MDNews - Minnesota

physician does not resign, a report may still be avoided if the resolution of the complaint is exoneration or some relatively mild cor- rection action which involves no suspension from employment or suspension of privileges. When the initial disclosure and remedia- tion step fails, a decision is made — usually by committee — about whether to elevate the issue(s) to a formal investigation, which is the second step in the review process. This escalation is significant, because it means a suspension or termination may occur that would require reporting to the state licensing authority and potentially, the NPDB. After that point, a physician can- not resign and terminate the investigative proceeding without a report being made. If the investigation concludes with a deter- mination that no "reportable" incident has occurred, the process generally concludes with no further adverse consequences aside from the physician being saddled with minor remediation obligations. A "reportable instance" under the HCQIA is defined as any action in which the Board of Medical Examiners "revokes or suspends (or otherwise restricts) a physician's license or censures, reprimands, or places on probation a physician, for reasons relating to the physician's professional competence or professional conduct…" (emphasis added). 4 The third step in the process commences when the internal investigation concludes with a recommendation that a reportable incident has, in fact, occurred. Such a conclusion is again typically reached by committee, and usually is accompanied by a recommendation that privileges be terminated and the employment relation- ship end immediately. The fourth step in the process is the appeal from such an adverse recommendation. Appeal generally involves a hearing — usu- ally before a panel of physicians, at least one of whom should be familiar with the practice area. The burden to establish that the recommended action is an abuse of the considerable discretion afforded to the decision-making authority/committee is on the physician and his/her counsel. Once this internal process is exhausted, and if the final recommendation is adopted, there is the possibility of further legal action to chal- lenge the final decision, but the scope and likelihood of success of such action depends significantly on the evidence developed during the investigation and the nature of the employment relationship between the physician and the hospital or institution. A Changing Landscape for Medical Professionals The medical profession has been changing dramatically in recent years, shifting away from physicians providing services as inde- pendent contractors, and moving toward large institutions providing these services in-house through physician employees. It's now far more common for a physician to work as a hospital employee rather than as a proprietor of a small independent business and working as an independent contractor with clinical privileges at hospitals or health systems. As The New York Times reported five years ago, "an increasing share of young physicians … are deciding against opening private practices. Instead, they are accepting salaries at hospitals and health systems. And a growing number of older doctors — facing rising costs and fearing they will not be able to recruit junior partners — are selling their practices and moving into salaried jobs, too." This change has brought with it a new legal landscape in which physicians may assert rights as employees throughout the process described above. This can have a very favorable impact on resolving complaints without career-threatening consequences. Even in the absence of an employee-employer relationship, independent contractor physicians can successfully assert injunctive actions to over- turn adverse decisions in the peer-review process. Future articles will present and explore the evidence necessary to invoke these important rights. Because this process is unique to the medical profession and involves adherence to requirements under both state and federal laws, it is critical to involve legal counsel experienced in not only the peer review pro- cess and HCQIA, but also the circumstances where the protections of these laws can be trumped and/or significantly influenced by other legal rights arising in the workplace. For example, what happens if a peer review is initiated based on discriminatory bias, with a goal of developing a pretextual reason to get rid of a physician or force a resignation? Future updates will analyze these com- plex issues and recent decisions from federal and state courts piercing the confidentiality and immunity associated with the peer review process when evidence suggests this process has been abused, with poten- tially career-saving consequences for the affected physician. Lawrence P. Schaefer is the owner and president of Schaefer Halleen LLC. As one of the most recognized plaintiff 's lawyers nationwide, Schaefer has earned the respect of judges and other lawyers for his thorough and aggressive client advocacy in negotiation and litigation. He concentrates his practice representing medical professionals and other employees who are adversely affected by employment discrimination practices or unfair and unwarranted discipline or termination. You can reach Schaefer directly at 612-294-2601 or Lschaefer@schaeferhalleen.com. References: 1. Minn. Stat. § 145.64 (1990) 2. Id. at Subd. 5 3. 42 U.S.C. § 1111 et seq. (2000) 4. 42 U.S.C. §11132(a)(1)(A) M D N E W S . CO M ■ MD NEWS Minnesota | 1 5

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