Ways to ensure the legislation doesn’t dismiss physicians’ due process.
The ER Hero and Patient Safety Act (HR 6910) was created to assure that emergency physicians are provided with due process protections. It was created with good intentions, but as drafted it probably won’t have its intended effect.
Before a physician can work at a hospital, the physician must go through “credentialing” to obtain medical staff privileges. The credentialing process usually takes many months. During credentialing, the hospital investigates the physician’s background, checks references, makes sure that the physician’s license is current and looks for issues that may adversely affect the physician’s ability to practice medicine at the hospital.
If a physician is granted staff privileges a hospital must follow due process procedures outlined in the hospital bylaws before taking adverse action against the physician. Failure to follow hospital bylaw requirements may create liability for the hospitals and the members of the hospital medical board.
What Does Due Process Mean?
The general idea behind due process is procedural fairness. When faced with a hospital disciplinary action, due process generally provides physicians the right to a fair hearing, the right to be represented by an attorney, the right to present evidence, the right to question witnesses, the right to a neutral arbiter and the right to appeal an adverse decision.
Hospitals must demonstrate sufficient cause to discipline a physician. The mere fact that a physician is “disagreeable” may not give rise to sufficient cause to terminate (or fail to renew) a physician’s hospital privileges. For example, in Nanavati v. Burdette Tomlin Memorial Hosp., 107 N.J. 240 (1987), the New Jersey Supreme Court held that “the mere fact that a doctor is irascible … does not constitute good cause for termination of his or her hospital privileges.”
Instead, the Court required that hospitals “present concrete evidence of specific instances of misbehavior” that “adversely affect health care delivery.” This opinion also cited similar holdings in several other states. There are many additional nuances involving physician due process rights, but for purposes of the ER Hero and Patient Safety Act, the basic idea is that a physician accused of wrongdoing should have the opportunity to challenge allegations and defend against the allegations.
Contracts Require Physicians to Waive Due Process
Things would be a lot easier on hospitals and contract management groups if due process didn’t exist. With due process, physicians who speak out against a hospital’s policies or who don’t meet a hospital’s metric goals can’t simply be terminated on the spot. Administrative proceedings necessary to provide due process can take weeks or months and can be quite expensive.
Appeals of adverse decisions can be even more costly. Disciplinary hearings are also not a guarantee that a hospital will be able to take adverse actions against a physician considered a “troublemaker” as the physician may win the disciplinary hearing.
To circumvent due process, almost every hospital and staffing company contract contains a requirement that physicians agree to waive any due process rights before being terminated from the hospital staff. By requiring emergency physicians to waive due process, hospitals may be able to — either directly or through a request to the contract management group — terminate emergency physicians immediately for literally any reason.
Not billing patients enough? Terminated. Admitting too many uninsured patients? Done. Complain to the media about patient safety issues? Gone. Not seeing enough patients per hour? Bye bye. Patients complain because their ED visit took too long? See ya. Get too many satisfaction scores in the “red” zone in the inaccurate and dangerous Press Ganey system? Hasta la vista, baby.
Being terminated from a hospital’s medical staff is a huge problem. After being terminated, a physician can’t just start working at another facility the next day. Instead, the physician would need to go through several-months of credentialing at another hospital to obtain medical staff privileges before being able to resume working.
This delay in the ability to begin working at another position would leave patients with fewer doctors available to provide medical care, which is especially worrisome during a pandemic. In addition, if a hospital takes adverse action against a physician for allegations of unprofessionalism or competency issues, a mandatory report to the National Practitioner Databank is required. Too many NPDB reports make it difficult for a physician to obtain hospital privileges anywhere.
ER Hero and Patient Safety Act
HR 6910 was introduced by Dr. Roger Marshall (Kansas) and co-sponsored by Dr. Raul Ruiz (California) to protect emergency physicians and patients from the negative consequences of due process waivers. The Act has seven other co-sponsors, five of whom are physicians. The text of the Act requires that “physicians who are employed by or under contract with a hospital for furnishing emergency medical services have a fair hearing and appellate review through appropriate medical staff mechanisms before any termination or restriction of the professional activity of such physicians or staff privileges of such physicians at such hospital and that such a hearing and review are not denied through a third-party contract.”
The Act Doesn’t Go Far Enough
Unfortunately, there are too many ways to circumvent the intent of the ER Hero and Patient Safety Act as currently written.
First, the Act only applies to “physicians who are employed by or under contract with a hospital.” Using this language, the law would not apply to physicians who are employed by or under contract with a staffing company that, in turn, contracts with hospitals to provide emergency services. The Act’s current language would only encourage hospitals to subcontract services from emergency physicians to avoid the Act’s due process requirement.
Second, the language proposed in the Act only applies to “termination or restriction of the professional activity of such physicians or staff privileges of such physicians.” If a physician isn’t “terminated,” if the physician’s “professional activities” (which is an undefined term) are not restricted, or if the physician’s staff privileges are not terminated or restricted, the requirements in the Act do not apply.
In other words, a hospital could just decide not to schedule a physician (or to schedule the physician for one shift per year) without removing the physician from the hospital staff and would not have to provide any due process under the Act. In an academic setting, physicians could be demoted in rank or could be removed from their academic positions with no requirement for due process.
Third, there is nothing that prevents hospitals or contract management groups from simply requiring physicians to waive the protections afforded by the Act. If a physician is forced to waive the provisions in the ER Hero and Patient Safety Act or any similar legislation before being credentialed, the Act wouldn’t provide much protection.
How Language in the ER Hero and Patient Safety Act Could Be Strengthened
Simple language tweaks could make the ER Hero and Patient Safety Act much stronger.
The easiest way to assure that physicians obtain due process is for the Act to make any medical contract provisions requiring waiver of due process immediately null and void.
Hospitals wouldn’t be able to enforce due process waivers on staffing companies and neither hospitals nor staffing companies could enforce due process waivers on physicians. If legislators were serious about making due process waivers unenforceable, they would include within the Act that any attempt to impose due process waivers on medical providers shall be evidence of bad faith.
To prevent hospitals or contract management groups from simply refusing to schedule physicians considered “troublemakers,” the Act would need to widen its protections so that due process requirements apply to “any materially adverse action affecting a physician’s schedule, contract, employment, hospital privileges, or clinical status.”
These few easy tweaks could make it much harder to circumvent the purpose of the ER Hero and Patient Safety Act.
Now if legislators would only do something about indemnification clauses.