How this surgeon beat a medical staff disciplinary action [PODCAST]

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“I recently represented a physician in a noteworthy peer review case at an academic medical center. The medical staff president initiated a complaint against a surgeon, who would later become my client. The complaint was that the surgeon inappropriately collected cash payment from an uninsured patient at the hospital’s point of service instead of having his office invoice and collect payment from the patient. The medical staff felt this was unorthodox and highly inappropriate and contra to the medical center’s values. It is important to note that neither the medical staff bylaws nor any hospital rules addressed the collection of payment at the hospital’s point of service. The medical staff president quickly appointed a three-member ad hoc investigation committee, which included one of the surgeon’s competitors, an obvious conflict of interest. The ad hoc investigation committee recommended that the surgeon be disciplined, i.e., lose his medical staff privileges.”

Barney Cohen is a health care law attorney.

He shares his story and discusses his KevinMD article, “How this surgeon beat a medical staff disciplinary action.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Today on the show, we have Barney Cohen. He is a health care law attorney, and he wrote the KevinMD article “How this surgeon beat a medical staff disciplinary action.” Barney, welcome to the show.

Barney Cohen: Thank you very much, Dr. Kevin.

Kevin Pho: So we’ll get into your article in a little bit, but first off, can you share your story and your journey to where you are today?

Barney Cohen: Absolutely. I am a health care law attorney, and I started my practice as the senior vice president and general counsel of several different medical centers, academic medical centers, both in Chicago and outside of Illinois. I then became the senior health care law attorney for the American Medical Association, representing physicians in the United States. Most recently, I am the CEO of Concierge Healthcare Law Attorneys, representing physicians exclusively.

Kevin Pho: What are some of the major issues that you’re seeing physicians face from a health care law standpoint?

Barney Cohen: A lot of physicians face the kind of issue that I wrote about in my article, which is corrective actions, disciplinary actions, or peer review actions by the medical staff. It is not uncommon for physicians to run up against the hospital and for the hospital to attempt to discipline them. I represent a number of physicians in that area.

Another area that physicians need legal representation in is negotiating physician employment contracts. There are innumerable issues that arise in negotiating an employment contract. It’s best that physicians not be their own attorney and try to negotiate the contract on their own, or even start to do it on their own. It’s best to engage an attorney up front.

Another area is residency disciplinary actions. A lot of residents run up against hospitals trying to discipline them for academic or other non-academic matters. The residents need representation in those kinds of actions, so it’s good to retain an attorney, not a business attorney and not a medical malpractice attorney, but a health care law attorney, to represent them right from the beginning and ensure that they have adequate due process. Those are some of the major issue areas.

Kevin Pho: So let’s transition now into one of those areas and your KevinMD article, “How this surgeon beat a medical staff disciplinary action.” Now, for those who haven’t read the article, can you just walk my audience through it and maybe share the story of why you decided to write it?

Barney Cohen: Absolutely. The client came to me as a referral through a medical malpractice attorney who did not have experience in medical peer review cases, which is not uncommon. I do have experience and expertise in medical peer review matters. I interviewed the client and received several documents from him, and I then reviewed the documents, spoke to him further, and spoke with counsel for the medical center.

It became very apparent to me early on that the medical center had made several errors in trying to bring a cause of action against the client. They had appointed a competitor of my client, another surgeon, to the ad hoc investigating committee. That’s a conflict of interest, and it is not acceptable. They also had tried to deny him reappointment to the academic faculty, even though, upon review, my client wasn’t up for reappointment; his reappointment was in three years. There were other errors that the medical center made in trying to take action against my client, yet overall, it was very clear that they were trying to contrive a cause of action where there wasn’t one.

I then spoke on multiple occasions with counsel for the medical center and convinced him that they’d best back off and withdraw their action against my client. They did so, and my client prevailed. This is an unusual outcome for doctors who run up against large medical centers.

Kevin Pho: Now, from your experience, when a medical center or a hospital tries to bring disciplinary action, now, there were errors in your case. How often, from your experience, do you see errors when hospitals try to bring disciplinary action against their physicians?

Barney Cohen: It’s not uncommon. Very often, the medical staff bylaws set forth the procedures that the medical staff has to follow in disciplining a physician. Those procedures are very complicated, and it’s very common for the medical staff executive committee or the hospital to make mistakes and not follow the medical staff procedures. That ends up being a denial of due process to the physician who is charged. They also make mistakes similar to the ones made with respect to my client. They try to take ancillary action, like disciplining the physician with respect to faculty appointments if they’re on the faculty of the hospital, and those mistakes become very significant.

Now, it’s not uncommon for the hospitals to press on even with all the errors, because when you get to court, it costs the physician a lot of money to defend him or herself, and they’re counting on the physician dropping the case. So they press on with all of their money and all of their might, and it’s hard for the physician to prevail. They need to have a good health care law attorney who knows the processes of peer review inside and out, so that they can adequately and fully represent their client.

Kevin Pho: Now, what are the most common reasons hospitals bring disciplinary action against physicians?

Barney Cohen: It’s common for them to bring actions when the physician has allegedly violated one aspect of the medical staff bylaws or another. They may claim that the physician is not providing care within the standard of care at the medical center, or not following clinical policies and procedures, or that they’ve failed to follow certain practice guidelines. It, however, is not uncommon for all of these to be red herrings, not really true. The truth is that the hospital, for one reason or another, simply wants the physician off the medical staff.

Sometimes, in recent days, medical centers want physicians to leave their private practices and become employed by the hospital. If the physician resists that and wants to maintain their private practice, the hospital may concoct another reason for getting rid of the physician, removing him from the medical staff. Then it’s up to the physician and their able health care law attorney to defend the physician against the wrongful charges of the medical center.

Kevin Pho: So if a physician faces disciplinary action, the first step, as you recommend, would be to get a health care law attorney. What are some other things that they can do after that?

Barney Cohen: One of the things they shouldn’t do is talk about the matter with their colleagues. That is, their colleagues may or may not be supportive of him, and it’s best to simply talk to the attorney on a confidential basis. The physician could review in their mind what transpired to bring them to this situation, write it all down, go over it, and then present it to their attorney. That way, they’re able to paint a clear picture of what transpired, what the reasons were for the corrective action or proposed corrective action, and what the red herrings are.

Kevin Pho: We’re talking to Barney Cohen. He is a health care law attorney, and he wrote the KevinMD article “How this surgeon beat a medical staff disciplinary action.” Barney, you mentioned that there comes a point where, if the case goes to court, it could be very expensive for that physician. Now, what are some of the factors that go into the decision of whether to drop the case or move forward?

Barney Cohen: Well, the most important is: Does the charge against the physician have merit, or does the physician have good defenses? That’s something for the physician and their attorney to talk about. The law is not a black-and-white area; it’s one of grayness. So there always are strengths and weaknesses to a particular case, and the strengths and weaknesses of the case have to be weighed in determining whether to go forward, and the cost at every step of the way. The cost, both financially and emotionally, needs to be considered.

Kevin Pho: From your experience as a health care law attorney, what would you say are your number one or two tips that you could share with physicians who may find themselves in this situation?

Barney Cohen: Don’t be your own attorney. Physicians should stick to the practice of medicine. When they recognize that there is a legal problem, be it a medical peer review problem, or negotiating an employment contract, or developing a HIPAA policy and procedure, that’s within the realm of a health care law attorney. Not just any attorney, not a business attorney or a medical malpractice attorney, but a health care law attorney who has expertise in all of these areas. Once you recognize that you’re dealing with the law, you should engage an attorney to help you with your legal matter.

Kevin Pho: And my final question: What’s your take-home message that you want to leave with the KevinMD audience?

Barney Cohen: Well, for me, the take-home is that I need to take each physician as they come. Each matter, each physician, each engagement presents new legal issues. There’s no cookie-cutter case; they’re all unique. I need to approach the practice in that manner and consider all of the unique circumstances of each physician’s issue.

Kevin Pho: Barney, thank you so much for sharing your time and insight, and thanks again for being on the show.

Barney Cohen: Thank you for inviting me.

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