Exactly when an “investigation” begins under hospital bylaws can be crucial in the peer review process, says John C. Ivins Jr., JD, partner with the Hirschler Fleischer law firm in Richmond, VA.

Hospital leaders should craft bylaws with their legal counsel that establish informal measures in a way that does not constitute initiating an investigation, he says. This can help avoid dilemmas regarding reports to the National Practitioner Data Bank (NPDB) and triggering the fair hearing process.

Often, once a matter has gone into extensive peer review, the hospital may conclude it would be best if the practitioner left the medical staff, Ivins notes, or the physician may conclude that his or her credibility has been questioned so much that it would be better to seek a position elsewhere.

“An impediment that can arise is where the physician is already considered to be under investigation. In that case, he or she cannot resign without the hospital having to file a data bank report reflecting that the physician resigned while under investigation,” Ivins says. “Where efforts in informal resolution can be undertaken at an early stage, more options that are not considered being under investigation may be available for resolution. Otherwise, a fair hearing may end up being requested because the physician and his or her counsel find that an investigation is now underway.”

Fair hearings are incredibly disruptive not only to the hospital and the medical staff, but to the hospital’s administrative office, Ivins says. Most hospitals do not encounter fair hearings very often, so they are unfamiliar with the fair hearing plan and its many requirements, including specific notices, notice periods, contents of letters, and processes.

“One of the biggest problems hospitals face once the peer review process has gotten to this point is its failure to follow the strict requirements of its bylaws and related fair hearing plans,” Ivins says. “The implications can be disastrous because such failures can result in losing the protections afforded under HCQIA.”

The best way to address a fair hearing and to avoid many of these problems is to involve hospital counsel early, Ivins says. Experienced hospital counsel can ensure that the hospital follows all legal and contractual requirements and that the fair hearing process provides the due process that is to be afforded to the physician seeking the hearing.

Another way to address the process and ensure a smooth, fair hearing is to engage an outside hearing officer to manage the process, Ivins says. Under most fair hearing plans, the hospital has the right to select a hearing officer to handle all issues of pre-hearing process, questions of discovery of information, and similar issues.

The physicians appointed to serve on a hearing panel are not generally comfortable serving in such a role and often do not understand their roles, Ivins notes. An outside hearing officer educates the appointed panel members concerning their roles as addressed in the bylaws and applicable law.

The panel is separate from the medical executive committee, Ivins explains. It should have its own counsel, and typically the hearing officer serves in this role. This may depend upon the language of the bylaws and the hearing plan.

During the fair hearing, the hearing officer makes procedural and other rulings consistent with the scope of his or her role as defined in the bylaws and hearing plan, Ivins says. Once the hearing is concluded, the hearing officer typically will assist the panel in preparing its report and recommendations to the medical executive committee.

“The expertise of the panel members is in the needed clinical and other assessments they provide, not in the preparation of a hearing report and recommendation,” Ivins says. “The latter is much more the skillset of an experienced healthcare lawyer or hearing officer. By involving legal counsel to advise the hospital and medical executive committee at an early phase and by engaging an outside hearing officer to advise the hearing panel and handle the mechanics and process of the hearing, the hospital can greatly reduce problems that can otherwise arise in the fair hearing process.”