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Summer 2009


WARNING: Dangerous Provisions in Medical Staff Bylaws

Elizabeth A. Snelson, Esq.
Legal Counsel for the Medical Staff, PLLC

The only danger most doctors assume hospital medical staff bylaws inflict is deep sleep. Given that the bylaws govern your hospital practice, ignoring them is nothing short of perilous.

Right.

Even if you have a contract or are directly employed by the hospital, terms in the medical staff bylaws can complicate your practice, and your life. Look for four major threats in medical staff bylaws:

#1 Threat – “Manuals” and “Plans”

Hospitals and medical staffs that have been sold a package approach of Bylaws Organization Manual Fair Hearing Plan + Credentialing Manual end up with documents that section out key processes from bylaws into the manuals and plans. Criteria for membership and privileges, leadership selection, and other important medical staff organizational functions controlling who can practice what at the hospital are isolated in the separate plans or manuals which, unlike bylaws, can be changed unilaterally or with limited medical staff input. Consequences go beyond the “convenience” of a brief set of bylaws:

Critical rules affecting any and all medical staff members are not voted on by medical staff members.

In many states, courts recognize bylaws (but not necessarily manuals) as enforceable contracts.

Pending Joint Commission accreditation standards will require these processes to be back in medical staff bylaws by 2011.

#2 Threat – Hospital-controlled Medical Staff “Leadership”

Medical staff bylaws should contain the qualifications for and means of selecting medical staff leadership. Appropriate medical staff bylaws provide for representation of the different specialties on the Medical Executive Committee, which serves as the board of directors for the medical staff organization, and for election of the Medical Staff officers-typically, the President, Vice-President, Secretary and Treasurer. Anesthesia departments should ensure that their unique interests are in fact represented by specific allies on the Medical Executive Committee, if not by a member of their own department.

Self-governance, the hallmark of which is selection of leaders, is required of medical staffs under Joint Commission accreditation standards for hospitals and under some states’ laws. If the medical staff is not self-governing it cannot fulfill its primary duty – to account to the hospital board for the quality of patient care. Self-governance is required in order to enable an independent accounting. Otherwise, if the hospital controls the medical staff through its leadership, the hospital is talking to itself, receiving information only from those it selects to hear.

Self-governance is threatened by medical staff bylaws provisions such as the following:

“In order to serve, elected Officers of the Medical Staff must be ratified by the Board.”

No accreditation standard calls for the hospital board to approve officers or candidates, nor should any board control medical staff elections.

More subtle provisions bury the board’s control behind an offer of indemnification:

“Any Medical Staff officer, department chairperson, committee chairperson, committee member, and individual staff appointee who acts for and on behalf of the hospital in discharging duties, functions or responsibilities stated in these Medical Staff Bylaws shall be indemnified, to the fullest extent permitted by law, when the appointment and/or election of the individual has been approved by the Board.”

But no hospital insurer conditions coverage on board interference with and control over the selection of medical staff leadership. Check the bylaws to assure that there are no strings attached to medical staff leadership.

#3 Threat – “Disruptive Physicians”

Outrageous actions by physicians and other medical staff members threatening hospital employees and patients are the usual example justifying language in medical staff bylaws calling for disciplining disruptive physicians. Obviously, medical staff members should be held to a professional standard of behavior. And, the Joint Commission has put into place standards that call for hospitals to implement Codes of Conduct defining “disruptive,” “appropriate,” and “inappropriate” conduct. Since codes of conduct are inevitable, attention must be paid to how they restrict how physicians may behave.

Unfortunately, some hospitals use codes of conduct to control economic “conduct” by threatening physicians’ privileges and medical staff membership. For example, some hospitals include in the code of conduct an obligation to provide “quality patient care” that is defined as including, in addition to medical outcome, matters such as “timely and thorough communications with insurers or third party payors as necessary to effect payment for care.” If physicians do not jump through the payor hoops the hospital has agreed to, they will be branded “disruptive.”

Other codes define as “inappropriate conduct” any negative statement about hospital services. This prohibition seems designed to ban even valuable information and constructive criticism intended to result in system improvements. A common prohibition in medical staff bylaws applies to conduct that is “disruptive to hospital operations,” a term so broad as to be subject to the interpretation that any competition with the hospital, including financial interest in anything from a surgery center to a gift shop, is prohibited activity. Medical staff bylaws should be closely reviewed to assure that standards of professional conduct are put in place by the medical staff, for the medical staff.

#4 Threat – Outsourced “Peer” Review

Physicians are accustomed to conducting peer review, evaluating outcomes to improve care for future patients. Indeed, the purpose of the medical staff organization is to provide a structure for ongoing quality patient care improvement. However, as physicians are even more stretched providing patient care, and as hospital data systems become more sophisticated, medical staffs may find the reins of the peer review process slipping away, with quality measures and the focus of quality studies being dictated from hospital administration or from the hospital system, to be carried out for corporate reasons.

While Joint Commission accreditation is the frequent reason given for gathering and measuring data, physicians should know that the Joint Commission actually expects peer review to be conducted by peers. Thus, Joint Commission standard MS 08.01.01 states, “The organized medical staff defines the circumstances requiring monitoring and evaluation of a practitioner’s professional performance,” and, under its Element of Performance 2, “The organized medical staff develops criteria to be used for evaluating the performance of practitioners when issues affecting the provision of safe, high quality patient care are identified.” Medical staff bylaws should clearly keep the medical staff in the peer review driver’s seat.

There are many other problems that medical staff bylaws can cause. To protect your practice at the hospital, it is critical that the bylaws work for, not against, medical staff members. Reduce the threat by consulting your state medical society for assistance with physician-friendly resources for the medical staff.


Elizabeth “Libby” Snelson represents medical staffs and writes, and writes about, medical staff bylaws. She is a frequent speaker on medical staff legal issues at medical staff retreats and medical society meetings. For more information check her Bylawg at www.snelsonlaw.com.