by Sharon Kime and Robert Sullivan

A doctor who is the subject of a peer review investigation for substandard care should first of all obtain the advice of an experienced health care lawyer. This is not a field for the lawyer who drafted the physician’s will or handled his divorce. Health care law has become a real specialty with its own vernacular, its own procedures, and, frankly, its own mystique. Unfortunately, too often the physician charged with a corrective action mistakenly believes that he or she can handle the judicial review hearing without a lawyer. This is a big mistake. A judicial review hearing is an adversary hearing. The involved physician has neither the objectivity nor the training to defend him or herself effectively.

The Investigation

With the assistance of competent counsel, the charged physician needs to take the investigative process seriously. While the investigation is ongoing, the physician needs to participate in it actively and to obtain the necessary independent evaluations of the cases under review. It is not enough for the physician to explain to the ad hoc committee that his care was appropriate. The committee needs another opinion. Sometimes, the committee has no one of the same specialty as the physician being investigated or if it does, that physician may not take the time necessary to understand the cases. Because of the high stakes of this process, the subject physician must spend the time and the money under the guidance of his lawyer to produce as strong as possible evidence that his care of his patients was competent.

The worst thing a physician can do is to try to gloss over obvious errors. However, it is equally foolish to inaccurately concede error in the hope that conciliation will solve the problem. In our experience, when a physician, in the spirit of collegiality, acknowledges error it frequently is used against him. Medicine is not an exact science. Patient care is based on a complex reasoning process that occurs with inadequate information at the time. Sometimes, looking back when all the data is available, the case looks entirely different from how it must have appeared to the practitioner in real time. In these situations, the physician should not be quick to assume guilt. However, when there is indisputable evidence the physician acted below the standard of care, it is better to deal with it constructively in the course of the investigation rather than to adamantly deny the facts. Fair-minded members of a peer review committee conducting an investigation will work with such a physician to find a solution or to remedy the physician’s deficiency.

When the investigation is concluded, the physician should make certain that he offers a constructive resolution, without the necessity of “corrective action.” When corrective action is seemingly unavoidable, the involved physician should still offer some solution that minimizes the harm of the corrective action to his practice.

Once the corrective action is taken, whether it be a restriction or termination of privileges, the subject physician has an important decision to make. The physician must decide whether or not to request a judicial review hearing. A judicial review hearing provides the potential benefit of vindicating the physician. However, the potential risk is that it may make things worse. If the restriction stands, or even if it is modified, the hearing process creates evidence that can be used by the Medical Board of California in a disciplinary action against a physician’s license. It can aggravate animosities between physicians and can destroy his or her referral base. Finally, the hearing can be both financially and emotionally expensive. Thus, a cost benefit analysis must be made by the physician with his or her lawyer to determine whether to request a judicial review hearing.

We do not recommend a quick filing of the appeal. Most medical staff bylaws provide a 30-day period within which the physician can request a judicial review hearing. This is time that is needed for the physician and his or her lawyer to explore whether they can mount a successful defense, negotiate a settlement with the medical staff executive committee, or make changes in the physician’s practice to accommodate the effect of the corrective action on the physician’s practice. It occasionally happens that an appeal must be filed if only to deliver the message to the medical executive committee that the physician is serious about defending him or herself. Some-times this message must be delivered before the medical staff will seriously discuss settlement. But for such a message to be unmistakable, the subject physician and his or her lawyer must make the commitment to go through the appeal if negotiations fail. It is impossible to successfully negotiate a favorable settlement in this or any other dispute if the physician appears weak or vulnerable. It’s like a poker player betting a hand that has been seen by one or more of the other players.

When the physician decides to fight, his defense can be broken into three distinct phases; preparation for hearing, selection of defense witnesses and presentation of evidence.

The Hearing

1. Preparation for Hearing

Sometimes, the case cannot be settled in the first days or weeks following the notice of corrective action and the filing of appeal. In that situation, the physician and his/her lawyer must prepare for a hearing before a judicial review committee. California law does not explicitly provide the physician with the right to counsel in such hearings, but most hospitals will grant a physician the right to be represented by counsel. If this not the case, the alternative is for the physician’s lawyer essentially to give his/her client a short course in trial lawyering and then to be available to the physician in the anteroom throughout the hearing. Fortunately, this is seldom necessary because most hospitals acknowledge that judicial review committee hearings generally go more smoothly where the parties are represented by counsel. Of course, there are horror stories where “outrageous defense lawyers” are alleged to have turned these hearings into circuses and thus cost the hospital hundreds of thousands of dollars! We doubt this has generally been the case!

In preparing for hearing, there are three important tasks for the defense: (1) selection of the judicial review panel, (2) selection of the hearing officer, and (3) obtaining discovery from the hospital. The physician wants a fair and impartial hearing panel and a hearing officer who is likewise fair and impartial and will conduct the hearing in an even-handed manner. Most medical staff bylaws provide that the hearing officer shall be an attorney who will preside over the hearing and rule on evidentiary points and other legal issues. While section 809.2 of the Business and Professions Code provides the right to “voir dire” the hearing panel and the hearing officer at the time of the hearing to determine whether they can be impartial, this process should not wait until the hearing. Most hospitals and their counsel are willing to engage in a dialogue with the physician and his/her counsel to make certain the panel and the hearing officer are fair and impartial. Hearings are expensive and an inconvenience to everyone. The composition of the panel and the selection of the hearing officer can most often be agreed to in advance of the hearing. Therefore, when the hearing convenes, the voir dire questions themselves, while important from a defense standpoint to prepare the panel for the issues of the case, should seldom disclose grounds to disqualify.

Discovery of the evidence in the possession of the medical staff or the hospital is unduly limited by section 809.2 of the Business and Professions Code. Of course, it is the objective of the hospital to limit the disclosure of hospital records to documents relevant to the charges. There is an explicit provision in section 809.2 that prevents the subject physician from obtaining “Confidential information referring solely to individually identifiable licentiates, other than the licentiate under review.” This means that the physician cannot obtain documents tending to show that other physicians on the medical staff are treated differently by the hospital when they engage in the same conduct or conduct similar to that which prompted the corrective action. This restriction on discovery is probably the single most troublesome obstacle in establishing a defense that the physician’s practice was within the standard of care at the hospital.

Discovery efforts should examine the investigative procedures utilized by the hospital in preparing the case. Often, more than one committee has looked at the cases forming the basis of the charges against the physician. Often, their evaluations of the doctor’s care conflict. Often, one committee will find the care acceptable only to have another committee condemn the doctor. This type of evidence is quite useful in the defense. A complete review of the hospital’s protocols and procedure manuals often reveals provisions that support the physician and conflict with the hospital’s position.

2. Selection of Defense Witnesses

The subject physician is the most important witness for the defense. He/she must be prepared to demonstrate superior knowledge and that his/her ability in medicine is excellent. If any mishap or errors in judgment occurred, the subject physician should put them in the appropriate context – that they were errors of a competent physician, made under the pressing demands of a hospital setting. The physician must know the charts at issue backwards and forwards and the medicine involved. The physician must be able to “teach the case” to the judicial review committee.

The other defense witnesses, likewise, must be distinguished. We prefer to have one or more academic physicians who have solid and current clinical practices. The reason for this is that the academic physician with a clinical practice invariably sees a great many cases and patients who have first been treated by other physicians. Therefore, the academic physician can testify cogently that the physician’s care in question was at or above the standard of care. We also like to have one strong witness selected from the medical staff and another one from the community who may not be on staff at the hospital, but is highly regarded in the medical community. It goes without saying that all the witnesses for the defense should be articulate and persuasive.

3. Presentation of Evidence

The physician’s case must be clear, concise and forceful. Usually the hearing occurs in the evening after the physicians on the committee have worked a full day. The documentary evidence must be well-organized with all the exhibits bound, indexed, and tabbed so that the committee, the hearing officer and witnesses who will be referring to them can use them easily. All evidence must be concise in that it should focus on the issues of the case and not wander off to ancillary issues. The testimony should be paced and follow the outline of the opening statement. We recommend utilizing demonstrative evidence wherever helpful to illustrate points. This might include the use of slides, overheads, and anatomical charts.

The order of testimony preferred is to have the physician as the first witness. The expert witnesses would then build on the physician’s testimony, with our strongest expert closing. Minor errors in testimony made by the physician are forgotten by the time the case is submitted for decision.

A cogent closing argument is critical to a successful defense. It is the culmination of the physician’s case. It is imperative that the physician’s evidence follow a theme that is established in the opening statement and that continues through the presentation of evidence.

In conclusion, given the regulatory and economic pressures on hospitals and physicians, peer review corrective action and judicial review proceedings will continue to grow in importance in both the hospital and managed care setting. Handled fairly and appropriately they can be an effective tool to improve the quality and delivery of health care and reduce health care costs. However, handled inappropriately, they can waste tens of thousands of dollars driving up health care costs, destroy working relationships within the hospital, and interfere with the delivery of quality medical care to patients.