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Posted on Friday, September 29^th 2006

Goldberg Law Group services include Illinois medical staff discipline and Illinois medical staff privileges attorney consultation.

Disciplining or reducing a physician's privileges can be a time consuming and costly undertaking for both the affected physician who must defend against the proposed discipline or reduction and the health care entity. This is particularly the case if the proposed Illinois medical staff discipline is of the type that must be reported to the National Practitioner's Data Bank, which will certainly result in a demand for a hearing from the physician, and may result in a lawsuit for legal or equitable relief if the physician is unsuccessful at the hearing. To avoid civil liability for peer review actions, administrators must insure that the physicians conducting the peer reviews at their health care entities follow the corrective action and fair hearing provisions of their medical staff bylaws and adhere to the applicable state statutes regarding hospital peer review as well as the Health Care Quality Improvement Act (HCQA)50. If a health care entity follows the guidelines for professional review of physicians set forth in the Health Care Quality Improvement Act, it can avoid civil damages under any law of the United States or of any State with respect to the action.

Likewise, physicians whose privileges are subject to discipline should look to their bylaws, state law and the Health Care Quality Improvement Act insure that their rights are safeguarded. Given today's litigious climate, both physicians and health care entities should pay for an ounce of legal protection and consult with an attorney as soon as it becomes apparent that Illinois medical staff discipline will be recommended to avoid payment of the "bill by the hour" pound of cure. This article will highlight the critical provisions of the HCQA that must be considered by physicians and health care entities in conjunction with disciplinary actions.

Why did Congress enact the Health Care Quality Improvement Act?

In 1986 the U.S. Congress came to the conclusion that the increased occurrence of medical malpractice coupled with the need to restrict the ability of incompetent physicians to move from state to state without disclosure or discovery of the physician's previous damaging or incompetent performance could be remedied through effective professional peer review. Anticipating that the threat of private money damage liability under Federal laws, including treble damage liability under Federal antitrust law, would discourage physicians from participating in effective professional peer review, Congress determined that they would provide an incentive and protection for physicians engaging in effective professional peer review and enacted the HCQA.52

When is a Professional Review Action Covered by Health Care Quality Improvement Act Immunity?

In order to fall under the protection set forth in the HCQA, a health care entity's professional review action must be taken in furtherance of quality health care and with the reasonable belief that the action was warranted, after a reasonable effort to obtain the facts of the matter. Also, the affected physician must receive adequate and prompt notice of the reason(s) for the proposed action and be informed of the procedures that will be afforded at the hearing. Otherwise the HCQA immunity will not apply to the health care entity.

What Constitutes Adequate Notice and a Fair Hearing?

To avoid civil liability, the health care entity must give the physician to be disciplined adequate notice and a fair hearing. First, the physician must be notified that there is a problem, which is accomplished by sending the physician a letter, or notice of the action. According to the HCQA, the physician must be informed that a professional review action has been proposed, and the notice must list the reasons for the proposed action and inform the physician that the he or she has the right to request a hearing on the proposed action in not less than 30 days after receiving the notice. Also the notice must contain a summary of the physicians' rights during the hearing as set forth in the health care entities' bylaws and rules and regulations.53 At a minimum, the notice must identify the medical charts and or x-ray film at issue any specify the improper action or omission and identify any department or section rules and regulations that the physician is alleged to have violated.

The affected physician must request a hearing within the stipulated time period often 30 days, then the health care entity must send the physician a second notice relating to the logistics of the hearing. For example the notice must state the place, time, and date, of the hearing, giving the physician at least 30 days to prepare. Also included should be a list of the witnesses (if any) expected to testify at the hearing on behalf of the professional review body and the identity of the hearing officer or panel. The HCQA allows a hearing to be held before an arbitrator mutually acceptable to the physician and the health care entity or before a hearing officer or hearing panel appointed by the entity. It is critical that no hearing officer or hearing panel member be in direct economic competition with the physician involved. For example, a physician whose practice either inside our outside the heath care entity competes with the affected physician must not sit as the hearing officer or as a member of the hearing panel. However, quite often it is a competing physician who charges the affected physician with wrong doing, and it does not violate the HCQA to allow the competing physician to present the allegations to the hearing officer or panel. If the physician fails to appear, absent good cause i.e. illness or unavailability of witnesses or legal counsel, the right to the hearing may be forfeited.

During the hearing the affected physician has the right to representation by an attorney or other person of the physician's choice. However, there is no consensus as to the extent of the attorney's involvement. A physician must consult the medical staff bylaws to determine the extent of the attorney's participation in the hearing. A record must be made of the proceedings, copies of which must be made available to the physician upon payment of any reasonable charges or fees. The physician shall be able to call, examine, and cross-examine witnesses, and to present evidence determined to be relevant by the hearing officer. The rules of law need not apply to the admissibility of evidence or to any other hearing procedures. At the close of the hearing, the physician may submit a written statement in support of his or her position and is entitled to receive the written recommendation of the arbitrator, officer, or panel, which includes a statement of the basis for the recommendation. Also, the physician should receive a final written decision of the health care entity54, including a statement of the basis for the decision. Notwithstanding the above rights, a health care entity may issue an immediate suspension or restriction of clinical privileges, subject to subsequent notice and hearing or other adequate procedures, where the failure to take such an action may result in an immediate danger to the health of any individual. This action is commonly referred to as a summary suspension of the physician's privileges.

When Must A Professional Review Action Be Reported To The National Practitioner's Data Bank and What Must be Reported?

A health care entity must report a professional review action that adversely affects a physician's Illinois medical staff privileges for a period longer than 30 days or if the health care entity accepts the surrender of clinical privileges of a physician being investigated by the entity, relating to possible incompetence or improper professional conduct. In other words a report cannot be avoided by a physician who suddenly leaves the health care entity in the middle of an investigation. The health care entity must report the name of the physician or practitioner involved and a description of the acts or omissions or other reasons for the action or surrender of Illinois medical staff privileges. If it is determined that the health care entity has failed to report information in accordance with the Health Care Quality Improvement Act, and the health care entity fails to correct the omission, and the Secretary of Health and Human Services finds that the health care entity failed to report information in accordance with the Act, the Secretary shall publish the name of the entity in the Federal Register, and the protections of subsection of the Health Care Quality Improvement Act shall not apply to an the health care entity the with respect to professional review actions commenced during the 3-year period beginning 30 days after the date of publication of the name.

Conclusion

In an effort to encourage good faith professional review of physicians, the Health Care Quality Improvement Act provides health care entities and peer review committees with immunity from civil damages, excluding civil rights laws. However, to qualify for such immunity, the health care entity must provide certain basic rights with regard to notice about the alleged punishable conduct and the actual hearing to determine the propriety of the proposed discipline. A health care entity must report the result of the professional review action or face losing the protection of the immunity offered by the Health Care Quality Improvement Act.