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Peer Review and “Disruptive Physician” Cases Physicians Should Know

Although Meyers v. Columbia/HCA Healthcare Corp.is one of the major cases concerning  termination of clinical privileges and peer review hearings, there have been other recent clinical privileges cases that are important for physicians to know when confronted with a peer review action. This is especially true if the physician is being accused of disruptive behavior.

One such case is Isaiah v. WHMS Braddock Hospital Corp., decided in 2008. In this case, Dr. Isaiah’s medical staff privileges were revoked after hospital staff members reportedly expressed concerns about the surgeon’s surgical skills and allegedly compulsive behavior. Dr. Isaiah argued that his behavior did not impact his skills. The court concluded that the hospital’s revocation of Dr. Isaiah’s medical staff privileges was immune from liability under the federal Health Care Quality Improvement Act (HCQIA) because the hospital acted in an attempt to protect quality health care, which relates not only to a physician’s abilities, but also to the doctor’s behavior.

In 2009, Abu-Hatab v. Blount Memorial Hospital was decided, again in favor of the hospital. In this case, Dr. Abu-Hatab sued Blount Memorial Hospital after his medical staff membership and clinical privileges had been terminated due to his allegedly disruptive behavior. Dr. Abu-Hatab argued that allegations of his poor conduct were not true. However, the court decided that it didn’t matter whether the complaints were undisputedly true. Under the Health Care Quality Improvement Act, as long as a hospital and its medical staff act “reasonably” in considering complaints, the professional review actions are protected. According to the court, the hospital’s many meetings concerning Dr. Abu-Hatab’s behavior were enough to show that it acted reasonably.

Another case reported originally in 2009, Leal v. Secretary, U.S. Department of Health and Human Services, involved a urologist, Dr. Leal, who held clinical privileges at Cape Canaveral Hospital in Florida. According to the reported court decison, after being told he would have to wait to use an operating room, Dr. Leal exhibited behavior that led the hospital to suspend his clinical privileges for sixty (60) days. The reported decisions state that Dr. Leal broke a telephone receiver and copy machine, threw jellybeans into a trash can in a medical suite, shoved a metal cart and spoke sternly to a nurse. The hospital filed a report of its action taken against Dr. Leal with the National Practitioner Data Bank (NPDB), which was established under the Health Care Quality Improvement Act (HCQIA) to collect information on the professional conduct and competence of health care practitioners. Dr. Leal felt that he should not have been reported to the NPDB and challenged the action. However, the trial court found that the decision to report Dr. Leal to the NPDB was supported by the HCQIA, which requires a report to the NPDB for a professional review action that adversely affects the clinical privileges of a physician for a period longer than thirty (30) days. This decision was also upheld by the appellate court (the Eleventh Circuit Court of Appeals) in 2010.

One of the more recent clinical privileges cases is Badri v. Huron Hospital, decided in 2010. According to case reports, in this case Dr. Badri was involved in a car accident. Allegedly, the other driver involved choked Dr. Badri. Dr. Badri then began experiencing neck pain for which he self-medicated with steroids. He was then accused of disruptive behavior after several alleged incidents of poor conduct towards hospital employees and patients. When deciding Dr. Badri’s case, the court relied on Meyers, which provides authority for immunity for hospitals and medical staffs in professional review actions that cite a physician’s disruptive behavior as undermining quality health care.

These are just a few of many cases concerning clinical privileges and peer review actions where the hospital involved is found to be acting in accordance with the Health Care Quality Improvement Act and therefore not liable.

If you are a physician or any hospital staff member accused of disruptive behavior, misconduct, “rudeness,” disrespectful conduct or language, abusive acts, anger, hostility, profanity or other similar acts. beware. This is a serious matter. It could result in adverse peer review action that could be career-ending.

If you are concerned that your medical staff privileges may be suspended or revoked, or if you are currently facing a peer review action, make sure you consult an experienced health care attorney who is familiar with matters regarding clinical privileges.

For more information about clinical privileges, peer review, or fair hearings, please visit our website at wwww.TheHealthLawFirm.com.

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What Physicians Need to Know About Clinical Privileges and Peer Review Actions From the Meyers Case

If you are a physician with hospital privileges or have ever been called a “disruptive physician” make sure you are familiar with  Meyers v. Columbia/HCA Healthcare Corp., which was finally decided in 2003. In ruling on disruptive physician cases, courts almost always rely on Meyers, and it has been cited repeatedly in other disruptive physician cases to justify a hospital or medical staff’s peer review actions disciplining the physician.

In this case, Dr. Meyers, an orthopedic surgeon, received provisional medical staff privileges at a hospital. A year later, the credentials committee at his hospital, comprised of three board members, re-evaluated Dr. Meyers for advancement to active staff privileges. He was denied active staff privileges by the committee for reasons that included his alleged temper tantrums, condescending remarks towards women, refusal to speak to a member of his surgical team during surgical procedures, and several instances of throwing a scalpel during surgical procedures.

Dr. Meyers was granted a hearing by the hospital. The hospital’s bylaws provided for a fair hearing committee comprised of three members of the medical staff, who would have been Dr. Meyers’ peers. However, the fair hearing committee in Dr. Meyers’ case was different. It was comprised of a retired judge, an attorney, a bank president, an industrialist and a dentist. The fair hearing committee met eleven times and 35 witnesses testified during the course of the hearing. After the hearing, the fair hearing committee recommended not appointing Dr. Meyers. It cited his failure to meet the hospital’s ethical standards, as well as his inability to work cooperatively with others. This recommendation was adopted by the hospital’s governing board.

Dr. Meyers sued the hospital and the fair hearing participants. His claims included breach of contract, antitrust, violations of the Emergency Medical Treatment and Active Labor Act (EMTALA), tortious interference, and defamation.

The hospital moved for a summary judgment, claiming immunity under the Health Care Quality Improvement Act of 1986 (HCQIA), which provides immunity if a professional review action is taken under a combination of four circumstances: (1) in the reasonable belief that the action would further quality healthcare; (2) after a reasonable investigation; (3) with adequate notice and hearing procedures; and (4) the reasonable belief that the action was warranted by the facts and the process.

The trial court granted summary judgment in favor of the hospital and the hearing panel’s members. The court’s analysis of the summary judgment standard in the Meyers case for HCQIA has been relied upon regularly since this. Meyers indicated that the professional review actions that were followed satisfied the HCQIA’s immunity requirements. The district court’s action was later affirmed on appeal by the Sixth Circuit.

Because of Meyers, physicians have a much higher standard to overcome, in order to get a similar case before a jury. The physician must demonstrate 1) that a genuine issue of fact exists and 2) that a reasonable jury, viewing the facts in the best light for the plaintiff, might conclude that he has shown by a preponderance of the evidence that the actions of the hospital and committee are outside the scope of HCQIA.

In both Meyers and in subsequent cases, physicians have attempted to challenge this summary judgment standard by various legal arguments. One used is that the action taken against the physician was not “fair” because the hearing committee did not include a physician of the same specialty. Another is that the hearing panel did not include a physician, a “peer.” Therefore, how could it truly be “peer review.”

In Meyers, both the Sixth Circuit and the district court looked to the hospital’s medical staff bylaws which stated that medical staff members (other physicians) would be appointed to the fair hearing committee only “when feasible.” The hospital presented evidence that no medical staff member could serve on the committee at the time when the hearing was scheduled in Dr. Meyers’ case. Furthermore, the district court stated that the bylaws of a hospital concerning peer review actions are inconsequential, as long as the HCQIA’s fair hearing requirements are met. In the HCQIA, there is no requirement that a physician must serve on a fair hearing committee.

Meyers also provided grounds for justifying professional review actions based a physician’s “general behavior and ethical conduct.” Disruptive behavior is also enough to justify suspension or termination of privileges, because, according to the district court, “Quality patient care demands that doctors possess at least a reasonable ability to work with others.”

Although the Meyers case has been the precedent for disruptive physician cases since 2003, physicians must also be aware of The Joint Commission’s standard on disruptive behavior, issued in 2008. This standard affirms that disruptive behavior is enough to justify a hospital’s action against a physician, including termination. Physicians can now expect to see even more actions initiated by hospitals and their staffs against any physician deemed uncooperative or disruptive. You can read The Joint Commission’s sentinel alert on disruptive behavior here.

If you find yourself at the center of a peer review hearing due to reasons of disruptive behavior, make sure that you contact an experienced healthcare attorney to help you navigate the peer review process. See this article on clinical privileges and peer review hearings for more information or visit our website at www.TheHealthLawFirm.com.