The ER Hero and Patient Safety Act (HR 6910) was created to provide due process for emergency physicians. It was created with good intentions, but as drafted it still won’t provide emergency physicians with due process.
Before a physician can work at a hospital, the physician has to 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. Once credentialing has been completed, hospitals decide whether to grant physicians staff privileges. Once a physician is granted staff privileges, if a hospital wishes to discipline a physician or to remove a physician from the medical staff, it must follow the procedures outlined in the hospital bylaws. Hospital bylaws contain steps that must be taken for “due process” when disciplining physicians. Failure to follow hospital bylaws and to provide a physician with due process where required may create liability for the hospitals and the members of the hospital medical board.
What Does Due Process Mean?
Due process is guaranteed by the US Constitution. The Fifth Amendment to the US Constitution states that no one shall be “deprived of life, liberty or property without due process of law.” This requirement applies only to the federal government. The Fourteenth Amendment extends those same protections to state governments. Technically, only state and federal actors are required to provide due process under the Constitution. Those duties may extend to other entities considered “state actors.” From a physician/hospital standpoint, governments (including state and federal agencies such as the DEA and state medical licensing boards), federal hospitals (such as the Veteran’s Administration), and state hospitals are required to provide due process to physicians. Many court decisions have ruled that medical licenses, and in some cases hospital staff privileges, are included in the property rights protected by the Fifth and Fourteenth Amendments. For one example of a ruling to this effect, see Darlak v. Bobear et al., 814 F.2d 1055 (5th Cir. 1987).
The general idea behind due process is procedural fairness. There is no specific set of rights that due process provides to physician disciplinary actions. However, 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. To take an adverse action against a physician, a hospital must show that a physician violated some provision of the hospital bylaws and that there was sufficient cause to discipline the physician under the bylaws. 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, however, does not constitute good cause for termination of his or her hospital privileges” and stated that “when a doctor’s conduct actually interferes with patient care, the disruption justifies ending his or her privileges.” The Nanavati opinion also cited similar holdings in several other states. To prove misconduct warranting termination of staff privileges, the New Jersey Supreme Court required that hospitals “present concrete evidence of specific instances of misbehavior, such as unjustified altercations with other doctors or nurses, violations of hospital routines or rules, breaches of professional standards, or the commission of some other act that will adversely affect health care delivery.”
An adverse action taken against a physician may subject the physician to a National Practitioner Databank report.
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.
Most Hospital Emergency Department Contracts Require Physicians To Waive Due Process
Things would be a lot easier on hospitals if due process didn’t exist. With due process, hospitals must have just cause before taking action against a physician who speaks out against a hospital’s policies or who doesn’t meet hospital metric goals. 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.
Almost every service provider agreement that a hospital enters into with a staffing group has a requirement that the group’s physicians agree to waive any due process if the physician is accused of wrongdoing. Hospital contracts with their staff emergency physicians usually contain similar language. One example of such language in a Service Provider Agreement I reviewed contains the following language:
Effect of Termination on Medical Staff Privileges. Â Upon termination of any employee or agent by [GROUP], the Medical Staff privileges of the terminated physician shall immediately be terminated without right to a fair hearing or any other rights set forth in the Hospital Medical Staff Bylaws. [GROUP] shall require any physician providing services pursuant to this Agreement to acknowledge and agree to this requirement. Terminated physicians must agree to waive any rights to a hearing pursuant to the Illinois Hospital Licensing Act.
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.
Click this link to read another article I authored at EP Monthly on due process for physicians.
In medicine, being terminated from a hospital medical staff is a huge problem. Not only does a terminated physician need to find another job, but remember that several month long credentialing process? If a physician’s clinical privileges are immediately terminated at one hospital, the physician has to wait several months to obtain medical staff privileges before being able to earn money at another hospital. These extended review processes also leave patients with fewer doctors to provide medical care during the months that it takes to process a doctor’s hospital privileges application.
In addition, if a hospital takes adverse action against a physician alleging that the physician was “unprofessional” or had issues of competency as a cause for being terminated, 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.
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 is included below.
SEC. 2. Regulations to ensure due process rights for physicians furnishing emergency medical services.
The Secretary of Health and Human Services shall, as soon as practicable after the date of the enactment of this Act, but not later than one year after such date, through rulemaking, issue final regulations to provide 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 was designed to prevent adverse job actions like the case of Dr. Ming Lin who was fired from his position with TeamHealth working in the emergency department at PeaceHealth St. Joseph Hospital after publicly complaining about the lack of protective gear for physicians and patients.
Why the ER Hero and Patient Safety Act Doesn’t Go Far Enough
There are too many ways to circumvent the intent of the ER Hero and Patient Safety Act.
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 contract management group that, in turn, contracts with hospitals to provide emergency department services. Such language would only encourage hospitals to contract with contract management groups to staff emergency departments. In the case of Dr. Ming Lin noted above, this Act as written would not have had any effect on his termination since he wasn’t employed by or contracted with PeaceHealth St. Joseph’s Hospital, but rather was contracted with TeamHealth, a national contract management group.
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 only one shift per month) 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 due process.
Third, there is nothing that prevents hospitals or contract management groups from requiring physicians to waive the protections in the Act itself. If a physician is forced to agree not to invoke the provisions in the ER Hero and Patient Safety Act or any similar legislation, what protection would such legislation confer?
How Language in the ER Hero and Patient Safety Act Could Be Strengthened
Simple language tweaks can make the ER Hero and Patient Safety Act much stronger.
The easiest way to assure that due process cannot be contractually waived is 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 contract management groups. Neither hospitals nor contract management groups would be able to enforce due process waivers upon physicians. If the 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 considered an act of bad faith.
Making due process waivers unenforceable still wouldn’t prevent a hospital or contract management group from constructively terminating a physician simply by refusing to schedule the physician for shifts in the future. To prevent any attempts at such an end-around, the Act could state that due process requirements shall apply to any materially adverse action affecting a physician’s schedule, contract, employment, hospital privileges, or clinical status.
A few easy tweaks could give the ER Hero and Patient Safety Act more teeth and make it harder to circumvent the Act’s purpose.
Now if legislators would only do something about indemnification clauses.