation or process. Serving as a witness (such as reviewing a chart or charts and then giving opinions on the quality of care to a committee) should be done only at the direct request of the executive committee of the medical staff or the chair of the department in which both physicians practice.
A recent decision, Patel v. Soriano, et al. (Appellate Division, Superior Court of New Jersey, No. A-4239-01T3), is a good example of what not to do. In that case, the physician, who was a direct economic competitor of the applicant for privileges, solicited comments from copractitioners and apparently misreported the results of interviews.
Action Step Unless they want to end up as a defendant in a lawsuit, physicians should not vote on any action that could adversely affect a direct competitor.
Mistake 3 Failing to Adequately Document the Process
It is not at all uncommon for litigation to occur several years after committee meetings in the peer review process were held. Memories fade, particularly when the review is simply of a chart for a patient whom the reviewer has never seen or met. Concerns raised, or criticisms that were warranted, may be forgotten. Indeed, even which peer reviewer reviewed which patient charts may well be forgotten. Good, specific minutes of the peer review committee meetings will help greatly to alleviate the problems caused by the passage of time. Memories can be refreshed far more easily from well-written committee minutes, which document who did what, and who said what.
Action Step Physicians should make certain that someone, possibly the medical records librarian or the medical staff secretary, takes good notes and transcribes them into accurate minutes, which are then read and approved by the peer review committee. Which physician reviewed what chart (or charts), as well as comments, concerns, or criticisms by identified physicians, should be included in the minutes.
Mistake 4 Failing to Preserve the Files Reviewed
This mistake is related to Mistake 3. If a peer review committee is prepared to take an action that will adversely affect a practitioner’s privileges, the charts that form the basis of the action should be photocopied as of the date of the review and kept segregated. Attempting later to segregate the irrelevant (or later added materials) from a file is difficult and time-consuming, and mistakes may be made. It is better to keep the files, as reviewed, “sacrosanct” from the beginning.
Action Step Immediately after any meeting in which an adverse action is taken, or recommended, an identified person should be charged with: (1) photocopying the entirety of every chart that was reviewed; and (2) segregating them in a secure, identified place.
Mistake 5 Appearing to Have Prejudged the Result
As a member of a peer review committee, it is anticipated that physicians will keep an open mind, weigh the “evidence,” and arrive at a fair result (not unlike what is expected of, and hoped for, from jurors). It may be that a physician who is being reviewed has performed so poorly that a physician on the committee “knows” that an adverse action must be taken. That physician should keep that opinion/conclusion to himself or herself until the entire committee is prepared to discuss and deliberate the issues. Prematurely announcing a “result” makes the process appear to be a rubberstamp.
Action Step Physicians should keep their conclusions to themselves until the entire peer review committee is prepared to, and does, discuss the issues.
Mistake 6 Using Personal Stationery for Peer Review Business
When physicians serve on peer review committees, they are acting as agents for the hospital in monitoring the quality of care. As hospital agents, any written communication (whether to the affected practitioner, to an attorney for the practitioner, or to an outside reviewer) should be on either hospital or medical staff stationery. Nothing should go out in writing in the peer review process on the personal or office stationery of a physician who is a peer reviewer.
Action Step Physicians in the peer review process are acting as agents of the hospital. The correspondence of those agents should reflect that fact by being written on hospital or medical staff stationery only.
Mistake 7 Failing to Recognize and Observe the Limits or Constraints on the Committee
Each member of a peer review committee needs to know what the powers and duties of the committee are. One example of the failure to know the limits of power of the committee was when a medical staff voted to “revoke” the privileges of a practitioner but the medical staff had authority only to recommend revocation to the hospital board. A trial judge ordered the hospital to reinstate a substandard physician because of this “minor” technical error (later reversed). A second example was when the hearing committee in proceeding to revoke a practitioner’s privileges decided to offer “reinstatement, based on practitioner agreeing to psychological testing/counseling” when the practitioner’s mental state was never an issue. The medical executive committee (MEC) chose not to accept the recommendation for reinstatement because the committee had no basis to require psychological testing or counseling. This refusal became the linchpin of antitrust claims that the MEC violated antitrust laws.
Action Step Physicians should be sure that they understand the scope of the committee’s purpose and powers.
Mistake 8 Failing to Grant a Fair Hearing
The federal Health Care Quality Improvement Act of 1986 (HCQIA) provides absolute immunity from damages for any kind of claim if certain criteria are met. One criterion is that, at some point, the affected practitioner must have been given a “fair process.” The act provides a “safe harbor” in which a process is conclusively presumed to be fair if five elements are given to the affected practitioner: (1) a hearing with a record or transcript; (2) the right to an attorney; (3) the right to call witnesses and cross-examine them; (4) notice; and (5) the right to submit written argument after the hearing.
Action Step There are few “sure things” in the law. One is that the peer review process will be held to have been fair if the five elements listed in this mistake are extended to the affected practitioner. Just do it!
Mistake 9 Talking in the Doctors’ Lounge and Losing Immunity
As noted in Mistake 6, physicians act as agents for the hospital when they engage in peer review proceedings. This has two beneficial results. First, the physicians are entitled to immunities granted by laws, such as federal (HCQIA, discussed in Mistake 8) or state immunity statutes as peer reviewers engaged in that process. Second, agents (physicians) cannot conspire with their principal (hospital). But both of these advantages are lost if there is evidence of conduct outside the peer review process. Talking with other medical staff members in the doctors’ lounge or in the 19th hole at the country club can cause the immunities to be lost and can strip the physician of the position as an agent of the hospital. Without that agency, the physician is legally capable of “conspiring” with the hospital and with other physicians. Evidence of a discussion with another physician about a practitioner, outside of the peer review process, and of actions by the physicians to the discussion thereafter, could lead to a submissible case of a “conspiracy” to “get” the affected practitioner.
Action Step Peer review matters are confidential. They should be kept that way. Outside discussions can lead to an inference of an “agreement” or conspiracy.
Mistake 10 Failing to Timely Obtain a Knowledgeable Attorney
The peer review process can be very tricky. Having an experienced lawyer who has handled similar proceedings and has defended lawsuits arising from proceedings is the best insurance. This does not mean hiring the brother-in-law of the medical staff president or the administrator’s next-door neighbor who prepares the board minutes. The problems identified in Mistakes 1 through 9 should persuade any physician not to make Mistake 10 as well.
Action Step Physicians should find a lawyer who has peer review process experience, either from having handled the process or from having successfully defended cases in which the process was challenged or both. Physicians should retain that lawyer before any adverse action is taken or the first time a physician subjected to a peer review process threatens a lawsuit (whichever comes first).
Physicians involved in peer reviewing their colleagues should avoid these 10 mistakes.
George E. Leonard, Esq.
Peer reviewed by:
Thomas G. Kokoruda, Esq.
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