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Do Physicians Have Common Law or Due Process RIghts in Peer Review?

Doctor before medical board building saying medical board of california trouble ahead

Due Process & Common Law Rights for Peer Review

There is no federal statute that explicitly requires peer review committees to observe due process. This article discusses Peer Review & Physician Due Process & Common Law Rights.  There are remarkably few for doctors and a comparison of procedural due process rights for doctors vs. criminals shows a striking bias in favor ensuring rights to criminals but not doctors.

The Supreme Court has in various contexts outlined basic due process rights for doctors including:

Providing written notice of the actions contemplated.

Convening a hearing where both sides can present evidence.

Ensuring an independent person oversees the process.

Ensuring a fair hearing panel.

Of course the broad rules mean little compared to the day to day application of the rules. If medical staff appoints the independent judicial type officer how fair can the person be? A fair hearing panel in practice is one that does not have a financial conflict. Other conflicts such as overt racism can be counted on to protect a minority doctor but what about implicit or hidden bias? A criminal can challenge jurors on these grounds but no law clearly gives doctors that right. And by the way, in criminal law a White defendant has a right to get rid of another White person who is prejudiced against Blacks. The White defendant does not have to allow a racist to sit on his jury even if the racism is not directed toward him. But again, doctors do not have those rights (at least not in a clear, published decision format)

Recent California appellate cases have elevated principles of administrative law concerning the propriety of combining quasi-judicial, investigatory, and prosecutorial functions.

These cases emphasize the importance of procedural due process when these functions intersect.
The California Administrative Procedure Act (APA) (Government Code §§ 11340-11529) plays a significant role in defining procedural protections. In general there are fair hearing requirements in Code of Civil Procedure section 1094.5.

Historically the cases on due process have been tepid when supporting physicians and generally favorable to the peer review body. Here are some examples.

Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal. App. 4th 1137 speaks to what is and is not fair in terms of procedure. In this case, Dr. Hossain Sahlolbei appealed the denial of his motion for a preliminary injunction after the termination of his medical staff privileges at Palo Verde Hospital (PVH). PVH had failed to provide him with a hearing before terminating his staff membership, which led to the court ruling in favor of Dr. Sahlolbe. The case highlights the importance of procedural fairness in medical staff privilege terminations but it is an extreme case of action without input from the physician.

Hayes v. Cedars-Sinai Medical Center (Sept. 9, 2004, B166463) 2004 WL 2005438) is an unpublished opinion which still provides insight into the fair procedure standards for physician review. In this case, Dr. Carl Hayes brought a petition for a writ of mandamus against Cedars-Sinai Medical Center, arguing that the hospital should have held a hearing before denying his application for medical privileges. The court ultimately ruled in favor of the hospital, emphasizing the fair procedure doctrine. This case underscored the balance between a physician’s rights and a hospital’s discretion in granting or denying medical privileges. In other words, some matters are within a hospital’s discretion and challenges are very limited in scope.

Potvin v. Metropolitan Life Ins. Co. (2000) 22 Cal.4th 1060
Dr. Louis Potvin sued Metropolitan Life Insurance Company after being removed from its “preferred provider” lists without notice or an opportunity to be heard. The court applied the common law doctrine of fair procedure, which prohibits arbitrary expulsions from private organizations under certain circumstances. (Remember the phrase “common law”)

Dr. Potvin’s claim was based on the right to fair procedure, and the court ruled in favor of MetLife. This case highlights the tension between a physician’s rights and an insurance company’s discretion in credentialing decisions in the context of a provider list. These cases underscore the significance of due process and fair procedures in various contexts within the medical field.

Legal battles surrounding medical staff privileges, credentialing, and termination continue to shape the landscape of healthcare institutions and practitioners’ rights. Common law protections may still exist as to insurance company provider lists but they have been severely limited as protections in peer review and credentialing situations.

A new and recently published opinion of the California Second District Court of Appeal, Asiryan v. Medical Staff of Glendale Adventist Medical Center, addressed whether California medical staff has to follow long established common law fair procedure rights in peer review processes and hearings are available beyond the statutory rights contained in Business and Professions Code Section 809.

The specific legal question was whether the statutory hearing procedures set forth in Business and Professions Code § 809 et seq. supersede common law fair hearing rights that exist in other federal and state law settings. Put differently can rules made to comply with federal statutory standards supersede constitutional protections or common law protections.

The Court had no problem dumping any common law fairness standards finding that the California legislature intended the statutory law to supersede any common law fair hearing claims against medical staffs.

These legal issues are critical because you need to raise them during the peer review process. If you raise these issues and lose at the hearing you can appeal. In some instances you can bypass the peer review process and seek a court writ of mandamus.

Our lawyers are experts in the fields of constitutional law and due process. We apply these principles to medical hearings, medical license actions and peer review.