QUESTION:    We are now reviewing our Bylaws and Credentials Policy.  One physician has objected to the proposed language that the CEO appoints the hearing panel.  Is it okay for us to keep the current provision that the Chief of Staff appoints the hearing panel?  We haven’t had a hearing in over a decade.

ANSWER:    A hearing panel is most commonly appointed by the CEO, to protect the Chief of Staff from the risk of being named in a suit.  Such a suit can include antitrust claims that there is a conspiracy to restrain trade, among medical staff members.  Hearings are rare.  The Bylaws or Credentials Policy should guide physician leaders to use progressive steps starting with collegial intervention.  A Peer Review Policy should provide options for performance improvement plans.  However, a hearing is necessary when an adverse recommendation is made by the MEC, in cases where a practitioner is unable or unwilling to follow those steps.  Often, the attorney for the affected practitioner will seek to argue that medical staff leaders are biased or acting anticompetitively. The Health Care Quality Improvement Act immunity has worked well to protect physician leaders from antitrust allegations that were common before the HCQIA.  The HCQIA’s objective reasonableness standards have been applied by the courts generally to rule that allegations of subjective motives are irrelevant if the record demonstrates reasonableness. The Chief of Staff is at some risk of being personally named in an antitrust suit – an aggravation even if the likelihood of actual liability is extremely remote.  However, notwithstanding the enhanced legal protection for the Chief, it can sometimes be politically difficult to get buy-in for the CEO to appoint the panel.  A middle ground, to balance trust and protection, is to have the CEO consult with the Chief of Staff.