By Ben Assad Mirza, Esq., LLM, MPHA,
The Three Possible Reasons for An Investigation
There are typically three potential categories of reasons as to what the investigation is about: (i) Physical or Mental Impairment, (ii) Disruptive Behavior or (iii) Clinical Competence has come under question. Florida Statute – Chapter 395.0193 provides guidance on hospital licenses and the statutory peer review requirement. That combined with Chapter 458.337 (Medical Practice) and 459.016 (Osteopathic Medicine) requires the reporting of such within 30 days of such a finding to the Division of Health Quality Assurance, regardless of the pendency of an appeal. 42 C.F.R Section 482.12 and 482.22 require that there be a fair hearing process for all Medicare Conditions of Participation. Once it is reported, and if the state then notifies all other institutions that staff privileges have been revoked or terminated, all others are then required to respond accordingly, and it can be in unison. This also means that the peer review actions must be reported to the National Practitioner Data Bank (NPDB). These are severe and extreme consequences for many physicians that get tangled in MEC’s web. So what can you do to prevent or address a MEC investigation:
Informal Resolution of Physician Problems
Your first option is an Informal Resolution. Sometimes there are physician problems that can be addressed early on and the harsh repercussions avoided. There are progressive steps that can be taken, such as (i) collegial intervention, (ii) education, (iii) mentoring, (iv) counseling, (v) second opinion requirement, (vi) proctoring, and (vii) behavior boundaries courses. Typically a hospital department chair or the chief of staff can approach a physician and offer them counseling or a warning on the issue. Sometimes the physician will be asked to complete a performance improvement plan or some sort of remediation measures. When a physician is asked to take such measures, it is a great time to consult with an attorney and get an idea on how to navigate these waters. If the conduct is serious, the informalities will change to formalities quickly. A physician can be suspended for up to 14 days without notice; however, if the suspension is 30 days or more, it is then required to be reported to the NPDB and a disciplinary hearing process ensues.
Formal Due Process in Peer Review Hearings
In accordance with all hospital medical staff bylaws, the physician is entitled to due process. The fair hearing process goes something like this:
Phase I – Notice of Reasons is issued – where the notice must state with specificity the manner in which the physician failed to meet the requirements. HERE THE PHYSICIAN MUST INVOKE THE FORMAL HEARING PROCEDURES.
Phase II – Notice of Hearing is issued by the triggering of the formal hearing process, and there must be at least 30 days provided to allowed preparation.
Phase III – Prehearing discovery is allowed such that a document exchange can take place and witness disclosure is afforded to both sides so they know whose testimony will be pertinent to the case.
Phase IV – A Hearing Officer is appointed by agreement from both sides, who presides like a judge and helps manage the presentation of evidence and the hearing panel members. A hearing officer can also help resolve discovery disagreements.
Phase V – The Hearing Panel then hears the case, and they evaluate it for sufficiency of evidence and reasonableness and disciplinary action.
Note that the hearing panel must not have a self interest at stake and cannot be a direct competitor of either side.
Once the case is heard by the Hearing Panel, and it is decided, the non-prevailing side can then take the case to court. A lawsuit then ensues, and the trial is had in a regular court of law. In certain ways, this ends up being the same case that is litigated twice over. The hospitals have done this time and again and they are well experienced. The individual physician is almost always at a disadvantage, but they have to navigate through this in a smart way.
If you are getting warnings or disciplined, we encourage you to engage an attorney who understands both how the inside of the hospital works and what your options are from a physician perspective.
If you would like to see additional information on this topic, visit https://www.mirzahealthlaw.com/what-to-do-during-a-peer-review-process
If you would like to find out more about the rights, responsibilities and obligations of a healthcare provider, our firm has the knowledge, experience and the background to guide you through that process.
Ben Assad Mirza, Esq., LLM, MPHA, Mirza|Healthcare Law Partners, can be reached at (954) 445-5503 or BAM@MirzaHealthLaw.com.