Due Process...Or the Lack of It
Issue: September/October 2018
Author: David A. Farcy, MD FAAEM FCCM
When I speak at emergency medicine residencies nationwide about what AAEM stands for, it still amazes me that the topic of due process is poorly understood, if even considered at all.
Due process is a fundamental part of the AAEM mission statement:
“The Academy supports fair and equitable practice environments necessary to allow the specialist in emergency medicine to deliver the highest quality of patient care. Such an environment includes provisions for due process and the absence of restrictive covenants.”
What is due process? The physician must be provided a fair hearing with a right of appeal, in front of their peers on the medical staff, prior to the alteration, restriction or termination of their privileges to practice medicine at their hospital.
Due process is typically required by the Joint Commission, guaranteed by medical staff bylaws, and the federal Health Care Quality Improvement Act so that every physician is supposed to have due process. Physicians without due process rights may not be able to fulfill their primary duty which is to act in the best interest of their patients. Good doctors have been terminated for raising concerns about quality of care, speaking out about ED wait times, or simply pointing out that more staffing is needed to ensure the best possible care. These are not hypotheticals; AAEM has dealt with many cases where emergency physicians were terminated without a fair hearing. Due process is the difference between you getting fired on a whim versus having a designated process of your peers to review and act appropriately.
Due process rights are important for a number of reasons. First, these are our most basic rights as members of a hospital medical staff. Without fair hearing rights, emergency physicians will never be treated as equal members of a medical staff. Second, we cannot advocate effectively for our patients if we face the possibility of termination without a hearing. Finally, such termination may result in a report to the National Practitioner Databank (NPDB) creating a permanent stain on the physician’s record. When a hospital terminates the medical staff privileges of a physician due to any aspect of the physician’s performance or behavior, such termination constitutes a mandatory report to the NPDB. In fact, the hospital must file the report within 30 days. Failure to report the physician may result in the hospital’s loss of antitrust immunity for up to three years.
For years, AAEM has recognized that due process is a patient safety issue – physicians need to be free to speak up regarding legitimate concerns. Due process should be guaranteed and NOT something that is waived. Yet far too often, emergency medicine physicians and increasingly other hospital based specialists are being forced to waive this right as a condition of their employment.
Fortunately, Congress is listening to our voices. In July, Representatives Chris Collins (R-New York), Raul Ruiz (D-California), and Pete Sessions (R-Texas) introduced H.R. 6372, federal legislation that will require the Department of Health and Human Services to promptly issue a rule that protects emergency physician due process rights, and makes them irrevocable. This bipartisan legislation has attracted the attention of House Energy & Commerce Committee Members and staff, where the bill was referred. AAEM has also convened substantive due process conversations with Senate offices and are working to further legislative efforts in that chamber.
Representatives Collins, Ruiz, and Sessions stepped forward with a solution to this problem and they have the full support of AAEM as they work to get this measure signed into law. We still need your help. Write your representatives to ask them to co-sponsor H.R. 6372. Call them. Find them in your city while they are back home campaigning for reelection. Make your best effort to get their attention and ask for their support. Your practice rights and ability to do what is best for your patients quite literally depend on it.
- Due Process information
- AAEM Lauds Introduction of Federal Due Process Legislation
- AAEM Position Statement on Due Process Reaffirmed (9/01/05)
- AAEM Due Process White Paper (5/15/07)
- The Hospital Peer Review Process: How it Should Really Work
- Medical Staff v. Avera Marshall: A New Source of Physician Due Process Rights
- Due Process Rights: The Case of a Physician Who Fought Back and Won