QUESTION:        We are about to begin a medical staff hearing requested by a medical staff member after he was informed that the Medical Executive Committee made a recommendation to the Board that his clinical privileges be revoked for a number of significant clinical concerns.  The physician who requested the hearing is objecting to physicians employed by the hospital’s affiliated group sitting as members of the hearing panel.  Should we grant his objection?

ANSWER:            By itself, employment by the Hospital (or an affiliate of the Hospital) does not preclude an individual from serving on a medical staff hearing panel.  Your medical staff bylaws or credentials policy should explicitly state this.  To maintain eligibility for immunity under the Health Care Quality Improvement Act, a hearing must be held “before a panel of individuals who are not in direct economic competition with the physician involved.”  There may be situations in which an employed physician is in direct economic competition with the physician who requested the hearing, but it is the direct competition that is the disqualifying factor, not the potential hearing panel member’s employment.

That being said, when selecting a hearing panel, the process in your current Medical Staff Bylaws or other applicable policy should be followed.  Ideally, each member of the panel will be selected primarily on the potential member’s ability to be fair and objective.  Any potential conflicts of interest should be managed carefully.  Objections about the composition of the hearing panel should be raised prior to the commencement of the hearing and directed to an appointed presiding officer.  Finally, it is helpful for your policies and procedures to require the resolution of any of the subject physician’s objections, including objections to hearing panel members, during a pre-hearing conference.

For more information on medical staff hearings and appeals, join Susan Lapenta and Charlie Chulack on May 2, 2017 for Horty, Springer & Mattern’s Grand Rounds Audio Conference Series, Medical Staff Bylaws – Hearings, Appeals and Litigation.