DUE PROCESS is necessary for FAIR PEER REVIEW, promoting PHYSICAN and PATIENT SAFETY

Scott Segall, J.D. Judge, El Paso Criminal Law Magistrate Court and William Pearl, MD, William Beaumont Army Medical Center, El Paso

I have been asked to revisit the issue of peer review and due process. There has been little litigation reported on this issue, here is an update of the case law:

There have been two cases that highlight some of the main issues.

Ulrich v. City & County of San Francisco, No. 01-15717, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 308 F.3d 968; 2002 U.S. App.

In this case the physician resigned while under peer review. Although the resignation was apparently not related to the peer review, the hospital accepted his resignation reported the undeniable fact that the physician had resigned, while under investigation. The Physician attempted to resend his resignation when he discovered the terrible consciousness of his act. [1] The hospital did not reinstate, and the physician sued. The Court held that the Physician had surrendered his property interest in the job when he resigned and it was accepted, he therefore had no civil right which was impaired. No property right, no civil right. As was noted in the original paper, the government can slander your good name to its hart is content, [2] it is only actionable when (1) it is a government that is depriving civil rights, and (2) the plaintiff has a property right that is being damaged. [3] The case is not over for the Physician, his claim that the failure to re-instate was a government retaliation for his free speech that he claimed was the basis of his problems was permitted to be litigated.

Also of interest was Patel v. Midland Mem. Hosp. & Med. Ctr., 2002 U.S. App. LEXIS 13834 (5th Cir. Tex. 2002).

In this action a public hospital revoked a physician's privileges without due process, claiming emergency. They then afforded a full and fair hearing, at which the physician established that what appeared to be dangerous malpractice was in fact only poor record keeping. (see our commit in the original paper about the danger of peer review penalizing such practice). The privileges were re-instated, with instructions about making a better record. The Physician sued over the failure to afford due process before the emergency termination of privileges, and lost. The Law had made a balance that it is better and permitted for a regulator to act and suspend the livelihood of a person where it appears that they are acting to endanger the public, and then give him due process, than it is to permit the apparent danger to continue while due process works its slow way. This rule came up where a police officer was suspended without pay pending investigation of drug charges. The officer was cleared, and sued. The Supreme Court [4] held that the public was better served with the questioned officer off the beat, than it would have been if he had continued at work and it had turned out to be that he was in fact guilty. So this Court held that the public was better served by suspending the physician pending due process. If it had turned out that the public was endangered by his acts, the sooner he had stopped practicing the better.
The Case makes several interesting observations. The Court assumed without deciding that the physician was entitled to due process [5], based on Gilbert v Homar [6]. The Court also noted Some of the leaders of the charge to remove the physicians were in direct economic competition. The hospital was aware of the conflict, and the final decision was made by physicians who were from out of town and had no economic stake.

In Moore v. Gunnison Valley Hosp., 170 F. Supp. 2d 1080, 2001 U.S. Dist. LEXIS 19394 (D. Colo. 2001) The Tenth Circuit held that the peer review committee did not enjoy immunity normally afforded to an adjudication body primarily because it did not afford due process. No due process, no judicial immunity. The Court noted a laundry list of the differences between a proper adjudication body and the peer review committee in question.

In addition to these cases there have been several cases on the issue of State Statutory privilege against disclosure for the activities of peer review. The Plaintiff has not been successful in obtaining records without an overriding Federal statute, such as the ADA.

Segall's opinion (not law)

1. You can contract for Due Process. There is absolutely no good reason to sign any employment agreement-hospital privilege agreement that would permit an adverse NRDB report and not afford the physician an opportunity to be heard, before an impartial board. If an employer -hospital does not agree to the insertion of such protections, do not work for them. [7] Do not be fooled into thinking that the hospital or other employer does not have the power to agree to due process. They can, and the Courts will enforce. If the Employer does not agree (in writing) and the organization is not public operated, due process had not been required.

2. If you must sue, sue for the underlying problem. Due process denied is harmless where the truth of the matter is that a doctor is a danger. The Courts in fact always look to the harm that a failure to follow procedure has created, not just to the fact that procedures were not followed. No harm no foul. In criminal cases this is called "harmless error" . It matters not what statute, what rule, what settled law was violated by the tribunal if there was no demonstrable harm. As Dr. Ulrich supra demonstrated, his due process claim got nowhere, he is in court on his "they-fired-me-because-of- what-I-said" claim. If the reality is that peer review is being used to stifle economic competition, sue for the monopoly violation. If the reality is that there is no error, and the peer review committee has fabricated one, there is an underlying tort.

3. Lobby. There are a number of organizations that have a stake in quality peer review. The hospital accreditation organizations require peer review, physicians should have such organizations require due process as a part and parcel. State legislators have the power to require due process by statute, as do city or other local regulators. Be heard on this issue, or suffer in silence

[1] The report to the NPDB is just that, resigned during investigation, which implies serious guilt.
[2] Paul v. Davis, 424 U.S. 693, 701, 711, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).
[3] The Fourteenth Amendment's due process guarantee applies to public employees who have a "property interest" in the terms or conditions of their employment.Bd. of Regents v. Roth, 408 U.S. 564, 576, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
[4] Gilbert v. Homar, 520 U.S. 924, 138 L. Ed. 2d 120, 117 S. Ct. 1807 (1997)
[5] This public hospital had written and published due process procedures.
[6] id
[7] it's a free country, go some where else. Do it today. If your current agreement does not have protections, insist on it being modified, or leave.

--Scott Segall, J.D.