What is a “Peer Review Lawyer”?
A "peer review lawyer" refers to an attorney who represents doctors and other medical professionals (nurses, physician assistants) when organized medical staff, such as a hospital or physician group, raises concerns about their professional performance or qualifications. These lawyers handle investigations relating to specific negative patient outcomes, denials of privileges and the imposition of privilege restrictions, mandatory additional training programs, mandatory proctoring and other restrictions on the right to freely practice.
In many cases the medical professional will be suspended from practice pending the outcome of an investigation or following a Medical Executive Committee (MEC) determination that is negative toward to provider. A peer review lawyer will challenge this and may represent the medical provider at a hearing to determine the qualification of the healthcare provider.
Peer Review law is a specialty in law and it focuses on the representation of doctors and medical professionals by attorneys expert in rules and procedures that are designed to apply only to the medical profession. This includes the peer review privacy statute known as H&S 1157, medical board reporting, National Practitioner Data Bank reporting and other rules special to medical law.
These lawyers are expert in law such as California Evidence Code § 1157 which provides almost complete protection against the discovery of the rationale for peer review decisions and they protect doctors from negative reports filed with the state medical board and with the federally maintained National Practitioner Data Bank (NPDB).
Peer Review hearings provide some due process protections for doctors and this includes the right to a hearing on the allegations. However, peer review lawyers do not have access to information or witnesses in the same way that a criminal lawyer or even a civil lawyer will have. These attorneys learn to present their client's case with these limitations and these unique rules that apply to peer review hearings distinguish the ordinary practice of law with the specialization of an attorney as a peer review lawyer.
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An example of what a peer review lawyer does is in the area of challenging the hearing officer. The MEC or hospital appoints the "Judge" and that person is no judge in a traditional sense. Except for actual bias the hearing officer can have all sorts of bias and still make decisions that can make or break your peer review defense. So a "peer review lawyer" will address that issue. Here is some of the law on that point that we (as peer review attorneys) will put in a brief that then alleges a state Due Process violation when a hearing officer has implied but not actual bias.
The Governing Standard: Intolerable Risk of Actual Bias
The California Supreme Court in Natarajan v. Dignity Health, 11 Cal.5th 1095 (2021) addressed the precise question of when an indirect financial interest—specifically a hearing officer's potential for future employment with the hospital—triggers disqualification. The Court held that a hearing officer's interest in future employment "is not automatically disqualifying, neither is it categorically beyond the reach of the statute. In some cases, depending on the circumstances, the hearing officer's financial interest in currying favor with the hiring entity may create an intolerable risk of bias requiring disqualification under the statute." Natarajan v. Dignity Health, 11 Cal.5th 1095 (2021) The Court rejected a mere appearance-of-bias standard, holding that "disqualification is required only when there exists a direct pecuniary interest . . . that creates an intolerable risk of actual bias." Natarajan v. Dignity Health, 11 Cal.5th 1095 (2021)
Two central factors guide this inquiry: (1) whether the entity involved exercises control over the consultant's or hearing officer's selection process, and (2) the extent and likelihood of future financial opportunities the consultant may receive from that same entity Natarajan v. Dignity Health, 11 Cal.5th 1095 (2021). This is an inherently context-sensitive analysis that must account for the unique features of the medical board or peer review setting Natarajan v. Dignity Health, 11 Cal.5th 1095 (2021).
The Constitutional Floor: Due Process and Financial Interest
The constitutional baseline is set by the due process clause of the Fourteenth Amendment. The California Supreme Court in Haas v. County of San Bernardino, 27 Cal.4th 1017 (2002) confirmed that the rule disqualifying adjudicators with pecuniary interests "applies with full force" to administrative hearing officers, not just judges. Critically, Haas held that no showing of actual bias is required when financial interest is the basis for the challenge: "courts do not, when faced with a claim of bias arising from financial interest, decide whether the adjudicator was in fact influenced." Haas v. County of San Bernardino, 27 Cal.4th 1017 (2002) The test, derived from Tumey v. Ohio, is "whether the adjudicator's financial interest would offer a possible temptation to the average person as judge not to hold the balance nice, clear and true." Haas v. County of San Bernardino, 27 Cal.4th 1017 (2002) This standard applies even where the adjudicator's pay is not formally dependent on the outcome, so long as the adjudicator's future income depends on the goodwill of the selecting party Haas v. County of San Bernardino, 27 Cal.4th 1017 (2002).
The U.S. Supreme Court in Gibson v. Berryhill, cited approvingly in Haas, confirmed that those with substantial pecuniary interests in legal proceedings should not adjudicate those disputes, and that most of the law concerning disqualification because of interest applies with equal force to administrative adjudicators Haas v. County of San Bernardino, 27 Cal.4th 1017 (2002). Similarly, the Supreme Court in Schweiker v. McClure, 456 U.S. 188 (1982) recognized that due process requires hearing officers to be free from disqualifying interest, and that regulations providing for disqualification for prejudice and financial conflict are constitutionally significant.
Mere Appearance of Bias Is Insufficient for Non-Financial Conflicts
Where the alleged conflict is not financial in nature—such as a consultant's professional views, past association with advocacy organizations, or political outlook—California courts apply a stricter threshold requiring a concrete showing of actual bias or a probability of bias so high as to be constitutionally intolerable. In Andrews v. Agricultural Labor Relations Bd., 28 Cal.3d 781 (1981), the California Supreme Court held that the mere appearance of bias was not a ground for disqualification of an administrative hearing officer, and that a showing of actual bias sufficient to render a fair hearing improbable was required. Gai v. City of Selma, 68 Cal.App.4th 213 (1998) reinforced this rule, holding that disqualification of an administrative decision-maker should occur for actual bias, or when "the probability of actual bias is too high to be constitutionally tolerable." Powell v. Bear Valley Community Hospital, 22 Cal.App.5th 263 (2018) reiterated that bias in an administrative hearing context "can never be implied, and the mere suggestion or appearance of bias is not sufficient."
Waiver and Preservation of the Issue
A party who fails to timely raise a conflict of interest objection before the hearing tribunal risks waiving the claim. California courts consistently hold that due process and bias issues must be presented to the hearing officer or tribunal itself to be preserved for later challenge. In Basurto v. Imperial Irrigation Dist., 211 Cal.App.4th 866 (2012), the court held that a passing reference to impartiality concerns in an opening statement was insufficient, and that the failure to squarely raise the issue resulted in waiver.
The Due Process argument requires a case where unfortunately the physician is at such risk that a very expensive motion addresses these points is justified. You need to concede the above and then argue that the Due Process clause in the California constitution provides for GREATER protections than the Due Process Clause of the United States constitution. Here are some of the arguments:
State “Due Process” adds an element to the federal due process claims and relying on that additional element a state court can overrule by avoiding federal due process decisions. We do NOT have to show harm. Therefore implied bias in the sense that a hearing officer has spent hours training for the job but depends 100% on hospitals and MEC's for employment creates a real conflict.
To the degree federal discovery authorities are negative, the state can read “due process” concepts into the same arguments that have previously been rejected by the federal courts. California focuses on a person’s individual liberty interest and the right to be free from arbitrary adjudicative procedures. Any statutorily conferred benefit can trigger California due process protection if the statute is applied in a manner that is arbitrary. This is done through California’s 4th balancing factor which is absent from a federal due process analysis which has 3 prongs and btw California has the same 3 prongs but just adds this 4th one.)
This is called the dignitary interest (informing individuals of nature, grounds and consequences and enabling them to present their side). The test comes from People v. Ramirez, 25 Cal. 3d 260 (1979). The most significant divergence between California and federal procedural due process is that, under California law, a claimant does not need to establish a liberty or property interest as a threshold prerequisite to invoking due process protection. Hence the actual effects of this obvious bias create an appearance of unfairness and the physician does not have to prove that in this particular case the bias will change the result.
In People v. Ramirez (1979) 25 Cal.3d 260, 263-4 (1979), the California Supreme Court held that "application of the due process clauses of the California Constitution must be determined in the context of the individual's due process liberty interest in freedom from arbitrary adjudicative procedures." When a person is deprived of a statutorily conferred benefit, "due process analysis must start not with a judicial attempt to decide whether the statute has created an 'entitlement' that can be defined as 'liberty' or 'property,' but with an assessment of what procedural protections are constitutionally required in light of the governmental and private interests at stake" Ramirez at 264
This is just the start of the motion but it is one of the many things that lawyers who provide the highest quality peer review defense consider in preparing a case.
For Peer Review or sham Peer Review defense call Daniel Horowitz (925) 283-1863
