Peer review hearing officer's role is limited

A column analyzing the impact of recent court decisions on physicians

By Amy Lynn Sorrelcovered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted May 4, 2009.

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Similar to court proceedings, peer review hearings need a referee to keep things moving. But can a peer review hearing officer -- typically a nonphysician -- go so far as to exact a final judgment?

Not according to a recent California Supreme Court ruling.

Yet that essentially was the effect when a hearing officer at West Hills Hospital & Medical Center terminated a peer review proceeding on his own -- without the approval of the medical staff review panel.

In 2001, ob-gyn Gil N. Mileikowsky, MD, applied to renew his privileges at West Hills Hospital. A peer review committee recommended that his reappointment be denied, citing the doctor's failure to notify the medical staff that his privileges at two other facilities had been terminated or suspended, among other reasons, court records show.

Dr. Mileikowsky appealed the recommendation, and in May 2002 requested a formal hearing before a peer review panel. Per the medical staff bylaws, a hearing officer -- an attorney -- was appointed by the medical executive committee to run the proceedings and help facilitate the exchange of evidence between both sides.

The hearing, however, never took place.

Despite multiple requests by the hearing officer over six months, Dr. Mileikowsky failed to produce documentation asked for by the peer review panel related to the prior disciplinary actions, according to the court opinion. The panel then amended its charges to include Dr. Mileikowsky's lack of cooperation with the investigation.

Dr. Mileikowsky ultimately furnished some of the requested material but did not turn over records related to an earlier suspension at one of the facilities. He informed the medical staff that he had authorized the other hospital to release the information directly to West Hills Hospital, but the other facility never responded. (See Clarification)

After Dr. Mileikowsky refused subsequent requests to supply the remaining documents, the hearing officer notified him that a failure to comply with the discovery demand would result in an order terminating the proceedings. Dr. Mileikowsky again rebuffed the discovery requests, and the hearing officer in March 2003 dismissed the doctor's case, saying his refusals prevented the hospital medical staff from pursuing its inquiry.

As a result, a hearing never was convened, and the peer review panel never deliberated a final judgment. The hearing officer's decision left standing the initial peer review committee's recommendation to deny Dr. Mileikowsky's reappointment.

The California Supreme Court said a hearing officer was not meant to have such broad powers.

The purpose of peer review "is to secure for the physician an independent review ... by a qualified person or entity," Justice Kathryn Mickle Werdegar wrote in the April 6 majority opinion.

"That purpose is defeated if the matter is dismissed before the reviewing panel becomes involved. ... [The hearing officer] has no part in the decision-making process and no authority to prevent the reviewing panel from reviewing the recommendation," she wrote.

The case likely will head to trial to address other underlying issues before Dr. Mileikowsky may be granted a new peer review hearing.

In physicians' hands

Physicians generally agree there is a place for a hearing officer. The arbiter, often an attorney, typically has the authority to make procedural or evidentiary rulings to help ensure proper oversight of disciplinary hearings, said Astrid G. Meghrigian. She is legal counsel to the California Medical Assn., which, along with the Litigation Center of the American Medical Association and State Medical Societies, filed a friend-of-the-court brief in the case.

"But the [Supreme] Court recognized that the medical staff is really the only body that can make quality or medical decisions concerning medical staff members," Meghrigian said. "It goes to the whole issue of fairness."

California law gives both parties in a peer review hearing the right to review records related to the charges. While nonphysician hearing officers are precluded from casting a "vote" in a final decision, they may rule on requests for access to information and impose "any safeguards the protection of the peer review process and justice requires," the law states.

That provision, West Hills Hospital argued in court documents, entitled the hearing officer to issue sanctions ending the peer review process if a party fails to comply with discovery requests.

But the court called that interpretation "dubious." Justices said the statute was intended, for example, to authorize a presiding officer to redact confidential information from discovery, while protecting "the peer review process and justice" by allowing doctors access to other available material. The court also noted that the West Hills Hospital medical staff had access to outside information, such as state medical board reports, to substantiate its case.

Charles M. Kagay, Dr. Mileikowsky's attorney, said the ruling not only affirms that the peer review panel cannot be bypassed but that a fair system is needed to ensure doctors aren't wrongly removed from medical staffs.

"The court seemed to go out of its way to remind us that the hearing panel is there to protect doctors, as well as the public," he said.

In addition to assuring patient safety, the court stated that another "equally important" purpose of peer review "is to protect competent practitioners from being barred from practice for arbitrary or discriminatory reasons."

Potential for abuse?

In a dissenting opinion, however, Justice Joyce L. Kennard said a hearing officer was meant, in extreme circumstances, to have sanctioning powers to control deliberate attempts to impede or delay the peer review process. "This case fits into that category," she said.

Rather than interfering with the review panel's decision-making, such authority helps protect the integrity of the process, Kennard added.

Curbing a presiding officer's power "to impose a termination sanction for a party's egregious abuse of the discovery process would undermine the hearing officer's ability to control recalcitrant parties and curb flagrant abuses of the statutory discovery process," she wrote.

Hospitals agreed.

West Hills Hospital spokeswoman Janice Barnett said in a statement that the decision "will make it more difficult to conduct peer review effectively and [we] are concerned that public safety will suffer." The hospital is reviewing the decision to determine what, if any, further legal recourse is available.

"It is our hope that physicians will still be willing to serve on peer review committees, given the increased burden this decision will place on them," Barnett said.

The majority court said it was "cognizant" that limiting a hearing officer's authority could encourage disruptive behavior. But judges noted that hospital medical staffs have other avenues to suspend a physician if they believe the doctor poses an imminent danger to patient care.

Wendy R. Keegan, California Hospital Assn. vice president and legal counsel, while siding with the dissenting opinion, anticipated that the majority ruling will have a minimal impact on peer review. Nothing in the ruling prevents a hearing officer from recommending to the peer review panel that proceedings be terminated, she said.

"If the circumstances are egregious enough to cause a hearing officer to feel it's appropriate to dismiss a case, in all likelihood, that's going to be approved by the hearing panel. This [ruling] just clarifies the steps a hearing officer should take."

The CMA's Meghrigian said the ruling provides a good balance between ensuring an equitable, yet efficient, peer review process. Physicians under review have little incentive to hold up the proceedings because they can be financially harmed when their privileges are restricted, she added.

The decision is "good for the system as a whole because physicians will be more likely to participate [in peer review] and encourage candid discussion if they think doctors are going to get a fair shake."

Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.

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