Friday, April 10, 2009

Hospital Peer Review: Attorney Comments On Recent Case And Peer Review Procedures And Strategies

A recent California Supreme Court case considered whether the hearing officer appointed to preside over such hearings could summarily dismiss the proceedings due to the physician's lack of cooperation with the process. In Mileikowsky v. West Hills Hospital and Medical Center (S156986, April 6, 2009), the California Supreme Court ruled that once a hearing is requested, the hearing officer lacks authority to prevent a reviewing panel from reviewing the case by dismissing it on his or her own initiative before the hearing has been convened, and also lacks authority to terminate the hearing after it has been convened without first securing the approval of the reviewing panel.

The case is discussed at length below. A review of this case can educate a provider about the procedure of a peer review process and what health care providers can learn from Dr. Mileikowsky's case:

First, the physician's problems arose in large part from an initial failure to accurately disclose information in his application for privileges.

Second, one cannot perform procedures at a facility without privileges. This was also one of the grounds for denial.

Third, peer review hearings have their own rules which are set forth in the California Business & Professions Code statutory scheme and the hospitals' bylaws and must be followed. However the bylaws cannot be inconsistent with the California statutory scheme.

Fourth, the hearing officers cannot be arbitrary. Nevertheless, the provider must cooperate with the peer review process. Even in cases where we have gone to hearing and won we remind the provider that he or she will need to be working with the hospital administration and persons on the committee and need to keep a long-term view while fighting for privilege rights. Burning bridges is not a wise strategy in the long run.

Fifth, peer review hearings can be emotional. Providers need to have objective legal advice and not let their ego or political disputes with hospital administrators or other providers lead to a denial of privileges which can harm a career. Denial of privileges by law is reported to the Medical Board of California (MBC) and the National Practitioner Data Bank. Thus, applying for privileges needs to be an educated process.

Sixth, something that is not discussed in the case, what do you do when you know the hospital is likely to deny privileges before there is a denial in order to preclude it being reported to the National Practitioner Data Bank? In our experience, hospital administrators will let a provider's attorney know that the application is likely to be denied and allow the provider to withdraw the application to avoid any negative reporting. This needs to be evaluated on a case by case basis.

Factual and Procedural History Of The Mileikowsky Case
Dr. Gil N. Mileikowsky, a physician and surgeon board certified in obstetrics and gynecology, had staff privileges to practice gynecology at West Hills Hospital and Medical Center (West Hills), an acute care facility. Dr. Mileikowsky applied for obstetrical privileges at West Hills and for renewal of his gynecological privileges.

His applications were reviewed by a peer review committee and its executive committee, both of which recommended denial, finding:
(1) he had failed to notify the medical staff that his privileges at a second facility had been terminated;
(2) he misrepresented that he had voluntarily resigned from a third facility, when in fact he had been summarily suspended; and
(3) he attempted to perform a caesarean section on a patient at West Hills when he lacked obstetrical privileges and after the patient had requested he stay away.

Dr. Mileikowsky filed a timely request for a hearing, challenging the peer review committee’s recommendation. West Hills’ medical executive committee (the reviewing panel) appointed a hearing officer to preside over the hearing, which was to be held no later than 45 days from the date of the request for hearing pursuant to West Hills' bylaws.

California’s statutory peer review process is governed by the Business and Professions Code (BPC). BPC § 809 et seq. affords a physician with the right to a hearing for the purpose of reviewing a hospital peer review committee’s recommendation to deny the physician’s application for reappointment to staff privileges. A hearing officer may be appointed to preside at the hearing, but the officer is prohibited by statute from acting as a prosecutor or advocate or from voting on the merits. Cal. Bus. & Prof. Code § 809.2(b). The merits are determined by the trier of fact, often a panel drawn from other of the physician’s peers. Cal. Bus. & Prof. Code § 809.2(a).

In Dr. Mileikowsky’s case, however, month after month went by without a hearing, largely because Dr. Mileikowsky refused to produce documents requested by West Hills, challenged the hearing officer’s authority, and refused to comply with the officer’s directions or orders. In the interim, West Hills amended its notice of the recommendation to include an allegation that Dr. Mileikowsky had failed to cooperate in West Hills’ investigation of the actions taken against him by a fourth facility, which had reported to the MBC and to the National Practitioner Data Bank that Dr. Mileikowsky’s privileges at that facility had been suspended for actions falling into the adverse action classification of “Incompetence/ Malpractice/Negligence.”

Eventually, the hearing officer ordered Dr. Mileikowsky to produce documents relating to the fourth facility, warning he would impose terminating sanctions should Dr. Mileikowsky fail to comply. Dr. Mileikowsky did not comply with the hearing officer's order. Finally, the hearing officer issued an order dismissing Dr. Mileikowsky’s request for a hearing, finding Dr. Mileikowsky’s refusal to make the documents available prevented West Hills from prosecuting its case.

In dismissing the proceedings, the officer invoked a provision in West Hills’s bylaws providing that a physician who fails to request a hearing shall be deemed to have accepted the action involved, the action will become effective immediately, and the physician will be deemed to have waived all other rights inuring to him or her under the bylaws. The order thus declared that the dismissal constituted Dr. Mileikowsky’s voluntary acceptance of the peer review committee’s recommendation and that the recommendation therefore “shall become effective immediately.”

As a result of the order, no hearing was convened, and the matter was never submitted to the reviewing panel for decision. Dr. Mileikowsky appealed the order to West Hills’ governing board, which adopted the hearing officer’s order. Dr. Mileikowsky sought relief in the superior court by petition for a writ of administrative mandate. After losing in the trial court and prevailing in the Court of Appeal, the matter was accepted for review by the California Supreme Court.

Upon review, the Supreme Court determined that the hearing officer was without authority to dismiss the hearing on the grounds of Dr. Mileikowsky's failure to cooperate. The Court found no provision in either the BPC or West Hills’ bylaws that expressly conferred authority on a hearing officer to issue terminating sanctions, and it determined that inferring such power was inconsistent with the goal of the statutory review process. The purpose for providing a physician with a review of the peer review committee’s recommendation—to secure for the physician an independent review of that recommendation by a qualified person or entity (the reviewing panel)—is defeated if the matter is dismissed before the reviewing panel becomes involved. A hearing officer who summarily dismisses a hearing in effect "votes" on the merits by ensuring that the peer review committee’s recommendation will be the final decision of the reviewing panel, in violation of section 809.2(b).

Thus, the Court held that "once a hearing has been requested, the review process may not be concluded without the reviewing panel’s informed approval."
Even though finding in favor of the physician, the Court pointed out potential adverse consequences of a physician's refusal to cooperate in the peer review proceedings:

■ A physician’s refusal to cooperate in an investigation of reported problems may support a recommendation that the physician’s staff privileges be denied. See Webman v. Little Co. of Mary Hospital, 39 Cal.App.4th 592, 602-03 (1995). However, a physician may not be denied staff privileges merely because he or she is argumentative or has difficulty getting along with other physicians or hospital staff, if those traits do not relate to the quality of medical care the physician is able to provide. Miller v. Eisenhower Medical Center, 27 Cal.3d 614, 627-29 (1980).

■ Where a delay in proceedings may result in an imminent danger to the health of any individual, the physician’s clinical privileges can be summarily suspended. Cal. Bus. & Prof. Code § 809.5.

■ A reviewing panel reasonably could infer from a physician’s failure to provide information that the information in question is unfavorable or tends to show the physician cannot or will not cooperate with others and for that reason may be unwilling or unable to function effectively in a hospital setting.

■ Initial applicants for hospital privileges may not introduce “information not produced upon request of the peer review body during the application process, unless the initial applicant establishes that the information could not have been produced previously in the exercise of reasonable diligence.” Cal. Bus. & Prof. Code § 809.3(b)(2).

Attorney Commentary: While the physician won the battle, whether he wins the war remains to be seen. The Supreme Court decision merely puts him back where he started—before the review panel—where the merits of his applications for staff privileges will have to be considered over again.

Even if the physician ultimately obtains the staff privileges he seeks, his aggressive conduct has resulted in time consuming (and expensive!) litigation which appears wholly unnecessary. This case illustrates the need to cooperate in the peer review process even while fighting for a provider's privileges.

We can infer two scenarios from the physician's conduct: (1) he didn't take the process seriously; or (2) he was trying to avoid disclosing bad facts. As to the first scenario—failing to cooperate won't make the process go away—it just raises negative inferences on the physician's fitness or willingness to practice in cooperation with others and in compliance with the facilitity's bylaws.
As to the second scenario—facts are facts, and not cooperating will not make them disappear. What needs to be done is full disclosure, and, with respect to past deficiencies, developing a plan to prevent their reoccurrence. An attorney experienced in peer review processes can assist the physician in presenting the facts in the best light possible and devising a plan that will acknowledge and address the concerns of the reviewing committee.

Any questions or comments should be directed to: Tracy Green is a principal at Green and Associates in Los Angeles, California. The firm focuses its practice on the representation of licensed professionals and businesses in civil, business, administrative and criminal proceedings, with a specialty in health care providers.

Posted by Tracy Green, Esq.
Phone: 213-233-2260


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