MEC Investigations Lawyer in Contra Costa County
Powers of the Medical Executive Committee (MEC)
In most hospitals Organized Medical Staff cedes all significant power to the MEC. This group often acts as an arm of the executive branch of the hospital putting the “medical stamp of approval” on decisions that may be largely business based. If you are fortunate, your hospital has a truly independent medical staff and MEC.
The powers are tremendous. They review qualifications, new procedures, new equipment and will evaluate initial credentialing and scope of privilege applications. It is a representative body governed by state law, federal law and state and federally compliant by-laws. Ultimately, patient safety is the top priority for the MEC and functionally it tends to interface very closely with executive management to promote the health and profitability of the hospital.
Remember though, the governing body which is 99.9% of the time the board of directors has ultimate authority and responsibility in a hospital. (But again, how many boards are truly active vs. focused on donations and ensuring that when they get sick they get special treatment at the hospital!)
When issues of performance failures, medical errors, anger issues or any other matter that may affect the delviery of care - the MEC is involved. The MEC investigations may be informal or they may have a formal aspect to them without strict adherence to basic rules of a fair investigation or hearing. The doctor is very much at the mercy of an MEC investigation for two reasons. First, a summary suspension can be initiated. Second, discipline or remdiation can be recommended with only a cumbersome peer review process as the doctor's avenue of seeking justice.
MEC Protections from a Lawsuit
The MEC is largely protected from being sued for its conduct. The “Peer Review” process is usually protected by the California anti-SLAPP statute so that a lawsuit against the Medical Executive Committee for peer review related matters must be very carefully written. If the MEC lawsuit is not properly written (or if you get a bad judge reviewing the case), the doctor can have his/her case thrown out and the judge will assess meaningfully large attorney's fees against the losing doctor.
Hospital Structure & the Powers of the MEC
The basic structure of hospital management in relation to the MEC divides power. "Hospitals in this state have a dual structure, consisting of an administrative governing body, which oversees the operations of the hospital, and a medical staff, which provides medical services and is generally responsible for ensuring that its members provide adequate medical care to patients at the hospital.” (El Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal. 4th 976, 983)
The medical staff of a hospital “is a separate legal entity from the hospital” (Natarajan v. Dignity Health (2021) 11 Cal.5th 1095, 1114) and is “responsible for the adequacy and quality of the medical care rendered to patients in the hospital” (Mileikowsky v. West Hills Hosp. (2009) 45 Cal.4th 1259, 1267). Business & Professions Code section 2282.5 (section 2282.5), subdivision (a), provides the medical staff's “right of self-governance” includes establishing standards for medical staff membership and privileges; establishing standards to oversee and manage quality assurance; and initiating, developing, and adopting medical staff bylaws, rules, regulations, and amendments, “subject to the approval of the hospital governing board, which approval shall not be unreasonably withheld.” (See Cal. Code Regs., tit. 22, § 70703, subd. (b).) California law further requires medical staff bylaws to “provide formal procedures for the evaluation of staff applications and credentials, appointments, reappointments, assignment of clinical privileges, appeals mechanisms and such other subjects or conditions which the medical staff and governing body deem appropriate.” (Mileikowsky, at p. 1267; see Cal. Code Regs., tit. 22, §§ 70701, 70703.)
To the doctor operating under these rules, the complexity of the laws, the variations caused by the by-laws of your particular institution, mirror boards of directors with various entities controlling the hospital, lead to confusion over who has the power to regulate physician conduct and supervise patient safety and care.
Our medical lawyers will help you defend against factual allegations and also navigate the complex and often self-contradictory spheres of power and influence.
TRIGGERS TO MEC REPORTING UNDER BUSINESS & PROFESSIONS CODE SECTION 805
Most physicians focus on medical issues and few consider state reporting rules until after a crisis is triggered. Take a moment to look at the “official” State of California Medical Board 805 Reporting Form. There are 11 check boxes that trigger reporting (and those check boxes are not the exclusive list of medical board reportable actions)
(a) For a medical disciplinary cause or reason:
Termination or revocation of staff privileges
Denial/rejection of application for staff privileges
Termination or revocation of membership
Denial/rejection of application for membership
Termination or revocation of employment (b) For a cumulative total of 30 days or more for any 12 month period, and for a medical disciplinary cause or reason:
Restriction(s) imposed on staff privileges
Restriction(s) voluntarily accepted on staff privileges
Restriction(s) imposed on membership
Restriction(s) voluntarily accepted on membership
Restriction(s) imposed on employment
Restriction(s) voluntarily accepted on employment
Some of these triggers are obvious. Everyone knows that termination or revocation of medical staff privileges are reportable. But “restrictions on employment” is a rather vague term. Are restrictions reportable if the root cause was a personality conflict? If the hospital initiates a new procedure and you apply but are denied the right to participate in that procedure is that a “Denial/Rejection of application for staff privileges”? These are danger areas and organized medical staff may inadvertently trigger reporting while not intending to. Or at times an action is taken and the reporting requirement is recognized only upon review by medical staff legal counsel.
Our medical lawyer group strongly recommends consultation on “grey area” events so that we can attempt to intervene before the process gets out of hand.
Choose Your Peers Carefully
Physicians forming partnerships and obtaining hospital privileges are usually people in love. When they come to the Horowitz law office, they are usually out of love and getting a divorce. When you are in the love stage try to force yourself to do a hard evaluation of the composition and day to day function of your particular MEC. What is the agenda of Medical Staff and who is really in charge? If you smell a skunk don't be fooled if the bring you roses.
Dangers from Former “Friends”
Peer Review, summary suspensions, resignation while under investigation are all triggers for license harms arising primarily from medical board reporting and review as well as National Practitioner Data Bank (NPDB) reporting. License and credentialling disclosures must include these peer review imposed sanctions and these must be explained for an entire career. Great care must be taken when lesser restrictions such as performance improvement plans can trigger reporting when a physician resignations during the existence of a PIP.
Your peers can quickly become your persecutors and their conduct quickly and easily triggers state and federal protections that give them governmental type powers. So when you sign on with a medical group or hospital, remember that you are empowering them in case of a conflict.
MEC PROTECTIONS (in more detail)
When an MEC investigation leads to sanctions the by-laws will outline the procedures for having a contested hearing. However, the investigation, the sanctions, the gathering of evidence against you and even the conduct of the hearing enjoy astounding protections. These protections are far greater than protections afforded to police or prosecutors.
The ultimate hearing is termed “peer review” but the entire process is afforded great protections. In California the Supreme Court in the case titled, Kibler v. Northern Inyo County Local Hospital District (2006) 39 Cal.4th 192 held that private hospital’s peer review process was entitled to a level of deference usually reserved for governmental entities enforcing public rights. The court held that peer review was an official proceeding because the Legislature accorded physician peer review decisions “a status comparable to that of quasi-judicial public agencies”. The immunities that arise from this quasi-public status are tremendous. California Evidence Code section 1157 provides for protection against disclosure of peer review related complaints even when a formal proceeding has not started.
If you are facing a peer review investigation the legal rules are stacked against you. Get immediate professional help. Call our peer review legal team* at 925-291-5388
* Our peer review legal team includes physician lawyer, Dr. Mark Ravis, legendary trial lawyer Daniel Horowitz and other highly experienced physician attorneys and paralegals.
New Definition as to “When” a Peer Review Investigation has Commenced
A recent development is a broadening as to when an investigation is deemed to have commenced. This can effect many rights and trigger a myriad of protections to the instigating parties.
Recently the concept of resignation under investigation received attention when a California Court greatly broadened the concept of an MEC investigation. In (Wisner v. Dignity Health (2022) 85 Cal.App.5th 35 [300 Cal.Rptr.3d 359, 370, 85 Cal.App.5th 35]) the court relied upon the NPDB Guidebook (National Practitioner Data Bank Guidebook) for determining what was or was not an “investigation”.
The court stated that “[w]e agree with the NPDB Guidebook that the definition of an investigation cannot be controlled by a hospital’s bylaws, policies, or procedures.” Until this ruling, many physician lawyers relied upon the by-laws to determine this issue of law. It made sense. The by-laws govern MEC actions and review. The by-law definitions should apply to define the term “investigation”.
The Court differed:
“To hold otherwise would result in ad hoc reporting and reporting inconsistencies across the multitude of health care entities throughout the nation,” frustrating the purpose of the reporting requirement. (Rogers, supra, 139 F.Supp.3d at p. 142; Doe v. Leavitt, supra, 552 F.3d at pp. 82-85.)
We note that the NPDB Guidebook’s interpretation also is consistent with the ordinary definition of an investigation as an inquiry or examination of a person or thing. (Oxford English Dict. Online (2022) https://www.oed.com/view/Entry/99038?redirectedFrom=investigation#eid [as of Oct. 17, 2022], archived at https://perma.cc/2PZ9-RLF3.)
In other words, rather than have different hospitals, different medical groups, different lawyers, different courts apply their own interpretations of the word “investigation”, the courts should rely upon the commonsense meaning of the word as defined by the dictionary and a major national institution, the NPDB.
The broader interpretation is that “for the purpose of the mandatory reporting requirements, an “investigation” commences as soon as there is a focused “inquiry” into potential misconduct.”
This decision also has implications when MEC conduct is challenged in court. SLAPP protections and litigation privilege protections can be triggered by less than a formal investigation.
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