Hospital Structure & the Powers of the MEC
The basic structure of hospital management in relation to the MEC divides power. "Hospitals in this state have a dual structure, consisting of an administrative governing body, which oversees the operations of the hospital, and a medical staff, which provides medical services and is generally responsible for ensuring that its members provide adequate medical care to patients at the hospital.” (El Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal. 4th 976, 983)
As you read this outline bear in mind that the distinctions between organized medical staff andd the hospital are often blurred by political and financial considerations. Hospitals can contract with physician owned medical groups to take over large portions of the hospital business. In doing so, they can exclude from the hospital individual physicians or existing groups. This is not necessarily medically based and it often has the agreement and support of organized medical staff. However, the consent of organized medical staff is not a democratic process. The individuals who occupy positions of power make a choice and their choice may well be political, personal or even financially based.
While Chief of Staff is a prestigious position, in some hospitals it is occupied by people who have concerns about their own skill levels and they use the political process and network to protect themselves. We have seen cases where bright, talented young physicians have been targeted by Chief of Staff in order to protect that person's practice at the hospital. with these caveats, read on.
Medical Staff is Separate from the Hospital
The medical staff of a hospital “is a separate legal entity from the hospital” (Natarajan v. Dignity Health (2021) 11 Cal.5th 1095, 1114) and is “responsible for the adequacy and quality of the medical care rendered to patients in the hospital” (Mileikowsky v. West Hills Hosp. (2009) 45 Cal.4th 1259, 1267). Business & Professions Code section 2282.5 (section 2282.5), subdivision (a), provides the medical staff's “right of self-governance” includes establishing standards for medical staff membership and privileges; establishing standards to oversee and manage quality assurance; and initiating, developing, and adopting medical staff bylaws, rules, regulations, and amendments, “subject to the approval of the hospital governing board, which approval shall not be unreasonably withheld.” (See Cal. Code Regs., tit. 22, § 70703, subd. (b).)
In cases where Medical Staff acts in lock step with hospital administration at the expense of doctors we often point out (in letters and legal briefs) that California law requires medical staff bylaws to “provide formal procedures for the evaluation of staff applications and credentials, appointments, reappointments, assignment of clinical privileges, appeals mechanisms and such other subjects or conditions which the medical staff and governing body deem appropriate.” (Mileikowsky, at p. 1267; see Cal. Code Regs., tit. 22, §§ 70701, 70703.)
Who Chooses to Work on an MEC?
None of these rules address a core concern that the Horowitz office has with MEC's. The uncompensated time spent in administration leads people with lesser skills and high ambitions to occupy these roles in order to protect and promote their practice. Limitations on privileges for competing doctors, peer review criticizing the work for competing doctors are two methods that we have seen used by career politicians who use their MEC positions improperly.
To the doctor operating under these rules, the complexity of the laws, the variations caused by the by-laws of your particular institution, mirror boards of directors with various entities controlling the hospital, lead to confusion over who has the power to regulate physician conduct and supervise patient safety and care.
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Federal Regulations and the MEC
There are many rules and regulations governing hospital structure and the MEC is no exception. Federal regulations governing a Medical Executive Committee (MEC) in a hospital are governed by CMS participation and the rules that go along with that. See: CMS Conditions of Participation (CoPs) (42 CFR 482.22). Note that these are not federal laws. To the surprise of many, federal law does not affirmatively mandate that a hospital establish a medical executive committee (MEC). However, you can't get federal funds for your services unless you follow the regulations so they have in most ways the force of law. California doesn't have the "power of the purse" so California create a regulation that references an executive committee and require an "executive review" function as part of mandated medical staff organization, creating a practical, if not literal, requirement for some form of MEC structure 22 CA ADC § 70703. Bottom line is - you have to have an MEC if you're a hospital.
The language of the federal reg at: 2 C.F.R. § 482.22, provides that a hospital "must have an organized medical staff that operates under bylaws approved by the governing body, and which is responsible for the quality of medical care provided to patients by the hospital". So if you look at the paragraph above there is an implication of a committee requirement but it is not explicit! § 482.22 does not mandate a medical executive committee. The provision addressing the MEC is phrased conditionally: "(2) If the medical staff has an executive committee, a majority of the members of the committee must be doctors of medicine or osteopathy." 42 CFR § 482.22 This language imposes a composition requirement only if the hospital elects to form such a committee; it does not require hospitals to create one.
Uhhh... so why does every medical staff have a committee?
At the very least having an MEC shows that there is true compliance with the requirement that there be a medical staff organization. An HHS administrative decision in Kemper Community Hospital, DAB CR825 (2001), sustained the termination of a hospital's Medicare participation for failure to comply with nine conditions of participation, including 42 C.F.R. § 482.22's requirement for an organized medical staff. The decision found the hospital had no medical staff appointed since 1994 and no approved medical staff bylaws, but did not identify any independent regulatory mandate to maintain an executive committee. And then you have California (This writer does not know how many other states have a similar requirement) California's regulatory framework creates a functional requirement for executive committee structures in general acute care hospitals. Cal. Code Regs. tit. 22, § 70703 requires that each hospital have "an organized medical staff responsible to the governing body for the adequacy and quality of the care rendered to patients" 22 CA ADC § 70703. The medical staff bylaws must include "provision for the performance of the following functions: executive review, credentialing, medical records, tissue review, utilization review, infection control, pharmacy and therapeutics, and assisting the medical staff members impaired by chemical dependency and/or mental illness to obtain necessary rehabilitation services" 22 CA ADC § 70703
In a case our office has filed against John Muir Health in Walnut Creek, California, one of our contentions is that a new procedure never done at that hospital had to first be cleared by medical staff and then vetted and approved by the board of directors. The Medical Executive Committee or a specialized committee would be the appropriate representative entity to speak for medical staff. While the regulation permits flexibility — these functions "may be performed by individual committees, or when appropriate, all functions or more than one function may be performed by a single committee" — it also expressly references "the executive committee" as the body to which reports must be made, stating: "Reports of activities and recommendations relating to these functions shall be made to the executive committee and the governing body as frequently as necessary and at least quarterly." 22 CA ADC § 70703
Recently, MEC, Medical Staff and hospital administration collaboration in an improper manner (Patient Safety sacrificed for profits) has become more frequent. We believe that there is a movement that is just starting to have large physician owned groups (read corporate owned using physician figureheads) to take over hospital practices. We are exploring various anti-competitive lawsuit strategies to fight this. (We are not the only ones, other excellent physician firms have filed this type of lawsuit.) Where we believe we are unique (or at least unusual) is in our review of these actions as potential RICO violations (with treble damages and potential criminal referrals). See our blog on RICO
We have also seen a large uptick in sham peer review based upon behavioral issues. The "Disruptive Physician" tag is put on a physician over time and leads to a suspension. We have several blogs on sham peer review. An impottant related issue is "WHEN" does peer review start because a physician may want to leave hostile work environment rather than let the peer review trap unfold. However if you are under investigation resigning has negative consequences. Read our blog on When Does Peer Review Start?
Triggers to MEC Reporting Under Business & Professions Code Section 805
Most physicians focus on medical issues and few consider state reporting rules until after a crisis is triggered. Take a moment to review the “official” State of California Medical Board 805 Reporting Form. There are 11 check boxes that trigger reporting (and those check boxes are not the exclusive list of medical board reportable actions):
(a) For a Medical Disciplinary Cause or Reason:
- Termination or revocation of staff privileges
- Denial/rejection of application for staff privileges
- Termination or revocation of membership
- Denial/rejection of application for membership
- Termination or revocation of employment
(b) For a Cumulative Total of 30 Days or More for Any 12-Month Period, and for a Medical Disciplinary Cause or Reason:
- Restriction(s) imposed on staff privileges
- Restriction(s) voluntarily accepted on staff privileges
- Restriction(s) imposed on membership
- Restriction(s) voluntarily accepted on membership
- Restriction(s) imposed on employment
- Restriction(s) voluntarily accepted on employment
Understanding Reportable Triggers in Medical Staff Privileges
Identifying Reportable Triggers
Some triggers for reporting are clear, such as the termination or revocation of medical staff privileges. However, the term “restrictions on employment” can be ambiguous. Are restrictions reportable if they arise from a personality conflict? If a hospital introduces a new procedure and you apply but are denied participation, is that considered a “Denial/Rejection of application for staff privileges”? These are critical areas where organized medical staff may inadvertently trigger reporting without intending to.
The Role of Legal Counsel
Sometimes, an action is taken, and the reporting requirement is only recognized upon review by medical staff legal counsel. Our medical lawyer group strongly recommends seeking expert advice on “grey area” events to intervene before the process escalates. We may sometimes directly intervene or advise in the background. We often warn our doctors that the MEC has lawyers with whom they consult both regularly and on all significant actions. Your contact with the MEC is also contact with the MEC lawyers - even if you are not told of this.
Negotiating with MEC Lawyers
Negotiations with Medical Executive Committee (MEC) lawyers can sometimes limit or supplement the contents of an 805 report in a way that is more favorable to you. Consulting with experienced legal professionals early can help protect your medical license and ensure that you navigate these complex situations. Call Daniel Horowitz at 925-283-1863.
