Legal Issue
relatively powerful tool. Although mediation requires that
any resolution be voluntarily agreed to by both sides, this
allows the physician an early audience with the facility
to determine whether an acceptable resolution can be
achieved, perhaps before serious damage is done. A
physician and his/her counsel should be creative and
flexible, with the focus on determining whether the
physician can give the facility the patient-care assurances
that it claims it needs, hopefully with minimal adverse
action and reporting consequences. Mediation is one of
the few effective tools that a physician has in peer review
to help determine a resolution that the facility will accept
and that he/she can live with.
MYTH NO. 9
THE “FAIR HEARING” PROCESS IS FAIR.
If no early resolution can be reached, a physician should
spend his/her resources on experienced peer review
counsel, top-qualified experts, and other necessary
services like mediation, to maximize the chance of getting
his/her privileges back through the “Fair Hearing Process.”
Doing so will alert the facility that the physician is serious
in defending his/her care or professional behavior. But
despite the trappings of due process, remember that peer
review does not allow real due process (see Myth No. 1).
Moreover, a negative peer review record will be created,
and may end up with the TMB or elsewhere. As such,
even on the eve of the “Fair Hearing,” a wise physician
will be open to possible resolution before such a hearing
begins.
MYTH NO. 10
THE PEER REVIEW ITSELF
IS YOUR BIGGEST BATTLE.
Peer review issues very often wind up at the TMB. NPDB
reports are copied to the TMB automatically. Reports
may be filed against a physician by unknown individuals.
If the peer review rises to the level of the “Fair Hearing
Process,” a physician may eventually be required to
self-report on his/her next TMB renewal application.
A physician should resolve the matter if at all possible
before appearing at the TMB and then focus on obtaining
favorable findings on any medical or behavioral issues.
Once the TMB is convinced that a physician is clinically
competent, with no professional behavioral problems, a
physician can then explain any inappropriate motives of
the facility in peer review, with the hope that the TMB may
actually listen. DMJ
May 2019 Dallas Medical Journal 13
TMB. The NPDB defines that an “investigation” exists
from the “beginning of inquiry” until final decision by the
facility to close the formal investigation, and makes it clear
that even the MS bylaws cannot change this definition. A
physician should get legal help before he/she resigns or
lets privileges lapse to avoid triggering an NPDB report,
as a physician does not even need to be aware that
an investigation exists for such an NPDB report to be
submitted by the facility.
MYTH NO. 6
NOT REPORTABLE MEANS
NOT SELF-REPORTABLE.
A facility’s medical staff office may tell the physician that
the event is “not reportable,” but a physician should have
counsel to know with certainty. And even if the event
in question is not NPDB-reportable by the facility, this
does not mean that the physician does not have to selfreport
it. For example, many peer review actions must be
reported in initial and re-credentialing applications such
as the Texas Standardized Credentialing Application. Also,
the MS bylaws from other facilities may require disclosure
of a peer review event, with immediate or quick deadlines.
A physician’s failure to disclose in an application or to
another facility may trigger another adverse action, this
time for possible dishonesty. Re-licensure, provider
status, contracts, and other relationships also may have
disclosure duties and serious consequences for any
failures.
MYTH NO. 7
LITIGATION PROVIDES RELIEF.
Current Texas and federal laws provide very limited
options for any real relief through litigation. No
independent cause of action for malicious or bad faith
peer review exists in Texas. A physician may look to
state statutory and common law causes of action such
as defamation, tortious interference, breach of contract,
and/or antitrust violations. But federal and state peer
review immunities, which are presumed to exist, will likely
allow complete defenses to such claims. Defamation
and tortious interference exist but remain hard to prove.
Although a physician may be able to point to substantive
violations of the MS bylaws, the MS bylaws may not be
an enforceable contract. And since 2011, the anti-SLAPP
(“strategic lawsuits against public participation”) statute
allows facilities to obtain early dismissal, attorney fees,
costs, and possible deterrence sanctions if a peer review
lawsuit relates to a matter of public concern, and thus
infringes on right to petition or to speak or associate
freely.
MYTH NO. 8
MEDIATION IS NOT A POWERFUL TOOL.
A physician under peer review has a statutory right to
demand non-binding mediation, which may serve as a
Karin Zaner, JD at Zaner Law PC focuses on the representation
of Texas physicians and physicians in training, helping physicians
maintain their professional records while seeking practical
pathways to the resolution of the myriad business, legal and ethical
issues that arise in the challenging practice of medicine today.
214-363-5036. www.zaner.law