MEC Investigations Lawyer
Powers of the Medical Executive Committee (MEC)
Role and Authority
Delegation of Power: In most hospitals, the Organized Medical Staff delegates significant authority to the Medical Executive Committee (MEC). This committee often acts as an extension of the hospital’s executive branch, endorsing decisions that may be primarily business-driven. Ideally, your hospital will have an independent medical staff and MEC.
Scope of Influence: The MEC wields considerable power, including reviewing qualifications, new procedures, and equipment, as well as evaluating initial credentialing and scope of privilege applications. This body operates under state and federal laws, as well as compliant by-laws.
Primary Responsibilities
Patient Safety: The MEC prioritizes patient safety and collaborates closely with executive management to enhance the hospital’s health and profitability.
Ultimate Authority: The hospital’s governing body, typically the board of directors, holds ultimate authority and responsibility. However, many boards focus more on donations and personal benefits rather than active governance.
Investigative and Disciplinary Functions
Performance and Conduct Issues: When issues such as performance failures, medical errors, or behavioral problems arise, the MEC steps in. Investigations can be informal or formal, often lacking strict adherence to fair investigation or hearing rules.
Impact on Physicians: Physicians are highly vulnerable during MEC investigations due to two main reasons:
- Summary Suspension: The MEC can initiate a summary suspension.
- Discipline or Remediation: The MEC can recommend disciplinary actions or remediation, leaving the cumbersome peer review process as the physician’s only recourse for justice.
MEC investigations can be informal or formal. You will benefit by retaining a peer review lawyer at the earliest sign of an investigation. The best MEC lawyers focus their practice on medical license and privilege law.
You can trust the expertise of the Horowitz Medical Law Group. Led by Daniel Horowitz, recognized as the best lawyer for medical peer review cases, our team ensures that your rights are protected and that you receive fair treatment throughout the process.
What is a Medical Executive Committee
MEC Protections from a Lawsuit
Legal Protections for the MEC in California
The Medical Executive Committee (MEC) is largely protected from lawsuits related to its conduct. The “Peer Review” process is typically shielded by the California anti-SLAPP statute which means that any lawsuit against the MEC for peer review matters must be meticulously crafted. If the lawsuit is not properly written, or if an unfavorable judge reviews the case, the doctor’s case can be dismissed, and the judge may impose substantial attorney’s fees on the losing doctor.
What is the Evidence Code Section 1157 Privilege?
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 review 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
Understanding Reportable Triggers in Medical Staff Privileges
Identifying Reportable Triggers
Some triggers for reporting are clear, such as the termination or revocation of medical staff privileges. However, the term “restrictions on employment” can be ambiguous. Are restrictions reportable if they arise from a personality conflict? If a hospital introduces a new procedure and you apply but are denied participation, is that considered a “Denial/Rejection of application for staff privileges”? These are critical areas where organized medical staff may inadvertently trigger reporting without intending to.
The Role of Legal Counsel
Sometimes, an action is taken, and the reporting requirement is only recognized upon review by medical staff legal counsel. Our medical lawyer group strongly recommends seeking expert advice on “grey area” events to intervene before the process escalates.
Negotiating with MEC Lawyers
Negotiations with Medical Executive Committee (MEC) lawyers can sometimes limit or supplement the contents of an 805 report in a way that is more favorable to you. Consulting with experienced legal professionals early can help protect your medical license and ensure that you navigate these complex situations effectively.
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 they bring you roses.
Dangers from Former “Friends” in Medical Practice
Peer review, summary suspensions, and resignations while under investigation are all triggers for license harms, primarily due to medical board reporting and National Practitioner Data Bank (NPDB) reporting. License and credentialing disclosures must include these peer review-imposed sanctions, which must be explained throughout a physician’s career. Great care must be taken, as even lesser restrictions, such as performance improvement plans (PIPs), can trigger reporting if a physician resigns during the existence of a PIP.
Your peers can quickly become your persecutors, and their conduct can easily trigger state and federal protections that grant them governmental-type powers. 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.
Facing a peer review investigation can be daunting as the legal rules may not be in your favor. It's crucial to seek immediate professional assistance. Contact our peer review legal team at 925-291-5388.
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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