An Overview of the Physician Peer Review Process and the Importance of Legal Counsel

 

A hospital peer review has the potential to seriously disrupt a physician’s medical practice, often bringing with it a cascade of legal consequences that can devastate a health professional's practice and reputation. If you are a physician facing the prospect of a peer review due to allegations of unprofessional behavior or a standard of care complaint, the earlier you seek help from an experienced healthcare law attorney familiar with the peer review process, the better positioned you will be to protect yourself against these consequences.

An understanding of the process and its possible sequela is important for any physician faced with the prospect of a peer review. There is much more at stake for the physician than whether he or she will retain their ability to work at a particular hospital and many pitfalls which can catch the doctor unawares.

For example, if a physician resigns his privileges during the course of a hospital investigation, the resignation will likely result in a report to the National Practitioner Databank ("Databank" or "NPDB") , a national clearinghouse of information regarding physician misconduct. A report will also be forwarded to the Texas Medical Board which will then open an investigation leading to potential disciplinary action. The NPDB report, and possible Board order, will be visible to other hospitals where the physician holds privileges, and may result in yet further investigations. Any attempt to move on and gain new privileges will require an explanation of the report. Finally, the NPDB report will raise questions with insurance carriers, whom may attempt to remove the physician from their provider network.

The Investigation Stage:

Broadly speaking, the peer review process takes place in two stages: an investigation followed by a fair hearing.  The specifics of this process will be governed by the hospital's medical staff bylaws which outline any right of the physician to participate in the investigation and the procedural details of the subsequent fair hearing.

Investigations are typically initiated by the hospital's Medical Executive Committee ("MEC") following a poor patient outcome or complaints about a physician's behavior or professional conduct. In some instances the hospital administration will also have the authority to open an investigation which will then be passed on to the MEC.

In cases where there is a perceived threat the physician's continued practice would pose an imminent threat to the hospital's patients or staff, the MEC may decide to immediately suspend the physician’s privileges pending further investigation. In addition to the severe damage such a temporary suspension inflicts on a physician's practice and reputation, should such a suspension continue for more than thirty days, the hospital is required to file a report with the NPDB and Medical Board.   

If the MEC proceeds without temporarily suspending the physician's privileges, the formal investigation process will begin and the physician will receive official written notice of the allegations. If the investigation is related to medical care, the MEC will likely send the relevant medical records out for external peer review by medical professionals in the same field as the physician. After these reviews are complete, the MEC or an investigative panel, made up of other physicians, will then interview the physician.

During the hospital’s investigation, the physician’s ability to actively defend against the allegations is usually limited. For example, the physician may be given little to no access to the relevant medical records. Likewise, the physician may not be allowed to speak with staff members who are potential witnesses to the issue under review. Additionally, the hospital will often restrict the participation of the physician's lawyer during the MEC's investigative meeting(s) even though the physician is typically asked to attend and answer questions.

When the investigation is concluded, the MEC will consider the evidence and make a recommendation. If the recommendation is to drop the allegations, the peer review ends. If, however, the MEC decides to modify, suspend, or revoke a physician's privileges, the physician must be timely notified in writing of the proposed action, the reasons for this recommendation, and informed their right to a fair hearing. In Texas, physicians also have the right to attempt to mediate the dispute with the MEC and hospital.

The Fair Hearing Stage:

If the physician does not agree to the MEC’s recommendation, they may request a fair hearing. A fair hearing is usually conducted at the hospital before a panel of physicians who are also on the medical staff. Ideally, the panel should include one or more physicians in the same specialty. The panel should not include any doctor in direct economic competition with the physician being peer reviewed.  

A hearing officer, normally a lawyer, will be appointed to oversee the hearing. The hearing officer's role is to resolve disputes between the physician and the hospital regarding the admissibility of evidence and hearing procedure and advise the hearing panel on other legal issues.  A hearing officer should also ensure that the hearing is conducted in compliance with provisions of the Federal Health Care Quality Improvement Act ("HCQIA"). The HCQIA requires the hospital to provide a physician certain due process rights, and a failure on the hospital’s part to provide these rights could result in the hospital and MEC losing its statutorily granted immunity from certain types of lawsuits.

 

 These due process rights include:

·         Allowing representation by an attorney or other person of the physician's choice;

·         Having a record made of the proceedings;

·         Permitting the physician to call, examine, and cross-examine witnesses;

·         Giving the physician an opportunity to present evidence determined to be relevant by the hearing officer, regardless of admissibility in a court of law; and

·         Allowing the physician to submit a statement at the close of the hearing

The medical staff bylaws may provide other procedural rights for the physician, such as limited discovery.  After the hearing, the panel will provide its recommendation to the MEC, who can either uphold or modify the panel's recommendation. If after the fair hearing the MEC decides to proceed with a recommendation adverse to the physician's privileges, medical staff bylaws usually allow the physician to appeal the MEC’s decision to the hospital's governing board. It is only after the governing board upholds the recommendation that the adverse action becomes final and a Databank report containing the MEC's recommendation is generated.  

Contact a Professional:

It is important that a physician involved in a peer review quickly retain legal counsel with both experience in this process and knowledge of applicable state and federal peer review laws. Even during the preliminary investigative phase, an attorney can guide and assist the physician in his interactions with the hospital, with an eye toward a subsequent fair hearing or law suit. An attorney is also necessary to ensure the hospital conducts the process in accordance with state and federal laws, and preserve evidence of any infringement of the physician's rights or illegal motives behind the peer review. 

Despite being called a fair hearing, this process is anything but. The medical staff bylaws are typically drafted to provide maximum advantage to the hospital and any subsequent lawsuit or appeal claiming the hospital made the wrong decision is unlikely to succeed. Texas courts have consistently held the due process rights which must be provided to a physician are minimal and the hospital's decision will not be second guessed by the judicial system. Peer review is often used as a sword in a political fight involving the medical staff and/or hospital administration with odds stacked against the physician. Even if the physician does not wish to continue practicing at the hospital, it is vital that an exit strategy be crafted protective of the doctor's interests.

The consequences of an adverse action on a physician's privileges will follow the physician for the rest of their career, regardless of where he or she practices.  If you believe you are about to be the subject of a peer review, it is imperative that you contact an experienced health care law attorney immediately.

 

Adverse Peer Review & The Texas Medical Board

Oftentimes a physician staring down a licensing action before the Texas Medical Board faces not one, but two threats to their medical practice. If the doctor depends on privileges to practice at the local hospital, the alleged misconduct that sparked the TMB investigation may also lead to an inquiry by the hospital’s peer review committee. This relationship is a two-way street as under state law a peer review committee must report to the TMB the results and circumstances of any peer review that adversely affects a privileged physician. Such a committee must also report when a physician surrenders their privileges in lieu of subjecting themselves to a peer review. See §§ 160.002 and 164.051(a)(7) of the Texas Medical Practice Act. Upon receipt of this information, the Medical Board will start their own investigation which will very likely lead to a licensing action. This is a complex area of the law dealing with issues related to state medical licensing, privileges, hospital by-laws, and confidentiality to name a few. It readily illustrates the house of cards nature of the legal issues surrounding medical practice: remove one card and the rest can quickly come tumbling down.

The Medical Practice Act generally treats peer review records as strictly confidential and only available after the physician waives privilege, however, the Texas Medical Board, along with other state licensing boards and certain government agencies, is legally entitled to the records of a negative / adverse peer review. § 160.007. Yet, the Act still requires the TMB and the State Office of Administrative Hearings to maintain the strict confidentiality of such records. § 160.006(d).

The peer review process itself is governed by each individual hospital’s set of by-laws, a complicated set of rules setting out the grounds for when a physician’s privileges can be suspended or revoked and outlining the procedures which the committee and hospital must follow. Most by-laws provide that an attorney will be on hand to provide the committee with any needed legal advice. Furthermore, another lawyer may be responsible for presenting the case in favor of restricting, terminating or suspending the physician’s privileges or scope of practice. The physician is also allowed to retain their own attorney to represent their interests before the committee.

Because the peer review committee is generally made up of physicians and administrators from the hospital and local area, one of the dangers of this procedure is that it has the potential of being misused by a disgruntled or opportunistic colleague. A few of the reported cases have included particularly egregious situations where rivals have inappropriately used the review as a platform for an inquisition against every real or perceived past mistake of the doctor. Texas statutory and case law rightly recognizes this danger and provides powerful civil penalties against fraudulent peer review in order to protect the physician. As a result, most hospitals are advised to ensure that all or nearly all of their committee membership consists of non-local physicians who do not compete with the physician under review so as to ensure a disinterested process.

The interplay between the Texas Medical Practice Act and a hospital’s by-laws can be complex. On its own a negative / adverse peer review action can trigger the disciplinary process at the Texas Medical Board while much of the conduct that can beget a peer review can also be grounds for an investigation and disciplinary sanction at the TMB. See § 164.051(a)(7). A negative result under either can be ruinous to a physician. Potential consequences include the loss or restriction of the physician’s state medical license, their privilege to practice at a particular medical institution and the initiation of review procedures by provider networks. The likelihood of a positive outcome is best secured at the hands of an attorney with ample background in each environment who is knowledgeable of the likely impact a given result in one will have on the other.