Physician Peer Review and Due Process
The peer review process, while crafted to protect patients, can be an anxiety-inducing time for physicians. This is because, at the conclusion of the peer review process, physicians can face consequences as severe as having their clinical privileges revoked. Because physicians want to come out of the peer review process unscathed, they might not inquire about or cite their due process rights during peer review. This is what physicians need to know about due process during peer review.
What is Physician Peer Review?
Peer review in healthcare is a process used to assess the quality and standards of a medical professional’s work. A panel of peers evaluates a physician’s performance, including clinical decisions, outcomes, and adherence to protocols. The goal is to ensure patient safety, identify areas for improvement, and provide constructive feedback. Hospitals use peer review to determine whether physicians meet the necessary standards to maintain clinical privileges.
Congress enacted the Health Care Quality Improvement Act (HCQIA) based on its belief that peer review is essential to maintaining high standards in medical care. To encourage greater participation, the law grants legal immunity to hospitals and individuals involved in peer review. While this has advanced its goal of promoting quality care, it has also raised concerns about misuse, particularly in cases of “sham peer review,” where the process may be used to unfairly target physicians.
HCQIA immunity, however, only applies when the peer review is conducted in good faith. This means that the review must be carried out with a reasonable belief that it aims to improve healthcare quality, follow a reasonable investigation into the facts, be based on a belief that the outcome is supported by those facts, and provide the physician with proper notice and a fair hearing.
Overview of Peer Review Process
The hospital’s peer review committee evaluates the seriousness of the issue and decides whether to suspend the physician’s privileges to protect patient safety during the investigation, which often proceeds with minimal direct input from the physician. Once the committee reviews all relevant information—potentially including opinions from outside experts—it issues a recommendation.
If that recommendation includes adverse actions like limiting, changing, or revoking the physician’s privileges, the physician is informed of their right to request a Fair Hearing. This proceeding, conducted by the hospital, is overseen by a panel of physicians drawn from the medical staff, who are tasked with reviewing the matter thoroughly and impartially.
Throughout the process, both federal law—specifically HCQIA—and applicable state laws afford the physician important procedural rights.
When a hospital proposes to take adverse action against a physician, such as suspension, termination, or revocation of privileges, it must provide formal notice outlining the proposed action, the physician’s right to a hearing, and any deadlines for requesting or holding the hearing. A second notice must follow, stating the date, time, and location of the hearing (which must be scheduled no sooner than 30 days after the initial notice) and listing any witnesses expected to testify. The hearing may be conducted before an arbitrator, a hearing officer appointed by the hospital who is not in direct economic competition with the physician, or a panel of similarly qualified individuals. During the hearing, the physician has the right to be represented by counsel or a representative of their choice, to present and cross-examine witnesses, to submit relevant evidence (even if not admissible in court), and to provide a written statement. Afterward, the physician receives a written recommendation.
Medical staff bylaws frequently set forth procedural requirements that are more detailed and specific than those outlined in HCQIA.
Following the conclusion of the hearing, the panel issues a recommendation to the hospital’s governing board, which must approve the final decision. If the outcome adversely affects the physician’s clinical privileges, the action is reportable to the National Practitioner Data Bank (NPDB). This potentially impacts future credentialing and employment.
Due Process
“Due process” is a concept that requires fair treatment through judicial or administrative procedures. In simple terms, it means that before someone can be deprived of life, liberty, or property (such as losing a job or medical privileges), they must be given:
- Notice: The physician must be told what is happening and why.
- An opportunity to be heard: The physician must get a fair chance to present their side.
- A neutral decision-maker: The people judging the case must be impartial.
The federal HCQIA peer review statute provides legal immunity to peer review bodies and their members from lawsuits filed by physicians they discipline, so long as the peer review process includes specific due process protections for the physician under review.
At first glance, the peer review process appears to afford physicians adequate due process protections. Although HCQIA appears to establish due process rights for physicians, healthcare lawyers, and scholars have argued that HCQIA does not provide adequate due process. In practice, these rights often arise too late to meaningfully impact the outcome. Typically, once concerns are raised about a physician’s conduct or competence, the medical staff’s executive committee appoints an investigative or ad hoc committee. This committee investigates and makes recommendations to the executive committee, which then issues its own recommendation to the hospital’s governing board. Although not formally binding, these recommendations are usually adopted. These committees often have the authority to take adverse actions, such as restricting or suspending privileges, during the investigative phase, but before due process rights are triggered. Modern bylaws frequently exclude due process rights at these early stages and instead treat the formal hearing as an appeal. The burden typically rests on the physician to prove, by a preponderance of evidence, that the decision lacked factual basis or was made in bad faith, making it difficult to reverse decisions already functionally made.
Contact a Peer Review Attorney for Assistance
As soon as the physician becomes aware of a peer review action, that physician should contact a peer review attorney. Waiting until later in the process can be harmful to the physician, even if assurances are made that the physician has due process rights. A peer review attorney can advise the physician through the process, leading to a more favorable outcome. Contact our office today.