Wednesday, August 24, 2011

AB 655 (Hayashi) versus Osamah A. El-Attar v. Hollywood Presbyterian Med Ctr

"Allowing the Governing Board to select the hearing officer and JRC panel is not an inconsequential violation of the Bylaws. Rather, it undermines the purpose of the peer review mechansim ... Peer review that is not conducted fairly and results in the unwarranted loss of a qualified physician's right or privilege to use a hospital's facilities deprives the physician of a property interest directly connected to the physician's livelihood."

AB 655 (Hayashi) flies in the face of this case and needs corrective language in the form of amendments. Better still would be to hold the bill over until next year (making it a two-year bill) so it can be re-worked and re-submitted with language that'll protect against sham peer review.

The California Society of Industrial Medicine and Surgery (CSIMS) filed a letter of "Concern" on August 24th. To the best of this writer's knowledge, the Union of American Physicians and Dentists (UAPD) remains "watch" while the California Medical Association (CMA) remains the sponsor for a bill that looks as though it were written by the California Hospital Association (CHA). In the Osamah A. El-Attar case, 2nd Appellate District, Division 4, B209056, the CMA provided Amicus Curiae on behalf of Defendant and Respondent (Hollywood Presbyterian Medical Center).

Source: Court document "Certified for Paritial Publication," Court of Appeal of the State of California, Second Appellate District, Division Four, filed 8/19/11 (Los Angeles County Super. Ct. No. BS105623).

However, from the CMA website, "Peer Review: El-Attar, MD, v. Hollywood Presbyterian Medical Center," we learn that "Dr. El-Attar's medical staff privileges were not renewed by the hospital's governing Board. Following a finding by the Medical Executive Committee (MEC) that there was no basis for the hospital to deny Dr. El-Attar's reappointment to the medical staff, the hospital bypassed the MEC and picked its own panel and hearing officer over Dr. El-Attar's objections. CMA filed an amicus brief in support of Dr. El-Attar (italics added).

The El-Attar court case and AB 655 (Hayahsi) have in common that they both reflect increasing tension over control of the medical staff. Hospitals want control of physicians. It's an end-run around the bar on corporate practice because it's a way for hospitals to become de facto bosses over physicians' practices. Physicians are supposed to work in the interest of patients, not corporate entities.

AB 655 (Hayashi) as currently written tilts too far in favor of hospital administrations. Unamended, the bill pours physicians' rights and privileges down the proverbial drain. Language recently offered by the California Society of Industrial Medicine and Surgery (CSIMS) could cure this defect. We urge its incorporation into the bill. Absent that, we recommend converting AB 655 into a two-year bill.

2 comments:

  1. The basic issue in this case is violation of procedure in B&P code 809
    The medical executive commitee relinquished its authority to governing board to select the JRC panel and hearing officer.
    court decision comments
    "Appellant argues that the Governing Board's selection of the hearing officer and JRC panel members deprived him of the peer review hearing to which he was entitled. We agree.[7o October 1, 2002."
    Important issue is here is that there were issues other than competency as mentioned in the judgement
    "During that time he became a frequent critic of Hospital's practices regarding patient care, and was one of the medical staff members who signed a petition in 2002 to remove Albert Greene as Hospital's chief executive officer"(quote)

    "The trial court held that Hospital's decision to terminate his membership was supported by substantial evidence."(quote)

    "The question remains whether the MEC was authorized to delegate its authority in this fashion. We conclude that it was not."(quote)

    The disciplinary action was not reversed but sent back to new hearing by panel appointed by the medical executive board
    Ther result is the physician will have to go through another 30 hearing sessions while his career is put to freeze. Will he be able to afford another expensive time consuming battle? Meantime the hospital does not have to pay for its mistakes in the procedure .
    The disciplinary procedure dragged on for 7 years from 2003 to 2011 with two courts involved .
    This is a pyrrhic victory to the doctor involved as the hospital has succeeded in scorched earth policy .
    One of the judges commented elsewhere that Justice is for the next world and it is law and order for this world .
    The issue is whether the hospital needs to be penalised when it knowingly resorts to procedure which is not sanctioned by B&P 809 code and makes the physician bleed . The physician has no recourse.

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  2. Legislature needs to correct the inequity which a physician faces under the present legislation and immunity protections granted in peer review to the hospital.
    Important landmark case and frequently cited case used by the hospitals
    EIGHT UNNAMED PHYSICIANS, Plaintiffs and Respondents,
v.
MEDICAL EXECUTIVE COMMITTEE OF the MEDICAL STAFF OF WASHINGTON TOWNSHIP HOSPITAL, Defendant and Appellant.
    59 Cal.Rptr.3d 100 (2007),150 Cal.App.4th 503. 3d 100 - Cal: Court of Appeals, 1st Appellate Dist., 1st Div. 2007
    http://scholar.google.com/scholar_case?case=6211784654166709007&q=seven+unnamed+anesthesiologist+vs+Washington+hospital&hl=en&as_sdt=4,5
    The court has refused to interfere in procedural disputes during internal Administrative judicial hearing procedure till the final action is taken and and administrative remedies are exhausted ( One of the exceptions is infringement of constitutional rights )
    As such, the hospital can pursue expensive time consuming dilatory tactics to exhaust the physician emotionally and financially and obtain strategic advantage without even with the need to establish justification of its charges in the Judicial hearing process without any fear of court intervention. The tactic increasingly used by the hospitals especially as illustrated in this case of Osamah A. El-Attar v. Hollywood Presbyterian Med Ctr

    The intent of Physician disciplinary hearings is to protect the health and safety of California public. Expeditious fairly conducted peer review is an essential part of this process
    As mentioned by the legislators IN B&P code
    809( a )1&2
    (3) Peer review, fairly conducted, is essential to preserving the
    Highest standards of medical practice.
    (4) Peer review that is not conducted fairly results in harm to
    both patients and healing arts practitioners by limiting access to
    care.

    This intent is defeated when the hospital pursues an expensive time consuming dilatory tactics to exhaust the physician emotionally and financially and obtain strategic advantage without even with the need to establish justification of its actions the Judicial hearing process without any fear of court intervention. The procedure in this case stretched over 7 years. It can be reasonably concluded from the record that the hospital was fully aware that it was not following the law governing disciplinary hearings B&P code 809
    B&P code 809.8 awards the prevailing party cost of the suit and attorney fees in writ of mandamus action under ca civ code 1094.5
    This does not address the unneeded expenses and time consumption incurred by the physician when the hospital has knowingly followed the procedure which was not sanctioned by the law.
    Hiatus in the law needs to be addressed that if the hospital has pursued a bad faith dilatory tactics in contravention to the minimum due process under B&P 809 . The law needs to give restitution to the physician for expenses incurred during the entire process so that he can survive to fight another day especially when the court remands the proceedings back to the hospital for reconvened hearing.
    Such law would discourage malicious peer review proceedings not approved by the law and will expedite proceedings and will be in the overall interest of public of California.

    DR R.V.Rao

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