August 23, 2018

QUESTION:        I have always been told that peer review is conducted by peers — so representatives from legal should not be present at peer review meetings.  But, recently, I heard a Horty Springer attorney suggest that legal should be called “early and often.”  Which is it?

ANSWER:            Both!  Well, sort of.  We have long recommended that collegial meetings between Medical Staff leaders and their colleagues should be “informal” and not include lawyers.  “Informal” does not mean that you should not prepare for those meetings (you should have talking points and an objective when you walk into the meeting).  However, it does mean that if peer review is going to work best, and practitioners are going to buy-in to the process and believe that it is truly oriented towards helping them succeed, then it has to be conducted with finesse and sensitivity to how interventions will be perceived by those under review.  Lawyers do not belong in those meetings.  Lawyers add an air of formality, tend to talk when they should remain quiet, and their mere presence can give the impression that the process is adversarial.  Any conversation that occurs between doctors will look MUCH different if their lawyers are sitting by their sides.  It is for this reason that we have long recommended that the Medical Staff Bylaws and peer review policies of hospitals and medical staffs specifically state that lawyers cannot attend meetings with the practitioner under review (and by the same token, have long told our clients that it would not be advisable for us to be present either).

This does not mean that Medical Staff leaders should not consult counsel early and often throughout the peer review process.  Too often, legal is called to assist an MEC after it has just voted to revoke a practitioner’s privileges or the day after a precautionary suspension has been imposed by the Chief of Staff.  It can be very difficult for your legal counsel to help you follow your processes precisely — and document your actions in a way that will create the best defense — if called after-the-fact.  And waiting to seek advice can result in the leadership sacrificing the chance to pursue additional avenues for resolving the issue (such as automatic relinquishment or a formal performance improvement plan) that may have avoided the need for “disciplinary” action and its attendant costs (such as hearings, appeals, NPDB reports, and litigation).

In an ideal scenario, the Medical Staff leadership would have a close and ongoing working relationship with legal counsel and would discuss with counsel any time there are questions, but at least in the following situations that arise during the course of peer review activities:

  • Whenever addressing a peer review matter involving a practitioner who has previously sued the health system, hospital, or any Medical Staff leader
  • Whenever the practitioner has retained a lawyer and is using a lawyer to communicate with the leadership
  • Whenever the practitioner has claimed failure to comply with the Bylaws or Rules and Regulations or other policies of the Hospital or Medical Staff
  • Whenever the practitioner has claimed that the Hospital or Medical Staff leadership has acted unlawfully with respect to peer review activities
  • Whenever the practitioner has claimed impermissible conflicts of interest, anti-competitive activity, or discrimination is influencing the peer review process
  • Whenever the practitioner claims to be a whistleblower during the course of peer review activity
  • Whenever the peer review concerns involve matters with particularly legal significance (e.g., violation of EMTALA or HIPAA or concerns of medical necessity)
  • Prior to implementing any precautionary suspension, if possible. If previous consultation with legal is not possible (for example, the issue arises in the middle of the night and is an emergency), legal should be consulted as soon as possible (for example, first thing the next morning)
  • Whenever developing a formal Performance Improvement Plan
  • Whenever considering whether to commence a formal investigation
  • Whenever conducting a formal investigation
  • Meetings of the MEC or Board where adverse professional review action will be considered (for example, when the MEC meets to review the report of an investigating committee)
  • When conducting a Medical Staff hearing or appeal
  • When filing an NPDB report or a report to the state licensure board
  • When responding to a subpoena from a licensure board or other governmental agency that is seeking information about a Medical Staff member
  • When drafting a reference for a practitioner about whom some “not nice” things will be said

This list is not necessarily exhaustive.  But we know from experience that the scenarios listed above have legal implications and Medical Staff leaders can protect themselves (and better serve their colleagues) by seeking advice on how to proceed when handling those tough scenarios.  Seasoned leaders often need less guidance, particularly as their experience increases.  But, even then it can be helpful for leaders, who are often full-time clinicians — to rely on legal to help with document preparation and identification of applicable Bylaws, policies, and other matters that need to be considered during the course of review.

To conclude — should legal be involved in peer review?  Absolutely!  With the caveat that meetings with the practitioner under review are meant to focus on peer-to-peer interaction and likely are not the right venue for attorney participation or attendance.