Despite popular belief and common practice, due process for EPs is a right, not merely a privilege. Dr. Larry Weiss offers a counterpoint to “Due Process in Due Time,” from EPM’s February issue.
In the February 2012 issue of EPM, in an article titled “Due Process in Due Time,” Dr. Ron Hellstern argued against the exercise of due process rights by emergency physicians.1 Contrary to assertions by Dr. Hellstern, multiple statutes and case law require hospitals to extend due process rights to practicing physicians. Whether a physician may voluntarily surrender those rights is an issue not adequately resolved by case law. Regardless, public policy and medical ethics, including policies written by the American College of Emergency Physicians (ACEP), the American Academy of Emergency Medicine (AAEM), and the American Medical Association (AMA) require emergency physicians to have full due process rights at hospitals. 2, 3, 4
What does this mean? Due process means an individual will not lose rights without access to fair procedures. In the setting of medical practice at a hospital, due process means clinicians will not lose their medical staff privileges without a fair hearing. With regard to the practice of medicine at a government owned hospital, no less of an authority than the U.S. Constitution guarantees our due process rights. Despite assertions in Dr. Hellstern’s article, our constitutional due process rights are not a “concept,” but are guaranteed rights. The due process clause of the Fifth Amendment to the Constitution binds the federal government, and the due process clause of the 14th Amendment binds state and local governments. Therefore, for physicians practicing at government owned hospitals, our due process rights come from the U.S. Constitution.
According to case law in federal courts, physicians have a property interest in our medical staff privileges, therefore we must receive a fair hearing before losing our privileges.5
In private hospitals, physicians receive due process rights from a number of sources, most importantly from the Health Care Quality Improvement Act of 1986 (HCQIA).6 The HCQIA applies to all hospitals receiving federal funds. The Act requires hospitals to fulfill a long list of requirements to ensure that physicians receive a fair hearing.
Hospitals that fulfill the requirements of the HCQIA receive general peer review immunity from lawsuits filed by disciplined physicians. Hospitals that fail to provide a fair hearing lose their immunity. Physicians also receive due process rights from guarantees in the medical staff bylaws of nearly every hospital in the United States because of Joint Commission standards that require due process rights.
Why do physicians have due process rights from so many different sources? Because our society expects physicians to advocate for patients, even when we must advocate against the interests of hospitals. Without due process rights, most physicians would probably not advocate for patients in some situations. Emergency physicians often provide care for our society’s most vulnerable and impaired individuals. Therefore, we may argue that emergency physicians have a greater need for due process protections compared with other specialties.
In his article, Dr. Hellstern referred to terminated emergency physicians as “behaviorally challenged” and “deserving miscreants.” However, during my two year term as AAEM President, I investigated many cases of emergency physicians who lost their medical staff privileges through no personal fault. Furthermore, in a soon-to-be-published survey conducted by AAEM, 51% of respondents stated they could lose their privileges without a fair hearing, while 18% had already been terminated or removed from an emergency department (ED) schedule without a fair hearing. Perhaps most ominously, 55.5% stated their hospital administrator had the authority to remove them from the ED schedule without a fair hearing. Self-regulation is a basic element of the definition of a profession. Bar associations regulate attorney conduct. Organized medical staffs regulate physician conduct at hospitals. It has now become the norm for hospital administrators, who usually are not physicians, to discipline and terminate emergency physicians. In a very basic way, this destroys the professional nature of our work.
We should not passively accept the unfortunate fact that many hospitals do not treat emergency physicians as professionals. Despite unreferenced assertions in Dr. Hellstern’s article that other hospital-based physicians routinely do not have due process rights, many community hospitals only deny emergency physicians these rights. This denial of basic practice rights began in emergency medicine. I do not doubt it has spread to other hospital-based specialties, but the problem is most severe in emergency medicine. At many community hospitals, housekeepers and aides have more job security than emergency physicians.
The erosion of our due process rights also coincides with the steady proliferation of large contract management groups (CMGs), some of which are owned by lay shareholders. In the AAEM survey, of those respondents working for CMGs, 90% stated they had no fair hearing rights, and 92% stated that a hospital administrator could order their removal from the ED schedule.
Dr. Hellstern argues that “there must be a way to instantly remove” emergency physicians because hospitals grant exclusive contracts to emergency medicine groups to manage their EDs. The opposite argument carries more weight: emergency physicians should have heightened due process rights for the many reasons cited in this article. Furthermore, the availability of a fair hearing does not create any significant burden on a well-managed hospital. I work in a 700 bed hospital with more than 1100 physicians on our medical staff. Our hospital has rigorous credentialing procedures. We average less than one disciplinary hearing every 10 years. Perhaps hospitals with negligent credentialing procedures will have the burden of frequent hearings. Hospitals cannot merely delegate the hiring of physicians to contract groups. Courts have held that hospitals have a non-delegable duty to manage their emergency departments.7 Those hospitals that diligently oversee the credentialing process should not have the burden of administering frequent disciplinary hearings.
Finally, we must recognize that due process rights constitute a necessary but insufficient safeguard of emergency physician practice rights. We all know the basic fact that emergency physicians can effectively lose their right to practice without losing their medical staff privileges. A practice group or a corporation holding the exclusive contract to manage a hospital ED can often eliminate an emergency physician from the clinical ED schedule, effectively terminating the physician from practice at the hospital. No law requires physician groups to extend due process rights to their individual members.
However, such practices by emergency medicine groups violate the aforementioned AAEM and ACEP due process policies. As a matter of fairness and professional ethics, physicians should have due process rights within their group practice. According to AAEM guidelines, group practices may simply terminate physicians within the first year of their employment or contractual relationship, but after the first year the physician should have the right to a fair hearing within the group prior to termination.8,9 Practices holding contracts to provide exclusive services at a hospital should have a heightened duty of fairness toward their physicians, because termination of a physician by the group means the effective termination of the physician’s right to practice at the hospital.
In conclusion, hospitals have a legal duty to respect physician due process rights. Also, physicians require due process rights as a matter of public policy and medical ethics. Among all physicians, emergency physicians have the strongest need for due process rights because of our need to advocate for society’s most vulnerable patients, and because of our own vulnerabilities. Guarantying these rights will not create any significant burden for hospitals having reasonable credentialing procedures, while violating our rights will imperil our patients and denigrate our specialty.
1. Hellstern R. Due process in due time Emergency Physicians Monthly 2012; 19(2):22.
2. Emergency Physician Rights and Responsibilities, American College of Emergency Physicians, 2001, Dallas
3. AAEM Position Statement on Due Process, American Academy of Emergency Medicine, 2005, Milwaukee
4. Code of Medical Ethics, §9.05, American Medical Association, 1994, Chicago. (Note, the current opinion was last updated in 1994.)
5. See, e.g.: Darlak v. Bobear,814 F.2d 1055 (5th Cir. 1987).
6. 42 U.S.C. §§11101-11152.
7. See, e.g.: Simmons v. Toumey Regional Med Ctr, 533 S.E.2d 312 (S.C. 2000).
8. AAEM Certificate of Excellence in Emergency Department Fairness, American Academy of Emergency Medicine, 2004, Milwaukee
9. AAEM Certificate of Employer Fairness, American Academy of Emergency Medicine, 2011, Milwaukee