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socrateaser
socrateaser, Lawyer
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In regards XXXXX XXXXX bylaws in ArizonA. I have been cooperating

Customer Question

In regards XXXXX XXXXX bylaws in ArizonA.
I have been cooperating in a peer review. It has been a sham peer review brought on by a competitor.

They said I had to get a psychological review for reasons unrelated to patient care. I have ever had drug or legal issues and my data is excellent for patient care.

I got two independent evaluation which basically told hospital he is fit to practice medicine

They would not accept the independent evaluation and instinst on me seeing there psychologist on staff they only gave me one name despite Asking for a few names

Which I said no problem. I said I would like Meet with the person first and then I will sign a waiver of. Of confidentiality. Then said no you have to meet her siign a waiver right now and you have to give us pro mission to speak to hear without you knowing about it.

If you don't we will take disciplinary action

Can they do that??
Submitted: 2 years ago.
Category: Legal
Expert:  LawHelpNow replied 2 years ago.

Hello Doctor,

Thank you so much for this opportunity to try and be of service to you today.

Wisdom...compassion..empathy. These are more than words for me. They are my promise to you.

I am a licensed attorney and registered nurse. I will do my best to provide you an honest and accurate answer to your important legal question.

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.

If you would like any additional information or have more questions please do not hesitate to ask!

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Join thousands of satisfied customers by adding me to your bookmarks/favorites: Just type your future question in the text box to direct it to my personal attention.

Customer: replied 2 years ago.
I agree that the peer review process is very protect process.

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.

The requirement to only see one certaiin pychologistand I have to waive for confidentiality seems to violate certain asks of HIPPA
Expert:  LawHelpNow replied 2 years ago.

Hello again,

Thanks for writing back -- good to hear from you.

You are quite welcome -- my pleasure to be of some service!

I will be glad to comment further -- please see below.

Kindly just let me know if you are having any problem with submitting your favorable rating (acceptance) of my answer on the honor system. I would be glad to help out if so or ask our support team for assistance if needed. I mention this only because I have seen some confusion and the last thing I want is to see you encounter any frustration.

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.

Take care and thanks again for choosing our service!

Join thousands of satisfied customers by adding me to your bookmarks/favorites: LawInfoNow. Just type your future question in the text box to direct it to my personal attention.

Customer: replied 2 years ago.
Good advice as a general attorney, but poor advice as an expert.
At no times did you ask for what the bylaws state. Furthermore, at no time did, you ask what my status was with the hospital.


Being on medical leave or leave of absence changes things dramatically, with regards XXXXX XXXXX and specific things that can be enforceable.


The advice that you gave represents you are an honest hard working attorney who is fair and honest and gave good general legal opinion.


However, you work is not reflective, of an expert in this field, and when answering questions related to peer review, you should put something to the extent of that I do not specialize in this area and such you should seek the opinion of an expert.


thanks
Expert:  LawHelpNow replied 2 years ago.

Hello again,

Thanks for writing back -- good to hear from you.

I have opted out (without charge). My fellow legal expert colleagues are able to view your question and answer in their discretion.

Due to a feature of the computer system (nothing to do with you as a customer), there may be a delay until you see my "official" opt out actually indicated as such.


It was a pleasure interacting with you. I would like to wish you all the best and truly hope you see this matter resolved.

Take care and thanks again for choosing our service!

[Please do not reply to this post as doing so will delay handling of your inquiry.]

Expert:  socrateaser replied 2 years ago.
Hello,

Different contributor here. Please permit me to assist.

Here is the law of the great State of Arizona as revealed by the case of Hourani v. Benson Hospital, 122 P.3d 6, 211 Ariz. 427 (Ariz.App.Div.2 09/27/2005):

  • Section 36-445, A.R.S., requires licensed hospitals to have their medical staffs evaluated through peer review. In order to "encourage full and frank discussions and decision-making" in a process that can be both time consuming and contentious, Scappatura v. Baptist Hospital, 120 Ariz. 204, 210, 584 P.2d 1195, 1201 (App. 1978), the legislature granted immunity to physicians engaging in peer review under § 36-445.02(B) by limiting any legal remedy to injunctive relief, providing:
  • No hospital or outpatient surgical center and no individual involved in carrying out review or disciplinary duties or functions of a hospital or center pursuant to § 36-445 may be liable in damages to any person who is denied the privilege to practice in a hospital or center or whose privileges are suspended, limited or revoked. The only legal action which may be maintained by a licensed health care provider based on the performance or nonperformance of such duties and functions is an action for injunctive relief seeking to correct an erroneous decision or procedure. The review shall be limited to a review of the record. If the record shows that the denial, revocation, limitation or suspension of membership or privileges is supported by substantial evidence, no injunction shall issue. In such actions, the prevailing party shall be awarded taxable costs, but no other monetary relief shall be awarded.
  • The Hospital contended in its motion that the record contains substantial evidence supporting the revocation of Hourani's privileges; therefore, it argued, regardless of any procedural violations, § 36-445.02(B) requires that "no injunction shall issue" and the courts must uphold the Governing Board's decision.*fn1 Hourani countered that, even if substantial evidence exists to support the Board's decision, § 36-445.02(B) entitles him to injunctive relief to remedy the Hospital's violation of its revocation procedures.
  • In interpreting a statute, our primary goal is to ascertain the legislature's intent. Ziemak v. Schnakenberg, 210 Ariz. 442, ¶ 14, 111 P.3d 1042, 1046 (App. 2005). If the statute is clear and unambiguous, we apply the plain meaning of the statute. See id. When an ambiguity exists, however, we attempt to determine legislative intent by considering "the statute's context, subject matter, historical background, effects and consequences, and spirit and purpose." Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). In construing a statute, "'we consider the statutory scheme as a whole and presume that the legislature does not include statutory provisions which are redundant, void, inert, trivial, superfluous, or contradictory.'" Parrot v. DaimlerChrysler Corp., 210 Ariz. 143, ¶ 9, 108 P.3d 922, 924 (App. 2005), quoting State v. McDermott, 208 Ariz. 332, ¶ 5, 93 P.3d 532, 534 (App. 2004).
  • We find that language in § 36-445.02(B) could support either party's interpretation. The statute provides that a physician may file "an action for injunctive relief seeking to correct an erroneous decision or procedure." Id. However, it also states that an injunction shall not be issued if the decision "is supported by substantial evidence." Id. Because those provisions could be interpreted as inconsistent, the language is ambiguous, and we must look beyond the language of the statute to determine the intent of the legislature.
  • The Arizona legislature enacted the state's first statutorily mandated peer review requirement in 1971. 1971 Ariz. Sess. Laws, ch. 203, § 1. The statutes mandated peer review of physicians practicing in hospitals and provided immunity to those participating in the peer review process for decisions made "without malice and in good faith." Id. They did not specifically provide for any judicial review of a final peer review decision. In 1984, the legislature amended § 36-445.02 and removed all liability for those involved in peer review activities, added hospitals themselves to the immunity provision, and only permitted a plaintiff to seek injunctive relief for an erroneous decision or procedure occurring during the peer review process. 1984 Ariz. Sess. Laws, ch. 119, § 1; see Goodman v. Samaritan Health Sys., 195 Ariz. 502, ¶ 20, 990 P.2d 1061, 1066 (App. 1999); Gilbert v. Bd. of Med. Exam'rs, 155 Ariz. 169, 178, 745 P.2d 617, 626 (App. 1987).
  • After the statute was enacted but prior to the amendment of § 36-445.02 in 1984, this court espoused the general rule that the exclusion of a physician from staff privileges in a private hospital was not subject to judicial review. Peterson v. Tucson Gen. Hosp., Inc., 114 Ariz. 66, 69, 559 P.2d 186, 189 (App. 1976). Even so, this court found that the prohibition against judicial review did not apply when "there is a contention that the hospital failed to conform to procedural requirements set forth in a hospital's constitution, bylaws, or rules and regulations." Id.; see also Holmes v. Hoemako Hosp., 117 Ariz. 403, 404, 573 P.2d 477, 478 (1977) (courts have authority to review both "procedural and substantive aspects" of suspension of a physician's privileges); Bock v. John C. Lincoln Hosp., 145 Ariz. 432, 433, 702 P.2d 253, 254 (App. 1985) ("Since . . . the hospital breached its own procedural requirements, we have full authority to consider this case.").
  • In its 1984 revision, the legislature did not express any intent to limit a court's authority to review a decision based on a procedural defect; instead, the legislature appeared to codify the courts' opinions by amending the statute to permit aggrieved parties to file "an action for injunctive relief seeking to correct an erroneous decision or procedure." § 36-445.02(B). Furthermore, because we presume that the legislature did not include a provision that is "inert, trivial, [or] superfluous," Parrot, 210 Ariz. 143, ¶ 9, 108 P.3d at 924, we cannot find that the legislature granted physicians a right of action to correct an erroneous procedure and then, two sentences later, withheld any remedy for an erroneous procedure if substantial evidence supports the decision. Rather, we conclude that the legislature intended to allow courts to review the proceedings for both procedural and substantive errors, employing a deferential standard of review.
  • We therefore conclude that § 36-445.02(B) permits a physician to bring an action to correct an erroneous decision or procedure and, if error is proved, entitles the physician to injunctive relief.

 

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.

 

Please let me know if I can clarify or assist you further.

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