And in Lo v. Provena Covenant Hospital, 796 N.E.2d 607 (Ill. App. Ct. 2003), a hospital unilaterally and summarily suspended a cardiovascular surgeon who allegedly had twice the national mortality rate. The medical staff leadership had not been responsive to the hospital’s concern of imminent danger to patients. The Illinois Appellate Court made the finding that in this "anomalous" case, the hospital’s actions were neither arbitrary, capricious, nor in violation of the bylaws.
A second area of conflict between doctors and hospitals is hospitals’ use of economic factors in credentialing, where financial factors are used to profile – and determine – a physician’s application for privileges.
For example, a staff gynecologist risked losing her 19-year membership at Baptist Health Medical Center in Little Rock, Ark., because her physician-husband owned an interest in a competing hospital specializing in spinal surgery. The case settled when the husband divested his competing ownership. In Arkansas, the courts have ruled that Baptist Health’s policy wherein a physician who holds a financial interest in a competing hospital is ineligible for privileges at any Baptist Health hospital is both unconscionable and illegal, and the hospital economic credentialing policy tortiously interfered with the physicians’ existing and prospective business relationships (Murphy v. Baptist Health, 373 S.W.3d 269 [Ark. 2010]).
But other jurisdictions have not adopted this view. The South Dakota Supreme Court has ruled that a hospital administration may refuse applicants to the medical staff based on economic criteria (
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Mahan v. Avera St. Lukes, 621 N.W.2d 150 [S.D. S.Ct. 2001]). The court questioned the legal right of certain members of the medical staff to open a competing ambulatory surgery center. In a subsequent case, the same court held that in the absence of specific prohibitions in the bylaws, a hospital could use economic credentialing in its staffing determinations.
Even for physicians with only an occasional hospital practice, the following pointers from the book "The Biggest Legal Mistakes Physicians Make and How to Avoid Them," edited by Steven Babitsky and James J. Mangraviti Jr., may prove useful:
1) Failing to practice in a collegial manner.
2) Impugning the quality of care of the hospital, nurses, and other physicians.
3) Not knowing the hospital’s policies and procedures.
4) Not involving consultants when the issue is out of one’s specialty.
5) Not accepting constructive criticism and suggestions.
6) Failing to seek approval before prescribing unorthodox drugs or treatment.
7) Failing to respond promptly to inquiries about care or behavior.
8) Failing to follow up on an agreement resolving an issue.
9) Acting as though the hospital is lucky to have such a physician.
10) Not calling a lawyer when necessary.
Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, "Medical Malpractice: Understanding the Law, Managing the Risk," and his 2012 Halsbury treatise, "Medical Negligence and Professional Misconduct." For additional information, readers may contact the author at siang@hawaii.edu.