Every hospital and medical staff will occasionally have to conduct a professional review concerning one of its physicians, and sometimes that review will lead to a hearing. Happily, no hospital does this very often, but, consequently, no hospital does it often enough to be really familiar with the process.
Most of the hearing process should be described in the Medical Staff Bylaws or related document with a name such as Fair Hearing Plan. This should include all time limits, notice instructions, and other details – the recipe for holding the hearing. Behind all that lies a federal law that sets the standards for a fair hearing and protects the people who abide by them.
The federal Health Care Quality Improvement Act, 42 U.S.C. § 11101, et seq., protects medical staff members and hospital administrators who participate in a professional review action involving another physician’s clinical privileges or membership on the hospital medical staff – provided they do it correctly.
In simplest terms, the Act is in two parts. The first describes how a professional review action, which includes a medical staff fair hearing, should be conducted. According to the Act there must be:
- A reasonable effort by the medical staff to get the facts;
- Adequate notice to the physician who is the subject of the hearing;
- Fair, adequate hearing procedures (with due regard to all the circumstances);
- A reasonable belief that the facts known, after adequate notice and a fair hearing, warrant whatever action is taken; and
- A reasonable belief that the action taken furthers quality health care.
Adequate notice means giving the physician:
- Notice that professional review action is proposed;
- Notice of reasons for the proposed action;
- Notice of physician’s right to request a hearing;
- Notice of any deadline for requesting a hearing;
- If hearing is requested, at least 30 days notice of the hearing date; and
- If hearing is requested, a list of witnesses against the physician.
An adequate hearing means giving the physician:
- An impartial arbitrator, hearing officer, or hearing panel (i.e., one that is not in direct economic competition with physician);
- The right to be represented by counsel or another person;
- The right to a transcript of the hearing, at reasonable cost;
- The right to call, examine, and cross-examine witnesses;
- The right to submit evidence, unfettered by the strict rules of evidence; and
- The right to submit a written statement at the end of the hearing.
An adequate hearing also leads to a written recommendation by the arbitrator, hearing officer, or hearing panel and a written decision by the ultimate decision maker. Each writing needs to state the basis for its recommendation or decision. (However, these procedures may be skipped or reduced in the case of a short (14-day) summary suspension or in the case of an emergency.)
The second part of the Act protects the following people from liability for damages, provided the action they have participated in meets the standards summarized above:
- The professional review body itself;
- Any person acting as a member of or as staff to the review body;
- Any person under contract to the body; and
- Any person who participates with or assists the body with respect to the action.
Most of the requirements and standards in the Act are straight-forward. Most can be followed without much trouble. A few do cause problems from time to time. In order to protect the members of the medical staff and the hospital administration, which also participates or assists in the hearing, it is essential to ensure the action bears a reasonable relation to quality health care, not just to business, and certainly not to personal interests. It is equally important that the investigation and hearing procedures follow the law closely.