As the number of hospitals decreases nationally, there has been an ever-increasing volume of medical staff privilege litigation. Currently, the more conservative courts still take the position that a medical staff privilege determination by a private hospital may not be challenged in the courts in the absence of evidence of some identifiable legal wrong, such as sex, age, handicap, or race discrimination, or antitrust violations. Other courts take a broader view and also permit lawsuits over the failure of a medical staff and hospital to follow their own rules or, in some states, the failure to have good rules in the first place.
For these reasons, it is important that bylaws be written in such a fashion that they are honored in practice, and not in breach. It's important to note that avoidance of litigation and success in litigation often take prudent legal guidance from the beginning of the process, not just at the end when it may be too late.
We work with our clients to guide (but not control or patronize) them through the process from initial peer review and into hearing, if necessary. Despite our involvement in hundreds of medical staff matters over 35 years, we can unequivocally say that we have never had a client sued who used up-to-date bylaws drafted by us combined with our representation through peer review and the hearing process. It is our experience that a well-managed, thoughtful process will make a disappointed physician choose more peaceable alternatives.
When we are asked to represent a medical staff and hospital in litigation, our understanding of how medical staffs are supposed to work and our ability to explain processes that are complicated and foreign to judge and jury establishes a battleground where we are highly successful. We have successfully defended dozens of due process, contract, antitrust and discrimination claims in state and federal courts and, in the process, made law on appeal that supports the effectiveness of fair medical staff processes.