Synergy - May/June 2014 - 13

industry feature

Continued NAMSS CE quiz from page 12
8. In dealing with an employed
physician, which type of
termination ensures you will
avoid litigation?
a. "For cause" termination
b. "Without cause" termination
c. Expiration of contract (i.e.,
do not renew the contract)
d. No type of termination will
ensure that you will not
be sued
9. A hospital must allow a physician
with a psychiatric disability to
engage in behavior that
undermines a culture of safety
because the ADA requires it.
a. True
b. False

In federal (and some state) employment
discrimination litigation, peer review
information about other practitioners
will likely be sought.6 An argument that
such information is privileged under state
peer review statutes (which aim to keep
information out of the hands of malpractice
plaintiffs) is usually unsuccessful in federal
antitrust and employment discrimination
cases. However, a court may be willing
to grant a protective order to prevent the
identities of the other physicians from
being revealed. For example, in Merrick v.
Littleton Regional Hospital,7 Dr. Merrick, an
emergency room physician with Tourette's
syndrome and attention deficit hyperactivity
disorder, alleged disability discrimination.
Merrick sought all complaints against
emergency department physicians. The
hospital argued that this information was
protected under the New Hampshire peer
review statute. The federal district court
determined that Merrick was entitled to a list
of all complaints in a five-year period and
the specifics of those complaints, which were
redacted to protect identifying information.

10. Medical staff professionals
should advise physician
leaders to:
a. Give up on HCQIA
immunity and refrain from
any adverse
recommendations.
b. Strive to carefully document
the reasons for any peer
review steps and offer a
physician, PA, or APRN
whose care or behavior is
under review the
opportunity to enter into
performance improvement
plans and other progressive
steps, including collegial
intervention, before
recommending an adverse
professional review action.

The possible discovery of peer review
information of other practitioners in
discrimination suits may be alarming to
leaders. Counsel may be able to allay these
concerns by stressing that the information will
show that the plaintiff physician was, in fact,
an outlier and the reasons for the action were
legitimate-not a pretext for discrimination.

Finding the Right Path
When quality or behavior concerns arise
with a physician who is employed by the
hospital or a hospital affiliate, terminating the
employment contract is often considered in
lieu of launching a medical staff investigation
(especially if there is a no-cause termination
provision). Skeete v. North American Partners
in Anesthesia, LLP 8 illustrates that even when
a contract simply expires, discrimination suits
can still be filed. Critical to the defense of
these claims is a strong record that includes
evidence demonstrating a legitimate,
nondiscriminatory reason for the challenged
action. In this case, Dr. Skeete's employer,
an anesthesia group, had such a record,

c. When a peer review issue
arises with an employed
physician who might sue for
race, national origin, gender,
age, or disability
discrimination, stop the peer
review process and punt to
human resources.
d. Avoid any adverse actions
when dealing with PAs and
APRNs.

providing evidence of complaints about
Skeete's demeanor with staff and patients,
as well as efforts to address those complaints
through counseling sessions and a short-term
suspension. Even though the medical staff
route may not be the best option in all
cases involving employed physicians, the
processes involved could serve to establish a
well-documented record of the reasons for
any employment action.
It is possible that some courts will still apply
the HCQIA in cases of discrimination. In
Bhatt v. Brownsville General Hospital,9
a physician whose appointment was
terminated claimed discrimination due
to his Indian origin. Summary judgment
was granted under the HCQIA after the
court found that Dr. Bhatt presented no
evidence that non-Indian physicians with
similar patient care problems were treated
preferentially. The court determined
that derogatory comments made toward
Dr. Bhatt were stray remarks from people
who weren't decision makers.
Continued on page 14

MAY/JUNE SYNERGY

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Synergy - May/June 2014

Table of Contents for the Digital Edition of Synergy - May/June 2014
