Court gives hospital narrow win on peer review

A hospital that assumed control of a physician’s peer review process did not deprive the doctor of his right to a fair hearing, the Supreme Court of California has ruled.

Justices in June overturned an appeals court decision that found Hollywood Presbyterian Medical Center in Los Angeles was wrong to appoint peer review hearing members in an examination of the privileges of cardiologist Osamah A. El-Attar, MD.

Although the decision is a narrow victory for the hospital, the legal battle is far from over, said Kurt L. Schmalz, attorney for Dr. El-Attar. The state high court ruled on the panel appointment question but sent the case back to the lower court for more analysis regarding how the hearing was conducted.

“Dr. El-Attar didn’t win the case, but he didn’t lose it, either,” Schmalz said. “The appeals court will now look at the rest of his arguments with regard to a lack of fairness in [the hearing process]. We believe the court of appeals” again will invalidate the peer review hearing and impose a new hearing.

At this article’s deadline, attorneys for Hollywood Presbyterian Medical Center had not returned messages and emails seeking comment.

The case started when the medical center revoked Dr. El-Attar’s privileges in 2002. The medical staff’s executive medical committee had recommended that Dr. El-Attar’s privileges be renewed. Dr. El-Attar requested a peer review hearing.

A review was conducted, but the hospital’s governing board appointed the hearing officer and members of the panel, according to court documents. The panel upheld Dr. El-Attar’s termination. He sued, arguing that the hospital had violated medical staff bylaws by choosing the panel members, thus leading to an unfair hearing. Under medical staff bylaws, only the medical staff’s executive committee may appoint peer review hearing members.

A trial court ruled in the hospital’s favor, but a California appeals court reversed. The Supreme Court of California accepted the case in 2012.

The state high court’s decision hinged on whether the medical executive committee voluntarily gave up control of Dr. El-Attar’s peer review process. Attorneys for the hospital argued in court documents that it made the panel appointments because “the medical staff’s leadership failed to make the necessary appointments.”

In its June 6 opinion, the court said its decision may have been different had the hospital appointed the panel members in the face of active resistance by the medical executive committee. No evidence showed that the committee tried to stop the hospital’s appointments or appoint panel members, according to court documents.

“Because a hospital’s medical staff and its governing body both have significant and at times overlapping roles to play in the peer review process, the identity of the entity that appoints the participants in a physician’s judicial review hearing is not, as the Court of Appeal held, necessarily determinative of whether the physician does or does not receive a fair hearing,” the opinion said. “This is true even if the governing body takes action that might, under the bylaws, normally be taken by the medical staff.”

Minnesota decision goes against doctors

The ruling is one of two recent physician defeats related to medical staff rights.

In September 2012, a Minnesota district court judge ruled that medical staff bylaws do not constitute a contract between physicians and hospitals. The State of Minnesota District Court, 5th Judicial District, County of Lyon, said Avera Marshall Regional Medical Center in Marshall, Minn., had the authority to change the hospital’s former medical staff bylaws, and physicians must follow the latest rules.

A group of doctors on the Avera medical staff had claimed that the medical center violated its bylaws when it repealed medical staff rules and adopted new bylaws. The district court decision is under review by the Minnesota Court of Appeals.

In the California case, the state’s medical association expressed disappointment that the court ruled against Dr. El-Attar. However, the language of the opinion was positive for medical staffs in general, said Long Do, legal counsel for the California Medical Assn. The CMA and the Litigation Center of the American Medical Association and the State Medical Societies had issued a friend-of-the-court brief in support of Dr. El-Attar.

“Even though the court ruled against the individual physician, it still upheld a lot of the principles of medical staff governance that [the] CMA and AMA got behind in our amicus brief,” Do said.

For example, judges said that although the assumed bylaw violation in Dr. El-Attar’s case was not material, the court was not suggesting that such bylaws are meaningless or that a violation of a bylaw provision “could never be found material.”

“We do think the opinion can be used to support medical staffs in the future because of some statements” in the ruling, Do said. “For instance, the court said bylaw violations can give rise to an unfair peer review process, just not in this case, and that medical staffs do have self-governance rights that should be recognized.”