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.
