Start now to ensure a successful hearing

Dear medical staff leader or professional,

Many resources provide good advice on avoiding fair hearings, but every medical staff eventually goes through this often sticky process. The following tips will help medical staff leaders ensure a smooth and successful hearing long before the hearing notice is drafted.

Begin with the bylaws. First, medical staff bylaws should frame the fair hearing process and define the actions that trigger a fair hearing. For example, should an executive committee’s recommendation to renew a physician’s privileges for a shorter-than-usual period (e.g., one year instead of two) entitle that physician to a fair hearing? What standard will the hearing panel use to review a recommendation affecting privileges? What documents can be discovered? In any case, bylaws should be consulted frequently and followed carefully when issues arise.

Don’t foul the files. The physician’s credentials file should contain only information directly related to that physician, such as relevant excerpts of meeting minutes pertaining to the physician’s performance. However, the following information generally should not be included in a physician’s file:

• Physician health information: Information regarding a physician’s health should be routed to reviewing committees only when a physician’s health condition may impact his or her ability to practice.
• Root cause analyses: Pertinent results of a root-cause analysis should be included in a physician’s file, but the whole analysis likely should not.
• Communications with counsel: Communications between the medical staff leadership or the medical staff services department and counsel should not be kept in the physician’s file. Otherwise, if the physician and his/her counsel view the file, they will see this correspondence, and the attorney-client privilege that keeps these confidential may be waived.

Use paper to show progress. The physician’s file should reflect that the medical staff took careful steps when arriving at the decision to take adverse action. For example, if a physician is asked to undergo an evaluation, the file should reflect the basis for that expectation. If the physician fails to meet this expectation and the medical staff takes action, the paper trail should make it clear that the adverse recommendation is based on the physician’s failure to meet the expectation, not just the behavior that triggered the original concern.

Review responsibly. If the medical staff investigates a concern or an incident report involving a physician, the physician’s credentials file should reflect whether the medical staff used the results of the investigation to make an adverse recommendation. In addition, the medical staff can choose to conduct an external review to eliminate criticism that internal reviews are somehow biased, especially in small hospitals where medical staff members know each other well. Such an objective report can minimize a physician’s claim that his or her review was unfair during a fair hearing or later court proceeding. It can also help hospitals avoid a fair hearing altogether, thereby justifying the expense of an external review.

Call for counsel. Engaging counsel early during a difficult review process, and keeping counsel informed, helps hospitals avoid costly mistakes and anticipate claims that a physician may make during a fair hearing. Once an attorney is engaged, keep him or her informed, and be prepared to provide all the documents s/he needs.  Remember, the benefits of counsel’s advice can far outweigh the minimal cost of a few well-timed phone calls or e-mail exchanges with a qualified attorney. 

Sincerely,

Theresa J. Rambosek
Healthcare attorney
Bennett, Bigelow & Leedom

See also “The Dos and Don’ts of conducting fair hearings,” which appeared in the June issue of Medical Staff Briefing.