Dr. Hippocrates Iatros
Chief of Staff
Hospital America

Dear Dr. Iatros:

Thank you for the invitation to work at your hospital. I am interested in the position. However, upon reading the bylaws, I must decline.

My attorney and I reviewed the Medical Staff Bylaws in detail.  They are anathema for any physicians who advocate for their patients.  Such by-laws are beneath the standards of a quality-organization such as yours.  These by-laws appear to have been modeled after those of the law firm Horty, Springer, and Mattern. 

Horty, Springer has been a driving force in the draconian policies some 460 hospitals use to deny doctors their constitutional rights.  Such policies have enabled hospitals to ruin the careers of doctors trying to stand up for their patients. No physician in the country should be asked to sign such a document, certainly not in a hospital which takes public revenue such as Medicare.  Your bylaws would enable a less ethical institution to engage in Sham Peer Review and will, in the long run, harm your hospital's recruiting, since the best candidates will not allow themselves to be put in this position.

I have witnessed the evolution of Medical Staff Bylaws with increasingly restrictive and unacceptable provisions that make it impossible for any doctor to advocate for better patient care.

Here are some examples:

-Your Bylaws, authorization, and release ask physicians to give absolute immunity to the hospital.  Can you imagine what would happen if patients or hospital administrators were asked to give up their rights in order to receive care or work in your institution?  I assure you, administrators and your legal counsel do not work under similar constraints.

Under these restrictions, physicians cannot speak up in the best interest of patients without the risk of losing employment, since any criticism of administration or another physician can be construed by the health system as being detrimental to their bottom line, reputation or operation.  This provision is antithetical to the AMA Code of Ethics. 

The requirement to be subjected to a mandatory psychiatric evaluation by a hospital-chosen-and-paid psychiatrist.  The hospital administrator can then get the diagnosis he pays for:  This has actually happened in some military hospitals. Even if the evaluation were normal, the hearing committee would be biased by the fact that a psychiatrist was involved, i.e. implying that there was some mental problem.  Why not similarly require that the administrator and the hospital attorney under go such a psychiatric evaluation by a psychiatrist chosen by the doctor?

 -Not having an attorney present at an early "quasi-judicial" hearing.  This means it is acceptable tov have hospital-counsel involved, but no attorney to counsel the accused physician.  This stipulation is in place so there will be no witnesses to the actions taken by the hospital.

-"Evidence unrelated to the reasons for the recommendation or to the individual's qualifications for appointment or the relevant clinical privileges shall be excluded."

Note- I was involved in a situation where I complained of multiple deaths, was offered a bribe and threatened with an NPDB report if I did not resign. The threat was made by the ethics committee chair. Under your provision, those facts underlying my complaint to an HMO would not come up, and only the fact that complaining about such things is "disruptive" to the operations of the institution would be allowed.

-The physician bears the burden of proof in all proceedings.

Note This is made more difficult because the documents and facts that exonerate the physician are often withheld or prohibited.  No court of law would accept suppression of evidence, and the hospital lawyer knows this.  He also knows he is paid in part by Medicare funds and other taxes, and that he violates the spirit of public trust by following peer-review for profit.  Whatever happened to innocent until proven guilty?  As an officer of the court, is the hospital lawyer liable for misconduct when he suppresses evidence?  Would he be held unethical by the state bar association?  

-There is no right to a hearing for the basis of the imposition or continuation of a precautionary suspension or restriction, so the doctor can not even tell his side of the story.

-"The hearing shall not be conducted according to rules of evidence. Evidence shall not be excluded merely because it is hearsay. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the admissibility of such evidence in a court of law."  

You would never be able to get away with admitting hearsay in a fair proceeding; that’s why it cannot be used in court. Under this provision, anyone could say anything and not have to give any supporting evidence.

-"The pre-hearing and hearing processes shall be conducted in an informal manner. Formal rules of evidence or procedure shall not apply."

Note-So the physician can request the information/documents but the hospital does not have to provide them.

You can use hearsay evidence and unnamed witness information without primary source verification.

- Access to and treatment of witnesses at a peer review hearing. 

"Neither the individual, nor any other person acting on behalf of the individual may contact Facility employees, patients, patient family members, or other practitioners whose names appear on the Medical Executive Committee's witness list or in documents provided pursuant to this Section concerning the subject matter of the hearing, until the Facility has been notified and has contacted the individuals about their willingness to be interviewed. The Facility will advise the individual once it has contacted such individuals and confirmed their willingness to meet. Any employee, patient, family member, or other practitioner may agree or decline to be interviewed by or on behalf of the individual who requested a hearing."

Note-So the doctor cannot ask witnesses ahead of time to see if they would be supportive, but because only the hospital or it's representative make the contact, they could gently intimidate the employee to testify as they are told or 'request' that they do not come at all.

-Time restrictions on presentation of testimony, evidence during hearing-limit is 7.5 hours:

Note-this is an impossibly short time for doctors to defend themselves.

-The individual shall have no right to discovery beyond the above information. (Only what the MEC has considered) No information shall be provided regarding other practitioners on the Medical Staff.  In addition, there is no right to depose, interrogate, or interview witnesses or other individuals prior to the hearing.

Note-So the MEC can only consider the adverse information and not the favorable information and the doctor in question is powerless to do anything about it.
 
-"All members of the Medical Staff have a duty to cooperate with the Chief of Staff, the department chair, the Medical Executive Committee, and the Regional CEO/CMO in enforcing precautionary suspensions or restrictions."
Does this mean physicians could lose their job if they do not agree or cooperate? 

 I have found that most doctors don't believe that Sham Peer Review will happen to them, therefore they sign these bylaws, without ever having read them or understanding the possible consequences.  I can tell you that Sham Peer Review proceedings are becoming more and more prevalent across the country.  Doctors are regularly being driven out of their practices and reported to the NPDB by unscrupulous hospitals/systems and the physicians that are aligned with them:  Most of the time it is for economic reasons or doctors trying to speak up about unsafe practices.

Large hospitals like yours have been encouraged to promote these bylaws, under the guise of protecting the organization and yet, without fairness-provisions that should be included for any physician, it becomes a weapon in their hands to rid themselves of anyone who is not a "team player".  It is "understood" that a team player will side with the organization in all matters, no matter the effect on the patient or other physicians.

What this means is that no physician will be able to advocate for a patient if it is against the interests (eg, monetary, political, contractual or public relations) of the hospital-aministrator.  No patients can ever assume that their health, well-being , quality of life or medical care is the primary agenda of any physician working under your bylaws.

With these bylaws, any other structure or any mechanism to protect patients (govt. mandates, insurance ) become irrelevant and even malpractice lawsuits are irrelevant because any physician with hospital privileges will be reluctant to testify for a plaintiff. (or they'll lose their job and never work again. ie, National Practitioner Data Bank.)

There is a growing movement at the AAPS (aapsonline.org), UAPD (uapd.com), the AMA and specialty sociaities to educate their members to avoid hospitals with the above bylaws provisions. Such bylaws only pass when the medical staff is too weak to oppose the administration, e.g. are employed or they are to busy to read them.

I encourage you to pass this information along to your staff and administration and legal departments. The best outcome would be to amend these bylaws so your doctors can safely advocate for their patients. This change will also enable your institution to enjoy a reputation of fairness when recruiting.