The link between hospital opposition to self-governance and economic fear cannot be overestimated. This article explains the damaging ways hospital administrations might behave in their relationships with medical staffs and highlights why medical staffs must know and exercise their rights.
During my decades of experience as an independent counsel to medical staffs, I have often been struck by the scope and intensity of hospital opposition to the efforts of medical staffs to be self-governing. That opposition has included interfering with medical staff elections, precluding elected officers from performing their duties, appointing "alternative" executive committees, interfering with meetings of standing medical staff committees, interfering with medical staff retention of independent counsel, refusing to allocate medical staff treasury funds as directed by the medical staff, absconding with the medical staff treasury, refusing to permit the medical executive committee to sit in executive session, unilaterally amending medical staff bylaws, and unreasonably refusing
to accept amendments to medical staff bylaws adopted by the medical staff.
In some instances, opposition to self-government has manifested itself in even more egregious ways. Notably, there have not only been threats, but actual instances of retaliation against medical staff leaders. Financial punishment has been directed toward medical directors, hospital-based physicians, and in academic institutions, faculty members, who, in their capacity as medical staff members, have supported the concepts of self-governance. In rare instances, acts of intimidation have been directed at staff members whose vulnerabilities have been revealed in what they thought were confidential well-being committee meetings.
It might be useful to start a discussion of medical staff self-governance by considering the reasons why such strenuous opposition exists. In 2002, a strategy analysis by the Voluntary Hospital Association identified domination of the medical staff as a viable strategy to protect a hospital's economic base. The link between opposition to self-governance and economic fear cannot be overestimated. Such fear has been articulated in different ways, but the essence is simply this: To permit a medical staff to be self-governing is to permit it to influence hospital decisions made on matters such as patient care, utilization, hospital contracts with service providers, hospital exclusive contracts and, in the end, hospital strategic policy. Giving such power to the medical staff presents the risk that the medical staff may "interfere" with the "proper" running of the hospital.
Recent history demonstrates the ongoing effort by the hospital industry to further maximize control over medical staffs. The use of vice presidents of medical affairs, board-level "quality" committees and economic credentialing have added to the control that hospitals already exert over exclusive-contract providers and medical directors.
Is the fear that prompts these activities well founded? I have yet to see a hospital demonstrate that its fears of economic losses flowing from self-governance have actually occurred. The battles fought over economic credentialing are illustrative. Hospital demands for "loyalty"--commitments that staff members not practice at other hospitals or ambulatory surgery centers--are predicated solely on the need to protect the hospital from economic loss. In instances where economic credentialing has been struck down by the courts, did economic disaster result? Of course not.
It doesn't require an advanced degree in economics to recognize that a cooperative and harmonious relationship between a medical staff and its hospital tends to serve the hospital's economic interests. By encouraging self-governance, rather than opposing it, a hospital can build an economically beneficial relationship with its medical staff. As obvious as that might seem, opposition to self-governance is alive and well.
Perhaps another explanation for the opposition is a hospital's culture, particularly in a multihospital chain. Complex administrative chains of command are not designed to recognize the decision-making role of the medical staff. The medical staff is something "to be managed" so that it might act "harmoniously," which means "in harmony with the decisions of the hospital administration."
There also exists a more abstract objection to self-governance: It is thought that since the hospital board of directors has a fiduciary duty to protect the hospital, and since the hospital board of directors must exercise "ultimate authority" on hospital matters, there is no room for self-governance. Somewhere along the line, the concept of "ultimate authority" has been taken to mean "unlimited authority" and "unfettered decision-making" and, in the end, "absolute power."
This assertion is not legally correct. However, there seems to be a common strategy among administrators. If they tell a medical staff often enough that it has no power, and if they prevent the medical staff from obtaining independent advice on that issue, the staff will believe that it has no power and act accordingly.
Is the Opposition Working?
The short answer to the question of whether opposition to self-governance is working is "yes and no." Let's examine both sides.
Opposition to self-governance is extremely successful at hospitals with medical staffs that have little or no knowledge of their statutory responsibilities and powers; that cannot maintain cohesiveness; that lack economic resources to act independently; and that lack sufficient will to endure protracted controversy.
The principles established in Medical Staff of Community Memorial Hospital of San Buenaventura vs. San Buenaventura Community Memorial Hospital have been codified as a California statute (Business & Professions Code 2282.5) since 2004. Yet these principles are still not well understood.
I am often invited to speak to medical executive committees. When I do, I often learn that medical staff leaders are unaware of medical staff rights and the mechanisms that exist to enforce those rights.
There is a general awareness of the right to set the criteria and standards for membership and privileges, and to enforce those standards. However, few medical executive committees are aware that the medical staff has the power to establish clinical criteria and standards to oversee and manage quality assurance, utilization review and chart review. Similarly, many medical staff leaders think that the hospital administration has some role to play in selecting and removing medical staff officers and determining how medical staff dues are to be used. Of course, Business & Professions Code 2282.5 (a)(3) and (4) provide just the opposite.
