Executive Summary:
Hospitals and physicians are arguing over an Arkansas law that governs how hospitals handle peer reviews. The law gives greater protection to doctors.
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The law was enacted in 2013.
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A court recently ruled it to be constitutional.
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Three hospitals are taking the case to the state supreme court.
Three Arkansas hospitals are continuing their fight against a 2013 law that governs hospital peer reviews, taking the case to the state supreme court. In part, the law requires that hospitals notify physicians that they are under review and allows them to have a lawyer.
The hospitals argued that the law was unconstitutional, in part because it attempted to supersede federal law. Pulaski County Circuit Judge Tim Fox recently denied the hospitals’ claims and ruled that the Arkansas Peer Review Fairness Act was constitutional. He denied a request for a summary judgment from the hospitals.
Baptist Health Medical Systems, Washington Regional Medical Center, and Mercy Health system filed their notice of appeal, which means their next stop will be the Supreme Court of Arkansas.
The law in dispute is Act 766 of 2013, which created additional rules for peer reviews at hospitals, with supporters saying it added protection for physicians receiving a job performance review. The law requires hospitals to notify physicians of an investigation when it begins and allows those doctors to have their own attorneys present at the beginning of the process.
That gives Arkansas physicians more protection than is provided by the federal Health Care Quality Improvement Act. Under that law, hospitals can wait until a hearing is initiated to notify the physician even if an investigation has been going on for months before that point.
The hospitals challenging the law allege that it unnecessarily burdens the process, places additional demands on an already volunteer body of peer doctors, and makes the process more combative.
The Arkansas Hospital Association opposes the law but the Arkansas Medical Society supports it. David Wroten, executive vice president of the Arkansas Medical Society in Little Rock, says the law only adds common sense protection for physicians. The law protects not only physicians under review, but the physicians who are conducting the peer review, he notes.
“We believe this law brings needed due process to the peer review process, and it also helps eliminate conflicts of interest that pop up in peer review,” Wroten says. “There are lots of stories of peer review being used, not by the hospital’s medical staff, but by hospital administration to go after physicians who disagreed with it. When the hospital wants to remove a physician for any reason, peer review can be a useful tool.”
That scenario can play out, for example, when a hospital wants to buy a clinic and the clinic refuses, Wroten says.
“So the hospital goes after the doctor to try to run him off the staff,” Wroten says. “It’s sham peer review. That’s part of what we’re trying to prevent.”
One component of the law is particularly irksome to the hospitals. Not only can the physician have an attorney from the beginning of the peer review, but the physician also can object to the attorney representing the hospital or the review committee.
Megan Hargraves, JD, the attorney representing the hospitals, filed a brief arguing that if the hospital kept the attorney despite the doctor’s protest, that decision could be used against them if the doctor under review chose to file a lawsuit against the peer review group.
“Taken together, [Act 766] permit an individual physician, who is the subject of peer review, to force a hospital or its medical staff into using an attorney other than its preferred counsel during the review process,” Hargraves wrote. “This unconstitutionally chills [the hospitals’] First Amendment right to select the attorney of their choice.”
Wroten says the hospitals’ arguments that the law is too burdensome don’t hold water.
“It’s really very simple: If you’re investigating a physician, you have to let them know,” he says. “You can’t spring it on them at the last minute. If the hospital’s legal counsel is involved, the physician can have a physician involved. It’s simple due process and getting rid of conflicts of interest.”
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David Wroten, Executive Vice President, Arkansas Medical Society, Little Rock, AR. Telephone: (501) 224-8967. Email: [email protected].
