Due Process

American courts treat the practice of medicine as a privilege rather than as a right. The state may limit or prevent the practice of medicine by given individual without the strict legal safeguards that accompany the restrictions of legal rights, such as the right of free speech. The courts have also rules that, since the practice of medicine is a privilege, the courts will not guarantee a physician hospital privileges. The courts do impose a duty on hospitals to treat physicians fairly and to abide by federal laws. It is expected that these basic requirements would also be imposed upon a group practice or an HMO.

The extent of these duties depends upon the legal status of the hospital. A governmental hospital must meet the strictest standards in disciplining a physician. A private hospital is granted the greatest leeway in dealing with staff members. While there is no clear law on this point, it is reasonable to assume that a group practice would be treated like a private hospital and that a federally qualified HMO would be held to more rigid standards, similar to those of a governmental hospital.

Rather than present the minimum requirements that each type of hospital or practice must meet, this section focuses on the due process mandated by the JCAH standards. The JCAH requires:

the establishment of fair hearing and appellate review mechanisms, when requested by the practitioner in connection with medical staff recommendations for denial of staff appointments, as well as the denial of reappointments, or the curtailment, suspension, or revocation of privileges. It is recognized that the mechanism for individuals applying for initial medical staff appointment or privileges may differ from that which is applicable to medical staff members. These mechanisms should specify the following: the period of time beyond which the right to request a hearing is waived; the right to introduce witnesses or evidence; the role, if any, of legal counsel; and the fixed periods of time in which each action shall be completed, including final action by the governing body. When a grievance mechanism is established by law, as in the case of employed medical staff members in a governmental facility, this mechanism shall be deemed to be acceptable.

The legal standard this procedure attempts to meet is called "fundamental fairness." Fundamental fairness is a common-sense type of standard. The court will review the procedure used to revoke or limit privileges to determine if the process was "fair." Some parts of the procedure are required, such as the right to present witnesses and evidence, while others are optional, depending on the circumstances of the hearing. For example, there is no requirement that the physician be allowed to have an attorney present. However, if the hospital's attorney is present, the physician should also have right to have an attorney. There is no right to cross-examine witnesses, but there is a right to call witnesses. Witnesses may be called if they will come forward voluntarily; but since this is not a legal proceeding, the witnesses can not be subpoenaed.

The hospital should be careful to keep the hearings from resembling trials. The role of attorneys should be limited, and the hospital must impose a fixed (and equal) time for each side to present its case. It is most effective if the hospital's case is based on carefully prepared, written evidence rather than on the testimony of witnesses. Live testimony can easily degenerate into personal criticism and make more difficult an objective review of the physician's work.

It may be difficult to persuade nursing personnel or other physicians to testify against a well-liked or influential physician. The ideal evidence is actual patient records. These records are objectively prepared and contain the physician's own record of care rendered and the patient's condition. A suspension or limitation of privileges based upon clear violations of staff rules, hospital bylaws, or good medical practice, will be least vulnerable to attack when the violations are documented in the medical records.