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Nick Healey
Hello and welcome to Beyond the Bylaws: The Medical Staff Show.
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Nick Healey
This is Husch Blackwell LLP’s podcast covering the legal and regulatory aspects of
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Nick Healey
hospital medical staffs. We’re focusing on the important but sometimes confusing
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Nick Healey
world of medical staff legal issues.
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Nick Healey
I’m Nick Healey, a healthcare regulatory partner at Husch Blackwell and I am in my third decade of working with hospital medical staffs.
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Nick Healey
Before we dive in,
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Nick Healey
I’d like to note that nothing in this podcast constitutes legal advice and the views expressed in this podcast are mine, or those of our special guests and not those of Husch Blackwell.
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Nick Healey
Ho ho ho! Let’s go. Tom O’Day is our guest on Beyond the Bylaws today on part two of our peer review podcast. We’re talking about the mechanics of peer review hearings particularly, and tips and tricks with respect to making sure they run smoothly. We’re recording this after Thanksgiving. Tom, did you have a good Thanksgiving?
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Tom O’Day
I do, very smokey. Not not a lot going on, which is perfect.
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Nick Healey
That sounds ideal to me. I see that you’ve got snow over your shoulder outside in Madison.
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Tom O’Day
We do have a good 10 to 12 inches that that dumped this past weekend. And more is expected or was expected at least to come this afternoon.
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Nick Healey
So that is fantastic. I, wish we had that down here in the Mountain West. It’s been a really, really slow start to ski season, which is unfortunate. Right. Just to remind everybody, I’m Nick Healey. I’m a healthcare regulatory partner in Husch Blackwell’s Denver office. Tom O’Day is an employment, labor and employment partner in the healthcare, education and life sciences section
00;01;42;09 - 00;02;06;01
Nick Healey
of Husch Blackwell in Madison, Wisconsin. He has a tremendous amount of experience in peer review hearings, and I’m really happy he has joined us for the second part of this peer review hearing and what we’re going to get. I think we ended up, we had gotten into the nuts and bolts of peer review hearings. And when we’re talking about peer review hearings, we’re really talking about the last stage of the peer review process, peer review can be so many different things.
00;02;06;02 - 00;02;39;26
Nick Healey
It encompasses focused professional practice evaluations, ongoing practice evaluations, monitoring, pre-set partnerships. It involves a lot of activity that goes into the peer review process. And this is really the final stage of it where, generally the medical executive committee has decided it needs to take corrective action. It has made a corrective action recommendation to the board of trustees, and in most cases, the physician or other practitioner does have the right to a hearing under the Health Care Quality Improvement Act.
00;02;39;26 - 00;03;09;14
Nick Healey
Before that corrective action recommendation is taken up by and implemented by the board of, Governing Board. Essentially, the hospital could be board of directors. Board of trustees could go by a lot of different names, but generally it is a governing board. And we talked about the right to representation. Just to recap my recollection, I know required the Health Care Quality Improvement Act does give physicians the right to be represented by an attorney in the hearing process.
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Nick Healey
I think we talked about the fact that some bylaws do give the money or do the right to be represented by another, physician. I've rarely seen that time. I believe you said that you had rarely seen that as well. Correct. And in those situations, I don't think it would help. It could in some situations, I guess, where the, physician is, the corrective action is based on a very technical question of care.
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Nick Healey
But in most situations, given the limited role that a representative has in the hearing itself, I think a lot of physicians may want another physician to be their expert witness. And it wouldn't really serve the same purpose as having, an advocate. So I don't think in a lot of situations the physician is is well represented by another, another physician.
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Nick Healey
But they may they may decide that's, you know, that's what they want to do. That's their choice. Any other situations you think that might be helpful? Tom.
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Tom O’Day
I really don't. If you think if if an individual physician thinks a colleague might be helpful, it would be as a witness, not as then, like I said.
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Nick Healey
So generally, peer review hearings are held before a hearing panel or an arbitrator. In my experience, it's been almost always a hearing panel composed of other members of the medical staff. In small hospitals. There may not be enough individuals, with the requisite expertise, to be able to serve as a hearing panel. Usually it’s three. That’s what I’ve typically seen.
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Nick Healey
And they may decide to draft physicians from outside the hospital to conduct the hearing or service. The hearing panel. I've not seen an arbitrator, and I'm curious, Tom, if you have experience with going through peer review hearings that that use an arbitrator instead of a hearing panel.
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Tom O’Day
I've never seen that either. And it was fascinating going back to the actual law, the actual Health Care Quality Improvement Act law, the statute that talks about the fact that it is the health care entities determination of whether they want these hearings to be held by the hearing panel, which is almost always the case. But there are options for a single individual hearing officer, one person who can make that decision and hear the case and judge the case, and then it does offer that option for a an arbitrator, which which is kind of fascinating because like I said, I have not seen that before.
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Tom O’Day
There are specialists out there. The American Health Law Association has an arbitration service, and it sparked in my mind the question of whether that service provides arbitrators for purposes of these medical staff hearings. And it is an interesting idea and might be something worth exploring for medical staffs and for medical staff leadership as to whether that is an option that is more desirable than knowing what the hearing panel.
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Nick Healey
Yeah, I think that would be interesting. I think in some situations, hospitals may balk at using an arbitrator because they may feel well to another lawyer. They have to pay and it's more expensive. But when you think about the lost productivity from medical staff members who are serving on a hearing panel and generally I have seen that where there is a hearing panel, generally they have a hearing officer who's a lawyer to advise them on process.
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Nick Healey
Anyway, I think it may be false economy to discard the idea of a an arbitrator kind of off the top of their head. I do understand a physician's desire to be judged by someone who is, or some ones who have experience, and potentially the medicine or the professional standards that are applicable to their care. But, you know, to me, an arbitrator can be pretty easily brought up to speed on that.
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Nick Healey
And arbitrators deal with complicated issues and a whole variety of situations, particularly if you can find one with particular expertise and, medical staff hearings. I think that's, a good idea, to be honest with you.
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Tom O’Day
Right. And listening back on our our first part of this podcast as well, it strikes me how important it is to put time and effort and thought into your medical stat bylaws on the front end and have this determination, this discussion with medical leadership and ultimately with the medical staff that would approve the bylaws on the front end to decide, because it is very clear on the statute that it is at the discretion of the health care entity which path they take.
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Tom O’Day
And you could even, in theory, work into your medical staff bylaws. The fact that the medical staff leadership, the hospital itself gets to choose at the time of the hearing being requested, whether it's going to go before a panel, an individual member of the medical staff or an arbitrator. And there may be value in in exercising that right that the statute gives you to make a choice in real time as the hearing is being requested.
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Nick Healey
And and I do love that callback to the bylaws, because notwithstanding that, at the name of the podcast is beyond the bylaws, sometimes I think we should be called back to the bylaws because, it all does stemmed from the bylaws themselves. And again, I really appreciate you putting another plug in for, well, drafted bylaws. It is very important.
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Nick Healey
So limitations on who can be a hearing panel member from a vehicle perspective. Essentially the only as far as I'm aware, the only restriction, although it can be more restrictive than the bylaws themselves. But from a vehicle perspective, the only restriction is that they can't be in direct economic competition with the individual who is being who's the subject of the peer review?
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Nick Healey
And I often get asked questions about that. You know what what is considered direct competition if they are the same specialty but not the same subspecialty, if, let's say you have, you know, is a family practice doc really in, competition with an internist is a, an orthopedic spine surgeon in competition with a neurosurgeon. And I'm curious, Tom, if you have been asked about that and where you draw the line.
00;08;59;00 - 00;09;32;23
Tom O’Day
Is that interesting balance between usually you want individuals with that level of expertise in that specialty area, but you have to avoid the individuals who are in direct, economic competition. So it is a balance to find. It is something that comes up on the front end. I would say that you can try and quantify that, both with the individual who is being sought after as part of a panel and asking them if they think that they're in direct economic competition and getting their observation and opinion on it.
00;09;32;26 - 00;09;58;17
Tom O’Day
And then I like to as, either the advocate for the medical executive Committee or as the neutral if there's a hearing officer and I'm playing that role, I like to have the physician under review offer the give them the chance to challenge any of the panel members, as in direct economic competition, and let them essentially, implicitly or expressly say no.
00;09;58;17 - 00;10;28;02
Tom O’Day
I agree that those individuals are not in direct economic competition because it's not defined. It's not taught to clear and the extent to which you can make a claim that someone's on direct economic competition as almost unlimited in the medical medical field, especially within specialties. So I do think it's valuable, as a practical matter, to have the physician under review and the individual who is being asked to be on the panel offer their opinion of whether there is that direct economic competition.
00;10;28;06 - 00;11;00;07
Nick Healey
I think this is an interesting example of how the statute was written, maybe in a different time, before the advent of of group practices, because in some ways I think it would be more I mean, it would probably be more advantageous to the physician to have a partner of theirs who or a referral source, you know, but they aren't necessarily in direct economic competition, and they wouldn't necessarily be excluded from a hearing panel simply by, if you were following with strictly.
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Nick Healey
So I, I'm curious to view have you seen issues with that with particularly with referral sources? Because I think a lot of hospitals would, you know, the bylaws are going to say you can't have someone who is someone's partner, sitting on the hearing panel, but I'm curious about whether if you have a primary care physician who is, the subject of a peer review and they make a lot of referrals to a radiologist, you know, and the radiologist is the subject of the peer review.
00;11;25;18 - 00;11;29;14
Nick Healey
I mean, there could really be some some issues with that. And I'm curious if you've seen that.
00;11;29;18 - 00;11;51;22
Tom O’Day
I have and I think that's a fair consideration for whomever the appointee is for the medical panel to consider. Is is what those referral sources look like. In my experience, the if it's the medical staff president or the president of the hospital, whoever has the power to appoint the hearing panel members is taking those kind of things into consideration there.
00;11;52;00 - 00;12;18;13
Tom O’Day
Their true intent really is to get a balanced panel either because, you know, they don't want imbalance because of direct economic competition, they don't want imbalance because of referral sources or preferences to work with that individual. And it may be a preference to have panel members who have no affiliation at all, no contact, no knowledge, no reputational. Leanings for the individual under review.
00;12;18;16 - 00;12;37;20
Nick Healey
Do you ever run into a situation in which you get a challenge to a hearing panel member on the basis that they are employed by the facility? That is essentially that that, you know, they're employed by the hospital at which the subject of the peer reviews clinical privileges or at issue in especially in small communities in rural areas.
00;12;37;20 - 00;12;57;20
Nick Healey
There's a there's a lot of I don't know if it's competition, but there is a lot of distrust between the hospital's, non-hospital employers as physicians and hospitals. And I, I personally haven't seen a tremendous number of, hospital employed physicians toe the party line. You know, I think in anything in, in in some ways, it goes the other way.
00;12;57;22 - 00;13;06;08
Nick Healey
I think they, you know, they bend over backwards, to be fair. But I'm curious if you've dealt with that and what would you what your solution is.
00;13;06;11 - 00;13;24;08
Tom O’Day
Yeah. I have had an advocate for the physician under review make that argument that those panel members can't be fair and balanced because they are employed by the facility that is, is at issue or or governing the process.
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Nick Healey
Is there any good answer?
00;13;26;00 - 00;13;50;13
Tom O’Day
Well, ultimately, I don't think that is I don't think that is enough to avoid a decision by those individuals. But it is something for, again, the individual appointing the panel to be mindful of, there's value in deciding that you really want, completely independent panel to make this recommendation to the board of trustees or the governing board, whomever.
00;13;50;13 - 00;14;11;07
Tom O’Day
That is, because, an advocate for the physician under review is going to try and find every leverage point, every sore spot that they can find in the hospital medical executive committee case, one of which would be, it's an individual who is not truly independent because they are employed by the hospital or even on medical staff.
00;14;11;09 - 00;14;32;09
Nick Healey
Yeah, there's a lot of considerations. And I think if I could go back for one segue just to, you know, the bylaws, I would say the point of the the processes that are set out in the bylaws are to be substantially fair. And I think that requires, you know, procedures that are substantially fair to the physician or other practitioner under review.
00;14;32;09 - 00;14;54;02
Nick Healey
And I think one provision that I often put in bylaws in the hearing processes are, is basically that a technical deviation from the processes that are described in the bylaws for hearings does not, you know, that isn't prejudicial to the physician, does not, void the the results of the process, but basically the you know, it's not a trial type hearing.
00;14;54;02 - 00;15;17;27
Nick Healey
It's not supposed to be a trial type hearing. It's intended to be, you know, a fair discussion of the facts. It's intended to give the opportunity to the subject, to the hearing, the opportunity to defend themselves. And I think when you do get some advocates, as you mentioned, who are trying to press every advantage that can really prove the proceeding delay, and it can it can really lead to and on both sides, frankly.
00;15;17;27 - 00;15;42;16
Nick Healey
I mean, you get a very, a very aggressive, messy, representative I think that can, can, really pervert the proceedings to. And so I think everybody in these proceedings needs to remember that the point of it is process and and performance improvement. It's not punitive. So I think that that should be something that a hearing officer somewhere at the beginning of the process makes very clear to people is this is not punitive.
00;15;42;16 - 00;16;06;17
Nick Healey
This is intended to be, simply review of care. It can lead to consequences that are unpleasant for the physician at issue. But it's not intended to be a full dog eat dog process, which doesn't really serve anyone. And and I'm curious, you've said you've served as a hearing officer. Have you had trouble in the past? Have you have you had those situations in which you know, people try and drag the hearings off the rails?
00;16;06;19 - 00;16;38;00
Tom O’Day
Yes, yes, that that is a strategy. And a lot of times for the physician under review, knowing the weight of the process is, is in favor of the hospital, just under the law and usually under the medical staff bylaws given, the burden of proof and discovery that we'll talk about and other reasons, that is oftentimes for the physician under review, one of the only remaining strategies left is to try and drag things out, make it uncomfortable to go through the whole process.
00;16;38;03 - 00;16;51;28
Tom O’Day
So it is I'm saying I think the advocates are generally respectful of a hearing officer or the hearing panel chairperson saying, I've made my decision. That's enough.
00;16;52;01 - 00;17;24;13
Nick Healey
Yeah. And I think that's very beneficial. A strong hearing officer can really, keep the process on the rails. And so, you know, to the extent you're able to do that I salute you because it can be challenging. You did mentioned discovery. And just for the purposes of of non-lawyers listening, discovery is factual discovery. It's essentially an opportunity for each side, but particularly the, physician who's the subject to the hearing to delve into the factual underpinnings of the corrective action recommendation that the MEC has made.
00;17;24;13 - 00;17;42;14
Nick Healey
And in a journey, you know, a regular lawsuit, discovery can be a very long, drawn out process. It's subject to very technical rules. You know, it can be the subject of a lot of disputes. It can be time consuming and expensive. And, you know, it's generally, frankly, one of the areas in which a hearing can go off the rails.
00;17;42;14 - 00;17;52;25
Nick Healey
The process can be dragged somewhere where it's not supposed to go. And so I'm curious, in your experience, how much discovery is generally allowed and how do you deal with disputes and discovery generally?
00;17;52;25 - 00;18;19;18
Tom O’Day
I'd say discovery is not allowed. Generally, the typical things like requests for admission or requests for interrogatories, I'd say, are almost never part of a medical staff hearing, nor are depositions. And I haven't seen those kinds of things happen. With respect to documents, though, I do think there is. And usually this is spelled out again in the medical staff bylaws.
00;18;19;18 - 00;18;50;27
Tom O’Day
But there is a foundational level of documentation that I think is appropriate and needs to be made available to the physician under review in order to allow them to prepare and make their case. Things like the medical records for those specific cases that are at issue, are documents that should be provided on the front end, I think, to the physician under review so that they can, with full context, prepare their case and, and, and the defense that they might otherwise make.
00;18;51;00 - 00;19;03;00
Tom O’Day
But beyond those levels of documents, I've not seen the discovery that we would normally think of involved in federal or state court litigation involved in the medical staff process.
00;19;03;02 - 00;19;28;24
Nick Healey
That's interesting that that's where our experience is significantly differ. Because a lot of my experience with, peer review is in the context of, governmental hospitals, which are in, some states subject to the Administrative Procedures Act. The Administrative Procedures Act incorporates a much greater level of discovery than, you know, the bylaws or gear review hearings that a nonprofit corporation hospital might.
00;19;28;24 - 00;19;52;11
Nick Healey
And so, you know, I have seen discovery disputes, even at the the level of the hearing officer, the hearing officer makes the decision. And those discovery disputes and a lot of situations can be appealed directly to the the district court, even, you know, during the process. So, yeah, that is if you can limit discovery, whether contractually in the bylaws or in some other way.
00;19;52;13 - 00;20;22;06
Nick Healey
I think that's great. But I guess this is another situation in which individual results may vary. If you end up in a special district hospital, going through a peer review hearing or a county hospital or some other entity governmental entity, hospital that is subject to the Administrative Procedures Act. And I think you can end up with a lot more discovery, which is, in a lot of ways a shame because, you know, governmental hospitals generally have less resources to be able to conduct these processes.
00;20;22;06 - 00;20;43;10
Nick Healey
And, and more discovery simply makes it more expensive. So again, I, I've seen depositions written discovery, I've seen, you know, hearing officers, have the right to subpoena, you know, issue subpoenas for witnesses and documents from third parties. Much more robust discovery than I think you've seen in in the nonprofit context.
00;20;43;12 - 00;21;08;26
Tom O’Day
That's fascinating. Right. And and the and they may be nonprofit hospitals but not associated with the government. Yeah. I'd say experiences. It's it's it's usually limited. Very limited if provided at all. And that's something again that the medical stamp bylaws can spell out. There can be very express there will be no depositions, there will be no requests for interrogatories or written discovery, other than a baseline of documents related to medical records.
00;21;08;29 - 00;21;36;21
Tom O’Day
I have seen hearing officers use subpoenas to have witnesses appear, and I suppose at some level for some documents, document requests as well. I suppose, from some from a third party organization, for instance, at an ambulatory surgery center or something like that. Right. So that is a level of discovery that may make sense even in the non-governmental associated facilities.
00;21;36;23 - 00;22;03;21
Nick Healey
And from a bylaws perspective, if you are a governmental entity, how much you can vary the process that's guaranteed by the EPA or Administrative Procedures Act, is a state by state issue. And so I would encourage everyone to look at their bylaws, and consult legal counsel as to whether your peer review process is consistent with, the laws to the laws, of your state that the govern, physician earing.
00;22;03;21 - 00;22;27;08
Nick Healey
Right. And, the Administrative Procedures Act. But it's, it is a fascinating issue. So you you mentioned, I guess that discovery isn't very common in the peer review processes that you've where a, a robust level of discovery isn't common. I'm curious about the hearing conduct itself, again in a, you know, APA style proceeding, which I'm more familiar with.
00;22;27;10 - 00;22;44;11
Nick Healey
There's a robust motion practice, which basically means, you know, you can ask the hearing officer to rule on legal or factual issues, including, issuing summary judgment, prior to the hearing itself. And I'm curious if you've, you've seen much of that.
00;22;44;13 - 00;23;07;15
Tom O’Day
I have seen that. And usually the hearing officer, again, an attorney in a role where they're advising the hearing panel itself. I have had hearing officers provide for an option for motions and lemonade type motions, where you're trying to exclude certain facts or determine ahead of time a specific legal issue or clarify what a legal issue might be.
00;23;07;15 - 00;23;16;14
Tom O’Day
And and that is an important part of the process, I'd say, to make sure that the the process, the actual hearing itself is handled in an efficient manner.
00;23;16;16 - 00;23;40;21
Nick Healey
Yeah, that is a good way. I mean, motion practice can generally cut down on the, the time and, and duplicative nature of the hearing itself. So it it can be an important part. Some of the really nuts and bolts stuff in terms of length of time for the hearing, I've seen a whole host of ways of conducting the hearing itself, whether to I've seen hearings that are conducted for three hours a night until they're done.
00;23;40;23 - 00;24;02;13
Nick Healey
I've seen hearings that go, for a week every day, starting at nine, going to five. You know, I've seen hearings that last a couple of hours. You know, it really is across the board. And there's no one size fits all. It depends on the this type of hearing. It depends depends on the contentiousness. It depends on the seriousness.
00;24;02;13 - 00;24;11;11
Nick Healey
You know, what the corrective action is. That's an issue. Do you have, a preference for how you like to, conduct the hearings or have them scheduled?
00;24;11;14 - 00;24;36;01
Tom O’Day
I do have seen, across the board. There's not one size fits all. I, I do think for the medical executive committee for the hospital, the facility itself, for the hearing panel, the standard should be what is fair in order for the physician to have their opportunity to be heard. And that that does vary. There's not a one size fits all for that standard.
00;24;36;04 - 00;25;15;05
Tom O’Day
I do think if, if the bylaws restricted to, for instance, each side gets 2 hours or 3 hours to present their case, I do think that's a little too restrictive now. Illegal, but I think that's probably too restrictive. I do think there is value in both for all parties. I would say there's value in getting it done in one setting, because the cost, the expense, the time and effort of preparing for a second day, even if it's consecutive, but especially if it's not a consecutive second day or multiple days, is, I would say, prohibitive and not to the benefit of anyone.
00;25;15;07 - 00;25;31;12
Tom O’Day
I think one setting is appropriate. That may mean, you set as a hearing panel and or as a hearing officer a 10 or 12 hour period where it all gets done and we're staying till it gets done kind of approach. But I do think there's a lot of value in that.
00;25;31;15 - 00;25;41;22
Nick Healey
Have you ever seen a role for administration in a, in a hearing, the process of the hearing, like a CEO? Does the CEO get any say over how the hearing is run in your experience?
00;25;41;25 - 00;26;04;09
Tom O’Day
I've not seen that. I think it is something where the hearing panel, with the advice of the hearing officer, so that's that that general process that may be outlined in a higher level within the bylaws. But I think ultimately that's the hearing panel's, I would say kind of, area of responsibility, an authority to set what the process itself looks like.
00;26;04;12 - 00;26;28;16
Nick Healey
I think that division of responsibility, especially in small hospitals where you have a very, a CEO that's used to calling the shots, can be very important to the make sure everyone understands. I, was involved in a peer review hearing one time, representing a physician. And, at the hearing itself, I was, questioning a risk manager, and there was a hearing officer.
00;26;28;16 - 00;26;48;21
Nick Healey
There was a hearing panel. The hearing officer was a very well respected attorney, and there was no objection from opposing counsel. But, the CEO who was in the audience, I think, didn't like the questions I was asking the risk manager and stood up in the middle of the hearing and said he wasn't going to allow this to continue.
00;26;48;21 - 00;26;53;04
Nick Healey
And if I didn't straighten up, he was going to take me outside and straighten me up.
00;26;53;07 - 00;26;57;18
Tom O’Day
And not say, I've had that kind of thing happen. But that's fascinating.
00;26;57;21 - 00;27;19;19
Nick Healey
Yeah. Well, I mean, you know, small town hospitals and the CEOs can get very, they can they can feel a strong sense of ownership over everything that happens in the four walls of their, their facility, you know, and in some ways, I guess the, the risk manager, appreciated, her CEO standing up for her.
00;27;19;19 - 00;27;31;12
Nick Healey
But, it just. Yeah, I've never had that happen again, but I, I did have that happen in in one, and, Yeah. It's good. Makes a good war story. Anyway.
00;27;31;14 - 00;27;58;05
Tom O’Day
It's a good war story. It's also a good it's a good practical reminder for people who are involved in the process and who have experience in the process to set the level of context for all the players involved on the front end. And and because I do think there is medical staff hearings, I would say rare in a facility, and emotions are very high in these processes and level setting with everyone.
00;27;58;05 - 00;28;25;11
Tom O’Day
I think as early as possible, both as an advocate for one side or the other and as a hearing officer or hearing panel chair or member is important to try and make everyone understand. Like you said at the beginning, like that, this is a process where we are looking to solve problems going forward. It's not a disciplinary process, it is a process for correcting what may have been a mistake in the past, and making sure those kind of things don't happen in the future.
00;28;25;14 - 00;28;32;16
Tom O’Day
And we need to be mindful of emotions and the processes A, B and C, and let's move through the process respectfully.
00;28;32;18 - 00;29;01;02
Nick Healey
Yep. So one of the questions that comes up a lot in this kind of hearing is the burden of proof. And, who bears the burden of proof? And for the non-lawyers out there, what we're really talking about here is who's responsible in the hearing for proving their case, just to use an example that a lot of people are familiar with in the criminal law context, the state or the district attorney is generally responsible for proving the case against the accused.
00;29;01;05 - 00;29;36;11
Nick Healey
Beyond a reasonable doubt, reasonable doubt is the standard of proof they have to prove, you know, the individual committed the crime beyond the reasonable doubt, but it's the DA's or the county attorney's job to prove that, this crime happened to that standard. And so, again, this is an issue for the bylaws. But in a lot of situations, I think I have generally written bylaws so that the medical executive Committee, who came forward with the recommendation for corrective action, has an obligation to introduce evidence supporting their recommendation.
00;29;36;11 - 00;29;48;27
Nick Healey
But the burden of proof really falls on the physician, who is the subject to the action to prove to some standard that corrective action is inappropriate in the situation. And so I'm curious what your experience has been with that.
00;29;49;00 - 00;30;32;25
Tom O’Day
It is similar. I've never seen bylaws with a reasonable, reasonable doubt standard as as part of the standard. The bylaws are very important and the standard needs to be there. And that's the most important thing I'd say in the medical staff bylaws related to these hearings. You know, there are two other standards that I've seen. The lower of those standards is the preponderance of the evidence standard, the idea that whoever has the burden will touch on that has to show by more than 50% something more than 50% that it is in their favor that either the physician did engage in these behaviors and that the acts are reasonable, or that the physician didn't
00;30;32;25 - 00;30;56;25
Tom O’Day
engage in these behaviors, and the Act's proposed acts or recommendation is not reasonable. That's a one standard, the preponderance of the evidence, I'd say, in my experience, that is the usual standard. Another one, another standard that is in some bylaws is that whoever has the burden of proof has to show, by clear and convincing evidence that they are recommendation is favored.
00;30;56;27 - 00;31;42;23
Tom O’Day
And that is more than just a little bit over 50%. It's not yet beyond a reasonable doubt, but it's it's a heavier burden for whoever has the burden of proof to meet as a clear and convincing, evidentiary in terms of who has the burden that too I, I agree with you. I think it's usually there's a level of the medical executive committee has an obligation to show some basis in fact, and then the practitioner has the opportunity to show that either that fact is not true factually or it's arbitrarily applied to that physician, or there's just, there's just no I guess those are two standards.
00;31;43;00 - 00;31;53;06
Tom O’Day
One, that it's not a fact and that fact is not true, or that the evidence itself is being arbitrarily applied to that physician.
00;31;53;08 - 00;32;19;07
Nick Healey
I get a lot of questions from medical staff, the bylaws, committee members, when we're drafting bylaws about the hearing process, because it's very alien to them that the physician who's under, you know, the corrective action recommendation would be the one who has the obligation to prove that. And I usually explain it to them as, don't think of the hearing as this one time standalone process.
00;32;19;10 - 00;32;46;08
Nick Healey
You have to remember that before you get to the hearing part, there's been a very long investigation process in which, you know, the physician has certain rights. They have to, you know, the the MEC, medical executive committee or the investigative committee have to, follow very specific procedures in order to build a recommendation. And, you know, there's a lot of process that goes into this.
00;32;46;08 - 00;33;09;02
Nick Healey
And so even though it's it's not what they typically see, you have to consider the entire peer review and investigation process as a whole. And when they do that, they often, come around to the idea that, yeah, I get it. You know, this is not something that just kind of came out of the blue and it's not, you know, likely to be perverted.
00;33;09;03 - 00;33;26;26
Nick Healey
There's a lot of safeguards that go into place that are in place that that protect the physician long before they get to the hearing process. So once they understand that they generally are okay with it. But it is it's worth noting that something that they are often not familiar with. And if they watch Law and Order, they may balk at.
00;33;27;01 - 00;33;56;16
Tom O’Day
Right for sure. And oftentimes two, depending on the advocate that you have for the physician under review, if they're a trial attorney or a criminal defense attorney or a medical malpractice attorney, they too are shocked by the burden of proof that is in the medical staff bylaws. And a lot of times in my role as an advocate for hospitals or in a role as a hearing officer, you have to make clear what that standard and burden is, because it's it should be in the medical staff bylaws.
00;33;56;19 - 00;34;25;15
Tom O’Day
I, I pulled up a American Health Law Association resource, and there are a great resource for everything health law. But medical staff hearings in particular, and I'd say the most common standard, the burden of proof standard in bylaws is for the aggrieved physician to establish, by clear and convincing evidence that the hospital's decision was arbitrary, unreasonable, or not sustained by evidence.
00;34;26;10 - 00;34;30;29
Tom O’Day
And to me that Stokes most common standard, I'd say I see yeah.
00;34;31;02 - 00;34;50;27
Nick Healey
Clear and convincing of the higher standard than than preponderance says. Yeah. So that's interesting that that would be the, you know, the go to for the American Health Care Association venerable organization that it is. So, you know, I think capping this off the final step in the process is generally the right to appeal. And, you know, you've gone through the hearing.
00;34;50;27 - 00;35;21;28
Nick Healey
The, hearing panel has issued a written decision. The physician has had the opportunity to, review it. And they basically have one final right, generally to appeal that decision to the highest power. And that is usually the board of directors or trustees, whoever the governing body is. And I think in a lot of situations that I've been involved with, the physicians see this as one more opportunity not to, well, essentially relitigate everything that's come before.
00;35;22;02 - 00;35;48;23
Nick Healey
And so I'm wondering what you think, what are safeguards that can be put in place to, you know, help physicians understand that this is not perfunctory, but it it is not the opportunity to relitigate everything, introduce new evidence, etc., etc.. I mean, I know that the bylaws need to be very clear about that, but if you were explaining this to another physician, you know, to a physician that's the subject of a period peer review hearing, well, how would you explain it to them?
00;35;48;23 - 00;35;49;22
Nick Healey
The right to appeal?
00;35;49;28 - 00;36;17;17
Tom O’Day
I agree, it's it's important to make sure that it is not an opportunity to relitigate and have a new hearing and I suspect many of the listeners, if they go back and look at their medical stat bylaws, will be shocked to find that there's enough unknown or flexibility in the bylaws for a practitioner to make that argument. But I think in the bylaws it meets, to be very clear, this is not an evidentiary a new evidentiary hearing or opportunity.
00;36;17;19 - 00;36;40;19
Tom O’Day
There may be limited opportunity for the practitioner to send a written statement commenting on the recommendations from the panel, but other than that, I think you need to restrict it to it's just the the board of trustees reviewing the record of the hearing if they want to, and the recommendation from the hearing panel, and then they make their decision without any new evidence introduced.
00;36;40;22 - 00;37;06;12
Nick Healey
Yeah. And, you know, that's generally the last step. The, you know, governing body is generally the last step. Going back to the idea of APA or Administrative Procedure Act style hearings. In some situations, if it's a governmental entity, hospital peer review process, these can be or decisions can be appealed to first the district court and then the Court of appeals and or the Supreme Court of the state.
00;37;06;12 - 00;37;40;04
Nick Healey
I have there is quite a bit of, law, out there at the state Supreme Court level on, physicians who have, appealed, peer review decisions all the way up to the state supreme courts. Have you ever seen someone try to vacate a peer review hearing as an arbitration award? I have not know. Or maybe even, you know, that the processes they don't like the outcome and they claim the processes in the bylaws weren't for the hearing, were followed.
00;37;40;04 - 00;37;42;03
Nick Healey
And therefore there's a breach of contract.
00;37;42;05 - 00;38;09;21
Tom O’Day
That is something that is a real possibility. I, I've not had myself one of the decisions appealed because frankly, it's probably cost prohibitive for the physicians under review. But I do think that is a potential, appeal that a practitioner could make to try and go towards, say it was a sham, pure hearing process or they didn't follow the bylaws, was a breach of contract matter, or they didn't follow the Health Care Quality Improvement Act.
00;38;09;23 - 00;38;37;20
Tom O’Day
Therefore, they don't get immunity against my common law. Whatever it is, anti trust or anti-competition type claims or other claims. So that is a real consequence or potential for for a practitioner to continue to push the issue past the decision from the Board of trustees, which just emphasizes the all the reason to put time and effort in on the front end to make sure it's done right in the bylaws, and then it's done right in practice.
00;38;37;22 - 00;39;02;13
Nick Healey
Yeah, I think that's a really good place to cap it. Tom. But, again, going back to the importance of the bylaws, you know, in a lot of situations, these processes can be viewed as cumbersome, time consuming, expensive, and and really a distraction from the mission of the health care facility to provide good quality care. But at the same time, there can be a lot of heartache on the back end.
00;39;02;13 - 00;39;25;21
Nick Healey
If you don't take care in, drafting the bylaws, making sure these processes are followed. And frankly, you know, it can lead to a lot of bad, outcomes, not just for the individual physician, but from the community. If a, you know, physician who shouldn't have been excluded or their privileges shouldn't have been restricted, if the community loses access to the services of that physician at the hospital.
00;39;25;21 - 00;39;51;29
Nick Healey
So there's a lot riding on these processes. And I think your callback to the importance of the bylaws and putting time in on the front end, both on the bylaws as well as in the processes themselves, is the perfect place to end this episode. And that is the sixth and final episode of 2025 for Beyond the Bylaws. I do really want to thank all of our guests that we've had this season, particularly Tom O'Day, who was a repeat.
00;39;52;06 - 00;40;00;06
Nick Healey
I really appreciate you taking the time to chat with us and share your experience. And, you know, if we continue this for 2027, I may tap you again.
00;40;00;09 - 00;40;01;29
Tom O’Day
That sounds great. Thanks for the opportunity.
00;40;02;04 - 00;40;22;21
Nick Healey
All right. Thanks, Tom.