MDNews - Minnesota

May 2015

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Appeals in the context of peer review as "nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right." 5 In Re: Peer Review Action involved a physician seeking to enjoin a hospital board's effort to impose a 120-day suspen- sion and five-year probationary period for "serious disruptive, demeaning and counterproductive behavior," as determined by a peer-review process and procedural- review hearing. 6 The district court issued the requested injunction, and the Court of Appeals affirmed, concluding that the hospital "intentionally, and repeatedly, violated its own established procedural safeguards" in the peer-review process. 7 This included failing to meet with the physician to discuss his behavior (and provide him an opportunity to rectify it) before initiating the peer-review process, seeking to impose discipline, charging him with incidents which were unfairly old and treating him more harshly than others alleged to have behaved in a similar manner in the past. The hospital's argument that none of the individuals involved in this process had ill will toward the physician but were simply trying to correct abusive behavior, was deemed by the court to be irrelevant, as the standard for assessing malice is objec- tive, and repeatedly failing to abide by the hospital's own established procedures in trying to address this behavior met this high standard. 8 If similar circumstances have infected a peer-review process for any physician, extensive discovery may be permitted, as these circumstances represent evidence of malice. 9 Even in the absence of developing a record which could establish malice, physicians subject to peer review should understand that medical staff bylaws (and related credentialing or peer-review poli- cies) can often be considered contractual rights, and failure to follow these policies to the letter can give rise to a claim for breach of contract. 10 Therefore, even in the absence of evidence of malice, the recent Minnesota Supreme Court Avera Marshall decision suggests that contract liability could also be alleged when specific pro- cedures are not followed in a peer review process, especially when these procedures are specified in the staff bylaws. Finally, if confidential information in the peer-review process is improperly shared with individuals outside that process (or is improperly placed into a physician's personnel file) or individuals not involved in that process take prema- ture adverse action against the physician, these circumstances can result in waiver of immunity/confidentiality and viable legal claims. 11 A s t he above mater ia l a nd pa st articles establish, a physician subject to peer review does not have to be terrified or feel entirely at the mercy of a "rigged" process. Potential legal challenges are available, and an effective, experi- enced advocate can covert what could otherwise be a career-threatening cir- cumstance into an opportunity to move into other practice opportunities with your ability to secure privileges intact. Future articles will further explore these and myriad other legal issues a f fecting medica l professiona ls in greater detail. I intend this forum to be as "interactive" as possible, and welcome input on ideas for future topics from readers. 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 unwar- ranted discipline or termination. You can reach Schaefer directly at 612- 294-2601 or ■ References: 1. 45 C.F.R. §60.10 et. seq 2. 42 U.S.C. §11101 et. seq 3. Minn. Stat. §§ 145.61 - .67 4. Minn. Stat. §145.63, subd. 1 5. In re Peer Review Action, 749 N.W.2d 822, 827 (Minn. Ct. App. 2008) (citing Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) 6. 749 N.W.2d at 826 7. Id. at 828 8. Id. at 829 9. See Hayes v. Mercy Health Corporation, 739 F.2d 114 (Pa. 1999) (confidentiality of peer review statute does not apply when physicians challenge relates to procedural fairness rather than substantive quality of care issues); Eyring v. Fort Sanders Parkwest Medical Center, Inc., 931 S.W. 2d (Tenn. 1999) (physician entitled to limited discovery to substantiate allegation of bad faith in initiating process) 10. See Medical Staff of Avera Marshall Regional Medical Center v. Avera Marshall, 857 N.W. 2d 695, 702-03 (Minn. 12/31/2014) 11. See "Peer Review Documents: How to Keep Them Confidential", J. Schroeder, Esq., AHLA-Papers P02100502 (Presented February 10, 2005) M D N E W S . CO M ■ MD NEWS Minnesota | 1 5

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