Due process is legal shorthand for a set of notions regarding fairness. Daniel Webster defined this phrase to mean a law that “hears before it condemns, which proceeds on inquiry, and renders judgment only after trial.” [ Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).] Courts divide their inquiry into the fairness of the law (substantive due process) and the fairness of the application of the law (procedural due process). Due process is a consideration in peer review in two situations: when the hospital or other entity carrying out the review is a governmental entity and if the review is governed by specific state or federal laws that impose due process requirements.

In governmental entities, such as a city or county hospital, the actions of the peer review committee are imputed to the state. Since the Constitution requires the states to deal fairly with citizens, these entities are required to provide some level of due process. The more severe the deprivation that might result from the state action, the more formal the required procedure. In the medical context, the criminal prosecution of a physician for violating the controlled substances act would require the most comprehensive protection of the physician’s rights. If a due process hierarchy were established, it would be the following: (1) criminal law prosecutions, (2) state or federal civil law prosecutions, (3) private civil law actions, (4) actions involving the physician’s license, (5) peer review actions at governmental entities, (6) private peer review regulated by state or federal law, (7) private peer review of independent contractors, and (8) private peer review of employee physicians.

With two exceptions, the due process requirements for peer review in private institutions are limited to the contractual provisions of the medical staff bylaws. This is sometimes extended by state law provision, but the major exception is the federal Health Care Quality Improvement Act (HCQIA) of 1986. This law does not set due process requirements. It encourages private institutions to provide due process protections by giving them conditional immunity from state and federal lawsuits over peer review activities if they provide due process described in the law.

What is usually called due process is more accurately called procedural due process: It refers to fair procedure. Procedural due process refers to the procedure used to conduct the peer review. The procedure must be fair. Accused physicians must be allowed to present their case to an impartial decision maker. This may include examining the evidence, presenting and questioning witnesses, and appealing the decision to a neutral reviewer. It is not necessary to conduct the proceedings as if they are part of a court proceeding. The process may be informal, as long as it is consistent and the physicians subject to review know the rules.

Substantive due process is an old legal notion that more nearly approximates a lay idea of fairness. Courts use a substantive due process standard to invalidate rules or laws with which they disagree. A peer review example would be a medical staff rule banning osteopaths from the staff. A court might find that this rule, however fairly and uniformly applied, violates substantive due process. This would be an expression of the court’s belief that the exclusion of osteopaths would not serve to enhance the quality of the medical care in the hospital. The court would be ruling on the substance of the rule rather than its fair application.

Substantive due process is a consideration in peer review only if the review criteria exclude classes of practitioners without evidence that this exclusion is reasonably related to the quality of medical care. An example of a current controversy is the blanket exclusion of podiatrists from many medical staffs. Podiatry is not a medical specialty, but its practitioners are licensed by the state to provide medical care. These state licensing laws also establish the scope of a professional’s practice. In some states, hospital care is within the allowable practice of a podiatrist. In these states, a podiatrist could argue that a governmental hospital that excluded all podiatrists was violating their right to substantive due process. Whether the courts would agree is another question.