Due Process & Common Law Rights for Peer Review

There is no federal statute explicitly requiring peer review committees to observe due process. This article explores Peer Review & Physician Due Process & Common Law Rights, highlighting the limited protections for doctors compared to criminals. The comparison reveals a significant bias favoring the rights of criminals over doctors.

The Supreme Court has outlined basic due process rights for doctors in various contexts, including:

• Providing written notice of the actions contemplated.
• Convening a hearing where both sides can present evidence.
• Ensuring an independent person oversees the process.
• Ensuring a fair hearing panel.

These principles aim to ensure fairness in the peer review process, but their application can vary significantly in practice.

Doctors do have due process rights during a "peer review" hearing, but these rights are defined by specific statutes rather than the broader due process clauses of state and federal constitutions (Sadeghi v. Sharp Memorial Medical Center Chula Vista, 221 Cal.App.4th 598 (2013)) See also: Powell v. Bear Valley Community Hospital, 22 Cal.App.5th 263 (2018).
In California, the rights of doctors in peer review hearings at private hospitals are established by the hospital peer review statutes, specifically sections 809 et seq. of the California Business and Professions Code and Health & Safety Code § 1278.5.

These statutes outline the procedural requirements that must be followed in peer review proceedings, including the rights to notice, a hearing, and the ability to call and confront witnesses (Asiryan v. Medical Staff of Glendale Adventist Medical Center, 100 Cal.App.5th 947 (2024); Business & Professions Code § 809.1; Business & Professions Code § Business & Professions 809.2; Business & Professions § 809.05).

The statutes also provide for a fair hearing, which requires the doctor to be given a full and fair opportunity to examine and collect evidence, prepare their case, and present and rebut evidence before a neutral arbitrator or an unbiased panel (Sadeghi v. Sharp Memorial Medical Center Chula Vista, 221 Cal.App.4th 598 (2013).
Furthermore, any additional procedural protections contained in applicable professional society or medical staff bylaws that are not inconsistent with these statutory provisions are also binding (El-Attar v. Hollywood Presbyterian Medical Center, 56 Cal.4th 976 (2013); Mileikowsky v. West Hills Hospital & Medical Center, 45 Cal.4th 1259 (2009))[9].
Thus, while doctors are entitled to due process during peer review hearings, these rights are specifically framed by the statutory scheme, which aims to ensure fairness but also respects the administrative and procedural framework set out by the state legislature.

Federal Due Process Rights for Doctors in Peer Review Hearings

Federal due process rights for doctors at peer review hearings are primarily governed by the Health Care Quality Improvement Act (HCQIA). This act specifies the procedural requirements that must be satisfied for peer review actions to ensure immunity from damages for those involved in the review process.

California Statutes and HCQIA

California statutes incorporate these federal laws into the state’s version of the HCQIA. These requirements include providing adequate notice and a fair hearing to the physician whose conduct is being reviewed.

Key Requirements Under HCQIA

The HCQIA mandates that a professional review action must be taken after adequate notice and hearing procedures are afforded to the physician involved, or after such other procedures as are fair to the physician under the circumstances. The adequacy of the notice and the fairness of the hearing procedures are critical components.

Procedural Protections

For instance, in one case, the procedures included:

• Representation by Counsel: The doctor had the right to be represented by legal counsel.
• Record Maintenance: A record of the proceedings was maintained.
• Witness Examination: The doctor could call, examine, and cross-examine witnesses.
• Evidence Presentation: The doctor could present evidence and submit a written statement at the conclusion of the hearing.

Focus on Fairness

The HCQIA does not require a professional review body’s entire course of investigation to meet particular standards but rather focuses on the fairness of the process leading up to the final decision.

 Of course the broad rules mean little compared to the day to day application of the

The Practical Challenges of Due Process in Medhttps://code-medical-ethics.ama-assn.org/ethics-opinions/peer-review-due-processical Peer Review

While broad rules exist, their day-to-day application can be problematic. If medical staff appoints the independent judicial officer, how fair can that person truly be? In practice, a fair hearing panel is one without financial conflicts. However, other biases, such as overt racism, might protect a minority doctor, but what about implicit or hidden biases?

Criminals can challenge jurors on these grounds, but no law clearly grants doctors that right. In criminal law, a White defendant can dismiss another White juror who is prejudiced against Blacks, even if the racism isn’t directed at him. Unfortunately, doctors do not have these rights, at least not in a clear, published decision format. This disparity highlights the need for more explicit protections for doctors in the peer review process.

Recent Developments in California Administrative Law and Medical Peer Review

Recent California appellate cases have elevated the principles of administrative law, particularly concerning the propriety of combining quasi-judicial, investigatory, and prosecutorial functions. These cases underscore the importance of procedural due process when these functions intersect.

The California Administrative Procedure Act (APA) (Government Code §§ 11340-11529) plays a significant role in defining procedural protections. Generally, there are fair hearing requirements outlined in Code of Civil Procedure section 1094.5.

Historically, due process cases have been tepid in supporting physicians and generally favorable to peer review bodies. Here are some notable examples:

• Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal. App. 4th 1137: Dr. Hossain Sahlolbei appealed the denial of his motion for a preliminary injunction after the termination of his medical staff privileges at Palo Verde Hospital (PVH). PVH failed to provide him with a hearing before terminating his staff membership, leading the court to rule in favor of Dr. Sahlolbei. This case highlights the importance of procedural fairness in medical staff privilege terminations but is an extreme case of action without physician input. Read more

  Hayes v. Cedars-Sinai Medical Center (Sept. 9, 2004, B166463) 2004 WL 2005438: In this unpublished opinion, Dr. Carl Hayes petitioned for a writ of mandamus against Cedars-Sinai Medical Center, arguing that the hospital should have held a hearing before denying his application for medical privileges. The court ruled in favor of the hospital, emphasizing the fair procedure doctrine. This case underscored the balance between a physician’s rights and a hospital’s discretion in granting or denying medical privileges, indicating that some matters are within a hospital’s discretion and challenges are limited in scope. Read more

  Potvin v. Metropolitan Life Ins. Co. (2000) 22 Cal.4th 1060: Dr. Louis Potvin sued Metropolitan Life Insurance Company after being removed from its “preferred provider” lists without notice or an opportunity to be heard. The court applied the common law doctrine of fair procedure, which prohibits arbitrary expulsions from private organizations under certain circumstances. Dr. Potvin’s claim was based on the right to fair procedure, and the court ruled in favor of MetLife. This case highlights the tension between a physician’s rights and an insurance company’s discretion in credentialing decisions within the context of a provider list. Read more

  These cases underscore the significance of due process and fair procedures in various contexts within the medical field. Legal battles surrounding medical staff privileges, credentialing, and termination continue to shape the landscape of healthcare institutions and practitioners’ rights. While common law protections may still exist for insurance company provider lists, they have been severely limited in peer review and credentialing situations.

New Ruling on Common Law Fair Procedure Rights in Medical Peer Review

A recent opinion by the California Second District Court of Appeal in Asiryan v. Medical Staff of Glendale Adventist Medical Center has clarified whether California medical staff must adhere to long-established common law fair procedure rights in peer review processes, beyond the statutory rights outlined in Business and Professions Code Section 809.

The key legal question was whether the statutory hearing procedures in Business and Professions Code § 809 et seq. override common law fair hearing rights that exist in other federal and state law contexts. Essentially, can rules designed to comply with federal statutory standards supersede constitutional or common law protections?

The Court concluded that the California legislature intended for the statutory law to supersede any common law fair hearing claims against medical staffs. This decision effectively eliminates common law fairness standards in favor of statutory procedures.

These legal issues are critical to address during the peer review process. If you raise these issues and lose at the hearing, you can appeal. In some cases, you can bypass the peer review process and seek a court writ of mandamus.

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