Doctors fear precedent in privileges case

The AMA and ISMS join a physician in asking the Illinois Supreme Court to hear his appeal and protect medical staff bylaws.

By Tanya Albert, amednews staff. Nov. 17, 2003.

A recent Illinois appellate court decision that could clear the way for nonphysician hospital boards to disregard the medical staff's role in deciding who should have privileges has physicians worried that more medical staffs could find themselves usurped if other courts latch onto the ruling.

The court said the hospital board at Provena Covenant Medical Center in Champaign, Ill., had the right to summarily suspend a physician because the hospital's medical staff is "subject to the ultimate authority" of the hospital board.

Case at a glance
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Region: Midwest

The judges went on to say that the hospital board has a duty to assess and continuously improve the quality of patient care, and, consequently, that the board had the right to summarily suspend a physician's clinical privileges when "continued practice poses an immediate danger to patients."

That language in the court opinion delivered by the Illinois Court of Appeals, Fourth District, isn't sitting well with doctors. They say allowing a hospital board to make a decision without input from the medical staff violates hospital and medical staff bylaws put in place to ensure that medically trained professionals are reviewing who should be practicing medicine at a hospital.

As a result, the American Medical Association and Illinois State Medical Society are joining Champaign, Ill., cardiovascular surgeon Adolf Lo, MD, in asking the Illinois Supreme Court to hear his case and reverse the lower court decision.

The state's high court takes less than 5% of the cases that are appealed, but the AMA and ISMS say this is an important one. "What the court has done here is to say that if the hospital board feels it has no choice but to act, it has some inherent power to do so," said Saul Morse, ISMS general counsel. "I'm not saying the court realized it was doing that, but because it took so little to get to that conclusion, the opinion says that anytime you need to take action, you can do it."

AMA President Donald J. Palmisano, MD, said due process and fair play are at stake.

"You need to have physicians making the decision with the totality of the facts, and that recommendation goes to the board," he said. "You cannot usurp an important element in the process."

Events leading to suspension

After determining that its mortality rate for cardiovascular surgery was higher than the national average, Provena decided to bring in an independent, external peer reviewer, according to court records. In January 2002, the external reviewer said there were "grave concerns about quality."

The hospital said it had concerns about surgeries performed by Dr. Lo, chair of the surgery department, and the hospital said it wanted him to come up with an action plan and meet with the external peer reviewers, according to court records.

During correspondence over the next eight months, Dr. Lo wrote the hospital that he had contacted a colleague to perform peer review on his work and that the review was favorable. He also wrote that he thought Provena needed to buy equipment to improve the quality of care. He believed the hospital's outside reviewer used a small sample size without adjusting for the risks of each surgery, giving it little statistical significance, according to court records.

Ultimately, the hospital wrote Dr. Lo a letter and told him he had three choices, including performing surgeries under the direct supervision of a cardiac surgeon. In late 2002, he chose that option, but said it was an "involuntary imposition" and asked for a hearing, court records show. The hospital said there was no need for a hearing because no corrective action had been taken, according to court records.

Suspension recommendation

The dispute escalated in January 2003, when the hospital found out that Dr. Lo was going to perform open-heart surgery without a supervising surgeon. In court records, the hospital says its president verbally contacted the medical staff president, another officer and a department chair and requested that they recommend the summary suspension of the doctor's clinical privileges for open-heart procedures.

The medical staff president was leaving for two weeks and asked that the secretary-treasurer get involved. The secretary-treasurer said he wanted to get legal advice on the matter.

The Illinois Supreme Court hears less than 5% of cases appealed.

The hospital said in the "face of the medical staff's refusal to get involved and knowing that the plaintiff had scheduled surgery for Monday," the hospital staff president and executive committee of the hospital's board of directors conferred and then summarily suspended the doctor's cardiac surgical privileges, according to court records.

The hospital would not comment because of the pending litigation, but says in court records that it thought it had to act and that it has the authority to make a decision.

"With little time to act and confronted with a medical staff that was contacting lawyers and worrying about litigation, rather than considering the independent peer review report and their obligation to protect the health of patients, the Hospital Board acted," Provena said in court documents.

Physicians see the facts as evidence that the hospital ignored established bylaws by conducting its own informal review outside of the medical staff and never asking in writing that the medical staff take action during the months that the correspondence between the hospital and Dr. Lo took place. They believe the hospital verbally asked the medical staff to support the suspension without any documentation for the proposed action.

"Simply put, if a hospital governing body may totally ignore the hospital staff bylaws, then no protections exist to protect against lay control of professional decision-making," the AMA and ISMS argue. "The financial bottom line could be the primary objective as it is in many corporations."

The Illinois Supreme Court has yet to decide whether to hear the case.

ADDITIONAL INFORMATION:

Case at a glance

Adolf Lo, MD, v. Provena Covenant Medical Center

Venue: Appellate Court of Illinois, Fourth District
At issue: Whether a hospital governing board had the right to summarily suspend a physician's privileges without input from the medical staff. The appellate court said yes.
Potential impact: Physicians worry that the decision gives hospital boards too much power, taking away the credentialing role of the medical staff. The hospital argues that it needs to be able to act quickly if it thinks a patient may be in jeopardy.