We recently resolved a complex peer review case involving a surgeon in a Midwestern state. The case arose as the hospital began transitioning to an employed-physician model, seeking to phase out its non-employed, voluntary medical staff. Our client, a non-employed surgeon with privileges to treat patients at the hospital, was among those targeted in what appeared to be a strategic effort to remove voluntary non-employed physicians from the medical staff through “sham peer reviews.” In 2022, our client criticized the hospital for having weaponized the peer review process against the non-employed staff, including him. This multi-year campaign cost the hospital millions in settlements with the surgical staff, including a six-figure settlement with our client.
Our client had surgical privileges at the hospital for more than 20 years, had been the medical staff president for two years, and had privileges at several other smaller facilities in the region. In retaliation for his criticism of the hospital’s peer review processes, the administration instructed the MEC to re-review a dozen of his cases dating back to 2020, in which the department had previously found no deviations from the standard of care. The hospital selected and paid for biased outside reviews which wrongfully alleged standard-of-care deviations using critical and inflammatory language. The MEC then recommended the termination of our client’s medical staff privileges following a slanted peer review of the identified cases. Prior to this peer review, our client had no peer review cases in his approximately 20 years of practice at this hospital or any other facilities where he had privileges.
Our client pursued his due process rights afforded by the medical staff bylaws and requested a “fair hearing.” The pre-hearing process that ensued was complex and consumed the better part of a year, during which our client continued practicing at the hospital until he was summarily suspended.
The NPDB requires hospitals and health care entities to report certain actions, including professional review actions that adversely affect a physician’s clinical privileges for more than 30 days. Summarily suspending a physician’s privileges often falls within these criteria, particularly if the suspension is due to an adverse action related to the physician’s competence or conduct. To avoid being reported to the NPDB, our client sought and obtained a preliminary injunction against the hospital. The preliminary injunction prevented the hospital from making an NPDB report but did not reverse the suspension or stop the not-so-“fair hearing” from proceeding.
Preparing for the hearing
Both the MEC’s legal counsel and my firm conducted extensive pre-hearing preparation, including written discovery and obtaining expert opinions. Defending against allegations in over a dozen cases required meticulous effort, as peer review cases often present complexities far exceeding those of typical medical malpractice claims. Despite these challenges, we secured expert testimony that our client adhered to the standard of care. That said, the hearing officer denied our request for discovery depositions of the hospital’s experts. This was a major blow to our case given that such depositions were crucial to understanding and being able to cross-examine the hospital’s experts intelligently before they testified at the hearing. We then utilized AI to strategically prepare our case, including preparation for the examination of the hospital’s expert witnesses in the dozen cases.
Resolution through settlement
A couple of weeks before the hearing commenced, the hospital requested and the parties entered into mediation discussions, and soon after that, the case was resolved. According to the terms of the settlement agreed to by the parties, our client relinquished his privileges at the hospital while maintaining privileges at the community surgical center and a couple of other hospitals. The parties agreed to an NPDB report, which included the hospital’s position and a full-throated response from our client. He also received a six-figure settlement. Today, our client continues to practice at the area surgical center and other hospitals where he has strong relationships and ongoing privileges.
Conclusion
This case highlights the importance of making the most of the due process accorded physicians challenging an adverse peer review action, along with thorough preparation for a fair hearing, a clear understanding of the case’s strengths and weaknesses, and strategic conciliation negotiations. While no settlement leaves either side completely satisfied, our client emerged with financial compensation, preserved professional opportunities, and an NPDB report incorporating his strong response to the hospital’s report—a testament to the power of skilled advocacy.
Barney Cohen is a native of Miami, Florida, and has resided in Cincinnati, Ohio; Washington, DC; and Chicago, Illinois. He is a graduate of the University of Illinois and DePaul University College of Law. As a health care law insider, Barney brings to his clients more than 30 years of experience as general and senior counsel with renowned health care organizations. He can be reached at Concierge Healthcare Attorneys and LinkedIn.
