Due Process ….. “Fairness”
You do not have “DUE PROCESS” rights at a Peer Review Hearing. If you want due process rights, commit a murder. You will have lots of rights and a fair trial. If you’re a doctor facing peer review forget about “rights”. Here is a California case that summarizes the “rights” that you have in these hearings. Pay attention to what we have placed in bold.
You get “Fair” but Not Due Process
We begin with Dr. Dennis’s argument based on “due process.” Throughout this proceeding, Dr. Dennis has repeatedly asserted that she has been denied “due process.” To the extent Dr. Dennis means to suggest she has a right to due process of law under the state and federal Constitutions with respect to the peer review process, she is mistaken. As explained in Goodstein v. Cedars–Sinai Medical Center (1998) 66 Cal.App.4th 1257, 78 Cal.Rptr.2d 577, “ ‘[s]ince the actions of a private institution are not necessarily those of the state, the controlling concept in such cases is fair procedure and not due process. Fair procedure rights apply when the organization involved is one affected with a public interest, such as a private hospital.’ ” (Id. at p. 1265, 78 Cal.Rptr.2d 577, quoting Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657, 163 Cal.Rptr. 831.)
Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 101–102 [26 Cal.Rptr.3d 744, 755]
“Fair Procedure” Means You Get a Fair Peer Review Panel but ……
A fair panel in a criminal court is well defined. Yes, in peer review you get a fair panel except the jurors are proposed by the same entity bringing the charges against you. You don’t get to ask questions and the basis for disqualification is vague at best.
Read what the California Supreme Court says on this point. (We put some parts in bold)
The “peer review statute, like the common law fair procedure doctrine that preceded it, ‘establishes minimum protections for physicians subject to adverse action in the peer review system.’ ” (El-Attar, supra, 56 Cal.4th at p. 988, 157 Cal.Rptr.3d 533, 301 P.3d 1146, quoting Mileikowsky, supra, 45 Cal.4th at p. 1268, 91 Cal.Rptr.3d 516, 203 P.3d 1113; see Bus. & Prof. Code, § 809.2.) One of these protections is the right to a hearing before an impartial body.”
The Supreme Court continues:
“To secure this right, the peer review statute permits physicians to question panel members and hearing officers and to challenge their impartiality. (§ 809.2(c).) Unlike the codes that govern the disqualification of judges (Code Civ. Proc., § 170.1) or neutral arbitrators (e.g., id., §§ 1281–1281.95), the peer review statute does not contain comprehensive standards to determine whether panel members or officers should be disqualified. But it does contain an express standard for disqualification on the basis of financial interest in the proceeding: A hearing officer, like members of the peer review panel, “shall gain no direct financial benefit from the outcome.” (Compare § 809.2(b) with § 809.2(a).)”
Natarajan v. Dignity Health (2021) 11 Cal.5th 1095, 1106, reh’g denied (Oct. 13, 2021)
How About a Judge Hired by Your Opponent ? That’s Not “Fair” Right?
The peer review “judge” or presiding officer can under some circumstances but usually does not participate in the deliberations. But they certainly have extensive control over the proceedings just like a trial judge. So “fairness” means that this judge should have no connection to either side, right ?
WRONG – The hospital can directly employee the hearing officer. That’s still fair unless you can show specific, explicit bias.
Here is California case discussing this topic.
The Employment of the Hearing Officer Did Not Violate the Principles of Fair Procedure
The primary purpose in peer review of the revocation of staff membership and privileges is the protection of the public, which is not outweighed by a physician’s procedural protections from arbitrary or discriminatory actions. (El-Attar, supra, 56 Cal.4th at p. 988, 157 Cal.Rptr.3d 533, 301 P.3d 1146; Medical Staff of Sharp Memorial Hospital v. Superior Court (2004) 121 Cal.App.4th 173, 182, 16 Cal.Rptr.3d 769.)
Natarajan v. Dignity Health (2019) 42 Cal.App.5th 383, 388 [254 Cal.Rptr.3d 887, 892, 42 Cal.App.5th 383, 388], as modified on denial of reh’g (Nov. 20, 2019), aff’d (2021) 11 Cal.5th 1095 [282 Cal.Rptr.3d 1, 492 P.3d 294]