Tag Archives: peer review

Medical Staff Involved in Peer Reviewers Can Receive Compensatory and Punitive Damages for Violations of their Confidentiality: Part 1 of 2

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law and Shelby Root

6 Indest-2008-3An important decision was delivered by the Supreme Court of New Mexico involving peer reviewers’ statutory right to confidentiality. In the decision, the New Mexico court allowed peer reviewers to recover compensatory and punitive damages resulting from confidentiality violations. The court recognized that peer reviewers are members of the class protected by the peer review statute in New Mexico. Thus, the court stated, they deserve remedies for violations of their confidentiality right. To view the New Mexico Peer Review Statute, click here.

Yedidag v. Roswell Clinic Corp., the New Mexico Case.

Dr. Emre Yedidag was an employee of Roswell Clinic Corp. and Roswell Hospital Corp. During a peer review of another employee, Dr. Akbar Ali, Dr. Yedidag allegedly “verbally attacked” Dr. Ali when he questioned the physicians’ involvement in a patient’s death. The hospital subsequently terminated Dr. Yedidag’s employment for “unprofessional conduct.” In response, Dr. Yedidag filed a complaint against the hospital for utilizing confidential peer review information to support his termination.

The Supreme Court of New Mexico did not agree with the hospital’s argument that the physician’s unprofessional conduct justified the doctor’s termination. The court held that the doctor’s questions were privileged, even if they were “uncivilized.” Also, the court ruled, the hospital may not use information from a peer review proceeding as a reason to terminate his employment. The court upheld an award to Dr. Yedidag of his compensatory and punitive damages. To read the case in its entirety, click here.

The New Mexico Supreme Court Estimated that the Peer Review Statute is too Lenient.

The Supreme Court of New Mexico also estimated that the criminal penalty imposed by the New Mexico peer review statute was “too lenient” to discourage violators. Therefore, allowing peer reviewers to sue violators will result in greater deterrence, the court ruled. The court held that peer reviewers’ confidentiality is a “mandatory rule of law incorporated into physician-reviewer employment contracts.”

Comments?

What are your thoughts on the Supreme Court of New Mexico’s ruling of compensatory and punitive damages for peer review violations? Please leave any thoughtful comments below.

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To contact the Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Source:

Stein, Alex. “Doctors Conducting Peer Review Can Recover Compensatory and Punitive Damages for Confidentiality Violations.” (February 21, 2015). From:
http://blogs.law.harvard.edu/billofhealth/2015/02/21/doctors-conducting-peer-review-can-recover-compensatory-and-punitive-damages-for-confidentiality-violations/

About the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620. Shelby Root is a summer associate at The Health Law Firm. She is a student at Barry University College of Law in Orlando.

Keywords: Yedidag v. Roswell Clinic Corporation, peer review, defense attorney, defense counsel, defense lawyer, medical staff attorney, fair hearing attorney, peer review fair hearing, clinical privileges attorney, hospital clinical privileges, confidentiality right, compensatory damages, punitive damages, New Mexico peer review statute, healthcare law, healthcare attorney, healthcare lawyer, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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Physician Argues Definition of “Peer” at Formal Administrative Hearing

peer reviewFACTS: The Agency for Health Care Administration (“AHCA”) is responsible for administering Florida’s Medicaid program and conducting investigations and audits of paid claims to ascertain if Medicaid providers have been overpaid. With regard to investigations of physicians, section 409.9131, Florida Statutes, provides that AHCA must have a “peer” evaluate Medicaid claims before the initiation of formal proceedings by AHCA to recover overpayments. Section 409.9131(2)(c) defines a “peer” as “a Florida licensed physician who is, to the maximum extent possible, of the same specialty or subspecialty, licensed under the same chapter, and in active practice.” Section “109.9131(2)(a) deems a physician to be in “active practice” if he or she has “regularly provided medical care and treatment to patients within the past two years.”

Alfred Murciano, M.D., treats patients who are hospitalized in Level III neonatal intensive care units and pediatric intensive care units in Miami-Dade, Broward, and Palm Beach County hospitals. His practice is limited to pediatric infectious disease. He has been certified by the American Board of Pediatrics in two areas: General Pediatrics and Pediatric Infectious Diseases. AHCA initiated a review of Medicaid claims submitted by Dr. Murciano between September 1, 2008, and August 31, 2010, and referred those claims to Richard Keith O’Hern, M.D., for peer review. Dr. O’Hern practiced medicine for 37 years, and was engaged in a private general pediatric practice until he retired in December of 2012. During the course of his career, he was certified by the American Board of Pediatrics in General Pediatrics, completed a one-year infectious disease fellowship at the The University of Florida, and treated approximately 16,000 babies with infectious disease issues. However, he was never board certified in pediatric infectious diseases, and at the time he reviewed Dr. Murciano’s Medicaid claims, Dr. O’Hern would have been ineligible for board certification in pediatric infectious diseases. In addition, Dr. O’Hern would have been unable to treat Dr. Murciano’s hospitalized patients in Level III NICUs and PICUs.

After Dr. O’Hern’s review, AHCA issued a Final Agency Audit Report alleging Dr Murciano had been overpaid by $l,051.992.99, and that he was required to reimburse AHCA for the overpayment. In addition, AHCA stated it was seeking to impose a fine of $210,398.60.

OUTCOME: Dr. Murciano argued at the formal administrative hearing that Dr O’Hern was not a “peer” as that term is defined in section 409.9131(20)(c). The ALJ agreed and issued a Recommended Order on May 22, 2014, recommending that AHCA’s case be dismissed because it failed to satisfy a condition precedent to initiating formal proceedings. While recognizing that AHCA is not required to retain a reviewing physician with the exact credentials as the physician under review, the ALJ concluded Dr. O’Hern was not of the same specialty as Dr. Murciano.

On July 31, 2014, AHCA rendered a Partial Final Order rejecting the ALJ’s conclusion that Dr. O’Hern was not a “peer.” In the course of ruling that it has substantive jurisdiction over such conclusions and that its interpretation of section 409.9131(2)(c), Florida Statutes, is entitled to deference, AHCA stated that it interprets the statute “to mean that the peer must practice in the same area as Respondent, hold the same professional license as Respondent, and be in active practice like Respondent.” AHCA concluded that “Dr. O’Hern is indeed a ‘peer’ of Respondent under the Agency’s interpretation of Section 409.9131(2)(c), Florida Statutes, because he too has a Florida medical license, is a pediatrician and had an active practice at the time he reviewed Respondent’s records. That Dr. O’Hern did not hold the same certification as Respondent, or have a professional practice identical to Respondent in no way means he is not a ‘peer’ of Respondent.” AHCA’s rejection of the ALJ’s conclusion of law regarding Dr. O’Hern’s “peer” status caused AHCA to remand the case back to the ALJ to make the factual findings on the claimed overpayments that were not made in the Recommended Order because of the ALJ’s conclusion that Dr. O’Hern did not qualify as a “peer.”

On August 18, 2014, the ALJ issued an Order respectfully declining AHCA’s remand. AHCA then filed a Petition for writ of Mandamus in the First District Court of Appeal, asking the court to direct the ALA to accept the remand and to enter findings of fact and conclusions of law with regard to each overpayment claim. The court assigned case number 1D14-3836 to AHCA’s Petition, and the case is pending.
Source:

AHCA v. Alfred Murciano, M.D., DOAH Case No. 13-0795MPI (Recommended Order May 22, 2014), AHCA Rendition No. 14-687-FOF-MDO (Partial Final Order July 31, 2014)
About the Author: The forgoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 36, No. 2 (Dec. 2014), a publication of the Administrative Law Section of The Florida Bar.

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.

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.