• Main Menu
• Issues
• Legal

June 30, 2009

Medical Staff Discipline - New Legislation and Webinar Information

HB546, which passed both chambers of the state legislature unanimously, amends the Hospital Licensing Act to set due-process parameters for summary suspension and peer review of hospital medical staff members. The bill currently awaits the governor’s signature, after which it will become effective immediately.  This memo describes HB546, and provides information about an IHA Webinar on physician discipline that will include discussion of this legislation and much more, by attorneys representing both the hospital and physician perspectives.

SUMMARY SUSPENSION PROVISIONS
HB 546 amends Section 10.4 of the Hospital Licensing Act to provide that a medical staff member may be summarily suspended only if there is actual documentation or other reliable information at the time of the suspension that the physician’s continued practice at the hospital poses an immediate danger to the public. The "public" to be protected from such danger includes patients, visitors and hospital employees and staff. A suspended physician may ask the Medical Executive Committee (MEC), or other comparable governance committee of the medical staff, as specified in the bylaws, to meet as soon as is reasonably possible to review the suspension and recommend whether it should be affirmed, lifted, expunged or modified. If the MEC recommends that the summary suspension be lifted, expunged, or modified, the hospital governing board, or a committee of the board, must review and consider the recommendation, on an expedited basis.

The suspended physician may also request a hearing on the suspension that must be commenced within 15 days of the suspension and completed without delay, unless otherwise agree to by the parties. However, if the medical staff member is suspended because his license to practice has been suspended or revoked by the State, no hearing is necessary.

The legislative purpose behind this amendment is to ensure that summary suspensions are only applied on some reasonable basis. Ideally, the suspension is supported by documentation suggesting that the physician presents an immediate danger to hospital patients, visitors or staff. But the amendment also allows for suspensions based on "other reliable information" available at the time to protect against an immediate danger. The law, however, does not define the following key concepts:

It would be extremely difficult, if not impossible, for the General Assembly to define these concepts in statute. Accordingly, whether a particular situation meets these conditions must be determined on a case-by-case basis given its unique facts and circumstances. Since summary suspensions are typically actions of last resort, in the face of a clear and immediate clinical risk, there may be little doubt or question about whether a particular physician presents a risk worthy of summary suspension. An obvious example along these lines is the case of an inebriated physician demanding to perform surgery. No one is likely to second guess a hospital’s decision to summarily suspend such an impaired practitioner. The vast majority of suspensions are likely to fall into this category of immediate danger. However, the hospital should also have some eye witness accounts or other evidence that the suspended physician was indeed impaired.

PEER REVIEW PROVISIONS
HB546 requires that all peer review used for the purpose of credentialing, privileging, disciplinary action or other recommendations affecting medical staff membership or exercise of clinical privileges must be conducted in accordance with the medical staff bylaws, and applicable rules, regulations, or policies of the medical staff. This requirement applies whether the peer review relies in whole or in part on internal or external reviews. If external review is obtained, the following requirements apply:

Any external peer review information made part of the hospital’s peer review process should be confidential and protected from discovery under the Medical Studies Act. In addition, any external peer reviewers are immune from civil damages so long as the review does not involve willful or wanton misconduct.

The requirement that peer review must follow medical staff bylaws, rules, regulations and policies is well-established. HB 546, however, is remarkable for its recognition and protection of external peer review. In some cases convening an internal peer review process can be extremely challenging given the interpersonal and practical constraints of medical staff members. Consequently, hospitals and their medical staffs should welcome the external peer review option available under HB 546. Under Illinois law external peer review should enjoy the same legal protections against discovery and liability given internal peer review. For appropriately sensitive or difficult cases, hospitals and their medical staffs should develop a process for retaining or engaging outside experts to conduct external peer review for the hospital.

CONCLUSION
HB 546 can be accessed by clicking here. We urge you to discuss the benefits and implications of this law with your legal counsel and medical staff proactively so that you are well-positioned for any future instances that may call for summarily suspending or externally reviewing a member of your hospital’s medical staff.

IHA WEBINAR – DIALOGUE ON DISCIPLINE
Learn a range of best practices to approach physician issues, as well as recommendations for imposing summary suspensions and conducting peer review, in light of HB546, which currently awaits the governor’s signature, by attending the IHA Webinar on July 14 from 10:00 – 11:30 am. Please see the attached flyer for details and to register yourself, your medical staff executives, and others for the price of one connection.

Staff Contact: Ted Nodzenski: (630) 276-5472 or Barb Haller: (630) 276-5474