Ensure your medical staff bylaws have built-in flexibility
In the case of Figueroa v. Hynes, the Fifth District Appellate Court of Florida recently upheld a trial court’s decision that a meeting of the medical executive committee (MEC) at Holmes Regional Medical Center (HRMC) in Melbourne, Florida was protected by the state’s peer review privilege despite significant departures from the procedures set forth in its bylaws. Please note that this decision did not involve the issue of discovery.
Michael Eisner, Esq., of Eisner & Lugli in New Haven, Connecticut, says cases like Figueroa v. Hynes lead to one conclusion: Medical staff bylaws should recognize that physicians are not attorneys, and that there should be as much built-in flexibility as possible.
He says peer review proceedings should be covered by the state privilege even if there are technical errors in procedure, provided that such errors are not egregiously unfair to a participant. That appears to be the underlying principle in this case.
Medical staffs may consider adding an “interpretation” clause to their bylaws that specifies that the medical executive committee (or the entity in charge of peer review) has reasonable leeway in interpreting the bylaws, Eisner says, and provides the following sample language:
Whenever the bylaws do not specifically address a topic or cover a matter, or there is a need for interpretation, the Medical Executive Committee (MEC) may issue an interpretation. In arriving at an interpretation, the MEC may take into account the usual and customary policies and practices of the Medical Staff, whether written or unwritten, and in its discretion may also bring to bear the expert medical knowledge of its members.
In that members of the MEC are not attorneys, the bylaws are to be interpreted as permitting reasonable leeway in the proceedings and in the interpretation of the bylaws and rules and regulations and policies of the Medical Staff. There should be an effort to substantially comply with the provisions of the bylaws, rules and regulations, and policies. In the event of a substantial deviation, the reason for such deviation should be specified.
Courts should defer to the interpretations and actions of the MEC unless there is clear and convincing evidence that the MEC has acted willfully in an arbitrary and capricious manner to the demonstrated significant detriment of a participant.