April 2003 Bulletin

Protect yourself in credentialing process

Know the rules

By Robert E. Wanerman, JD, MPH

The process of granting and maintaining staff privileges at a hospital can be both an indispensable part of orthopaedic practice as well as a confusing web of medical and legal concepts. Even though hospitals generally have wide discretion in selecting members of the medical staff and maintaining staff privileges, physicians can benefit from learning more about the scope of permissible actions a hospital can take and about fair hearing rights during the credentialing process.

A recent decision by a federal appellate court highlighted several abuses of due process by a public hospital in handling medical staff matters. Although this decision was based on an allegation that a public institution had violated federal civil rights laws, the key points discussed in the decision may be relevant in analyzing medical staff issues at private hospitals as well (Moore v. Gunnison Valley Hospital, et al., No. 01-1501 10th Cir. 2002).

Moore case

The Moore case involved a Colorado physician who joined the medical staff of a county hospital in June 1995. In March 1998, an ad hoc committee of physicians appointed by the hospital’s administrator temporarily suspended his privileges. The specific reasons for the suspension were not explained in detail but involved Dr. Moore’s conduct at another hospital.

Five days later, the hospital’s medical staff terminated the summary suspension, and Dr. Moore was allowed to continue working. Nevertheless, on Dec. 22, 1998, Dr. Moore received two formal admonitions by the medical staff following a decision by another ad hoc review committee. The admonitions were based on the same alleged misconduct that triggered the summary suspension. Dr. Moore was never informed in advance of any investigation or any ad hoc committee. He was not given an opportunity to appeal or challenge the summary suspension or the admonitions.

Due process denied

Dr. Moore brought a civil action against the hospital and its officers under the federal civil rights laws, alleging that a public body had denied him due process. The federal district court rejected the hospital’s allegation that because its peer review process was authorized under the Colorado law governing the state board of medical examiners, the hospital and its officers were by extension a quasi-judicial body and therefore entitled to absolute immunity from lawsuits. In addition, the court was not persuaded that the hospital’s peer review committee had all of the hallmarks of a true judicial body.

On appeal, the United States Court of Appeals for the Tenth Circuit affirmed this decision. The Court of Appeals’ decision turned on six factors that are characteristic of a judicial body that is entitled to a high degree of immunity. Although these factors normally apply to government bodies, they are also important guidelines for physicians to take into account should they face disciplinary actions by public hospitals.

First, is the ability of an individual to harass a peer review committee through litigation outweighed by the potential for an irresponsible peer review committee to harass other members of their profession through meritless investigations and disciplinary proceedings?

Without further explanation, the court found that this factor favored the hospital.

Second, do the hospital’s rules include procedural safeguards that reduce the need for litigation?

As noted above, Dr. Moore alleged that he was not afforded any protections before or after any of the hospital’s actions. Even though the hospital contended that there were review procedures at the state medical board level, and that its actions were justified as emergency measures, it failed to demonstrate the necessity for an abbreviated emergency process.

Third, can the decision-making process be tainted by political influences?

The hospital attempted to argue that its peer review committee was acting as an adjudicatory body, and was entitled to the same immunity from damages as a court. The Court of Appeals was not persuaded by this argument. It explained that in any judicial process, the independence of the adjudicators is an essential prerequisite. However, in this case, the members of the peer review committee all worked at the same hospital as Dr. Moore, and were potential competitors. As a result, this situation did not have the level of independence that is typical among true judicial bodies.

Fourth, does the peer review committee rely on existing precedent to guide it?

Unfortunately, the court was unable to determine whether or not the hospital relied on its own precedents in handling similar situations, or even if the hospital was following precedents set by other hospitals. In the absence of such internal and external precedent, this factor added little to the analysis.

Fifth, does the peer review committee’s procedures provide for any form of adversarial proceeding?

The Court had little trouble concluding that each of the hospital’s actions was entirely non-adversarial. Unlike a true judicial body, Dr. Moore never had advance notice of any investigation or proposed action, and was therefore unable to challenge those actions before they became effective. Even though the hospital attempted to show that there would have been an appeal procedure had it not lifted the temporary suspension, this completely ignored the fact that Dr. Moore had been adversely affected by the summary suspension, and that there was no opportunity to respond to or appeal the two written admonitions.

Sixth, is there a meaningful right of appeal?

Litigation only recourse

Although the hospital cited several sections of its by-laws to show that there was an appeal process, there were no notice or appeal rights available to contest either letters of admonition or summary suspensions that are terminated. Moreover, there was no oversight of these actions by the state medical board. After reviewing the matter, the court found that in this case litigation was Dr. Moore’s only recourse.

The factors discussed in the Moore decision set out a boundary that administrators and peer review committees at public hospitals should not cross lightly. Nevertheless, knowing more about the process in advance can save physicians’ time and trouble should they ever be faced with the potential for disciplinary actions.

Robert E. Wanerman, JD, MPH, is counsel at Reed Smith LLP, Washington, D.C.

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