A California court of appeal issued a new peer review decision a few days ago [Osamah A. El-Attar v Hollywood Presbyterian Medical Center, 2011 WL 3633688, filed 8/19/11]. The facts of the case are fairly complex and it seems probable that there is more that went on than appears in the opinion, although the actual holding of the case is quite limited.
In brief, Dr. El-Attar, a cardiologist, had been a member of the medical staff for a number of years. He was one of several physicians targeted by an ad hoc committee investigation looking into quality concerns. The allegation was made that Dr. El-Attar was involved in “a pattern of clinically unnecessary, inappropriate, and opportunistic consultations involving patients who had been admitted to Hospital through the Emergency Department”. Dr. El-Attar’s privileges were up for bi-annual renewal later the same year. The medical staff MEC recommended reappointment but the hospital governing board suspended Dr. El-Attar and refused him reappointment. Although the suspension lapsed without support from the MEC, the Board’s decision to deny El-Attar reappointment stood. He asked for a Judicial Review Committee hearing to contest the denial of reappointment. The MEC [apparently unhappy with the actions of the Board] delegated to the Board the tasks of issuing a notice of charges, appointing the JRC hearing committee, hearing officer and the like. As is typical of bylaws in California, these tasks [issuing a notice of charges, appointing a hearing committee and a hearing officer] were all the responsibility of the MEC, not the Board. It appears the MEC’s heart was not in these actions against Dr. El Attar and wanted the Board to take direct responsibility for the hearing necessitated by the Board’s decision.
After a full JRC hearing, the hearing committee issued a decision that the Board’s decision not to reappoint Dr. El-Attar was reasonable and warranted based on certain facts, but noted that if it had been the initial decision maker, it would have pursued an intermediate resolution. After an unsuccessful appeal to the governing board, Dr. El-Attar filed a writ action in superior court to contest the termination of his privileges. Although the trial court denied his writ petition, Dr. El-Attar persisted and struck gold in the court of appeal. That court concluded that the selection of the JRC committee and hearing officer by the governing board, in violation of the staff bylaws, also violated the principles of fair procedure that govern medical staff peer review hearings. The fact the MEC attempted to “delegate” its duties to appoint the committee and hearing officer to the Board did not satisfy the bylaws or due process. The court of appeal noted: “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 mechanism.” The court of appeal commented that although the hospital’s administrative governing body makes the ultimate decision about staff privileges, it is to do so based on recommendations of the medical staff, giving great weight to the actions of staff peer review bodies. It emphasized the importance of this dual [governing body and medical staff] structure to shield physicians from arbitrary and discriminatory disciplinary action.
The specific facts of this case [an MEC delegating JRC duties to the governing board] are unlikely to happen much, if ever again. However, some of the general language in the decision about the importance of fair peer review and the separation of the governing board from the hands-on management of the peer review system by the medical staff will probably provide encouragement to advocates for medical staffs and individual staff members who feel governing boards may be intruding too directly in the peer review process.
