Joseph C. Avakoff, M.D., J.D.

Medical Legal Matters

Actual Case History

Peer Review

A physician was accused of incompetence during the performance of an emergency procedure. The patient did not suffer any ill effects. Nevertheless, the physician was reported to the head of the Department and the Chief of Staff for his actions. The Chief of Staff recommended severe restrictions of his privileges. As required by the hospital bylaws, and due process requirements, he was offered a fair hearing on the matter.

Comment: Except under unusual circumstances, no physician should go into a Fair Hearing alone. Since the physician is, understandably, emotional, his cognitive facilities may be lacking. At the very least, the physician should have someone there who is familiar with the case, and can help with the physician's defense.

The physician consulted me regarding the matter. The first thing we did was check into the rules regarding the fair hearing. In this case, the hearing was to be before a panel of hospital physicians (judicial review committee), with the chairman of the judicial review committee being the chairman of the fair hearing panel. Since I was on the hospital staff and knew members of the panel, the physicianand I felt that the makeup was such that he could receive a fair hearing.

Comment: One must be sure that the panel members are not biased against the physician. The appearance of a fair hearing is not enough. It must be a fair hearing in actuality.

Then we went over the evidence which was going to be presented. In a fair hearing, normally upon request by one side, the other must disclose evidence which is to be presented, as well as witnesses who may be called.

Comment: Clearly one must know what the other side is going to do in order to refute the charges. This is only fair.

When the time came for the hearing we were prepared. However, there was one problem. No lawyers were allowed. Even though I was a member of the hospital staff, they would not allow me to appear on behalf of the physician. I was able to find a rather knowledgeable physician to attend the hearing with the physician, while I stayed nearby and was consulted during the breaks. The medical staff secretary took notes.

Comment: Not allowing an attorney at law to attend one of these hearings representing the physician is, in my opinion, a major mistake. Essentially such a policy stacks the deck in favor of the hospital (or HMO, etc.). From the physician's perspective, the hearing is about getting sanctions lifted, or preventing sanctions from being imposed (with all of the attendent reporting requirements to the Medical Board and the National Data Bank). However, the fair hearing is far more important than just that. The evidence presented at the hearing, which is recorded (by a secretary, recording tape, or court reporter), forms the basis of a court challange to an adverse decision. Hence, the services of a lawyer are most advisable in order to properly preserve the record. And, a doctor-lawyer would be even better since he would generally have a better capacity to appreciate the medical aspects of the case. If the record is not properly made, then a court challange would probably fail.

Without going into a lot of detail, three of the main elements in the Fair Hearing will be presented. First: the hospital called a nurse to testify regarding the standard of care provided by the physician. We immediately objected because she was not disclosed prior to the hearing.

Comment: As I stated above, mutual discovery, upon request, is a requirement of any fair hearing. Allowing an undisclosed witness to testify constitutes surprise, prejudices the physician, and denies him a fair hearing. This must be included in the record of the fair hearing, and would be one of the factors a court would look at in overturning an adverse decision.

She was allowed to testify in spite of our objection. Second: we then made another objection regarding her testimony. It was our position that a nurse is not qualified to testify as to the standard of care of a physician.

Comment: It sure looks like someone was out to get this physician. Allowing a nurse to testify as to the standard of care of a physician would be known to most as being completely inappropriate. Hence, we now have preserved another objection for the record should an appeal to a court be necessary.

Third: and what is the most amazing of all, it turned out that the nurse did not witness the events which led to the charge if incompetence. It turned out that she heard about it from another nurse. And, if this wasn't bad enough, the nurse who told the testifying nurse about the events also was not present when the events occured, but heard about it from a third nurse who had actually witnessed the events and made the report to the medical staff officers which led to the charges against the physician.

Comment: Here we have hearsay upon hearsay. We made sure the record reflected this. This is yet another potential reason for a court to overturn an adverse decision.

The Fair Hearing led to an exoneration of the physician with all proposed sanctions dropped.

Applicable Law

 Hearing procedures for peer review proceedings have been codified in California in the Business and Professions Code Sections 809 et. seq.

Ordinarily, a doctor's failure to possess or exercise the requisite learning or skill can be established only by the testimony of experts. Lawless v. Calaway, 24 Cal.2d 81 (1943)

Professional persons are not required to have the highest degree of skill. It is sufficient if they possess and exercise the reasonable degree of skill and care ordinarily possessed and exercised by members of their profession in similar circumstances. Sinz v. Owens, 33 C2d 749 (1949).

Where, however, negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge, expert testimony is not required to establish the requisite standard of skill or care. Lawless v. Calaway, 24 Cal.2d 81 (1943) [No doubt, somehow, the medical staff was relying upon this section of the law in calling a nurse to testify against a physician.]

A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. California Evidence Code Section 720 [This is the reason a nurse cannot be usually used as an expert against a physician. A nurse has knowledge of nursing, not the practice of medicine.]