Does a medical staff member have the right to say anything he or she wants as long as it is couched as "free speech"? (Isn't this America???) Does it matter if the hospital is private or governmental?

Two recent court decisions highlight the importance to hospitals and Medical Staff leaders of anticipating the argument that a peer review action was taken in retaliation for a physician's "free speech" or "whistleblowing."

• A surgeon claimed that the real reason for thesuspension of his privileges after a series of complications was retaliation for his persuading a recruit not to come to town to join another surgical group. Free speech? A federal district court said no and the court of appeals agreed.
  
• An OB-GYN alleged that his appointment and privileges were not renewed because of his advocacy for nurse midwives. A federal court allowed the claim that he engaged in protected speech to go forward for a jury trial.

HERE ARE SOME OTHER REAL SCENARIOS:

• In an interview with a reporter, a physician whose privileges were terminated for continuing to make sexual comments after being told to stop accuses the hospital and his former group of Medicare billing fraud.
  
• A surgeon investor in a freestanding surgicenter approaches hospital RNs in the OR, seeking to recruit them.
  
• The MEC suspends a physician’s privileges based on a pattern of threats. The physician claims that the suspension was actually in retaliation for his raising issues of inadequate quality of care, and interferes with his right to speak out on issues of public importance.

Are these activities protected by the First Amendment?

Or, can the hospital and Medical Staff leaders prohibit such activities?

What can you put into policies and how can you enforce them?

Join Barbara Blackmond and Ian Donaldson of Horty, Springer & Mattern for a discussion of these issues and some practical ways to address them.