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QUESTION: "Can they do that??"
ANSWER: First of all, I am so very sorry for your circumstances and I mean every word of that remark. Here is how this works. You are up against a most nasty little animal called the "substantial evidence rule". Rather than having to meet the "beyond a reasonable doubt" (criminal) or even "preponderance of the evidence" (civil) standard, all the agency has to demonstrate is that its decisions are based upon "substantial evidence in the record". But, the word "substantial" is highly misleading. In practical application, it means a "scintilla" or a "mere speck", so as long as there is some little basis (i.e. in your former employer's files), the agency (see comments below) will rule against you. It is just an awfully hard hurdle to overcome. Not impossible, but a challenge even for experienced administrative litigation counsel. I regret sounding perhaps a bit discouraging, but rather than doing you the disservice of misleading you, I have gone head and spoken candidly. I respect you too much to do otherwise, frankly, although again I do have every sympathy for your circumstances. All of this applies to the actual medical board (agency), whereas peer review is afforded even more latitude and discretion. So, the botXXXXX XXXXXne and truthful answer to your inquiry, as much as I personally do not like this aspect of the law, is "yes". I would love to say otherwise, but I just respect you too much to do you the disservice of misleading you or providing false information, even when the means being the bearer of entirely correct although admittedly discouraging news.
I truly hope all works out for you.
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QUESTION: "However, I find it hard to believe that a hospital can impose that you have to see a certai psychologist that is on the hospital payroll especially when I had 2 idenpendant evaluations from a psychologist and psychiatrist."
ANSWER: Personally, I agree. Please understand, I am on your side here, no arguments, I have seen worthy colleagues just shredded by the process. But, it does not change the law. If you will permit me an admittedly simple medical analogy. A patient says to you: "Doctor, I just can't believe that my cigarette smoking played a role in my pulmonary disease. I refuse to accept it." Well, alright, the patient is certainly entitled to his or her own opinion, but it does not change the medical evidence. Likewise, under the currently existing law (as it stands, not as I wish it were), the committee is allowed to do so and there is no privacy law violation. It is lousy, you bet, but I have spoken candidly rather than providing you with a bogus "happy" answer in hope of scoring a favorable rating. I would rather you have the truthful reality than some meaningless yet hopeful sounding pablum.
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Applying the above-described law to your facts, the issue boils down to whether or not the use of a particular expert evaluation is reasonable in establishing an effective record for purposes of peer review, and then whether or not the decision made by the peer review board is erroneous based upon the record of the review board.
The law does not require any particular review procedure. However, it is reasonable to assume that a process which does not comport with some sort of "due process" typical of an arbitration or court hearing is likely to produce some skepticism and scrutiny on the part of a court. Moreover, failure to follow the hospital peer review guidelines (or "bylaws" as you characterize them), would violate due process and likely produce a reversal.
BotXXXXX XXXXXne, you have two different approaches that you can take:
1. You can contest the process of peer review as arbitrary and capricious and/or not in accordance with the hospital's bylaws.
2. You can contest the purported facts produced in the peer-review record.
What you cannot do, in my opinion, is simply refuse to cooperate in the investigation. This may seem to be an invasion of your privacy, but as I'm sure you're aware, mental health expert opinions vary considerably, and there is always an expert who will take the other side of an argument.
This leads to your final recourse. If there is a record of your expert's evaluation in the record, and it differs from the board's expert, then you have an appeal to the court on grounds that the decision is not supported by the evidence, because there is no definitive outcome. And, if your expert's opinions are not allowed into the record then you have an appeal to the court on grounds that the board's procedure is arbitrary and capricious, because the board chooses to exclude expert opinion without any finding of incompetence on the part of the witness or the evaluation.
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