Medical staff leaders have an ally in their quest to function effectively in the hospital environment-the Organized Medical Staff Section of the California Medical Association. Pro-physician model bylaws and a bylaws-analysis service also bolster medical staff leadership and ensure patient advocacy.

As a former California Medical Association staffer, I wonder how many California physicians are aware of the help that the CMA offers medical staff organizations in hospitals statewide. When I worked in-house at the CMA on medical staff issues, I could calculate that awareness in a number of ways, but the quickest, most reliable measure was the inverse proportion to the amount of sleep I got.

Now, I work as counsel for medical staffs all around the country from St. Paul, Minn., where, as my neighbor Garrison Keillor describes, "All the women are strong, all the men are good-looking, and all the children are above average." I know what my non-California medical staffs face and how envious they are of the CMA's services. Here is a quick reminder of what they are missing--what you have as a California medical staff member.

An Organized OMSS
Organized medicine has its detractors, and within organized medicine, the Organized Medical Staff Section has detractors in legions, perhaps for the same reasons. Who has time to go to meetings, write and research resolutions, and otherwise take time away from practice, patients, family and friends? Who is interested in medical staff issues?

The short answer: all physicians. If you practice in or send patients to a hospital, you have an interest in what happens there. You may have the interest sharpened suddenly, by becoming a department chair, a committee member or even an officer, as a matter of rotation, bad planning, bad luck, or good, old-fashioned guilt. Whatever the reason and without notice, "peer review," "corrective action," "clinical privilege criteria," "exclusive contracting" and "economic credentialing" are issues you are supposed to know about and make decisions on. And you may not have been exposed to any of them.

There is no shortage of help out there, but the bad news is that those people who offer ready assistance may not have physicians' interests at heart. The all-expenses-paid conference the hospital wants you to attend and the "free" legal advice from hospital counsel come at an enormous cost. That help won't help doctors.

Enter the CMA-OMSS. Physicians in the same spot, struggling with the same issues, are connected with medical staff leaders from all over California by tapping into the CMA-OMSS. Run by a dedicated council of experienced medical staff leaders, the CMA-OMSS network can save you hours and untold grief by providing information, ideas, resources and solutions that protect physicians. The CMA-OMSS meets annually, in conjunction with the CMA House of Delegates in October.

CMA-OMSS Annual Sessions include affordable medical staff-focused seminars and all-important networking opportunities, but also plug medical staff leaders into the CMA policy-making process. OMSS resolutions to the CMA spark change in state law, focus attention on medical staff crises, and bring organized medicine's resources to bear on medical staff problems. Few state medical associations have an organized OMSS--take advantage of California's. To join, check out the CMA Web site at www.cmanet.org or send an e-mail to medstaffhelp@cmanet.org.

Model Medical Staff Bylaws
I write medical staff bylaws for a living, and I know that most people--and physicians in particular--do not want to get anywhere near them. But for medical staff members and medical staff leaders, the bylaws are unavoidable. Bylaws are the roadmap to medical staff operations--how to get through to the hospital administration, who is on what committee, how to take disciplinary action, where to take this action for implementation and when to call a meeting.

Bylaws are subject to frequent changes due to shifting state and federal laws and regulations, Joint Commission standards for hospital accreditation, and the priorities within a particular medical staff and hospital. Here again, the hospital administration would be happy to help you with all sorts of ideas for changes and improvements, or to scare you with absolute mandates from above regarding bylaws amendments needed immediately.

Don't buy it.

There is a pro-medical staff, pro-physician solution--the CMA Model Medical Staff Bylaws. The CMA model is an encyclopedia on everything that should be in your bylaws and on issues peripheral to bylaws, but crucial to day-to-day medical staff operations. Not only does the model feature provisions that can be used to improve bylaws in any California hospital, it includes annotations that explain why the wording is good for doctors. And in bylaws, it is critical to maintain a pro-physician stance. Medical staff bylaws can be the best shield for or the most dangerous weapon against doctors in hospitals. Bylaws provisions can dictate who gets what privileges, when physicians have to be on call and whether you can challenge a decision that cuts off your practice. Bylaws are not just guidelines; the document is apt to be enforceable in court. Since both the hospital and medical staff have to agree to it, the document should be negotiated like any other contract.

To determine whether your hospital's proposal should be added, at the very least consult the CMA model to see what the physician-friendly approach is. Better yet, be proactive and use the model to assess where your bylaws are versus where they should be. Watch out for subtleties that can complicate or, in some circumstances, completely collapse your practice. For example, check your bylaws for any reference to "hospital policies." It can creep in everywhere:

* "Active members shall comply with hospital policies."

* "The Executive Committee shall initiate corrective action with respect to Practitioners whose services, professional competence, or conduct are inconsistent with professional ethics, standards of care, these bylaws or the policies of the Hospital."

*"Clinical criteria shall be consistent with hospital policies."

These bylaws provisions may look benign--and would be--if hospital policy were limited to "No smoking on the property" or "Discrimination prohibited." But hospitals adopt policies on an endless variety of topics. The hospital may adopt a policy that only radiologists qualify for certain privileges, starting Tuesday. Hospital policy may be that no one on the medical staff can own even a marginal interest in anything that competes with the hospital, be that a coffee shop, an endoscopy suite or a surgery center. Or, as in a recently settled case in Arkansas, no one on the medical staff can be married to someone who has even a marginal interest in anything that competes with the hospital. So, do you have to keep the hospital's interest in mind if you are dating?

It's best to avoid wide-open references tying the medical staff to hospital policies. Not only may the policies do nothing favorable for physicians, but physicians have nothing to do with putting them in place. Hospital policies are exactly that--policies of, by and for the hospital. Medical staffs don't get to vote on them and often don't even know about them. A physician may first learn about some such policy when she gets the notice that her privileges are terminated. But she signed the application that says she will follow the bylaws, which state that active members shall comply with hospital policies.

Having better bylaws in the first place would prevent these situations. Use the CMA model language for complete protection:

Section 15.5(d)
Hospital corporate bylaws, policy, rules, or other hospital requirements that conflict with medical staff bylaw provisions, rules, regulations and/or policies and procedures, shall not be given effect and shall not be applied to the medical staff or its individual members.

Not only does the CMA model not impose hospital policy on the medical staff, it neutralizes any conflicting policy that may crop up in the future.

The CMA model also addresses an issue causing sizeable rifts in some communities--the ability, if not the right, of a physician to engage in services that compete with the hospital. The idea that physicians cannot offer services that compete with the hospital, which under some theory has the exclusive over tertiary, secondary and even primary care (through various satellite clinics), is keeping many lawyers busy and driving many doctors wild. To obviate the issue, the CMA model meets it head-on:

Section 2.3 Effect of Other Affiliations
...Medical staff membership or clinical privileges shall not be revoked, denied, or otherwise infringed based on the member's professional or business interests.

For what they do and for what they don't do, the CMA Model Medical Staff Bylaws are your source on medical staff issues, including medical staff self-governance, in California. The document is available to CMA-OMSS members at an impossibly good price. It's free. Nonmembers can buy the model for $300.

Medical Staff Bylaws Analysis Service
If you know or suspect your medical staff bylaws are in need of a tune-up, the CMA can assist each medical staff individually through the CMA Medical Staff Bylaws Analysis Service. This service has been available for decades and has helped some medical staffs take the temperature of their documents more than once. Leaders can get suggestions based on CMA policy and the CMA model about language that might work better for the medical staff. The analysis runs through requirements for peer review, hearings and appeals found in the federal Health Care Quality Improvement Act and the California Business and Professions Code. In addition to spotlighting federal and state law mandates, quirks, immunities and loopholes, the analysis will reveal where the medical staff bylaws are short-sheeting existing Joint Commission standards--and starting now, the new Joint Commission standards for medical staff bylaws development, content and effect. (See sidebar, titled "Joint Commission Changes Medical Staff Bylaws Standard.")

The analysis focuses on issues that may not be in statute or case law, but are the subject of CMA or American Medical Association policy. After years in the business of advocating for physicians, I know the value of the policy work by organized medicine. To have the CMA or the AMA back me up when I argue that patients need their physicians to have this authority or that responsibility has helped many a medical staff in bylaws negotiations.

I enjoy preparing medical staff bylaws analyses for California medical staffs on behalf of the CMA, and would welcome the opportunity to analyze the bylaws you are relying on or are worried about. The easiest way to have your medical staff bylaws reviewed is to e-mail them directly to me at easesq@snelsonlaw.com. Feel free to let me know in the e-mail if the medical staff is struggling with particular issues. You will receive approximately 10 pages of suggestions, warnings and ideas to improve your medical staff bylaws and perhaps ward off a medical staff crisis. This is another service for which it pays to be a CMA-OMSS member. The CMA-OMSS member rate is just $3,000, payable after the analysis is received. Nonmembers pay $3,500.

Medical Staff Questions, Feedback
If none of these outstanding (if I do say so myself!) sources of help, information, direction and connection quite address the medical staff problem you are facing, the CMA wants to know and to help. Contact Deborah Winegard, CMA vice president and general counsel, at dwinegard@cmanet.org. The CMA strives to empower medical staffs, and all the efforts are lavished on you Californians. Go ahead. Gloat.

Elizabeth "Libby" Snelson, Esq., legal counsel to the medical staff, represents staffs in California and elsewhere. In addition to conducting medical staff bylaws analysis and drafting, she is a frequent speaker at medical staff leadership retreats and in programs sponsored by the California Medical Association, the American Medical Association and other organizations. Her articles on physician advocacy and medical staff legal issues have appeared in several medical society publications. She is the author of The Physicians' Guide to Medical Staff Organization Bylaws, published by the AMA. She can be reached at 651/293-0321 or easesq@snelsonlaw.com.


FEATURE ARTICLE SIDEBAR

Joint Commission Changes Medical Staff Bylaws Standard

After years of revisions and controversy, the Joint Commission standard on medical staff bylaws has been finalized. The revised standard clearly supports medical staff self-governance, a long-standing requirement for Joint Commission accreditation for hospitals. Joint Commission standard MS 1.20 calls for important elements of self-governance such as selection of medical staff leaders and delegation of authority to the medical staff executive committee to be clearly established in the medical staff bylaws.

The standard does not go into effect until July 1, 2009, to allow ample time to develop amendments for the approval of the medical staff and the hospital governing body. Even the strongest medical staff bylaws will need revision to meet the new MS 1.20, which includes requirements not called for in previous Joint Commission standards. Medical staffs should not hesitate to begin considering amendments. Of course, it is critical that medical staffs proceed with caution to make amendments that protect and preserve the interests of the medical staff while achieving compliance with the revised MS 1.20.

The revised standard boosts medical staff self-governance by requiring that most elements be addressed in bylaws voted on by the medical staff, rather than by the medical executive committee acting on behalf of the medical staff. Under the revised MS 1.20, the medical staff must retain the ability to propose directly to the hospital board not only bylaws, but also rules, regulations and policies, and any amendments thereto. However, certain procedural details are allowed to be addressed in rules and regulations or policies subject to approval only by the medical executive committee. Further, in addition to describing what authority the medical staff confers on the medical executive committee, under the revised MS 1.20, medical staff bylaws must describe how the authority is delegated and removed. These new requirements should protect medical staffs from being controlled by medical executive committees comprised chiefly of hospital-appointed department heads and administrative representatives.

The revised standard MS 1.20 preserves the intent of the original MS 1.20, to provide medical staffs and hospitals with a list of what has to be in medical staff bylaws. Medical staff bylaws that had been divided into separate plans and manuals will require revision to comply with the new MS 1.20. Generally, any medical staff that has a "Fair Hearing Plan," a "Credentials Manual" or an "Operations and Functions Manual" will need to revise its bylaws. The revised MS 1.20 should help to make medical staff bylaws more transparent and responsive to medical staff members.

The standard is at www.jointcommission.org/AccreditationPrograms/Hospitals/revisions_std_ms120_approved.htm.