Clarity for California medical personnel about statutory and common law fair hearing rights

A new opinion recently published by the California Court of Appeal for the Second District, Asiryan v. Medical Staff of Glendale Adventist Medical Center et. at the.provides clarity to California medical personnel on the question of whether common law due process rights in evaluation and hearing processes are available beyond the statutory rights contained in Business and Professions Code section 809. and following The case also invites thought and discussion about the risks associated with medical personnel participating in preliminary discussions with professionals in the corrective action process.

The decision and its impact

In the Assyrian In the case, the California Court of Appeal for the Second District was asked whether the statutory hearing procedures set forth in Business and Professions Code 809 and following they supersede common law fair hearing rights that exist in other federal and state law settings. In its review, the Court noted that early California jurisprudence governing physicians’ rights arising from remedial action by medical personnel was based on those long-standing doctrines of due process. The Court considered, however, that by enacting Article 809 and following in 1989, the California legislature intended the statutory law to supersede any common law fair hearing claims against medical personnel. Therefore, the Court precluded Dr. Asyrian from proceeding with claims beyond those specifically set forth in Section 809. and following

For medical personnel, this means that there is no separate action for common law fair hearing rights, only the procedures set forth in section 809. and following. to apply. The Court also made an effort to narrow the potentially expanded reach of section 809 and following. audience rights that have been perceived under the Economy v. Sutter East Bay Hospiceto the Box.

Upon further review of the facts and circumstances giving rise to this litigation, this case invites further consideration of the risks involved and how medical personnel might approach discussions related to corrective actions.

Background of the case

In Asiryan v. Medical Staff of Glendale Adventist Medical Center et. at the., the clinical care and conduct of Dr. Assyrians came under the scrutiny of the medical staff at Glendale Adventist Medical Center. In February 2018, medical staff placed Dr. Asiryan under investigation. In September 2018, Dr. Asiryan was informed of concerns regarding her clinical care and conduct and was invited to meet with an ad hoc committee on October 18, 2018. Prior to this meeting, Dr. Dr. Asiryan performed a caesarean section in which the department chair was present. The case involved some difficulties and the baby required resuscitation, intubation and transfer to the neonatal intensive care unit.

The next day, Dr. Asiryan expressed her willingness to resign to avoid potential damage to her reputation and a Section 805 report. The department chair and outgoing chief of staff, however, determined that Dr. Asiryan posed an imminent danger to patient safety and summarily suspended Dr. Asiryan on October 16, 2018. During the meeting to inform Dr. Asiryan of the summary action, a discussion related to the waiver occurred. Dr. Asiryan stated that she was told that if she resigned, she would not be reported to the Medical Board of California (MBC) or the National Practitioner Data Bank (NPDB); whereas, the medical staff stated that they informed Dr. Asiryan that if she resigned, she would be reported to the MBC and the NPDB. Dr. Asiryan resigned and the medical staff reported her resignation while under investigation at the MBC and NPDB.

Dr. Asiryan later filed suit alleging that she was misled into resigning by misrepresentation of reporting requirements and thereby waived her rights to a summary suspension hearing under the Business and Professions Code 809. and following. He claimed that this constituted a violation of the fair hearing procedures set forth in section 809. and following (ie, lack of adequate notice) and separately constituted a violation of the common law right to fair hearing procedures. The trial court ruled on motions that only the statutory provisions of section 809 and following applied and allowed the case to go to trial on the claim of misrepresentation by the leadership of the Glendale Adventist medical staff. At trial, the jury found in favor of the medical staff and Dr. Asiryan appealed.

Court of Appeal Addresses Open Question in California: Business and Professions Code 809 and following replace the common law to fair hearing procedures? The Court found that yes, in the peer review setting under Business and Professions Code 805 and following and 809 and following, organic law replaces common law. This means that, for medical personnel, there is no separate cause of action for common law fair hearing rights; only the procedures set forth in Section 809 and following. to apply.

Suppliers usually quote Potvin v. Metropolitan Life Ins. co. for the proposal that they should achieve separate common law fair hearing rights from legal peer review fair hearing rights. The Court here effectively dismissed these claims by making a clear and decisive distinction between the case of Dr. Assyrians and the They could Box. He found, They could, addresses the obligations of health insurers not covered by California’s peer review statute. The courts’ conclusion can be further expanded to refer to the narrowly enumerated remedies that give rise to fair hearing rights and proceedings under Business and Professions Code 809.1 are the only circumstances in which ‘offer fair hearing rights. The Court especially dealt with the Economy v. Sutter East Bay Hospiceto the case in a way that suggested a narrower reading and understanding of the Economy case of what has been commonly perceived. In fact, the Court rejected the argument that the Economy The case represents the proposition that attempts to circumvent indirectly and subtly the spirit of … section 809, while technically complying with the letter of the statute, provides a basis for legal action. The Court opined under the unique circumstances of the [Economy] case, when the employer affiliated with the hospital fired the doctor [at the hospitals request for medical disciplinary cause or reason], the hospital’s medical staff must also have necessarily revoked their privileges at the hospital, an act that triggers statutory hearing and notice obligations, which neither the hospital nor its staff had met. This is consistent with the courts’ conclusion Asiryan v. Medical Staff of Glendale Adventist Medical Center and offers a narrower approach to audience rights than I might have understood Economy v. Sutter East Bay Hospiceto the Box.

Additional considerations

As a more practical point, this case also highlights the risks associated with discussions with professionals during the corrective action process. This is a necessary and common practice and, in many cases, considered a professional courtesy. The case of Dr. Asyrians, which involved disagreement over what was said regarding the waiver and denunciation requirements, is a reminder, however, that very different versions of the talks can emerge from the process.

Such conversations may trigger a reporting requirement and should therefore be treated with caution. As a reminder, under California law, medical personnel must notify a provider to the MBC in the event of a resignation, leave of absence, or withdrawal or abandonment of a request for privileges after notice of ‘an investigation or notification of a pending denial. of privileges Similarly, the NPDB adds and requires reporting in the event of a waiver during an investigation or avoid research

In the case of Dr. Asiryan, the waiver discussion was close to both the investigative action and the adverse remedial action. She wanted to avoid reporting to the MBC and the central argument in the litigation was the alleged misrepresentation of reporting requirements. Allegations of misrepresentation highlight the need to engage in clear communication related to corrective actions and their consequences, to have this discussion in the presence of several members of medical staff leadership, and to recall the discussion in writing immediately after its conclusion .

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