By George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law
If you are a physician, nurse practitioner, oral surgeon, dentist, or other health professional with clinical privileges in a hospital, you may face a situation where you are required to defend yourself at a “fair hearing.” A “fair hearing” is held by the hospital’s medical staff pursuant to the Medical Staff Bylaws or Rules and Regulations of the Medical Staff.
“Fair Hearing”–A Term of Art.
The hearing is called a “fair hearing,” which is a term of art. Usually, those defending themselves at such hearings don’t find them to be fair at all. However, according to the federal Health Care Quality Improvement Act (HCQIA), such proceedings are required to provide the affected healthcare practitioner with certain “due process,” such as the right to be advised of the specific charges made against them, the right to legal representation, the right to produce witnesses and evidence of their own and other rights.
Be Sure You Have Professional Liability Insurance That Includes Coverage for Clinical Privileges Actions.
If you face such a hearing, you will find it difficult to find an experienced lawyer to represent you and, when you do, it will be a costly endeavor. This is one of the primary reasons to purchase good professional liability insurance, including legal defense of such peer review actions. Unfortunately, most insurance companies that provide such coverage have limits far too low to pay all legal defense expenses you will probably incur.
Standard Insurance Coverage Amounts May Not Be Sufficient to Protect You Properly.
However, the basic amount provided for such coverage in most insurance policies is not sufficient to cover the actual expenses of the proceeding. Standard coverage amounts are usually in amounts of $25,000, $35,000, or $50,000; again, these are not sufficient to pay for even the most basic fair hearing. Some insurers have much higher limits; it is important to find out precisely what you have to increase the coverage or buy additional coverage.
There are often additional “riders” to insurance policies that you can purchase, “additional coverages,” or even a completely separate policy that will provide such legal defense coverage for you. It is usually not that expensive and is worth inquiring about. This type of coverage often goes hand-in-hand with professional license defense coverage as one can cause the other to occur. For example, a hospital peer review action can result in a report to your state licensing board. A licensing complaint or action may cause hospital peer review action to be initiated against you.
You should think of a “fair hearing” as similar to a medical malpractice trial and plan accordingly.
Costs and Expenses of a “Fair Hearing”
One of the most significant expenses you will incur in preparing for a “fair hearing” is expert witness fees. In almost every case we have ever had, obtaining one or more expert witnesses to testify at the hearing has been necessary. Obtaining experts in medical sub-specialties will cost more, of course, than those in specialties such as family medicine and internal medicine. It is often difficult to find an expert witness who will not only support your position in the case but will also show up at the hospital to testify at the “fair hearing.”
Additionally, the mere preparation for the hearing (including document reviews and working with the expert witnesses) and representation at the hearing is a time-intensive endeavor. It has been our experience that even the most routine “fair hearing” costs approximately $100,000. For example, in one case we had involving several different areas of spinal surgery, requiring five (5) expert witnesses, cost in excess of $250,000 (note: all charges against the doctor were dismissed at the hearing).
Conclusion.
Peer review “fair hearings” in hospitals are costly to defend and require an experienced attorney and the financial resolve to see the case through to its conclusion. Often insurance does not provide sufficient coverage for such hearings. Therefore, physicians, nurse practitioners, oral surgeons, psychologists, and others having hospital clinical privileges should purchase additional coverage for such events and hire experienced legal counsel to represent them at the earliest stage of the proceedings.
Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers in Peer Review and “Fair Hearing” Matters.
At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.
About the Author: George F. Indest III, J.D., M.P.A., L.L.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
“The Health Law Firm” is a registered fictitious business name and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
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