What to do in case of a hospital investigation against a physician?

What to do in case of a Hospital Investigation against a Physician?

Having hospital medical staff privileges is literally a  privilege, and it is the right to a financial revenue $stream arising from those privileges$.  Often a physician who is in conflict with the existing powers that be is made the subject of a hospital investigation.  This is not uncommon.  The investigation could lead to results that range from having no impact on the physician's career, to the physician's privileges being suspended or curtailed or even taken away, and other negative adverse action being taken against the physician that are reportable to the state's department of health and the National Provider Data Bank (NPDB); rendering the physician almost unemployable.  If a medical staff physician receives such a letter or even a written email, it should not be taken lightly, for the medical staff physician does not know what that means other than the obvious, that it is a "documented" inquiry.  This inquiry is usually very different than the periodic analytical assessments of departmental statistics, for that there is usually no letter issued to a physician when there are no medical staff issues of competence or conduct to report.  The medical staff inquiries can be referred to as many things. Hence any "review", "inquiry", "request", "investigation" that is propounded by the hospital leadership should not be taken lightly by the physician. A medical staff or a department "review/peer review" can lead to an "inquiry", which can lead to a "request", and that can lead to an "investigation" and that can lead to a disciplinary "hearing"; or it can simply go from nothing straight to a "notice of hearing". There is no particular order that such investigations must follow.  

The investigation can lead to a medical staff physician being considered either: (i) not performing up to the hospitals standard, or (ii) declared a disruptive physician, or (iii) or both i and ii, (iv) neither, (v) the physician being blamed for any number of negative events or occurrences in the department or the hospital.  Much of this is obviously a very subjective measure of someone's competence, professionalism and character. Hence, Hospital Investigations and specific performance evaluations or raising of behavioral issues are problematic especially for the physician.   

Through the investigation, the power differential between the hospital and the physicians is very lopsided. The Hospital is usually backed by a medical think tank consisting of a: a multi-faceted leadership team, a multi-physician oversight group, allied staff which provides all the support the administration or the physicians team asks for, and they have legal support that is enormous compared to what most physicians can afford. It becomes extremely critical for a medical staff physician to proceed cautiously, to protect their reputation and their license, and their current and future livelihood.  Our firm is typically on the side of the individual physicians, looking to help the physician understand the objective nature of the investigation, feel the tempo of the politics in the hospital administration, assist in analyzing the underlying facts, and coming up with options and helping physicians strategize their way out of out of the problem.     

Navigating Physician Privileges concerns is quite tricky, and not a well understood area of knowledge and its practice varies from hospital to hospital, even within the same hospital system, and practitioner to practitioner.  If you are not ready to retain an attorney and just wish to get some legal input, you may consider making a short engagement to discuss the specifics of your situation with a Physician's Attorney, for a prepaid non-refundable legal fee of $1,475.  

What is a Sham Peer Review?

 A sham peer review is intended to create the perfect set of circumstances of removing a disruptive physician from the medical staff.  A sham peer review is when the medical peer review process is abused to attack a doctor for personal or other non-medical reason(s).  A sham peer review often starts with an unwarranted chart review, to secretly collecting and compiling data, and soliciting others for additional documentation and support.  

Here are the Steps to take when undergoing a hospital investigation:

1. Understand Where you are in the Process - at what Phase: 

Generally there is a three phase process that starts from the Hospital Leadership trying to understand the facts to finding a verifiable deficiency or problem, to taking collegial measures to try to fix the issue, to taking serious adverse disciplinary actions.  So, as a medical staff professional, you have to understand what phase you are in: 

First Phase - Investigation/Inquiry - you have to assess what started the investigation, and why? did the hospital gather all the facts it needs? did the hospital leadership interview the person/physician who is the subject of the issues that they need to fix?  Can that matter be considered a matter of competency or a ethics violation for the medical staff physician? if the issues can be stretched and framed in the context of "lack of competency" or "lack of , the medical staff professional needs to be very very cautious.   Once the data is gathered, everyone has answered, then comes the formal meeting with the actual physician and the conclusion of the Medical Staff Review Committee or the Medical Staff Investigations Committee. 

Second Phase - Informal Measures - Once the medical staff peer review or the investigation is complete, then the conclusion of the review or investigation is presented by the investigating committee to the Medical Executive Committee (MEC). The MEC then has to determine if the issue should be dropped, or the physician needs to be coached, educated, or reprimanded for it.  If in any way the MEC decides that the Physician's right to maintain his or her privileges is at issue then it becomes an adverse proceeding.  

Third Phase - Adverse Proceedings - If for some reason the Physician is deemed to have committed an act of wrong doing, they will likely be an adverse proceeding instituted against the physician.  If the physician receives a letter stating that "you have the right to a hearing", that is a sure sign that there is a potential adverse action that could be taken against the physician, meaning restriction, suspension or revocation of privileges.  All three of which are reportable to the NPDB.  

2.  Understand the Issue Under Inquiry - Once the investigation begins, it is important to understand the issue being raised.  Can it be considered an issue of competence? Can it be stretched and then be considered an issue of competence?  What side of hospital politics is the physician on? Does the physician help or hurt any other group in the hospital that has something monetary to gain or lose from the physician's actions?  All that is important to assessing the situation and determining the subjective and objective factors working for or against the physician.  You may want to consider getting a medical expert.  Reviewing each and every single underlying document is very important.  Our firm has access to medical experts in this space, if you need them. 

3.  Understand the Hospital Bylaws and Policies -    What is going on and what steps you should take depends on the Hospital Bylaws and the Hospital Policies.  The Hospital Bylaws will refer to the Medical Staff clinical competence criteria, how medical staff applications are processed, to how medical staff is reviewed, investigated and disciplined. It will have language in it that references if the hospital actions taken against a physician can be shared with other hospitals and affiliates (information sharing language) and in the forms. When hospital bylaws and policies are disregarded, it makes both sides an easy target for the other.  Hence the Hospital must not forget to follow its own bylaws; and the medical staff professional must use those bylaws to their advantage to make the hospital adhere to the due process, to understand what lies ahead, and to defend against any adverse actions that can be taken against them.    The Medical Staff Bylaws also state the appointment and reappointment criteria for the Medical Staff; it is a way of understanding of what happens to a physician's status if a renewal comes up while an investigation is pending. The Medical Staff Bylaws outline the internal processes and the recourse a physician has.  In order to fully get one's arms around what the progressive steps a hospital can take, they must seek to understand the Bylaws, Peer Review Policy, Health Policy, and the Professionalism Policy. Combined together, they clarify the vital parts of the peer review process  and all the rights, obligations and privileges associated with that process.    

4.  Preparing for the Ultimate Outcome - Hopefully, if things go right, the medical staff physician has nothing to worry about.   However, if things don't go right, and the professional review actions relating to the medical staff practitioner's professional competence or professional conduct is at issue, and either: (i) if the physician surrenders their privileges (DO NOT ALLOW THIS TO HAPPEN), or  (ii) if the physician privileges are suspended for more than 30 days, (iii) even if the there is a Summary Suspension that lasts more than 30 days, then any of these situations are  reportable to the National Practitioner Data Bank (NPDB).  Conversely, there should be no reporting to the National Practitioner Data Bank if the summary suspension never went before the hospital review body (medical executive committee/board), or no determination if the action affects patient health or welfare, or a loss of privileges is due to expiration of a board certification, or if the practitioner does not meet the health care institution's established threshold criteria for that particular privilege should not be reported to the NPDB.  However, if a practitioner does not apply for renewal of medical staff appointment or privileges, or in return for not conducting such and investigation or taking a professional review action, the even is considered as surrender while under investigation and must be reported to the National Practitioner Data Bank (NPDB). 

Please note that this is general advice, and the actual strategy should be tailored to the specific circumstances of the case, in consultation with a qualified attorney.

Here is an informative webinar on How to Navigate - Hospital Medical Executive Committees, Peer Reviews, Investigations and Bylaws, also see "So I Signed a Non-Compete, Now What?" and  How Experienced Physicians Negotiate Employment Agreements.

Hosted by the South Florida Hospital News and Reporter.

Navigating Physician Privileges concerns is quite tricky, and not a well understood area of knowledge and its practice varies from hospital to hospital, even within the same hospital system.  If you are not ready to retain an attorney and just wish to get some legal input, you may consider making a short engagement to discuss the specifics of your situation with a Physician's Attorney, for a prepaid non-refundable legal fee of $1,475.  However, if you have bigger concerns where you need us to review extensive documents including the review of the hospital bylaws and legal guidance and advisory services, including understanding your medical staff privileges rights and obligations, hearing process, or anything alike, our firm helps Physicians and other healthcare practitioners navigate that space for a non-refundable fixed legal fee of $7,450 for 30 days of pre-litigation representation, if you need us longer than the 30 days, we can also continue our pre-litigation guidance for a fixed monthly fee as long as you need us.  

Ben Assad Mirza is a Florida attorney with a finance background, who has negotiated from both sides of the table; for more information on how you can put Ben's team to work for you, reach out by calling or texting (954)634-2370, or email Ben at [email protected]

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