How this surgeon beat a medical staff disciplinary action

I recently represented a physician in a noteworthy peer review case at an academic medical center. The medical staff president initiated a complaint 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 hospital’s point of service instead of having his office invoice and collect payment from the patient. The medical staff felt this was unorthodox and highly inappropriate and contra to the medical center’s values. It is important to note that neither the medical staff bylaws nor any hospital rules addressed the collection of payment at the hospital’s point of service. The medical staff president 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 department chair informed my client that, totally aside from and allegedly unrelated to the corrective action, 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 surgeon’s automatic removal from the medical staff, since medical staff appointment was contingent on the maintenance of faculty appointment. Unfortunately for the department chair, he did not review the surgeon’s faculty appointment in his rush to remove the surgeon  from the faculty and medical staff. 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 surgeon’s dilemma was 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 outlined in the medical staff bylaws, but little understanding of what discipline was reportable to the National Practitioner Data Bank or the implications of such a report concerning his licensure and privileges at other hospitals, etc. He also did not fully understand the difference between what was happening regarding 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 convinced 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 hospital’s articulated values to do such. Finally, 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.

Barney Cohen is a health care law attorney.

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