Beating a Medical Staff Disciplinary Action

I recently represented a physician in a noteworthy peer review case at an academic medical center. A complaint was initiated by the president of the medical staff against a surgeon, who would later become my client. The complaint was that the surgeon inappropriately collected cash payment from an uninsured patient at the point of service in the hospital, as opposed to having his office invoice and collect payment from the patient. The medical staff felt this was not only unorthodox but highly inappropriate and contra to the medical center’s values. It is important to note, neither the medical staff bylaws nor any hospital rules addressed collection of payment at the point of service in the hospital. The president of the medical staff quickly appointed a three-member ad hoc investigation committee, which included one of the surgeon’s competitors; an obvious conflict of interest. The ad hoc investigation committee recommended that the surgeon be disciplined, i.e., lose his medical staff privileges. Shortly thereafter the chair of the department informed my client that, totally aside from and allegedly unrelated to the corrective action, that he was not going to recommend reappointment of the surgeon to the faculty for the coming academic year. This was clearly an effort to circumvent the medical staff corrective action process with the removal of the surgeon’s faculty appointment, which would have caused the automatic removal of the surgeon from the medical staff, since medical staff appointment was contingent on the maintenance of faculty appointment. Unfortunately for the department chair, in his rush to remove the surgeon from the faculty and medical staff, he did not review the surgeon’s faculty appointment. Had he done so, the department chair would have seen that the surgeon was not up for academic reappointment for another year! Moreover, the surgeon had an unblemished faculty record.

The dilemma for the surgeon, how to avoid: (1) losing his medical staff privileges; (2) removal from the faculty; and, (3) National Practitioner Data Bank reporting. At this stage in the medical staff corrective action process the surgeon had only a general idea of how to proceed. He understood the steps set forth in the medical staff bylaws, but little understanding of what discipline was reportable to the National Practitioner Data Bank, or what the implications of such a report would be with respect to his licensure, and privileges at other hospitals, etc. He also did not fully understand the difference between what was happening in regard to discipline and his faculty appointment. Lastly, he did not really understand his procedural and substantive legal rights.

Finally, I was retained by the surgeon. Parenthetically, it would have been easier to defend my client and avoid discipline, had he retained me as soon as the corrective action had been initiated, and before the ad hoc investigation committee had rendered a written decision. That said, I was able to get the department chair to withdraw his recommendation of non-reappointment to the faculty for the coming year, given that my client wasn’t even up for re-appointment, and had an unblemished faculty record. With some effort I was able to convince the hospital’s legal counsel that the disciplinary action, i.e., loss of clinical privileges, was totally uncalled for. There was nothing in the medical staff bylaws, or the hospital’s rules which prevented my client from collecting his fee at the point of service. I pointed to articles on the subject, and convinced opposing counsel that there was nothing unethical, or inconsistent with the articulated values of the hospital to do such. Finally, in order to avoid reporting to the National Practitioner Data Bank, I convinced opposing counsel that the ad hoc committee’s deliberations and conclusion were poisoned by the conflict of interest of a competitor on the panel. Accordingly, the recommendation of the ad hoc committee had to be thrown out. In the end, my client succeeded the near impossible, beating back a medical staff corrective action.