American Academy of Emergency Medicine

Part 10: Due Process/Hospital Privileges/Baker's Hours

by Robert V. West, MD JD FAAEM

One of the charges of the AAEM Legal Committee is to fully investigate and disseminate information on the issue of due process to the membership. To accomplish this, they ask members to submit their own experiences in hospital due process, complete with legal opinions from attorneys in their individual jurisdictions. Address your correspondence to: Robert V. West, MD JD FAAEM, Board Liaision, AAEM Legal Committee, 1250 NE Loop 410, Suite 805, San Antonio, TX 78209, Fax: (210) 822-3837, Email: drwest4218@aol.com.

Due process is a ubiquitous and yet rather ambiguous phrase which connotes different things to different people. Essentially, the term embodies the notion of judicial fairness prior to a decision or determination concerning an individual's rights. The phrase does not have a precise meaning in either the legal or lay language. For example, the notion is typified by the concept that a criminal defendant is innocent until proven guilty. The 14th Amendment to the U.S. Constitution states that one will be deprived of life, liberty, or property without due process of the law. However, if you try to specify what that process is, it will depend upon the jurisdiction where your dispute is being heard. That is, it could be in state court, federal court, a hospital peer review committee panel, or a phone call between a hospital administrator and your medical director.

This is extremely relevant to our situations as highly visible, contract laborers, employed at will in institutions where political turmoil is always churning. Our fates and our abilities to earn our fees are constantly being challenged and evaluated by our peers, patients, co-workers, and contract holders. Unfortunately, hospital privileges, medical licenses, and/or shifts on an ER schedule are not considered property rights in many states. Even though the 14th Amendment says that no citizen can be deprived of their property without due process of law, that does not include our abilities to earn and buy that property. Those are privileges which we are granted by the authority that issues them, such as your state board of medical examiners or governing board of your hospital.

Peer review at the department level is all most hospitals offer as a due process to protect your privileges at that hospital. Congress enacted the Health Care Quality Improvement Act of 1986 (HCQIA) to set minimum standards for the professional review of physicians conduct (see 42 USCA Section 1011-1152). According to Texas law, a hospital's participation is voluntary and is encouraged by a grant of immunity against damage claims. The hospital peer review process is in essence a quasi-judicial proceeding. Moreover, the review process as outlined in a hospital's bylaws is contractual because a physician by accepting appointment to the hospital staff agrees to be bound by its bylaws. What is involved here is an internal, contract-based professional review body performing the functions of an administrative law court (see Walls Regional Hospital, et al, v. Altaras, 903 SW 2d 36 (Tex. App. - Waco 1994)).

In essence, if you want more than hospital peer review, then you have to negotiate for more in your employment contract. In 1905, the U.S. Supreme Court in Lochner V. New York, 198 U.S. 45, upheld the right that all employees have the liberty to contract. In that case, a state law limited the shifts of bakery workers to 10 hour days and 60 hours per week. The Supreme Court struck down that state law and said it was unconstitutional because it restricted the workers right to contract. The bakers wanted to work more shifts and longer hours, and they got the right to do so. In reality, however, their "freedom to contract" was an illusion because there was no scarcity of bakers, no effective labor unions, and the bakery owners still retained the ability to say, in effect, this is our best offer, take it or leave it. The bakery owners seem reminiscent of the omnipresent ED contract holder in our business world.

In most situations, the contract holder can take you off the schedule and leave your hospital privileges intact. In other words, if you accept shifts and credentialing through a contract management group, you can be credentialed at a given hospital and yet not be given any shifts on the schedule if your contract holder deems it their will. The net result in this scenario is that you may not even be entitled to hospital peer review, unless your hospital privileges are revoked in the process of being terminated.

As the Board Liaison to the AAEM Legal Committee, I intend to review and summarize these issues in the different jurisdictions (states) where our members practice. Mine is Texas and I have covered the current views of Texas courts as it relates to due process. AAEM and myself invite other members to submit their experiences for dissemination to our membership.