Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

The content of this page is copyrighted as it is original content produced by the lawyers at Reardon Law Office LLC (formerly Hassan & Reardon P.C.) in Boston.  Please contact us if you would like to use any of this material.

            Traditionally, courts have prevented hospitals from interfering with the health care decisions of treating physicians.  Peer reviews allow for physicians to monitor the behavior of their fellow physicians.  However, hospitals are ultimately responsible for the conduct of their physicians and the administration of quality health care.

A federal appeals court recently upheld a Kentucky hospital’s denial of privileges to a disruptive physician.  SeeMeyers v. Columbia/HCA Healthcare Corp., (6th Cir. 2003).  The physician, Dr. Meyers, had a history of  “temper tantrums, …condescending remarks toward women, refusal to speak to a member of his surgical team during surgery, and several instances of throwing a scalpel during surgery.”  Id. at 5. 

The Court upheld the hospital’s decision to deny privileges pursuant to the Health Care Quality Improvement Act.  This federal law was enacted to “provide for effective peer review and interstate monitoring of incompetent physicians.”  Id. at 9.  Under HCQIA, a governing body that conducts a professional review is entitled to immunity if subsequent disciplinary action is taken and the decision was made “in the reasonable belief that the action was in furtherance of quality health care.” Id. at 9.   

In this case, the Court upheld the Hospital Board’s decision to deny Dr. Meyers’ privileges because it was made in the belief that it was furthering quality health care.  The Court noted that despite the fact that no patients were actually injured by Dr. Meyers, the Board heard testimony involving 22 incidents of Dr. Meyer’s disruptive behavior.  The Court noted that disruptive behavior interferes with the “important work of other employees” and that “quality health care demands that doctors possess at least a reasonable ‘ability to work with others.’”  Id. at 13, citing Everhard v. Jefferson Parish Hosp. , 757 F.2d 1567, 1573 (5th Cir. 1985). 

Similarly, in a recent decision by an Illinois Court of Appeals, the unilateral suspension of a physician by a hospital board, without the medical staff’s recommendation, was upheld.   SeeLo v. Provena Covenant Medical Center, (Ill. App. 2003).

The plaintiff, Dr. Adolf Lo, was a cardiovascular surgeon at Provena Covenant Medical Center in Champaign, Illinois when a review of the cardiovascular-surgery program revealed a high rate of mortality and complications.  The Hospital Board hired independent consultants to evaluate the program.  The review created concerns for the Board.  The Board discussed possible remedial solutions with Dr. Lo.  Dr. Lo eventually agreed to perform surgery under the supervision of two cardiac surgeons from another facility but later changed his mind and refused to consent to the supervision. 

The CEO of the Hospital sought the advice of the medical staff.  The staff members that were consulted did not want to get involved.  Regardless, the Hospital Board suspended Dr. Lo’s privileges.  Dr. Lo filed suit to challenge the validity of his suspension under the Hospital’s by-laws.        

A section of the Hospital’s by-laws allowed the CEO or Hospital Board the authority to suspend clinical privileges “upon the recommendation of” the medical staff to “prevent imminent danger to an individual.”  The Court construed this section to allow for the CEO or Hospital Board to suspend privileges, without the recommendation of the medical staff, if the threat to the patient is substantiated.  In this case, an independent review of the department was negative and the medical staff refused to get involved.  In light of these factors, the Court concluded that the Board had the authority to act unilaterally. 

The Court referred to federal regulations that require a hospital to have an “effective governing body legally responsible for the conduct of the hospital as an institution.”  Id. at 5, citing 42 C.F.R. § 482.12 (2001).  The governing body “must…[e]nsure that the medical staff is accountable to the governing body for the quality of care provided to patients.”  Id., citing 42 C.F.R. §482.12(a)(5)(2001).   The court reasoned that a hospital must have means available to ensure staff accountability and the suspension of privileges is one such mechanism.

The Court also cited Illinois case law that imposes upon hospitals, “an independent duty to provide for the patient’s health and welfare.”  Id., citing Berlin v. Sarah Bush Lincoln Health Center, 688 N.E.2d 106, 114 (1997).   The Court pointed out that under Illinois law, the hospital could be held liable for Dr. Loh’s negligent treatment of a patient.  Thus the hospital must be able to prevent the malpractice before it occurs. 

The Court noted that the JCAHO requires a hospital board to make decisions on clinical privileges ‘based on medical staff recommendations, in accordance with the by-laws.”  Lo at 6; citing Joint Commission on Accreditation of Healthcare Organizations, Comprehensive Accreditation Manual for Hospitals:  The Official Handbook, MS.5.1, at MS07 (2002).  However, JCAHO says that “the governing body is not bound by the medical staff recommendation but has the ultimate authority to render a decision” as long as it is not arbitrary or contrary to the hospital’s by-laws.  Id.  In Lo, the Court reasoned that the Board’s decision to suspend Dr. Lo’s privileges was not arbitrary since it was based on the independent review of the cardiovascular department.

Like physicians, hospitals have a duty to ensure patients receive quality health care. Since hospitals may also be held responsible for the physician’s malpractice, courts are enabling hospitals to ensure quality health care, even if that means terminating a physician’s privileges.

Hospitals are also responsible for maintaining a safe working environment for their employees.  Disruptive physicians threaten the safety of patients but also affect the work environment.  If a hospital wishes to retain valuable employees, disruptive physicians should be disciplined in accordance with the hospital’s by-laws, state and federal law.

Hospital's Peer Review and Privilege

by Attorney Frank E. Reardon

December 2003