Follow bylaws to prevail in a fair hearing
During a fair hearing, the medical staff executive committee (MEC) runs the risk of losing if it does not follow the processes outlined in its bylaws for:
- Initial appointment or reappointment
- Informal remediation (peer review)
- The formal corrective action process
- The fair hearing
“MSPs don’t realize how important their job is until they see it manifested in a hearing,” says Catherine Ballard, Esq., a partner in the healthcare practice group at Brickler & Eckler in Columbus, Ohio. As bylaw stewards, MSPs are best positioned to prevent these attacks by ensuring that everyone involved in the processes listed above adheres to the bylaws.
Following the bylaws is critical because they reflect state and federal laws and regulations, such as the Health Care Quality Improvement Act (HCQIA). These laws and regulations include specific parameters for conducting the corrective action and the fair hearing, says Jon Kammerzelt, partner and chair of the health & life sciences practice group at Quarles & Brady LLP in Madison, Wisconsin.
Additionally, when MSPs ensure the medical staff follows its bylaws, they help protect:
- The physician’s right to procedural due process. If the medical staff does not follow the processes outlined in their bylaws every step of the way, the physician in question will often claim that he or she did not receive appropriate due process. When this happens, the focus quickly turns from the underlying substantive issues to whether the medical staff appropriately followed its own bylaws.
- Immunity from damages as provided by HCQIA. If the professional review body meets the standards set forth by HCQIA, there is no civil liability for the committee, any person on that committee, any person designated or contracted by that committee, or any person who participates in or assists the committee, Kammerzelt says.
The road to a fair hearing can be long. Often, issues take years before reaching the point of triggering an adverse recommendation. It is therefore critical that MSPs keep medical staff and physician leaders in line with the bylaws from the start so that the organization will be well-prepared when a physician requests a fair hearing.
Source: News & Analysis