Though it does not end a 10-year privileges dispute, a new California Supreme Court decision sheds light on when violations of hospital bylaws are material –or merely inconsequential.
In 2002, Hollywood Presbyterian Medical Center’s Governing Board appointed an Ad Hoc Committee to audit patient care. Auditors hired by the committee reviewed patient records and noted their concerns with Dr. Osameh El-Attar’s patient management and care.
As Dr. El-Attar’s staff privileges were to expire in 2003, he applied for reappointment in late 2002. The medical staff, acting through its Medical Executive Committee (MEC), recommended reappointment. The Governing Board, however, voted to deny the application and directed the CEO to immediately suspend Dr. El-Attar’s privileges. The MEC then refused to concur in that suspension.
But in a meeting, the MEC concluded “since the MEC did not summarily suspend Dr. El-Attar’s privileges, did not recommend any adverse action relating to Dr. El-Attar... and since the requested hearing would be to review the actions of the Governing Board, it should be the Governing Board and not the MEC that arranges and prosecutes the requested hearing.”
The Governing Board then appointed the physicians and hearing officer for the JRC. After two years and some 30 sessions, the JRC confirmed the Governing Board’s decision to deny Dr. El-Attar’s reappointment.
Dr. El-Attar sued, claiming the violation of hospital bylaws concerning who appoints the JRC violated his procedural rights to a fair hearing.
The trial court disagreed with Dr. El-Attar, noting the MEC had delegated its responsibility to appoint the JRC to the Governing Board and that such delegation was not specifically prohibited in the bylaws. The trial court concluded that the decision to not reinstate Dr. El-Attar’s privileges was supported by substantial evidence.
On appeal, the appellate court found in favor of Dr. El-Attar and ruled the bylaws precluded the delegation to the Governing Board. The Court of Appeal said that allowing the Governing Board to select the JRC hearing officer and panel “was not an inconsequential violation of the bylaws” because it “undermined the purpose of the peer review mechanism.” Though the Court of Appeal did not find that any of the panelists were actually biased, the hospital’s appointment undermined the “separateness” of the hospital’s administrative functions and the operation of the medical staff.
The California Supreme Court, however, said that though the MEC’s delegation of its appointment power to the Governing Board violated the bylaws, the violation did not deprive Dr. El-Attar of his right to a fair hearing.
“Not every violation of a hospital’s internal procedures provides grounds for judicial intervention. In applying the common law doctrine of fair procedure, we have long recognized that departures from an organization’s procedural rules will be disregarded unless they have produced some injustice,” the Supreme Court said in El-Attar v. Hollywood Presbyterian Medical Center.
The high court explained that California law does not require “a strict separation between the medical staff and the governing body as a prerequisite for a fair peer review system” and said the identity of the entity that appoints the licentiates to the review panel does not necessarily determine the fairness of the hearing.
Even so, the dispute is not yet over: The Supreme Court said the Court of Appeal could still consider Dr. El-Attar’s claim that the hearing itself (as opposed the process leading up to the hearing) was unfair.
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