I. The Present Day Nature of Disciplinary Proceedings
Outside of the context of licensing board matters, disciplinary
proceedings most frequently arise at health facilities, primarily
hospitals. This can occur as a result of an initial application for
appointment to a medical staff, a subsequent reappointment
application, routine peer review processes, patient/staff
complaints, and due to conduct considered below the standard of
care, an eminent danger to the health and safety of patients,
disruptive to hospital operations, unprofessional, and/or unethical.
The initial catalyst may or may not appear trivial, however, it is
imperative that physicians understand the potential and likelihood
for a "snowball effect."
Most physicians have more than a passing familiarity with
disciplinary proceedings that can arise at the medical staff level.
Unfortunately, the advent of managed care has opened up a new and
growing area of exposure. Few physicians can practice nowadays
without contracts with insurers and other payers of healthcare
services. These entities are increasingly scrutinizing physicians
pursuant to the same triggers as hospitals.
There are obvious and not so obvious implications from
disciplinary proceedings. They carry the specter of negative impact
on reputation and professional standing, the scope of one's
practice, and the financial ability to earn a living. They also
frequently serve as the impetus for licensing actions by the Medical
Board of California. Physicians today find themselves under the
microscope as in no time in the past. As such, it is important to
understand and know how to cope in this new environment.
II. Disciplinary Actions in the Payer Contracting Arena
The advents of managed care now requires physicians to apply to
become paneled providers for health insurance companies, HMOs, and
the like. With few exceptions, these contractual arrangements are
the physicians' economic life blood. Without them, most physicians
cannot survive in practice today. Yet, to become a paneled provider,
a physician must apply in much the same way as he/she applies for
medical staff membership. Utilizing the same information that a
hospital uses, an insurance carrier decides whether the applicant
will be made a member of the provider panel. It will consider
education, training, experience, claims history, hospital
affiliations, and the existence of hospital and licensing board
actions. Like the 600 lb. gorilla, the payer has broad discretion in
granting provider status with the physician having little recourse
when an application is denied. Physicians have greater protection
once accepted as a panel provider, however these rights are more
limited than in the medical staff setting. Most provider plans
contain provisions that will result in the physician being
automatically dropped in the event that his/her medical staff
privileges are summarily suspended, limited, or revoked; or where
the Medical Board of California has initiated action resulting in
probation, suspension, or license revocation.
The issues of summary suspension of hospital privileges and
probationary license status warrant special mention. It is
intellectually easier for a physician to understand why a payer
would cancel a provider agreement when a physician's privileges have
been curtailed or his/her medical staff membership has been revoked
for issues relating to quality patient care. The foregoing occurs
after the physician has exercised, or at least had the opportunity
to exercise, a full menu of procedural due process rights. Yet,
summary suspension is different. Under California law, a summary
suspension can be imposed at a hospital when a physician poses an
eminent danger to the health and safety of patients, is disruptive
to hospital operations, or has engaged in unethical or
unprofessional behavior. The agreements that physicians sign with
payers obligates the physician to immediately advise the payer when
a summary suspension has been imposed. This will trigger an
automatic delisting before the physician has had an opportunity to
exercise his/her due process rights. The delisted physician cannot
challenge the payer's action as it was a contractual term agreed to
by the physician at the onset.
Plans vary on whether or not probationary license status results
in automatic delisting. You need to consult your provider agreements
for details in this regard. However, many plans require that the
physicians at all times maintain an "unrestricted" license to
practice medicine. A license revocation action initiated by the
Medical Board of California (called an Accusation) can conclude,
either by settlement or administrative ruling, with the physician
still having a license to practice medicine; but with a license that
is subject to very specific terms and conditions of probation. While
in most cases the physician can do everything he/she did before, the
license is considered "restricted" by terms of probation. Under many
plans this will result in automatic delisting with little recourse.
Still in others, the payer will decide on the delisting with the
physician having limited rights to challenge the decision. Whatever
rights exist, are set out in the plan and have already been agreed
to by the physician.
Patient complaints are the final trigger that can place a
physician's panel provider status in jeopardy. The payer will
investigate all complaints, but the nature and extent of the
investigation varies depending upon the complaint itself. Patients
can and do complain about the quality of care provided and usually
the payer will ask the physician, pursuant to a duly signed
authorization, for a copy of the patients medical records and a
written explanation. This material is then reviewed internally, with
the payer making a determination as to whether or not action is
necessary. Often times the physician's only contact is with the
payer's point person and not with the internal committee that
reviews the complaints, the records, and the written response.
Handled the same way, but far more dangerous are patient complaints
of unethical or unprofessional conduct, particularly complaints of
drug abuse and sexual impropriety.
The decision to seek or not to seek legal counsel is obviously a
personal choice, and the decision should be weighed carefully. Yet,
keep in mind that this disciplinary issue can be a mine-field, very
dangerous to the unwary.
III. Disciplinary Action in the Medical Staff Setting
Without a doubt, disciplinary actions against physicians arise
mostly in the medical staff settings. They take the form of
corrective action, judicial review hearings, and appellate reviews.
The rights, duties, and obligations of the physician and the medical
staff are always set out in great detail in the medical staff
bylaws, rules, and regulations. Virtually every physician knows that
these procedures are outlined in the bylaws, but few, quite
understandably, give them any scrutiny until the need arises. When
it does, you should read the bylaws carefully to know what your are
up against and seriously consider the retention of counsel to guide
you through the process. The following discussion outlines the
A. Corrective Actions
A corrective action is the "lowest" level of disciplinary
proceedings that a physician can face in the medical staff setting.
It generally arises when a judgment is made by an officer of the
medical staff, a department chief, the chair of a standing
committee, the hospital chief executive officer, or the Board of
Trustees that a physician's activities or professional conduct may
be considered below standard or disruptive to hospital operations.
One of these individuals must submit a written request for actions
to the Medical Executive Committee (MEC). The written request must
be supported by details where privileges are at risk. The MEC must
forward the request to the appropriate department chair who must
immediately appoint an ad hoc committee to conduct an investigation.
Up to this point, the targeted physician may or may not know that
something is afoot. However, once the Ad Hoc Committee has been
appointed, the physician must be notified by certified mail that an
investigation is in progress, about the nature of the charges,
his/her rights to be interviewed, and of the potential for a report
to the Medical Board of California and the National Practitioner
Data Bank if privileges may be affected for more than 30 days in a
calendar year for "medical disciplinary cause or reason." It is
imperative that physicians realize that corrective action can be,
and often is, the beginning of a very long process that can lead to
a battle with the Medical Board of California to keep one's license.
The Ad Hoc Committee then embarks on its investigation. It will
gather and examine documents, usually medical records. It can
interview hospital employees and medical staff members with
pertinent information bearing on the investigation. At some point
the Ad Hoc Committee will interview the targeted physician.
Generally speaking, the Ad Hoc Committee must send a letter to
physician letting him/her know of his right to being interviewed,
the general nature of the charges, the date, time, and place for the
interview, in addition to the certified mail notice discussed above.
The Committee is working on time constraints imposed by the bylaws
within which it must provide a written report to the MEC.
To use the analogy of a fire, the quicker it is extinguished, the
better. The same is true of disciplinary proceedings. At the
correction action level, the physician interview is the best tool as
it gives the physician the opportunity to discuss, explain, or
refute the charges. The physician does not have the right to
attorney representation during the interview, but an attorney can be
consulted so that the physician is properly prepared. The physician
cannot present witnesses in his/her own defense, although documents
will generally be received and considered by the committee. Often
times, the physician is invited to submit a written statement, but
the benefits of this option should be carefully weighed. Any such
writings submitted should be drafted and signed by legal counsel on
the physician's behalf, as it eliminates the risk that it will be
used against the physician as the disciplinary process unfolds.
The Ad Hod Committee may seek to tape record the interview. The
committee has no right to tape record the interview without the
targeted physician's permission, which should always be respectfully
withheld. A verbatim transcript is more difficult to attack, than
the medical staff coordinator's transcription of her hand written
The Ad Hod Committee will make a record of its proceedings in the
form of minutes, which will include notes on the interview. A Court
Reporter's record is not prepared. The Ad Hod Committee will then
forward its report, along with recommendations, to the MEC.
The MEC has a wide variety of available options. It can reject or
modify the recommendations of the Ad Hod Committee. As to the
physician, the outcome could be no action whatsoever or a variety of
disciplinary actions ranging from a verbal warning, letter of
admonition/reprimand, to continuing medical education, proctoring,
and consultation requirements; to reduction, suspension, or
termination of medical staff privileges. Further, the MEC must
specifically determine whether or not the basis of the action
concerns quality of patient care. If so, the required statutory
reporting to the Medical Board of California and the National
Practitioner Data Bank may occur.
The targeted physician is generally notified by mail as to the
outcome of the corrective action process. If the MEC recommends an
action that will result in a limitation of privileges, the targeted
physician must receive notice by certified mail, advising him/her of
the recommendations, the reasons for same, the right to a hearing
under the bylaws, and of the potential for reporting to the Medical
Board and the Data Bank where it has been determined that the action
was necessary because the targeted physician's conduct has adversely
affected patient care. The matter then proceeds to the hearing
B. Judicial Review Hearing
The notice received by the targeted physician will reference the
physician's right to request a hearing to challenge the adverse
recommendation. The targeted physician has a limited time period
within which he/she can request a hearing usually 30 days from
receipt of the notice. The request for hearing must be in writing
and addressed to the individuals specified in the bylaws. The
targeted physician waives his/her right to a hearing if he/she fails
to timely submit a written request. The recommendation of the MEC
then becomes final with its adoption by the Board of Trustees, with
the required reports being sent to the Medical Board and Data Bank
The bylaws will set the period of time within which the physician
is to receive notice by certified mail of the time, place, and date
for the hearing. The time period is shorter when the physician is
under summary suspension, to move the matter through hearing process
as expeditiously as possible. The time period for commencement of
the hearing can be extended upon mutual agreement of the parties
and, in reality, usually is.
The notice of the hearing must also include a specific list of
the charges on which the action is based. While some of this may be
repetitive of earlier information provided to the physician,
procedural due process requires that the notice at this point
specifically delineate the charges that the physician faces. The
notice must also provide a listing of the medical records at issue,
HEARING OFFICER AND PANEL
A hearing officer is appointed by the hospital. This is generally an
attorney or a retired judge. The hearing officer can be questioned
by the targeted physician for bias and/or prejudice. Generally
speaking, the hearing officer should not have performed any
substantial legal work for the hospital or its medical staff. If so,
it is generally easy to get such an individual replaced. However,
the MEC or the Chief of Staff will designate those physician's who
comprise the judicial review panel. The number of physicians will
vary according to the bylaws but is generally not less than three to
five. An odd number is always preferred. The members of the panel
are subject to voir dire and can be excluded if it is demonstrated
that they had prior active participation in the adverse
recommendation or may derive a financial gain from the outcome. The
bylaws usually recommend, but do not require that the panel contain
at least one physician in the same specialty as the targeted doctor.
In the large communities, it is generally not difficult to
assemble a panel of physicians from the hospital's own medical
staff. Unfortunately, this can not always be done in smaller
communities with small medical staffs. Under these circumstances,
physicians from outside the community are recruited but they are
subject to the same challenges for bias and financial gain.
A hearing officer presides over the hearing to ensure that it is
conducted in an orderly fashion. Some bylaws permit the hearing to
proceed where a majority, but not all of the panel members, are
present. The targeted physician should always object to this
RECORD OF PROCEEDINGS
A record of the Judicial Review Hearing must be maintained. While
tape recordings and minutes are acceptable, the prevailing practice
today is to have the proceedings recorded by court reporter who
administers an oath to each and every witness who testifies.
Under California Law, the targeted physician does not have the right
to legal counsel at the hearing. However, some bylaws extend this
right to the physician. At a minimum, the bylaws must allow the
physician to be assisted at the hearing by a personal representative
who is a licensed physician and preferably a member of the medical
staff. The MEC appoints its representative, usually one of its
members, to act on its behalf.
Bylaws that do not afford the right to counsel as a matter of
course will invariably permit the targeted physician to make a
request to the hearing panel that he/she be allowed to be
represented by counsel at the hearing. The hearing panel has sole
discretion to grant or deny the request. If it permits the targeted
physician to be represented by an attorney, the MEC likewise can
have its legal counsel present.
The rational behind the state law that does not extend the right
of counsel to judicial review hearings is based on the premise that
peer review proceedings are best dealt with on a physician to
physician basis. However, this rationale has long since lost its
practical benefits. Because of the adverse consequences of an
unfavorable outcome, the targeted physician should always seek the
advice of legal counsel. Even if the request for legal counsel at
the hearing is denied, this does not preclude the targeted physician
from obtaining the assistance and guidance of an attorney in
preparing for the hearing. In fact, you can have your attorney
literally outside the hearing room immediately available to you.
PRESENCE AT THE HEARING
The targeted physician must be present at the hearing. Most bylaws
will deem a failure to show without good cause as a waiver of
hearing rights and an acceptance of the adverse recommendation.
Scheduling problems can always be worked out, as long as there is
The judicial review hearing is an administrative process and the
rules of evidence are less strict. The hearing officer is permitted
to admit into evidence any relevant matter, even hearsay. The
hearing officer should advise the members of the panel that it
should weigh the evidence offered in light of its relative strengths
BURDEN OF PROOF
In the criminal and civil arenas, the burden of proof is placed on
the prosecutor and the plaintiff, respectively. A defendant need not
offer any evidence whatsoever. This is not the case in the judicial
review hearing. The MEC has the initial burden of going forward to
present facts in support of the adverse recommendation. The targeted
physician then has the burden of showing that the charges lack
factual basis or that the recommendation is arbitrary, capricious or
unreasonable. The standard applicable to both is preponderance of
RIGHTS OF THE PHYSICIAN
At the hearing, the targeted physician has the right to call and
examine witnesses on his/her own behalf, introduce documentary
evidence, and cross-examine the witnesses called against him/her.
The targeted physician need not testify on his own behalf, but it
would foolish not to do so as he/she can be called by the MEC.
NO SUBPOENA POWER
Neither the MEC nor the targeted physician has subpoena power. In
the trial setting, counsel for a party can issue a subpoena
commanding the appearance of a witness. There is no such ability at
a judicial review hearing. This can create some practical problems
in light of the flexible application of the rules of evidence. The
MEC can seek to introduce declarations and writings of people
adverse to the targeted physician who are not subject to
cross-examination. Yet compelling arguments of fairness can be made
against this occurring. The foregoing aside, most of the witnesses
that need to testify will in fact be there.
Hearings are generally held in the evenings to accommodate the
schedules of the panel members. It is rare that a hearing can be
completed in one session. Multiple sessions, usually extending over
a period of weeks or months, are the norm. The hearing concludes
with each side giving closing arguments and the hearing panel
adjourning for private deliberations.
DELIBERATIONS AND THE DECISION
Most bylaws permit the hearing officer to participate in the
deliberations. The hearing officer's role is guidance, as opposed to
direction. The hearing officer has no vote, but is clearly in a
position to influence the outcome. The hearing officer will prepare
the written findings, conclusions and recommendations of the panel,
which must be signed by the panel members and transmitted to the MEC
within a time specified in the bylaws; usually 30 days or less. The
panel can affirm, modify, or reject the recommendation of the MEC.
It also needs to make a determination as to whether or not the
targeted physician's actions adversely affect patient care because
of statutory reporting requirements. The executed report is then
sent by certified mail to the targeted physician with copies
simultaneously being provided to the MEC, the hospital, and legal
counsel. Appellate rights are then triggered.
C. The Appeal Process
Both the MEC and the physician have the right to appeal to the Board
of Trustees to challenge the decision. The time period for
submitting a written request is specified in the bylaws. A failure
to make a timely request operates as a waiver. The demand should
include a request to present an oral argument, if one is desired Ð
which it always should be. The time period for convening the
appellate body is delineated in the bylaws and a certified letter
must be sent to both sides specifying the time, place, and date for
The appeal body is confined to the members of the Board of
Trustees and the bylaws will specify the minimum number required.
They body appoints one of its members to serve as the chair. Legal
counsel for the hospital (not the medical staff) is usually involved
in the coordinating activities at this level. This individual will
provide advice and guidance to the appellate body as necessary.
Almost always, it is the physician who requests the appeal. There is
no right to the presence of counsel when the appeal body convenes
for oral argument, unless counsel participated in the hearing. The
targeted physician has a right to access to the record prepared by
the panel, including all exhibits as well as the panel's Report. The
physician is entitled to all material considered favorable as well
as unfavorable to his/her position.
The bylaws permit the targeted physician to submit a written
statement outlining the procedural and substantive challenges he/she
is making. The bylaws will usually specify the time period when this
written brief is due as well as the time period in which the MEC
The hearing panel and the appellate body both review and consider
procedural challenges. In this regard the roles are overlapping.
However, as it relates to an analysis of the decision on the merits,
the roles are decidedly different. The panel reviews and considers
all relevant evidence and then comes to its decision. The role of
the appellate body is not to determine whether or not it agrees with
the decision of the panel, but rather whether the decision is
supported by reasonable evidence and is not arbitrary or capricious.
The appellate body must affirm the panel determination as long as
the decision is supported by the evidence, even if the members of
the appellate body would come to a different decision. Challenges at
the appellate level are based solely on the record from the hearing.
New or additional evidence may be considered by the appellate body,
in its sole discretion, under unusual circumstances only; such as it
being newly discovery since the hearing.
The chances of a physician succeeding on appeal are slim. The
physician can have the underlying decision reversed if he/she can
demonstrate that there has been a denial of procedural due process
or a substantive violation of law. However, this is unlikely to
occur when counsel are involved. Even when the physician does not
have counsel, the attorneys for the MEC should be monitoring the
process to insure that the targeted physician is granted all his
procedural due process rights.
The decision can also be overturned if there has been a violation
of substantive law. Again, this is unlikely to happen for the
reasons discussed above. The physician's best shot is an attack on
the decision being arbitrary and capricious.
Reversal on appeal most often occurs when the appellate body is
convinced that there has been an over reaction by the MEC and the
panel to the evidence, "finding that the punishment does not fit the
crime." The targeted physician must appeal to the common sense of
the members of the appellate body with them hopefully reaching the
opinion that the decision was indeed arbitrary and capricious.
The appellate body will deliberate and render an opinion. It can
confirm, modify, or reverse the panel's decision. It can also remand
the matter for further review. The appellate body must provide a
written report to the Board of Trustees within the time specified in
the bylaws, unless it is remanded for further review.
Once the appellate process is completed, the final decision is
made by the Board of Trustees. It must do so within a time specified
in the bylaws and give written notice to both sides by certified
mail. If the Board is going to adopt a position averse to the MEC,
many Bylaws require the convening of a joint conference committee
which includes members from the MEC as well as the Board, who must
meet and confer before the Board's action becomes final.
As with the corrective action and judicial review processes, the
Board must make a determination as to whether or not the action
against the physician arose because of adverse quality care. If so,
then the Medical Board and Data Bank must be promptly notified.
IV. Post Hospital Remedies - The Writ Process
When, and only when, a physician has exhausted administrative
remedies in the corrective action, judicial review, and appeal
processes, can he/she invoke the powers of the court. This is done
utilizing a proceeding called a Writ of Mandamus. In essence this is
an appeal to a higher body. To prevail, the targeted physician must
demonstrate a violation of procedural due process, substantive law,
or a decision that is arbitrary and capricious.
The question often asked by physicians is if they can initiate
legal action against a hospital and members of its medical staff for
the perceived injustice of a medical disciplinary action. The answer
is yes, but the prerequisites to a lawsuit pose significant hurdles.
First of all, state law extends immunity to physicians involved in
peer review proceedings as long as they act in good faith and
without malice. If so, the immunities are absolute. If there is a
legitimate question of bad faith, a legal action may lay, however,
it can only be pursued after the targeted physician exhausts all
administrative remedies and reverses the underlying adverse action
on a writ. This is true even when the physician's claims are based
on state and federal anti-discrimination statutes.
V. New Environment
A physician can survive and even thrive in this new environment. An
early proactive response is the best defense. It is always to the
physician's advantage to bring disciplinary proceedings to a
conclusion as quickly as possible.