Medical Staff-Related Litigation & Dispute Resolution
Consistent with our commitment to aggressive, creative dispute prevention and resolution, described in detail here, we encourage our clients to involve us in a matter when they first consider corrective action, and ideally even before commencing a formal investigation. In our experience, when our clients involve us early, disciplinary matters are more likely to be resolved without a hearing.
When a hearing does become necessary, our goal is to forcefully present the client’s case efficiently and effectively. Our specialized experience in counseling clients about corrective action options, prior to any hearing, allows us to be prepared for issues likely to be raised during the hearing. As a result, the process is usually less burdensome and expensive. Our clients are also much more likely to prevail, not only in the initial administrative hearing, but also in any appeal to the governing body and in subsequent court review.
We have handled hundreds of fair hearings over the past 35 years with excellent results, and we are adept at tackling the unique issues that arise in such hearings. We have obtained successful conclusions ranging from settlement of the matter (with all the sensitive issues involved in such settlements, including reporting to state medical boards and the National Practitioner Data Bank) to multiple decisions by appellate courts upholding the peer review body’s action.
Litigation Involving Medical Staffs
Corrective actions also may lead to court litigation when a disciplined member seeks to challenge the peer review process in court. We are very experienced in defending against those actions, often getting lawsuits dismissed in their earliest stages and successfully defending those dismissals in front of the courts of appeal. Our team is well-versed and experienced in the nuances involved in these matters, including whistleblower retaliation claims, the use of California’s Anti-SLAPP Statute and the exhaustion of administrative remedies doctrine. Our medical staff litigators routinely use their pre-trial and trial experience to either position matters for resolution or maximize success should a case proceed to trial. When counseling clients regarding appropriate corrective action prior to litigation, our team understands and preserves the unique statutory privileges and protections afforded peer review and medical staffs, including California Evidence Code Section 1157. Our litigators then routinely employ these protections to win in court and minimize litigation disruption.
Our team successfully petitioned the California Supreme Court for review of a leading peer review whistleblower retaliation case, and briefing is underway with a decision expected in 2021. We have been counsel of record in a number of precedent-setting California court decisions involving medical staffs, and have been involved in several leading peer review cases decided by the California Supreme Court and the California Court of Appeal.
Medical Staff Special Investigations
Apart from routine peer review corrective action investigations, we routinely lead special investigations. Usually these involve attempts by physicians under scrutiny to use whistleblower protections as a shield against corrective action. Having litigated these issues before the highest courts in California, our lawyers are particularly adept at managing these investigations and dealing with the interplay between whistleblower laws and the need to protect patients from negligent, incompetent or impaired practitioners.
We also assist our clients when their reports to professional licensing boards lead to investigations by those boards. Most often, these involve the Medical Board of California. We regularly interact with the Medical Board and the Attorney General’s office to minimize our client’s exposure, while also complying with the law.
Reducing Hearing Burdens
We have experience, in appropriate cases, with engaging arbitrators instead of physician panels to decide peer review hearings. This approach solves most of the scheduling burdens on both the Medical Staff and the physician in question. Also, for appropriate cases we have developed an approach to using dedicated hearing panels, which also avoid most scheduling issues and allows hearings to conclude in a matters of days.
Alternative Dispute Resolution
As a means of avoiding needless hearings or resolving expensive and burdensome litigation, we experience great success in submitting disputes to mediation. This allows a neutral third person to assist both the practitioner and the medical staff to see the strengths and weaknesses of their respective positions and to resolve the matter peacefully. With our assistance many of our clients have added mediation provisions to their medical staff bylaws. We also favor creative settlements. Our team routinely resolves complicated peer review matters facilitated by our intimate knowledge of reporting and practice requirements.
Residency Program Disputes
For our clients with residency programs, we are often tapped to assist in litigating and resolving resident-involved disputes. As with our work for medical staffs, resident conflicts often implicate patient safety concerns. As both California law and regulations promulgated by the Accreditation Council of Graduate Medical Education apply to residents, our team routinely helps our clients navigate the complexities involved in these cases. Depending on the circumstance, our experienced team can either litigate a matter to trial, or use creative dispute resolution ideas to allow our clients to continue safely and effectively training California’s next generation of physicians.