MEDICAL STAFF HEARINGS 10 TOUGH ISSUES (REVISITED)

Speaker: Joseph A. Bubba, Esquire Fitzpatrick Lentz & Bubba, P.C. 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034 Phone: (610) 797-9000 Fax: (610) 797-6663 www.flblaw.com
We request that you do not modify, copy, distribute or reproduce any parts of these presentations for business use without the expressed written consent of Fitzpatrick Lentz & Bubba, P.C. If you have any questions about the content, please call us at 610-797-9000. Thank you.

NOTICE: Fitzpatrick Lentz & Bubba, P.C. presents this material as general information only. It does not constitute legal advice as to any particular situation; nor does your ability to access it create an attorneyclient relationship with this firm. If you have a specific legal issue which you would like addressed, please contact one of our attorneys directly.

TEN TOUGH QUESTIONS

The physicians hurdle How tough does it get? How important are the Notice and Hearing requirements of HCQIA? III. What type of procedural defects can doom the Hearing? IV. Is Discovery permitted/required? V. Can an argument be made that there is a requirement for a Hospital to provide Exculpatory Evidence? VI. Who can/should serve on the Hearing Panel? VII. What is the role of the Hearing Officer? VIII. Does a physician have an absolute right to cross-examine witnesses? IX. How the Whistleblower defense can impact the disruptive physician case? X. How to properly submit a Data Bank Report? I. II.

2/3

For purposes of the protection set forth in Section 11111(a) of this title, a professional review action must be taken1. In the reasonable belief that the action was in the furtherance of quality health care, 2. After a reasonable effort to obtain the facts of the matter, 3. After adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and 4. In the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

4/4

Question #2
How important are the Notice and Hearing requirements of HCQIA?

5/8

Practical Tips!
Provide Notice of the adverse recommendation. Identify the specific reason(s) for restricting or denying staff privileges. Provide Notice of the fair hearing. Satisfy the hearing requirements noted above. From the physicians perspective, any deviation from the detailed requirements set out in the bylaws and HCQIA should be documented.

6/9

Question #6
Who can/should serve on the Hearing Panel?

7/16

Practical Tips!
The hospital should choose panel members in light of all relevant circumstances and relationships. The physician should attempt to disclose any potentially compromised relationship between the physician and any panel members that could taint the proceeding from a due process perspective.

8/17

Question #1
The Physicians Hurdle How tough does it get?

9/6

Practical Tips!
Identify the specific reason(s) for restricting or denying staff privileges. Cite as many reasonable grounds for denial and reference relevant medical records. Follow the bylaws. Follow HCQIA notice and hearing requirements.

10/7

Question #3
What type of procedural defects can doom the Hearing?

11/10

Practical Tips!
If you represent the physician, do not argue strict compliance. Find the most significant procedural flaw. Highlight that flaw; and argue that it is the type of material flaw which the courts have determined to be fatal to the fair hearing process. From the hospitals perspective, just keep emphasizing the fact that the peer review process is still underway. Do not shy away from or deny obvious defects in the pre-hearing process.

12/11

For purposes of the protection set forth in Section 11111(a) of this title, a professional review action must be taken1. In the reasonable belief that the action was in the furtherance of quality health care, 2. After a reasonable effort to obtain the facts of the matter, 3. After adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and 4. In the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

13/4

2. After a reasonable effort to obtain the facts of the matter.

14/5

Question #4
Is Discovery permitted/required?

15/12

Practical Tips!
The hospital (on its own) should deliver all documentation relating to the proposed action (procedural and substantive) to the physician very early in the process. Deliver a complete set of minutes, letters and documents reflecting the procedural history. Deliver all back-up and support for the action (morbidity and mortality records, outside reviews, committee reports, etc.). Eliminate and redact information relating to other physicians. Deliver everything - even the "smoking guns.

16/13

Question #8
Does a physician have an absolute right to cross-examine witnesses?

17/20

Practical Tips!
The hospital should provide an opportunity to cross-examine key witnesses in its case against the physician. Physicians should focus on the primary complaints and argue a lack of substantive due process and a violation of HCQIAs reasonable effort standard if individuals who lodged complaints are not available for crossexamination.

18/21

Question #5
Can an argument be made that there is a requirement for a Hospital to provide Exculpatory Evidence?

19/14

Practical Tips!
Provide significant exculpatory evidence material evidence which could have an impact on the peer review process. Allow hospital witnesses to explain the damaging evidence during direct examination. From the physicians perspective, latch on to any perceived failure by the hospital.

20/15

It is reasonable for a jury to conclude that Dr. Riccardis Report, which is favorable to Dr. Wilkey, was purposefully not disclosed to Dr. Wilkey and the various reviewing bodies Whether the failure to consider and disclose Dr. Riccardis report is a reasonable effort to obtain the facts of the matter is a question of fact for a jury to determine.

Keith D. Wilkey v.The McCullough-Hyde Memorial Hospital, 2007 WL 3047234

21/26

Question #7
What is the role of the Hearing Officer?

22/18

Practical Tips!
Use an outside, independent attorney to act as a hearing officer. Schedule a pre-hearing conference and review discovery items with counsel. Ask for offers of proof and rule on discovery requests at that time. Modify the bylaws and fair hearing plan to outline the role and powers of the hearing officer. Do not allow the hearing officer to usurp the role of the panel.

23/19

Question #9
How the Whistleblower defense can impact the disruptive physician case?

24/22

Practical Tips!
Do not allow patients to testify. Remember the offer of proof rule on discovery. Do not allow physician to seek or introduce any information regarding his/her competency or skills if they are not the issue. Evaluate the facts fairly. Examine the physicians conduct in light of the concerns. Remember, even physicians with legitimate complaints do not have the right to act in an unprofessional manner. From physicians perspective, if you truly have a whistleblower, focus on the legitimacy of the complaints and the favorable whistleblower cases.

25/23

Question #10
How to properly submit a Data Bank Report and avoid litigation?

26/24

Practical Tips!
The safest course of action - reach a negotiated report. Where a negotiated report is not possible: Carefully select an AAC code that will not be construed as false. Select a BFA code that is not inflammatory and that will not serve as a basis for a defamation claim. Draft a Narrative Description that is general enough that it does not provide a basis for a defamation claim.

27/25

Conclusion

28/26

10