Few professional events are more frightening for a physician that being notified that past care or behavioral issues are being subject to “peer review.” That’s because this process is not well-defined, the consequences of adverse reviews are potentially career-threatening, and the affected physician usually has little idea of what to expect. This blog provides some clarity into this process and should help a physician know when to consult with legal counsel experienced in the field.
Peer Review is Broad, and is Generally Resolved Without Adverse Consequences
Peer review, under state and federal law, is simply the internal process medical institutions are required to follow to address issues of substandard care or behavioral issues, or both. The process can be initiated by any individual affiliated with the institution (usually a hospital), which can include patients.
The process followed when an issue arises is generally governed by the Hospital Bylaws and Peer Review policies and related documents. Therefore, the affected physician needs to first review these documents, preferably with the assistance of counsel, to know what process will ensue, and understand the rights she/he may have in the process.
Most peer review issues are resolved with no adverse action taken by initial discussion at a Committee level in the organization, and this sometimes occurs without the physician’s active involvement. Sometimes, the affected physician isn’t even aware that an issue has arisen. This is consistent with the collaborative legislative intent behind federal (the Health Care Quality Immunity Act — HCQIA) and state (the Minnesota Peer Review Statute) laws.
If this doesn’t occur, and the peer review process may escalate into a formal “investigation,” it is critical for the affected physician to secure knowledgeable and experienced legal counsel.
Peer Review “Investigations” and Possible Adverse Action
If informal early resolution doesn’t occur, the physician must be notified, in writing (if this hasn’t occurred earlier in the process), of steps that will be taken under policies to address the alleged issue. The physician will generally be informed, in writing, when a formal “investigation” will commence. Securing legal advice at this stage is important, as there may be an opportunity for the physician to resign without any report being made at the state or federal level. Once the investigation commences, however, the physician cannot resign with a report to the State Board and to the National Practitioner Data Bank (NPDB), created by HCQIA.
Once an investigation has commenced, the matter usually proceeds through designated committees, with the physician generally able to respond to the issue(s), but usually without the involvement of an employment attorney in Minneapolis. There are a broad range of options for addressing the alleged issue(s) (generally defined in the Bylaws), with termination of privileges being the most extreme. Finally, if adverse action is recommended by the Committees, this must be reviewed and approved by what is usually called the “Medical Executive Committee (MEC).” Any MEC review and action is usually effective when voted on, and if this involves termination of privileges, this is effective immediately and must be reported within 30 days of this action. Furthermore, if there is a “summary suspension” at any time in the above process (which usually can only occur when there is a determination that there is an imminent threat to patient health and safety), this same reporting obligation applies after 30 days.
Appeal Rights
Federal law requires that any peer review process resulting in adverse action (which includes any limitation on practice or privileges), the affected physician is entitled to a review and a “fair hearing.” Attorneys are permitted to represent the physician in that process, and it is extremely important to secure counsel with deep experience in this area. If the termination of privileges is upheld in that process, an additional NPDB report issues and there is a parallel obligation to make a report to the state board. This is a potentially career-threatening event for a physician. There are generally final appeal rights to the institution’s Board, but this final step is rarely an opportunity for effective remedial action.
Are Legal Rights and Remedies Available After Peer Review?
YES, but the full scope of these rights and remedies will require consultation with legal counsel with experience in this area. I will soon post a follow-up blog addressing these rights and remedies.
Schaefer Halleen peer review lawyers have experience in every aspect of the peer review process. We can often develop a strategy to assure no adverse state or federal reporting occurs for our clients, can effectively advocate for them in the internal process to increase the chances of achieving the best outcome, and can develop and deploy an effective strategy in even a “worst case” scenario. Don’t hesitate to contact our employment lawyer for medical professionals Minneapolis us for a free consultation if you are a medical professional subject to peer review.
