Chapter 9.C.2: Medical Staff Disputes
Here is the AMA's suggestion for how hospitals should deal with "disruptive" physicians.
On economic credentialing, see Beverly Cohen, An Examination of the Right of Hospitals to Engage in Economic Credentialing, 77 Temp. L. Rev. 705 (2004); Elizabeth A. Weeks, The New Economic Credentialing: Protecting Hospitals from Competition by Medical Staff Members, 36 J. Health L. 247 (2003); Comment, 88 Marq. L. Rev. 413 (2004); Blum, supra, 53 Buff. L. Rev. 459 (2005).
The following are a sampling of cases pro and con judicial review of hospital credentialing decisions: Pro judicial review — Silver v. Castle Memorial Hospital, 497 P.2d 564 (Haw. 1972); Barrows v. Northwestern Memorial Hospital, 525 N.E.2d 50 (Ill. 1988); Mahmoodian v. United Hospital Center, 404 S.E.2d 750 (W. Va. 1991). Contra judicial review — Pepple v. Parkview Memorial Hospital, 536 N.E.2d 274 (Ind. 1989); Lakeside Community Hospital v. Levenson, 710 P.2d 727, 728 (Nev. 1985); Medical Center Hospitals v. Terzis, 367 S.E.2d 728 (Va. 1988). Canada, which is virtually the only other country with a medical staff structure similar to ours, follows the New Jersey approach. The leading case is Abouna v. Foothills Provincial General Hospital, [1978] 2 W.W.R. 130. See generally Craig W. Dallon, Understanding Judicial Review of Hospitals’ Physician Credentialing and Peer Review Decisions, 73 Temp. L. Rev. 597 (2000); K. Van Tassel, Does the Hospital Peer Review Hearing Process Negatively Impact Healthcare Quality, Cost and Access?, 40 Pepperdine L. Rev. 911 (2013); Nicholas Bagley, Medicine as a Public Calling, 114 Mich. L. Rev. 57, 88 (2015).
The following notes provide more detail about statutory grounds for challenging adverse medical staff and hospital employment decisions.
Notes: Civil Rights and Disability Discrimination Laws
1. Civil Rights Violations. Another basis for scrutinizing hospitals’ and HMOs’ rejection of physicians are federal and state antidiscrimination laws. For instance, a number of medical staff dispute cases have been litigated under Title VII of the Civil Rights Act of 1964, as discrimination based on race, gender, or national origin. In general, courts hold that medical staff membership is sufficiently analogous to employment to fall within the ambit of this statute. Doe v. St. Joseph=s Hosp., 788 F.2d 411 (7th Cir. 1986); Pardazi v. Cullman Medical Center, 838 F.2d 1155 (11th Cir. 1988). But see, Diggs v. Harris Hosp., 847 F.2d 270 (5th Cir. 1988) (no Title VII action exists where physician is independent contractor); Alexander v. Rush Med. Ctr., 101 F.3d 487 (7th Cir. 1996) (same). See generally Michael R. Lowe, Stirring Muddled Waters: Are Physicians with Hospital Medical Staff Privileges Considered Employees under Title VII or the ADA Act When Alleging an Employment Discrimination Claim?, 1 DePaul J. Health Care L. 19 (1996).
Title VII cases brought by nonphysician employees sometimes raise issues unique to the health care setting. In Backus v. Baptist Medical Center, 510 F. Supp. 1191 (E.D. Ark. 1981), the court found that business necessity justifies a hospital in restricting male nurses from labor and delivery work. Similarly, the court found in Carswell v. Peachford Hosp., 27 F.E.P. 698 (1981) that the potential for patient disturbance allowed a psychiatric hospital to terminate a nurse who insisted on wearing ABo Derek@ beads in her hair. See generally Martin, Discrimination in the Health Care Profession, 7 Med. Law 133 (1988); Barry Hartstein, EEO Issues in the Health-Care Field: A Roundup of Recent Developments, 12 Emp. Rel. L. J. 241 (1986).
Also of interest under Title VII is the 1978 amendment that includes pregnancy as an aspect of prohibited gender considerations. If a woman's pregnancy poses safety risks to customers or other third parties, then employers may take pregnancy into account in workplace decisions. International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 200-203 (1991). However, employers may not discriminate against female employees out of concern for fetal health. Thus, a company cannot deny jobs to fertile women on the ground that chemicals in the workplace are hazardous to fetal development. Id. at 204-207 (holding that a battery-making company could not refuse employment to fertile women despite the exposure to lead in the workplace). For further discussion of this issue, see the Chapter on public health law.
2. Disability Discrimination. Disability discrimination is a new source of concern for hospitals and HMOs, both in their employment relationships and in their contractual and membership relations with independent physicians. As with Title VII,several courts have subjected medical staff decisions to scrutiny under the Americans with Disabilities Act (ADA) even though they do not, strictly speaking, involve employment relationships. E.g., Altman v. New York City Health and Hospitals Corp., 903 F. Supp. 503 (S.D.N.Y. 1995), aff’d 100 F.3d 1054 (2d Cir. 1996). But see Wojewski v. Rapid City Regional Hospital Inc. (8th Cir. 2006) [op.bna.com](medical staff physician is not an employee under the ADA). In Ambrosino v. Metropolitan Life Ins. Co., 899 F.Supp. 438 (N.D. Cal. 1995), the court found that a state equivalent of the ADA applied to a physician's membership in a PPO. Ambrosino also held that past drug dependency constitutes a disability, even though present drug use and addiction does not. See also Wallace v. Veterans Admin., 683 F. Supp. 758 (D. Kan. 1988) (hospital unable to refuse employment to nurse who was a recovering drug abuser). But see Elbrecht v. HCA Health Services, 1994 U.S. Dist LEXIS 18877 (N.D. Fla.), aff'd 91 F.3d 161 (11th Cir. 1996) (ADA does not apply since the physician was not employed by the hospital); Altman, supra (hospital entitled to demote chief of internal medicine on grounds that the physician had not demonstrated that his alcoholism was under control). Consider also whether physician membership decisions could be scrutinized under the public accommodations title of the ADA.
Several cases alleging discrimination on the basis of disability have arisen when HIV-infected health care workers have been dismissed or reassigned on account of their HIV infection. Although such persons are considered disabled for purposes of the ADA, they often receive little protection under the statute. For example, in Doe v. University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir. 1995), the court upheld a medical center's decision to permanently suspend a neurosurgical resident from surgical practice and offer himan alternative residency in a non-surgical field. See also Bradley v. University of Texas M.D. Anderson Cancer Ctr., 3 F.3d 922 (5th Cir. 1993) (upholding a hospital's reassignment of an HIV-infected surgical assistant to the purchasing department); Leckelt v. Board of Commissioners, 909 F.2d 820 (5th Cir. 1990) (upholding hospital's dismissal of a nurse for failing to disclose his HIV test results); Estate of Behringer v.Medical Center, 592 A.2d 1251 (N.J. Super. Law Div. 1991 (upholding a hospital's revocation of surgical privileges of an HIV-infected physician under state discrimination statute). For further discussion of restrictions that can be placed on HIV-infected physicians, see the Chapter on informed consent, section C.4.