BYLAWS PROBLEMS

Preamble

1.                  Page 2, Definitions H. A practitioner should not be limited to membership at the hospital, and there should be no other limitations on the term. If this is a practitioner, what is the difference between this and a member of the medical staff? Member covers the term and this definition is redundant. Thus, it is unnecessary. The old language is superior.

2.                  Page 2, Definitions O. What is harassment? What protections are there against false allegations? What happens if a member is accused of harassment? I would not try to delineate this definition as it can be grossly abused by anyone wanting to eliminate a member for any reason. I would eliminate this definition.

3.                  Page 2, Definitions P. This is a completely unacceptable definition. It can basically be defined as anyone covered by the bylaws doing anything that a hospital employee or administrator, or anyone at the behest of the hospital doesnt like. A physician could be assessed as disruptive if he/she complained about the lab being slow or reporting a deficiency to the Tennessee Board of Medical Examiners, or the JCAHO. In addition, reports can be fabricated by anyone and based on the current hospital policy there is no recourse for the accused individual. All this definition does is to formalize the ability of anyone who dislikes a medical staff member to get rid of him/her without due process. Keep in mind that the bylaws are those of the medical staff and not those of the hospital. This definition should be eliminated.

4.                  Page 2, Definitions O. This definition is overbroad and can be once again used to the members detriment. Essentially impaired physician is anything that the accuser wants it to be. Further, a drug abuser who injures patients would be grouped together with a physician having difficulty going up stairs due to a knee injury or arthritis. This term then could be used to paint the most benign problem in a physician with that of a badly mentally disturbed member. This definition should be eliminated.

5.                  Page 2, Definitions R. This is the same as H above. Eliminate H above.

6.                  Page 3, Definitions S. This definition is amazingly overbroad and could potentially cover comments such as you look nice today. Such a definition would result in more concern for avoiding a comment that could potentially be taken poorly than delivering patient care. This definition could be interpreted in almost any way and an accusation could be made with impunity and cover at least some part of this definition. As written this definition should be eliminated. It is inappropriate for these bylaws and could be easily abused, especially by an incompetent nurse to avoid a critical report by a member.

Article III: Membership

1.                  Section 2, Opening paragraph, page 4. Whether they like it or not, the Medical Staff is by law responsible for all aspects of care in the hospital. Thus, the Medical Staff Bylaws should provide power to the members to carry out this duty. In Section 2 the initial paragraph addresses the medical staff members and limited license practitioners, but does not address the hospital personnel, employees and administrative personnel. The medical staff must be allowed to investigate all complaints against hospital personnel as well as medical staff members. They will be held liable whether they have this ability or not. Any complaint by anyone, including a doctor against a hospital employee requires investigation by the members. Any incident that potentially affects patient care should be made available to the members for evaluation and corrective action. In addition, any protection available to a hospital employee reporting a variance against a physician should apply to any physician reporting a deficiency.

2.                  Section 2 Part C, page 4. This section has several negative connotations. First, no member should be required to give CME as a condition for membership. Voluntary teaching is perfectly OK, but requiring this is crossing the line. Further, the way this section is worded, a member could be required to attend certain CME based on what a medical staff officer feels is appropriate. The members should have complete and total discretion as to whether they would like to teach CME and what CME they wish to attend. The only right that t medical staff has is to require a reasonable number of hours of CME over a certain time period. I would eliminate this section.

3.                  Section 2 Part E, page 5. The doctors should be extremely careful of what this means and how it can be used. Using this section if a doctor spends too much money in the opinion of the reviewer, this can result in a peer review action and NPDB report essentially ending a career. There is no guidance as to what this even means. The entire statement is vague, overbroad, gives no guidance and can be interpreted in any way by the hospital attorneys. Recommend deleting this entire part. 

4.                  Section 2 Part F, page 5. This part absolutely requires all errors in patient care to be reported to the medical staff. This especially means employee errors and errors unrelated to the physicians. Failure to do this destroys the effective application of this part. Based on the historical activities of the hospital, recommend deleting this part as written.

5.                  Section 2 Part G, page 5. This part requires the medical staff to interpret bylaws written for them by the hospital. If the hospitals only agenda was to assist the doctors to provide good patient care, this might be marginally acceptable. We know that Tenet is interested in profits to the exclusion of almost everything else. The CEO of Tenet has admitted this as much as is possible. Thus, there is an inherent conflict between those physicians who really care about patient care (unfortunately not all of them) and Tenet. Therefore, if the medical staff is to enforce the bylaws, under no circumstances should they rely on an opinion of a Tenet attorney. This is a conflict of interest and thus this section as written requires the medical staff to retain their own attorney. Failing this, the section should be deleted as written. Nevertheless, regardless of how the part is written, the medical staff has the exclusive right to take corrective actions and determine when they should be taken.

6.                  Section 2 Part H. See comment above in 5. The hospital policies should at there most restrictive only be guidelines. Thus a professional may deviate from them in the interest of patient care. A third party is needed to insure that the bylaws, policies, etc. are enforced in a uniform manner. It has been clear in the past that some of the medical staff will hijack the procedures of the bylaws and hospital for their own advantage.

7.                  Section 2 Part I. Page 5. This section appears to be an attempt to get the medical staff to take on liability for the hospitals shortcomings. Should the hospital not meet a certain requirement, the hospital can now claim that according to the bylaws, the doctors should have warned them. I recommend that this entire part be deleted.

8.                  Section 3 Part A., page 5. Though there are no changes to this section, the physicians should be concerned about the present language. There is no recourse to the doctor denied privileges for some ethereal reason such as poor character or lack of ethics Further, there is no way to insure that the whatever standard is used that it will be applied uniformly. The bylaws should specifically state what is required to establish a standard such as three letters from physicians in good standing with the State of Tennessee. As written, one nurse could complain about a doctor because he caught the nurse stealing drugs and this would be enough to deny privileges to the doctor. Should privileges be denied, this would require a Data Bank Report.

9.                  Section 3 Part B. pages 5. The staff must insure that whatever standards are applied are the strict, sole and exclusive right of the medical staff to delineate. This particularly applies to statements of judgment and professional ability. There is a possibility of abuse by physicians who have an agenda to get rid of other physicians.

10.              Section 4 Part B, page 6. What exactly is meant by judgment in this part? How do you document judgment? How do you document worthy character? This is broad and impossible to standardize. I would suggest that a certain set of reproducible documents be required. This part is designed to give the hospital a way to eliminate physicians they dont want. This part is vague and should be deleted as written.

11.              Section 4 Part C, Page 6. How are the qualities in this part demonstrated? As written this section is susceptible to abuse and is overbroad and vague. It should be deleted.

12.              Section 4 Part D, Page 6. What does this mean, how do you demonstrate it, and what would make you susceptible to a claim of this wrongdoing? This is a part that has a huge potential for abuse and furthermore contains no standards, therefore this part like many others in this section is totally objective. In other words, you violate these parts because someone says you do, and the way the situation has worked in the past, you do not even get to question the person who makes the complaint. This part should be deleted.

13.              Section 4, Part E and F. Page 6 This means that if you have ever had a conviction, an exclusion, or a sanction, even if it is discovered the charges were unreasonable, you can be excluded based on these sections, even of you are presently in good standing. Further, if you are reported for some alleged abuse, and are temporarily suspended while an investigation is on progress, then you can be removed from the medical staff without any recourse. In addition, you may be sanctioned for some alleged violation of the Medicare Regulations that the government itself states that cannot be followed and are confusing. You can be held responsible for an error that your staff may make without your knowledge. Many of these regulations are contradictory and may violate other laws. With new HIPAA rules, it will be essentially impossible to not violate some rule that may cause the Medicare cops from arbitrarily targeting a particular physician. Remember that armed police officers have held physicians and their employees at gunpoint only to later find out that their information was incorrect. Though these sections would require investigation, it seems arbitrary to me to destroy someones career because of a government error. These parts should be deleted as written. Essentially they say that you are guilty if accused.

14.              Section 4, Part G. Page 6. Though the hospital may wish to require doctors to carry med mal insurance, the bylaws of the doctors should not require this of their colleagues. Based on present Tennessee law there is no joint and several liability and thus the deep pocket rule presently doesnt apply. This section should be deleted as written.

15.              Section 4 Part H. Page 6. This is yet another subjective assessment of each physician putting the doctors at a huge disadvantage. Anyone can complain and there is essentially no recourse. What exactly does this mean? It is vague and does not permit an objective assessment. This part like many of the other parts above is to intimidate the doctors and prevent them from identifying deficiencies in the hospital. If a doctor complains about poor care, lab delays, inadequate personnel, or poorly trained personnel, then that complaint could be construed as disruptive or inability to work co-operatively. All subjective assessments should be deleted including this part and further, the bylaws should be minimizing this type of language, not increasing it. Dont be fooled, this will be used against the physicians.

16.              Section 4, closing paragraph, page 6. This paragraph essentially makes the violation of any of the above parts as a violation of the standard of care due to the language used. This means that any subjective violations of the bylaws as determined by anyone without investigation can be construed as a violation of the standard of care. This is very dangerous to the physicians especially in light of the parts above. This should be deleted in its entirety. Essentially the entire section 4 is poorly written, is vague and overbroad, can be interpreted in a number of ways which can be based on bias and dislike of physicians either by other physicians or hospital personnel. The only part of this section, which is reasonable, is Part A.

17.              Section 5, Part A. Page 7. The new part added by the hospital attorneys is unreasonable and unfair. Under no circumstances can the medical staff designate its responsibilities. This part is a clear attempt of the hospital to usurp the authority of the medical staff based on what appears to be reasonable language. The governing body must follow the recommendation of the medical staff. If the medical staff is working fast enough, then is up to the governing body to get the medical staff to work faster, not to take away their authority. This is a violation of due process, and is a naked attempt to control the executive committee and also remove any authority from the physicians. What is an unusual delay? What is an inappropriate recommendation? Whatever the governing board (read hospital) says that it is. This section is dangerous and violates public policy and probably violates the Health Care Quality Improvement Act (HCQIA). It should be deleted in its entirety. In its place there should be language that the governing body is to take action strictly as directed by the medical staff either through the executive committee, any hearing panels, or based on the medical staff as a whole. They may under no circumstances deviate from the Executive Committees (MEC) recommendation. Should the governing body disagree with the recommendation of the MEC, it will be the responsibility to provide to the MEC the specific reasons for their disagreement, a list of witnesses, specific references to the evidence supporting their disagreement and the right of the accused and the MEC to question each of these witnesses in detail. Further, the burden of proof is on the governing body and their allegations must be proved by at least clear and convincing evidence. Once they have presented their case, the MEC will determine whether the facts justify deviating from the original recommendation. The final decision will be the medical staff.

18.              Section 5 Part D, page 7. Though the language of this part as written is reasonable, there should be a time requirement to process applications. This part could be used to keep a doctor from exercising privileges at the hospital by merely delaying the process of an application. Thus, if a physicians application is held in limbo, after say 30 to 60 days, the doctor can require that the application be evaluated and any deficiencies identified.

Article IV: Categories of Services Provided

1.                  Section 1, first paragraph. Page 7. What does timely and continuous mean? Who decides what this is. Is there a distance requirement? Do you have to have a beeper? What if the beeper or cell phone doesnt work? What if a hospital employee states that they called when they didnt?

2.                  Section 2, second paragraph. Page 8. Only a voluntary resignation in writing from the affected practitioner should be considered a voluntary resignation. Any automatic or other reduction of privileges in any way must require a hearing if requested by the affected practitioner. This as written is a violation of due process and violates federal law.

3.                  Section 4, Part B, Number 5. Page 9. Recommend deleting the standard of care language in this part.

4.                  Section 5, second paragraph. Page 9. It is inappropriate for a person in competition with the affected practitioner to rule on his/her capabilities. Thus, the affected practitioner should have the right to pick anyone who is a medical staff member in good standing to present the information required to the MEC. What is defined as sufficient clinical activity This is again vague and subjective and thus susceptible to abuse. In paragraph 4, once again, the affected practitioner should be able to pick his/her own proctor from the medical staff and should not be stuck with the Chief of Service who could have another agenda. Further, if the proctor says the provisional staff member is OK and the MEC disagrees, is the burden of proof is on the MEC to prove by clear and convincing evidence that the proctor was wrong and the affected practitioner shall have the right to a hearing.

5.                  Section 8, paragraph 2 following the categories, page 11. What is the definition of direct and immediate supervision in that the affected practitioner must be available for prompt consultation? How long is prompt?

6.                  Section 8, Part G. Page 13. This is an obvious attempt to eliminate due process for a persons livelihood. This part should be modified to allow the physician who is the supervisor of the physician extender to ask for a hearing under the bylaws. No one should have his or her rights restricted without due process. Further, the governing body is required to follow the recommendations of the MEC unless they provide clear and convincing evidence as to why they dont.

7.                  Section 8, Part J. Pages 14-15. Needless to say, this section just as the previous ones affecting physicians violate due process. All of the sections of J should be rewritten. Much of it is again subjective and thus may be abused. Using this part, a physician may be held hostage by threats against the extender, who have essentially no due process rights.

8.                  Section 9, page 15. What is a medico-administrative position and what do these people do? This is not delineated and may be another method of the hospital trying to control the medical staff. The first sentence of the new section is unnecessary and redundant as to have clinical responsibilities must apply for privileges like anyone else. The remainder of the paragraph is also redundant. Who is the duly authorized representative? Keep in mind that the termination of a position as mentioned in this paragraph, could easily be also construed as a cause to terminate staff privileges regardless of the disclaimer in the paragraph. Please refer back to Section 4, page 6. It would appear that if terminated from a position it is because of violation of hospital policies or poor conduct. I would submit that based on the new bylaws, this is also a basis for termination of privileges. Thus, it would be good if a physician can turn down this appointment. If a physician in this position disagrees with any hospital position, he/she could end up losing privileges and loose his/her professional career. If this werent enough, the hospital lawyers have stuck in a reduction of due process for termination of any contract privileges. This entire section on Medico-Administrative Positions should be deleted.

9.                  Section 10, page 15. This statement does not define the term staff category. What does this mean?

Article: V Officers

1.                  Section 2, page 16. Based on the way this section is written, any complaint can be construed into a lack of good standing. Should there be any action taken that could result in an officer loosing his/her position this must immediately trigger the fair hearing section of the bylaws. Further, until the due process, which must be ironclad under these bylaws, is completed, the officer should maintain his/her status. In other words, if it is alleged that an officer did something that would cause removal from office unless the action was voluntary on the part of the officer, this allegation must be proven in a hearing. Until the hearing is completed along with all appeals and the allegation against the officer is proved by clear and convincing evidence, the officer retains his/her position. Thus, there is no vacancy in the office until the hearing is completed not in the officers favor or there is a voluntary resignation by the officer.

2.                  Section 6, page 17. New section removes due process and can be construed as a basis for removal of clinical privileges. Any action resulting in removal of an officer should absolutely give the rights of a hearing to that individual. Facts and situations can and have been manipulated in the past. An action such as this, which clearly has negative connotations, should allow the affected individual the right to confront all witnesses against him or her. This would include all of the same due process protections that normally are associated with the fair hearing.

Article VI: Procedure for Appointment and Reappointment

1.                  Section 1, Part A, page 18. In this part it is recommended that if the governing body decides to deviate from the recommendations of the Medical Staff or MEC, that the reasons be put in writing and signed by all of the members of the governing body for submission to the MEC and forwarding to the affected practitioner. 

2.                  Section 1 Part B. and C. Pages 18-19. These two sections are rife with material that could be used to abuse physicians and intimidate all of the medical professionals in the hospital. Part C. even has a section that could be construed that if a practitioner admits patients to another facility, he/she could be refused privileges. The wording is vague and overbroad and can be interpreted in almost any way that someone would like. If a doctor does anything that someone in power be it hospital personnel or a physician trying to eliminate another physician doesnt like including speaking in support of a physician who is presently under fire, this can be construed to be a violation of either or both of these two parts. How do you define adequate information for a proper evaluation of character, ethics, skill, mental health status and ability to work with others? Further, what guarantees are there that one person will be evaluated using the same standards as others? There are published documents, which describe in detail how to intimidate and suppress doctors comments. These documents suggest that the controlling authority (hospital) establish bylaws that allow for subjective and evaluation that defies standardization. The articles point out that the physicians never read the bylaws anyway, because they are interested in their own business and affairs. Thus, the hospital attorneys can essentially put in any language they wish. Generally, votes of medical staffs that pass bylaws show that less than 10% of doctors actually read the changes and less than 1% read them carefully. Further, doctors have a sense of invulnerability, and thus, the attitude is that since they practice good medicine and only complain when there is a legitimate reason, no one will even consider taking away their privileges. The publications also tell the hospital that if a physician points out that another doctor has done the same thing that is now about to result in loss of privileges, the standard response is: Were talking about you right now. Let us worry about the other doctor later. What anyone else might have done is not your concern. This means that the same activity may be interpreted by the hospital as improper when one physician does it and commendable when another physician does the same activity. Due to the secret nature and immunity provided by the HCQIA, these subjective actions on the part of certain individuals are usually swept under the rug, and may not even be known outside of the doctor unfairly sanctioned. Thus the bylaws are the only protection for the medical staff and must be carefully read. Any subjective standards must be eliminated.

3.                  Section 2: Application for appointment, Part B & C page 20. What is adequate information? How do you show proper competence, ethics, and skill, physical and mental health status? How do you show ability to work with others? If the applicant provides information that creates doubts, how is this resolved? What happens is an interview is requested at a time when the applicant is unable to appear? How and what is a criminal background check? It is recommended that all subjective references be removed and that if an applicant provides whatever objective documentation is required that privileges may not be withheld based on some subjective feeling of someone stating that the applicant cant get along with people.

4.                  Section 2, Part D, page 21. The medical staff should understand that an applicant allows more of an extensive invasion of his/her privacy than is required for a background check for clearance to work for the FBI of CIA. Further, since the hospital cam interview anyone they wish, there is nothing to keep the hospital from intentionally trying to find someone who doesnt like the applicant to eliminate this person from the hospital. Any interviews that the hospital wishes to conduct should be reviewed and approved by the MEC prior to the interview and any negative reports should be verified by a member of the medical staff selected by the affected practitioner, or at the least should be someone who is not in competition in any way with the affected practitioner.

5.                  Section 3:Authorization to Obtain Information. Part A, page 21. This extremely dangerous section needs to be modified. Under no circumstances should any immunity ever be given to anyone that is absolute. The immunity should be limited and based on proper and accurate methods of information gathering. Any attempt to use information obtained in a defamatory or slanderous manner should be subject to legal sanctions. In addition if any confidential information is released without express written permission from the affected practitioner is not protected by any kind of immunity. This part allows the hospital and any doctors who dont want a practitioner on staff in bad faith to be protected despite what the bylaws may say about bad faith. If you are the professional lied about, how do you prove bad faith, The investigators must know there are consequences for bad or unethical behavior. This section requires substantial rewriting. Further, the statement of including but not limited to should be deleted. In addition, it is recommended that if a hearing is requested by the affected practitioner and not performed within 60 days (the only reason for extension being a request by the affected practitioner), this will be defined as bad faith. In addition it is recommended that in the case of summary suspension, there will be a preliminary hearing that will be held within 14 days and the affected practitioner will be permitted to cross-examine witnesses and have the rights of a full hearing though in a shortened hearing. The only purpose of the preliminary hearing is to determine if the extreme remedy of suspension of privileges in needed. This is also recommended by the AMA and TMA to be included in every bylaws. Again, it should be noted and realized that any immunity is always limited and never absolute.

6.                  Section 3, Part B, page 22. In this section as well as any others, third parties should be defined and should only have immunity of they tell the truth in good faith. Further, any party who is provides information on a practitioner fro any reason should be informed that should the information provided turn out to be false, given in bad faith, or be misleading in any way, that they will be liable for damages and legal claims against them. The affected practitioner should also have the right to know anyone who provides negative information and have complete and total access to any negative interview, documentation, reports or any other information obtained, whether he/she gets privileges or not. Failure to provide this information at the request of the affected practitioner will be defined as bad faith and eliminates any immunity.

7.                  Section 4, Part A, page 23. If the application for privileges contains any adverse information of any kind regardless of whether the practitioner is granted privileges or not, this information should be made available to the practitioner if requested. Failure to provide the information shall be deemed bad faith, and in addition if this adverse information is not supplied to the practitioner, the information may never be used against the practitioner in any future action, hearing, or investigation of the practitioner.

8.                  Section 4, Part G, page 24. Add to this section that the time limit must be limited to a maximum of 60 days unless the affected practitioner requests additional time to prepare his/her case. Should there be a delay at the request of the affected practitioner, the hearing will then be conducted within 30 days of the time that the affected practitioner states that he/she is ready. Failure to meet this time requirement will be deemed bad faith.

9.                  Section 5, Part to A, pages 25-26,

a.      1.             What peer review activities? No activities of any type may be considered unless they have been subject to review by the affected practitioner, which includes the right to cross-examine any persons who have made an adverse report of any kind. Thus, the mere fact that a practitioner has had several reports does not in itself indicate any information on the practitioner.

b.      2.            What are the minimum patient care requirements in this section? What hospital policies?

c.      5.            Information of sanctions should only be considered, if the medical staff or their representative is convinced that the sanctions were made in good faith and using proper procedures to insure due process. This investigation should be conducted by a member of the medical staff in good standing selected by the practitioner if requested by the practitioner. If the information to make an objective finding that the practitioner was afforded due process, this information may not be used to make any determination. All sanctions should be viewed with suspicion.

d.      6.             If the sanction has been reversed or rescinded or if the practitioner has been reinstated, this part shall not apply.

e.      7.            Only malpractice claims that have been paid are pertinent. Claims that have been dismissed or dropped have no meaning at all. Since claims paid are in the NPBD. This means that only information that the hospital obtains by a NPDB query should be considered, and only after the affected practitioner has had the opportunity to explain the case.

f.       9.             As stated before the hospital can require the malpractice insurance, but the medical staff should not in their bylaws.

g.      11. Only information in the NPDB is pertinent, thus any other information is duplicative, prejudicial, and unnecessary.

h.      12. Pending criminal charges are irrelevant. In this country, unlike in peer review, you are innocent until proven guilty. Convictions are only pertinent if they are related to health care. Thus, a speeding ticket is irrelevant.

      10,       Section 5, Part B, pages 26. If there is any way that any action taken by the medical staff or hospital can be construed negatively or result in a report to the NPDB, the practitioner should never be denied a hearing with all the rights associated with this hearing. There should always be a right of appeal for any decision. This section requires considerable rewriting.

11.       Section 5, Part C, page 27. The applicant should have the responsibility of    producing the information requested except as limited by due process and constitutional requirements, both State and Federal. Nevertheless, information thus provided is presumed to be correct and accurate and can only be contradicted by clear and convincing evidence, which must be presented to the affected practitioner.

12.              Section 5, Part E, page 27. What exactly does the first sentence of this part mean?

13.              Section 5, Part F, page 27. There is no part 5G.

14.              Section 6, Part A, page 27. As exclusive contracts affect medical care at the hospital, and the medical staff is responsible for patient care at the hospital, the medical staff must have the right to review and exclusive contracts and vote on whether they should be executed. Failure to obtain approval from the medical staff shall make the hospital liable for any action of any kind taken against any member who has an exclusive contract with the hospital. The medical staff should also have the right to approve any terminations of exclusive contracts.

15.              Section 8, page 29. Any misrepresentations by the hospital or any personnel against a practitioner shall be actionable and not have any protections against legal action. Further, this shall be deemed bad faith.

16.              Section 9, page 30. If the practitioner demonstrates that there have been no additional adverse actions since year has passed and if the hospital did not provide any specific requirements for the practitioner, then the basis for the previous suspension may not be considered. In addition, if the practitioner is granted privileges the entry in the NPDB of Harton Hospital shall be removed. According to the administrator of the NPDB, the reporting agency to the NPDB may remove the entry if they wish. Failure to remove the previous entry shall be considered bad faith. In addition, if the hearing requested by the practitioner has not been completed by the time that the practitioner reapplies, the hospital will be deemed to have acted in bad faith and the hearing will automatically be decided in favor of the affected practitioner.

Article VII: Clinical Privileges

1.                  Section 1, Part C, page 30. When is the periodic redetermination? Whose observation? Who reviews the records and what records are reviewed? What does in this or other s mean? What is the members participation of medical care mean? This part requires substantial revision and clarification.

2.                  Section 2, Part A, page 31. No one who has a conflict with the affected practitioner may exclude the practitioner from the hospital based on failure to approve a temporary request for privileges. Temporary privileges should terminate without hearing rights only if the delay in application is the sole responsibility of the practitioner. Under no circumstances should the privileges be terminated due to failure of the hospital or any member of the medical staff other than the practitioner to complete the requirements for membership. Termination of privileges due to failure of the hospital or any member of the medical staff to vigorously process the application shall be deemed bad faith, and will not result in termination of privileges.

3.                  Section 2 Part B, page 31. What is deemed a negative response from the NPDB? If a negative response is received, and this results in failure to get privileges, there will be the rights of a fair hearing.

4.                  Section 2, Part B, page 32, 3 and 4. Why must a reviewer be a member of the medical staff? This has never been required before and gives the hospital yet another opportunity to manipulate any review process. Any practitioner in good standing at his/her hospital and agreed to by the hospital, the medical staff and the affected practitioner should be able to serve as a reviewer or sit on a peer review activity.

5.                  Section 2, Part D, page 33. The Chief of Service may only require special supervision if he/she is not in direct competition with the affected practitioner, or if accepted by the affected practitioner. Otherwise, the affected practitioner can request a written basis for the special supervision, the reasons for the supervision, the time of the supervision, the person who will be responsible for the supervision including any reporting requirements. This requirement must be approved by the committee involved with the affected practitioner having the right to examine the Chief of Service in front of the committee regarding the requirement for the supervision.

6.                  Section 2 Part E, page 33. This part is unconstitutional as written. It says that any designated person may terminate privileges for any reason at any time without a hearing.  Thus, in this part if person is designated as having this power in Article VIII, Section 4 can remove privileges because he/she feels like it. This gives dictatorial powers to these people and can (and incidentally have been used) to intimidate and even cover up their own mistakes and errors. This part assumes that anyone granted this incredible power will be absolutely honest and reasonable in its use. It is submitted that there is no person who should have absolute power without consequence. There is a tremendous incentive especially in the arrogant individuals to use this power in their conviction that they are never wrong. No summary suspension under any circumstances should be allowed without due process. If there is a situation determined to be so unsafe as to risk a patients life, then a mandatory consultation may be required, but the hearing must remain for the affected practitioner. If a summary suspension is later determined by hearing to have been unnecessary or if there is a determination that any other less extreme remedy would have maintained patient safety, it will be presumed that the individual ordering the summary suspension has acted in bad faith. In order to show that the action was not in bad faith, the individual ordering the summary suspension will have to show by clear and convincing evidence that there was no other remedy or action that could have been taken in lieu of suspension. In addition the language of this part allows for subjective evaluation of a practitioner. What is disruptive, what is inappropriate behavior? These can be interpreted in almost any way that someone may wish. Therefore, this section may be abused and misapplied.

Article VIII: Corrective Action

1.                  Section 2 Part B, page 36. Vague sentences such as such other action as deemed appropriate should not be used. This does not clearly spell out what the practitioners can expect. It is reasonable to know potential actions that can be taken. If the actions are consistent with the bylaws, the section of the bylaws that details the action should be specifically mentioned in this and other sections that use this kind of language. The more discretion that is given to those in power, the more dictatorial their power and the more arrogance they will have.

2.                  Section 1, Part C, page 35. This section is loaded with subjective determinations that can be interpreted in almost any way. This allows a bad faith action against a practitioner without any recourse. Needless to say due to the potential abuse in this section, there must be a substantial change in the language of this section. Basically, as written, anyone can request corrective action for anything at any time. Based on previous experience with the method of operation of the hospital and the MEC in the past, an allegation can be made and privileges suspended with a cursory or no investigation. Following this, the affected practitioner may be delayed in his/her hearing until their practice or money is gone. By this time the reputation of the practitioner is destroyed and the result is a loss for the practitioner regardless of the outcome of his/her attempt to have a hearing. This part is specifically designed for intimidation and control of the staff. There is no basis for this section and it should be deleted. Remember, you could be the next victim and the way that the HCQIA is worded, your only protection are these bylaws.

3.                  Section 2, Part A, page 36. If the request for investigation is considered to be sufficient on its face for corrective action, and this action is considered adverse to the affected practitioner, no action may be taken without an immediate (less than 5 days) opportunity for the affected practitioner to cross-examine the person initiating the request and also requiring the specific facts alleged in the request. This shall be considered a preliminary hearing and will be kept absolutely confidential. No hearsay shall be admitted. Any evidence by a witness other that the reporter of the request for corrective action must be presented by that witness to the affected practitioner in the preliminary hearing, with the right to question credibility. In addition, the affected practitioner has the right to provide a statement to the MEC. No person on the MEC who has a conflict of interest with the affected practitioner or who is in direct economic competition with the affected practitioner may vote as to whether there is a cause of action against the affected practitioner. Further, the person making the allegation against the affected practitioner shall submit to a review of his/her hospital practice to the same extent as any investigation against the practitioner alleged to require corrective action. This investigation will be conducted by the affected practitioner. By making the complaint and requesting corrective action, the accusing practitioner agrees to make his practice at the hospital subject to the same review as the practitioner against which the corrective action was requested.

4.                  Section 2, Part B, page 36. The committee should also not have members that are associates or partners of the individual initiating the investigation or individuals who are in economic competition with the affected practitioner. In addition, the affected practitioner should be informed of the investigation immediately at its initiation. The affected practitioner should also be informed and have the fight to attend any portion if the investigation desired. Secrecy of the facts is one of the ways that the sham schools recommend to eliminate a practitioner who doesnt toe the hospital line. Every doctor accused of any wrongdoing in any way should be immediately notified of the complaint and should have a right to attend every part of the investigation.

5.                  Section 3, Part B, page 37. If the MEC decides that an investigation is not warranted and the Board does, it should be required to present to the MEC and the affected practitioner the reasons that the MECs recommendation is rejected. This notification must be in writing and must give the specific reasons as to why the Board disagrees with the MEC. The Board is not permitted to use any evidence that was not previously presented to the MEC. This would be a trial by ambush. The affected practitioner must be given every opportunity to defend his/her actions before there is any formal action and hearing. In addition, involvement at the beginning stage may allow for an informal and confidential resolution of the problem before there is irreversible damage either to the practitioner or his practice.

6.                  Section 3, Part C, page 37. It appears that The Fair Hearing Plan is not part of the bylaws. This is a clever ploy of the Tenet lawyers to protect themselves from litigation should there be a bad faith removal of privileges. The courts have held that if rights are not spelled in the bylaws, they dont exist. The bylaws are often held to be the only rights that individual practitioners have. Thus, by taking the rights out of the bylaws the Tenet lawyers have effectively removed any liability for Tenet and any individual that does what Tenet wishes.

7.                  Section 3, Part D, page 38. Any action that reduces the privileges of any practitioner in any way including requirement for consultation, requirement for assistant not generally required, reduction of privileges, suspension of privileges, whether temporary or permanent, requirement for training, requirement for evaluation of any kind, denial of appointment, denial of increase of privileges, revocation of medical staff appointment, denial of reappointment, letter of reprimand, or sanction of any kind should have the right for a hearing. The reason is that repeated issues that are not protected by a hearing can be accumulated to show a repeated pattern of proven wrongs. This is another method of intimidating doctors recommended by the sham schools.

8.                  Section 4, Part A, page 38. Though there may indeed be that extremely rare circumstance that a doctor has to be summarily suspended, this action should only be taken in the most extreme situation. Rather than the reason being best interests of patient care, the extreme remedy of summary suspension should be reserved to those circumstances in which there is a risk of immediate significant harm to a defined patient. Further, the person requesting the summary suspension should be required to prove the allegations by clear and convincing evidence at the time of the summary suspension. Should this extreme remedy be necessary, the practitioner must have the right to challenge the summary suspension. This preliminary hearing should be conducted before a final decision is made regarding whether the summary suspension is to be applied. The AMA recommends this preliminary hearing. The sole issue at this hearing, which should be held at the earliest possible time, will be whether there is an immediate risk of substantial harm to a defined patient. The burden of proof is strictly on the entity or person who has requested the summary suspension. The hearing must give the affected practitioner at least one week to prepare, however, without denial of any other rights and without denial of the preliminary hearing, if the hearing is delayed for more than 2 weeks due to delay by the affected practitioner, the summary suspension can go into effect until the preliminary hearing is conducted. Regardless of the outcome of the hearing, the affected practitioner waives no other rights. If the summary suspension is determined to be justified, then it may take effect, but the full hearing is then deemed to be requested without any further demand by the affected practitioner. If the summary suspension is determined to have no basis, this will be reported by the preliminary hearing panel and the accusing entity or individual will be presumed to have acted in bad faith.

9.                  Section 4, Part B, page 38. This section is unfair, and reduces normal rights to a joke. Though a few parts may be recoverable, the overall purpose of this section is to give the certain selected individuals the right to intimidate any practitioner they wish. If a group wants to get together and eliminate all competition, this section as written gives them the tools to do it.

10.              Section 4, Part D and E. These parts need to be completely rewritten to be in compliance with AMA guidelines. The investigation should be conducted prior to the suspension, not after. To take this action without sufficient facts is unethical and demonstrates a basic procedural flaw. These two sections require considerable rewriting as they are inherently unfair as written and since they are contrary to the consensus guidelines of the AMA, may result in liability for the medical staff.

11.              Old Section 4, Part B and C, page 39. This section though flawed is superior to the new section, which tends to reduce rights.

12.              Section 4, Part f, page 40. Should a summary suspension result in the inability of a practitioner to take care of his/her patients, the liability for any care resulting to the affected patients will be borne by the Chief of the affected service.

13.              Section 5, Part A, page 40. Probation should not result in automatic suspension.

14.              Section 5, Part B, page 40. There should be no bylaws requirement for liability insurance for any individual practitioner.

15.              Section 5, Part C, page 40. Though this section is generally OK, the implication is that if the medical records department reports a practitioner for failing to follow the rules re medical records, the practitioner is automatically suspended without recourse. Further, if some practitioners are treated differently than others, there can be claims of bad faith brought against the medical staff.

16.              Section 5, Part E, page 40. Though this might require an immediate investigation, only being proven guilty of a felony should result in automatic suspension.

17.              Section 5, Part F, page 40 is overbroad and probably violates constitutional rights under TN and federal law.

18.              Section 5, Part G, page 40. The notice should be required to give specific reasons for the action taken. In later hearings, the hospital or medical staff is limited to the specific allegations in this notice.

19.              Section 5, Part H, page 41.Any action taken in his section should have the right of appeal. This applies whether the action is reportable or not. Any action taken under any circumstances in any form that results in decrease or restriction in any way of a practitioners privileges requires the Fair Hearing rights.

20.              Section 6, page 41. Though the MEC should have the right to perform investigations, secrecy is the enemy to truth. Thus, if an investigation is conducted for any reason, the affected practitioner or individual is to be notified of the allegation, shall be allowed to present evidence regarding the allegation, and shall be informed of the progress and results of the investigation. If the investigation results in any action against the practitioner, he/she will have the right to a hearing. The way this is written, an unsubstantiated report could be entered against a practitioner, and this could then be used in the future as a proven fact.

Article IX: Hearing and Appeal Procedures

1.                  This entire section was removed by the Tenet lawyers. This was done to avoid liability for failing to follow the rights as prescribed in the bylaws as described above. This is an obvious bad faith attempt to be able to intimidate, threaten and control the physicians. It is such a transparent attempt to seize power, it is hard to believe that they thought that they could get away with it. The people who would try to do this would also try anything else.

2.                  Even before is was removed, though this section was substantially improved from the previous Article IX, it still had several flaws. This section was presented to the bylaws committee for modification a few years ago and the attempt was suppressed by Brian Flynn with the approval and assist of David Wilson. The modified sections of both Corrective Action and Hearing and Appeal Procedures are as follows.

ARTICLE VIII: CORRECTIVE ACTION

SECTION 1: Grounds for action

A. 1.    When a complaint occurs involving an individual with a current Medical staff             appointment, this complaint should be filed with the immediate supervisor of the

complainant. At this point, if the complaint is felt to have merit it will be forwarded the head of the department involved.

The Department Head will then have the obligation to make an informal investigation of this complaint, which shall involve discussion with the staff member involved. In all situations, if possible, it is preferable that the issues be resolved informally and promptly if possible. If the complaint has no merit a notation is to be made in the complainants file and the Medical Executive Committee is to be notified that a baseless complaint was filed for future reference. This is to determine if a pattern develops.

            If the issue cannot be resolved informally, then the matter will be referred to the        Chief of Service of the affected physician. The Chief of service will then             investigate the complaint before presentation to the service. This complaint will      be handled in the executive session of the service committee and forwarded to the             Executive Committee with a 1 through 4 recommendation as any other quality             issue.

            No permanent action can be taken that will result in any change of privileges or             any permanent record in a members file unless the member expressly agrees in             writing to waive the hearing procedure. If an action may be taken that would result in any kind of permanent record either in the minutes or a members file       the member is to be immediately informed to allow the formal hearing process in             Article IX.

    2.     An investigation may be requested by the Chief of staff, a majority vote of any             committee, the chairman of any major service or by the Chairman of the Board. The chief executive officer may request an investigation by application in writing to the chief of staff who then shall determine if the investigation is indicated             according to:

            a. The person requesting the investigation must submit a written signed request to                          the Medical Executive Committee  indicating the grounds for the investigation.

b. A majority vote of the executive committee is necessary to proceed with the       investigation. The committee prior to this vote should review the written request. The staff member for whom the investigation is requested does not    have the right to be present at this vote.

            c. A quality issue report forwarded by the appropriate service committee with a                grade of a 3 or a 4 will for the purposes of this section be considered equivalent

               to a written request for an investigation addressed to the MEC.

    3.     An investigation may be requested whenever questions arise concerning an             individual with a current medical staff appointment who:

a. fails to comply with the ethics of his/her profession or the bylaws, rules

                and regulations of the medical staff pertaining to any aspect of his/her                              behavior or the policies of the hospital relating to the medical staff as                              approved by the medical staff; or

b. shows behavior or conduct is considered by a majority private vote of the  medical staff to be lower than the standards of the medical staff, excluding those members who are in direct competition with the affected practitioner, or any associates of any members who are in direct economic competition with the affected practitioner; or

            c.  is unable to work harmoniously with others with others to the extent

that it affects the orderly operation of the hospital or medical staff organization, as determined by a majority secret ballot of the members committee excluding any members who are in direct competition with the affected member, or who are associates of those in direct competition with the member; or

            d. if there are questions as to his/her clinical competence; or his/her care or                    treatment of a patient.

    4.     All such requests or investigations shall be in writing, shall be made to the Medical Executive Committee, and shall be supported by reference to the individuals specific activity or conduct, which constitutes the grounds for the request Further, when informed of the investigation any allegations of the affected party are to be investigated with the same intensity and vigor as those made against the affected party.

B.         No action of the type mentioned in this part may be taken without the right to a      hearing and appeal unless these rights are specifically waived in writing by the             member who may be subject to a permanent action. A member may be suspended             without hearing for medical records violations in accordance with the rules and             regulations. Suspension due to medical records violations is not a disciplinary             action, however; if continued violations require additional action this additional             action will be considered disciplinary.

C.             Definitions:

    1.     Any letter temporarily placed in the educational file is not a permanent action falling under this section, but if this letter is used either as evidence resulting in a permanent action or is extended such that it is deemed permanent then the affected member may request the appropriate procedure for hearing an appeal be followed either in accordance with this part or Section IX.

    2.     The following are permanent disciplinary actions:

a. Issuance of a letter of reprimand. This letter must be clearly designated as a       letter of reprimand and if not so designated will in every case be considered an        educational action. A letter of reprimand may outline and contain, but is not limited to the following: To be a letter of reprimand the words  this is to be                    considered a letter of reprimand must be somewhere in the letter.

b.  Reduction of clinical privileges.

c.   Permanent suspension of any clinical privileges.

d.  Revocation of staff appointment.

e.   Probationary Term

f.    Mandatory consultation

    3.     Ex parte means without the affected party present.

    4.     An educational action is any action taken by the Medical Executive Committee                     that is not a permanent disciplinary action as defined in this section.

5.     Rights of the affected member in a permanent disciplinary action are as                  follows:

                a. The accused has the right to question anyone who files a complaint against                                   the member or causes a complaint to be filed.

                b. If the accused is denied the right to question the person making the                                          complaint above then he \she has the right to exclude the report in its                          entirety and it may not be considered as evidence in the issue at hand. If the                        excluded report is the only basis for a potential action the entire process is                              dismissed and terminated.

                d. The affected member has a right to be present at all formal processes of the

                    Medical Executive Committee once it is determined the recommendation                            may be a permanent action.

                 e. The affected member has the right of appeal to the Board for any permanent        disciplinary action, but not for educational actions.

                f. The affected member can waive any or all of these rights in writing.

                g. The waiver of a particular right does not waive any other rights and if there

                    is a question of which if any rights were waived the presumption is that the                                 right was not waived.

                h. Even if a right is waived the waiver may be rescinded by the affected party at                   any time until the final recommendation is made by the Medical Executive                             Committee.

                 i. Discussion of any issues regarding a possible permanent disciplinary action                     or  educational action if the hospital employees involved become known to                            the accused member outside of the Medical Executive Committee meeting is

                    unprofessional behavior and may subject the member to further action.

                    This is meant to protect the employee from unwanted discussions outside of

                    the more formal committee process. The employee has the right to discuss

                    the issues with the involved member outside of the Executive Committee

                    but the choice is with the employee.

            7. The Chief of a major service is defined as the Chief of Medicine, OB/GYN,                              Pediatrics, or Surgery.          

SECTION 2:  Investigative Procedure

A.        If the request for the investigation or complaint contains information determined to be adequate for the Medical Executive Committee to make a recommendation

they may do so subject to the accused members right to a hearing and appeal if the action taken by the committee is permanent. Further, the accused has the right to request an investigation even if the Medical Executive Committee feels the original report is sufficient to render a recommendation. If this right to an investigation by the accused is waived it must be in writing and signed by the accused..

B.         Once the Medical Executive Committee by majority vote determines that the             initial             request is adequate to proceed without investigation the accused party is             to be notified and no further action or investigation is to be performed without the             accused party being present. The accused party is to make time available to         meet with the committee and repeated failures to be present at the time of any             discussion regarding the request may result in loss of the right of the accused to             be present and may result in action being taken by the committee ex parte.

C.        If the Medical Executive Committee, by a majority vote, determines that the initial request is inadequate to proceed without an investigation, the accused is to be notified of the nature of the complaint and that an investigation has been initiated. The accused party has the right to sit in on any interviews or formal proceedings of the Executive Committee in the course of the investigation. The accused member does not have the right to attend interviews or other evidence gathering of the investigative committee if one is appointed. Only the evidence presented at the formal meeting of the Medical Executive Committee will be considered in             determining an action to finally be taken. The accused has the right during the meeting to question anyone who submits evidence to the MEC or causes evidence to be submitted.

            The Medical Executive Committee may investigate the matter in a body as a             whole, or if it is deemed necessary, appoint an investigating committee. This             committee shall consist of three members of the Medical Staff at least one of

            Who must be a Medical Executive Committee member. The individual with             respect to whom an investigation has been requested shall have an opportunity

to meet with the committee before it makes its report to the MEC. No member of the investigative committee shall be in competition against the member or an associate of the member in direct competition. In addition, no member of the investigative committee shall be a partner or associate of the person requesting the investigation.

            At this meeting (but not as a matter of right in advance of it) he/she shall be             informed of the general nature of the evidence supporting the investigation

            requested and shall be invited to discuss, explain, or refute it. This interview shall

            not constitute a hearing, and none of the procedural rules provided in this bylaws

            with respect to hearings shall apply. A summary of such interview including any             remarks made by the accused at the informal meeting shall be made by the             investigating committee. If a subcommittee or investigating committee was used,

            the MEC may accept, modify, or reject the recommendation it receives from the

            investigating committee. This decision is by a majority vote of the MEC with any

members of the MEC that were on the investigating committee not allowed to vote. Further, no member or associate of any member of the MEC who is in competition with the affected member may vote.

            The accused member has the right to be present when the investigating committee             makes its report to the MEC. Further, the accused member may, if the action at             this time is determined to possibly be permanent, present his/her own evidence at         the meeting of the MEC and to also question any of the witnesses that have             provided evidence against him/her. Failure of a witness to allow this questioning

             for any reason will cause their previous testimony or evidence to be completely             stricken. This information may then not be used by the MEC to reach its decision.

At any time during the investigation, if it is determined that there is a reasonable good faith belief that there is a significant safety issue involving either patient care or the hospital staff, the Medical Executive Committee may suspend all or any part of the clinical privileges of the member individual being investigated. This suspension shall be administrative in nature, for the protection of the patients and/or staff. It shall remain in effect during the investigation only, shall not indicate the validity of the charges, and shall remain in force without appeal during the course of the investigation. If any suspension is placed in effect, the investigation must be completed in 7 days or the reasons for the delay shall be transmitted to the Governing Board within 8 days of the suspension so it may consider whether the             suspension should be lifted. The Governing Board must make a recommendation as to whether to continue or lift the suspension within 48 hours of notification of  the delay from the MEC. If there is failure to follow any step delineated above regarding administrative suspension, then the suspension is automatically lifted without any further action by either the Governing Board or the MEC. If no suspension is involved, then the investigative process should be completed within 30 days. .

SECTION 3:   Procedure Thereafter

A.        In acting after the investigation and hearing, the Medical Executive Committee             may:

            1. Dismiss the complaint if the investigation has not supported the allegations,

2. Issue an educational action, which is not a permanent action and may consist of, but is not limited to the following:

                a. Continuing Medical Education

                b. Requirement for Consultation

                c. Requirement for Proctoring

                d. Other educational activity as might be defined by the MEC.

            3. An educational action is to be placed in the members educational file and                             completely purged at the end of the period determined by the Medical

                Executive Committee to be the term of the action if successfully completed

                by the affected member. This period shall in no case exceed 6 months.

            4. A permanent disciplinary action is placed in the members permanent file.

B.         The transfer of an educational action to the permanent file or use of any of

             the materials in the educational file for determination of a permanent action

             will allow the application of all rights of the affected member regarding any

              of the materials used. This will be treated as a new action.

C.        Any recommendation by the Medical Executive Committee for a Letter of             Reprimand associated with a permanent disciplinary action shall automatically             trigger the procedural rights provided in Article IX: Hearing and Appeal             Procedures.  Such a recommendation shall be forwarded to the Chief of Staff who             shall promptly notify the affected individual by certified mail, return receipt             requested.

D.        If the action of the Medical Executive Committee results in an educational action              such as that described above it will take effect immediately and without right of             appeal to the Board. However, if the action of the Medical Executive Committee             results in any action that would be considered a permanent disciplinary  action,             limited to the actions delineated in Section 1, D 2. above  there is an absolute             right of Appeal under Article IX. Any member of the Medical Executive             Committee who participated in the decision to recommend a permanent action, or             any partner or associate of either the accused member or a member of the             Medical Executive Committee who also sits on the Board will not be permitted to             participate in the appeal determination. Any action recommended by the Medical             Executive Committee is held in abeyance until the Board affirms the action of the             Medical Executive Committee. The Board shall have the right to conduct their             own investigation or may evaluate the case on the record. If the Board decides to         use the record no additional evidence may be presented by the Medical Executive             Committee. The accused member has the right to attend any Board meetings in             which his case is discussed. The Board may recommend the action be carried

            out in its entirety, may dismiss the action entirely, or may modify the action.

E.         The chairman of the Medical Executive Committee shall promptly notify the chief             executive officer in writing of all requests for action regarding a practitioner             currently appointed to the medical staff received by the Medical Executive                    Committee if there is determined to be merit in the request as described above and keep the chief executive officer fully informed of all action taken in             connection therewith.

Section 4:   Summary Suspension

A.        Any one of the following:  The Chairman of the Medical Executive Committee, the Chief of any major Service, the Chairman of the Board, the Chief Executive Officer and the Medical Executive Committee of either the medical staff or the governing body, shall each have the authority whenever action must be taken immediately if and only if there is am immediate significant danger to a patient or hospital personnel, to summarily suspend all or any portion of the clinical privileges of a practitioner, and such summary suspension shall become effective immediately upon imposition, but are subject to the preliminary hearing procedure described below.

B.         A practitioner whose clinical privileges have been summarily suspended shall be        entitled to request that the Medical Executive Committee hold a hearing on the

            matter within 7 days. 5 days. If the MEC investigation supports maintaining

            summary suspension, the affected individual then has the right to request that his

            rights for a hearing in accordance with Article IX be completed within a 21 day

            time frame. This is the only instance in which the standard time frame of Article

            IX proceedings may be modified.         

C.                 The Medical Executive Committee may recommend modifications, continuance or termination of the terms of the summary suspension. If, as a result of such hearing, the Executive Committee does not recommend immediate termination of the summary suspension, the affected practitioner shall, also in accordance with Article IX,  be entitled to request appellate review by the governing body, but the terms of the summary suspension as sustained or as modified by the Executive Committee shall remain in effect pending a final decision thereon by the governing body. If the affected party selects the appeal process under this part, appeal to the board shall be convened within 7 days after the hearing of the Medical Executive Committee is completed. The hearing in the Medical Executive Committee is limited to 2 days. Thus, the entire process under this part should be completed in approximately 20 days from the time of the initial summary suspension. 

D.                 Immediately upon the imposition of a summary suspension,  the chairman of the Medical Executive  Committee or responsible Chief of Service shall have authority to provide for alternate medical coverage for the patients of the suspended practitioner still in the hospital at the time of such suspension.  The wishes of the             patients shall be considered in the selection of such alternative practitioner. The moment that a summary suspension is placed in effect, all liability of the care of the affected members patients transfers to the Chief of Service, the Chief Executive Officer and ultimately the Medical Staff. If no coverage can be found the ultimate responsibility and liability for patient care is the Chief of Staffs and the Chief Executive Officers.

Section 5:  Automatic Suspension

A.        Action by the applicable state professional licensing board revoking,  suspending,  or otherwise resulting in termination of a practitioners license,  or placing him on  probation,  shall automatically suspend all of his hospital privileges.  (revised 2/93)

B.         Failure of a practitioner to maintain adequate professional liability insurance coverage,  as required by these bylaws,  or to provide documentation of his license or DEA certificate,  shall automatically suspend all of his hospital privileges.(revised 2/93)

C.        It shall be the duty of the Chief of the Medical staff  to cooperate with the Chief Executive Officer in enforcing all automatic suspensions. Nevertheless, the final authority for automatic suspension of any staff member who is a physician lies with the Chief of the Medical Staff and he/she will be held responsible for this action.

Section 6:  Effects of Bylaws Change

A.         A check is to be made of each medical staff members permanent file by the             hospital personnel assigned to this task. Anything in this file that does not fall

            into one of the permanent disciplinary actions listed in this part (for example

            a warning letter) is to be moved to that members educational file. An educational

            file is to be maintained on every member of the medical staff.

B.         If the Medical Executive Committee decides to change the status of  what under   this section would be an educational action to a permanent disciplinary action then the rights of the affected member are triggered and the action is treated as a             new action. An example would be to take a letter not delineated as a letter of             reprimand such as a warning letter and change it to a letter of reprimand.

C.        Each member of the medical staff may request a copy of their permanent or             educational file at any time and it should be provided in a timely basis (30 days).

D.        Any action previously taken that is dated more than 6 months prior to the passage             of this part of the Bylaws which is not a permanent disciplinary action is to be

            purged from the permanent file and not placed in the educational file.             Nevertheless, the Medical Executive Committee may request that an older action be maintained             in the educational file for the first 6 months if there is a written             explanation for this.

ARTICLE IX: HEARING AND APPEAL PROCEDURES

Section 1: Initiation of the Hearing

An applicant or practitioner holding a medical staff appointment shall be entitled to a formal hearing whenever a recommendation unfavorable to him has been made by the

Medical Executive Committee (MEC) regarding the matters enumerated in Section 2B

of this Article or any other action by the MEC considered or delineated as a permanent

action under Article VIII of these bylaws.

The affected individual shall also be entitled to a formal hearing before the governing body enters a final decision, in the event that the governing body should determine to reject a favorable recommendation by the MEC regarding any of these matters.

Article IX as excluded by the Tenet attorneys is reasonable well written, but there are flaws. The following recommendations are made:

1.      Based on previous experiences at this and other Tenet hospitals, the hearing should not occur before 30 days and can be delayed to 60 days at the request of the affected practitioner. Additionally, once the hearing commences, it shall continue until the completion of the hearing. This may be waived at the by agreement of the MEC and the affected practitioner, or by the affected practitioner alone if an agreement cannot be reached. Further, the hearing may not be delayed for more than 90 days unless approved by the affected practitioner.

2.      The rights transmitted to the affected practitioner in the return receipt letter must include all the rights for the affected practitioner. These include:

a.      A specific delineation of all of the acts and/or omissions that have resulted in the present allegations. This must specifically identify the date, time, circumstances, and witnesses as well as the reporting individual for each of the acts and omissions. This disclosure must be in writing.

b.      The affected practitioner will have at least 30 days from the receipt of the letter to request a hearing.

c.      The time until the hearing must be at least 30 days, but no more than 90 days after the hearing has been requested by the affected practitioner unless the affected practitioner decides to delay the hearing to prepare for up to 180 days.

d.      The affected practitioner may be represented by counsel at the hearing.

e.      The affected practitioner may ask for any evidence and/or discovery that is reasonably expected to assist him/her in the defense of the allegations.

f.        If there is a dispute as to what discovery is permitted, this will be decided by the hearing officer. The ruling of the hearing officer is final in these disputes.

g.      The hearing officer is to be selected with input from the MEC and the practitioner. The hospital is to have no input to the selection of the hearing officer.

h.      The hearing panel is to be selected by the MEC and the affected practitioner. This panel is to have a minimum of 3 and no more than 5 members. This panel is to be selected by input from the MEC and the affected practitioner. The hospital is to have no input regarding the panel selection. The affected practitioner may remove any panel member for cause whenever the cause is determined, particularly if the situation changes during the course of the hearing. Any obvious bias or finding of conflict of interest will be cause for dismissal from the panel. No hearing panel member may be in direct competition or associates with anyone who is in direct competition with the affected practitioner.

i.        If the MEC wishes to be represented by counsel they may do so. There is no requirement for either the MEC or the affected practitioner to have representation. The representation, if requested by either side, does not have to be a licensed attorney.

j.        The hospital will be required to pay for a court reporter at the request of either the affected practitioner or the MEC.

k.      If the MEC elects to be represented by counsel, they will be required to pay for the counsel. If the hospital agrees to pay for the MECs counsel, the hospital will also be required to pay for the affected practitioners counsel.

l.        Though the hospital may have a representative at the hearing, this representative is present to observe only and may not in any way participate in the hearing except if called to present evidence.

m.    Either party may request the exclusion of all witnesses with the exception of the representative of the MEC and the affected practitioner. In addition, the representative of the MEC who begins the case will be the only representative permitted to be present throughout the entire hearing.

n.      The affected practitioner will be permitted to call any witnesses that he/she wishes. The MEC will be required to produce these witnesses, even if they are considered hostile to the affected practitioner. If a witness that in any way has been related to any allegation that is in dispute at the hearing is not produced after being requested by the affected practitioner, it will be presumed that either the evidence relating to that witness is wholly unreliable and must be excluded or that had the witness testified, the testimony would have been beneficial to the affected practitioner.

o.      If there is a dispute as to whether a witness for either side should be allowed to testify, the party wishing to call the witness shall make an offer of proof to the hearing officer. The hearing officer shall then decide whether this witness should be allowed to testify. The hearing officers ruling is final.

p.      The burden of proof as to the allegations contained in the letter to the affected practitioner is on the MEC and their representative at all times. At no time does this burden shift. If at the time that the MEC has concluded its proof, there has not been clear and convincing evidence that the allegations are true, the affected practitioner can move that the hearing officer dismisses the complaint. The decision of the hearing officer is final.

q.      If at the end of all proof, the hearing panel determines that the MEC has not proved its case, the affected practitioner file is to be cleared of all allegations or complaints related to the present hearing.

r.       The governing board is required to either accept the findings of the MEC or if they disagree, they must put the reasons in writing as to why they disagree. They may not disagree with regards to the evidence provided and may not use additional evidence to make a determination. The board will be required to assess the case with a presumption that the decision of the MEC was correct and will base their decision on the record only. In addition, in determining whether the decision of the hearing panel is to be accepted, they must base their decision on the record only.

s.       The other rights in the hearing procedure not inconsistent with the above.

3.      Any action deemed permanent is subject to a formal hearing unless this right is specifically waived in writing by the affected practitioner.

4.      Any action may be appealed, but if the action is related to loss of license, loss of DEA, failure to do medical records, or another cause that is clearly a reason for termination or limitation of privileges, and the affected practitioner decides to appeal and then fails to prevail, the cost of the appeal will be charged to the affected practitioner.

5.      The time and place for the hearing is to be determined jointly be the MEC and the affected practitioner. This must give the affected practitioner at least 30 days to get his/her case together. As noted above, this time may be extended by the affected practitioner, but must occur within the time period designated.

6.      At the time that the allegations are made, the affected practitioner is to be supplied with a list of all charts in question if any, a list of all adverse witnesses, and a specific list of allegations. The hearing is to be limited to material that was  presented to the affected practitioner.

7.      The affected practitioner is to be given access to any witnesses named by the hospital, and these witnesses may be questioned either informally or in a deposition type setting if requested by either the affected practitioner or the MEC.

8.      Any action regarding privileges is stayed until the hearing is completed.

9.      If there is an immediate danger to a specified patient or hospital personnel, the restrictive action may take place immediately after a preliminary hearing to determine if there is an less radical remedy than to remove privileges. This section does not inhibit the reaching of a mutual agreement as to how to proceed, and these agreements are encouraged.

10.  If the affected practitioner decides not to testify on his/her own behalf, the affected practitioner may not be called by the MEC to testify as an adverse witness. This failure to testify may not be considered to be an admission of any wrongdoing and is not to be considered when weighing the evidence.

11.  The hearing panel and hearing officer may ask the witnesses questions for clarification or evidence.

12.  As a general rule, evidence will be permitted based on its reliability and probative value as determined by the hearing officer. Unsubstantiated testimony should not be considered. Affidavits and letters may be considered if authenticated, but under no circumstances will any evidence be permitted against the affected practitioner unless he/she has the right to cross-examine the originator of the evidence, unless the evidence is from a learned treatise generally accepted as true by the medical community.

13.  Burden of proof needs to be clear and convincing, not more likely than not i.e. a preponderance of the evidence.

14.  The affected practitioner should have an appeal as a right.

15.  An affected practitioner may reopen the case if it is discovered that a witness lied, provided false information, or falsified documents or charts in such a way to prejudice the affected practitioner.

Needless to say, all the protections and due process rights of any affected practitioner should be spelled out in the bylaws. The bylaws as changed by the Tenet lawyers are designed to subtly give complete control of the medical staff to the hospital regardless of what you may be told. Remember that you could be the next person the hospital or one of your colleagues wish to eliminate. The due process touted in the HCQIA is a shadow of true due process and can be deviated from with impunity. Remember that you could be next.

Note that according to Article XI, Section 5, page 59, there is no right for the hospital or Tenet to change or even suggest changes to the bylaws. It is quite apparent that the bylaws committee had little input and may not have even read the changes. This, by the way, is also suggested by various schools telling hospitals to maintain an iron control over their medical staffs.

Article XIV: General Provisions

1.      Section 3, page 65. Using the term fiduciary is dangerous in this section. A fiduciary has an absolute obligation to the institution to which they are a fiduciary. Technically agreeing to this language means that any officer may be required to provide tax records, financial statements, or other personal information. This essentially allows invasion of any officers property by any official, officer, representative or agent of Tenet or any of its hospitals or subsidiaries. An officer can be asked to disclose any potential conflicts of interest, but these disclosures should only be limited to public holdings such as in a competing facility, or interest in a facility that competes with the hospital, but the way it is written, the officer may be required to prove the statements. In addition, owning stock in HCA or any other company that competes with Tenet could be construed as a conflict of interest. I would submit that this section is dangerous and should be rewritten.

FINAL COMMENTS

1.      Any and all due process rights must be spelled out in detail in these bylaws.

2.      The only protection the members of the medical staff has are these bylaws.

3.      The hospital and the medical staff are naturally adverse parties. The hospital is a for-profit organization whose primary responsibility by law is their stockholders, not the doctors and patients who use their facilities. Tenet cares about profits, hopefully the majority of the doctors (unfortunately, not all), care about the welfare of the patients. The only reason the hospital is even remotely interested in patient care, is that lawsuits and a bad reputation cause a loss of profits. Nevertheless, even hospitals with the reputation of Centennial in Nashville are so arrogant that the administrator actually chose to loose a doctor generating over $250,000 in profits per quarter by himself than to admit that the allegations made against that physician and proven false were untrue.

4.      The only reason Tenet even considers improvement of patient care is either to improve their profit or to advertise (read PR) to improve their profit. Like all corporations, the primary question is not the long-term plan, but what has happened this quarter.

5.      Remember, that in California, doctors are suspected of doing many unnecessary operations, and yet the peer review process missed these. The evidence is extremely strong that unnecessary surgery was performed. This is a crime. The Tenet lawyers have said they didnt know it was happening even though the rate of surgery was 3 times the normal rate. Even if it did happen, contend the Tenet lawyers, the hospital did nothing wrong.

6.      Mr. Barbikow, the CEO of Tenet essentially admitted on national TV, that Tenet was gouging Medicare patients. Though he acted as though he had just found this out, here in Tullahoma, we have known about it for years. Every time a doctor complained, they were told, You know, youre the only one who ever said anything.

7.      Also in Texas a few years ago, Tenet, then known as NME, allowed its employees to essentially kidnap people with emotional and mental disorders off of the street, incarcerating them without due process. Though
NME was sanctioned and eventually changed its name to Tenet to get rid of the stigma, the Tenet lawyers proclaimed that the hospital had done nothing wrong. These same lawyers or at least members of the same firm are the ones who rewrote your current bylaws.

8.      It is important to evaluate these changes as to what could happen, not what the Tenet lawyers say will happen.