Curtsinger v. HCA, Inc.
Dr. Curtsinger’s case illustrates one of the traps for the unwary in medical staff privileging cases. Dr. Curtsinger was summarily suspended, but was reinstated upon agreeing to a leave of absence to fulfill certain conditions for reinstatement. Upon completion of those conditions, Dr. Curtsinger requested return from his leave of absence; the hospital agreed to the return but imposed additional conditions which, according to the Court opinion, would have waived certain of Dr. Curtsinger’s due process rights under the existing bylaws. This case illustrates the unanticipated consequences of what can happen when physicians voluntarily take themselves out of the due process protections of the medical staff bylaws, which commonly occurs in connection with leaves of absence. Typical medical staff bylaws require hospital approval for the return from a leave of absence but do not include denials of applications to return from leaves of absence as adverse peer review decisions subject to the fair hearing procedures of the bylaws.
Dr. Curtsinger’s complaint against the hospital was dismissed on the basis of hospital immunity pursuant to the Health Care Quality Improvement Act (HCQIA). The Court concluded that the hospital had met all four standards for immunity under the HCQIA:
1. Dr. Curtsinger’s behavior was disruptive and disruptive behavior can affect patient care, so there could be a reasonable belief that the action was taken in the furtherance of quality healthcare;
2. The hospital conducted a reasonable investigation;
3. The hospital provided adequate due process, i.e., notice and hearing rights, and the Court rejected Dr. Curtsinger’s contention that there should have been two separate notices and two separate hearings for the initial summary suspension and the subsequent denial for return from the leave of absence; and
4. The action was taken in the reasonable belief that it was warranted because the evidence submitted by the hospital was not "so obviously mistaken or inadequate to make reliance upon them unreasonable".
The case also contained an interesting procedural decision regarding discovery of peer review records. The Court concluded that Dr. Curtsinger was entitled to discovery regarding issues of malice or bad faith regarding the peer review process but not entitled to discovery regarding other substantive issues. The distinction was concocted by the court based on the presumption language of HCQIA, which shifts the burden of proof to the physician. Since the physician bears the burden of disproving all HCQIA elements, I cannot see the distinction between the burden of proof regarding bad faith issues and the burden of proof regarding the other medical issues. Hospitals choose to disclose whatever peer review records they wish to disclose to the physician to make the case, but withhold the rest.
The opinion is available at: http://www.tsc.slate.tn.us./opinions/tca/pdf/072/curtsingerjopn.
Braswell v. HaywoodRegionalMedicalCenter
Dr. Braswell’s case involved a different issue but his breach of contract claim was still dismissed pursuant to the immunity provisions of HCQIA. Dr. Braswell claimed the peer review actions instituted against him were retaliation for protected free speech under the First Amendment. Dr. Braswell was a general surgeon at a hospital in North Carolina and a member of a hospital committee recruiting additional general surgeons into the area. The hospital agreed to recruit and subsidize the general surgeon for Dr. Braswell’s practice and for another practice in the community. Dr. Braswell wrote to the physician being recruited for the other practice and, using the information supplied to the recruiting committee, advised the other surgeon being recruited that he was concerned that there would be insufficient patient volume to support two surgeons. The other recruited surgeons subsequently chose to accept the position at a different hospital.
Shortly thereafter, Dr. Braswell’s peer review problems started. There was not sufficient factual information in the case to examine whether the cases and outcomes involved in the peer review process were in any way similar to the cases and the outcomes experienced by Dr. Braswell prior to the recruiting issue.
With regard to the free speech argument, the Court concluded that Dr. Braswell was not a public employee and therefore not entitled to protection under the First Amendment, because Dr. Braswell was an independent contractor/medical staff member and not an employee of the hospital.
The Court also dismissed Dr. Braswell’s breach of contract claim on the basis of HCQIA immunity. Since it dismissed the complaint, the Court did not discuss whether the bylaws constituted a contract under North Carolina law.
One interesting aspect of the HCQIA immunity was the fact that the hearing committee for Dr. Braswell’s medical staff hearing concluded that the hospital had not satisfactorily documented its investigation, despite the fact that there may have been serious quality issues. The Court’s opinion presumes that these actions were in violation of the bylaws but also concludes that the due process was fair under the circumstances, therefore allowing Dr. Braswell the protection of the "good enough" clause.
The opinion is available at: http://op.bna.com/hl.nsf/r?open=psts-72rpj6.
Semmelweis National Meeting
Mike Cassidy presented to the Semmelweis Society at its National Meeting in Washington, DC on the topic, “Protecting Yourself in Peer Review; What the Bylaws Should Say and What You Shouldn’t.”
