Interestingly, both sides in the suit sought to bolster their arguments by citing a 2013 California Supreme Court case, El-Attar v. Hollywood Presbyterian Medical Center. In that case, a physician supported by the CMA and the Litigation Center did not prevail, but the court’s ruling upheld many of the principles of medical staff governance that organized medicine was fighting for.
“Their argument, which they haven’t changed since day one, is that hospitals have the ultimate authority to do whatever they must in defense of hospital operations and patient care,” Do said. “What we’ve proven is that that defense is both factually and legally incorrect.”
In the El-Attar case, the court ruled that if the medical staff is failing to fulfill a specific duty, the hospital has the authority to step in and fulfill that specific duty, Do said. TRMC has argued its actions were necessary because of a negative survey of the hospital conducted by the Centers for Medicare and Medicaid Services (CMS).
The medical staff’s post-trial brief states that the CMS audit blamed the hospital’s governing body for problems with quality control, infection control, and lack of fire and safety control. CMS found the medical staff deficient in credentialing and peer review, according to the brief, but the defendants had not presented any evidence that the governing board had any complaints regarding staff performance in these two functions.
Reinstatement of bylaws, officers sought
Actions the medical staff is seeking include: reinstatement of original medical staff with prior privileges and status, reinstatement of original bylaws, and reinstatement of all department and committee chairs or other leadership posts previously held by medical staff unless they voluntarily resign.
While typically cases such as these can drag on through a long cycle of appeals, Do said that this may not happen with this suit.
Though TRMC is now managed by a private entity and a defendant in the lawsuit—Healthcare Conglomerate Associates—the 108-bed hospital is owned by the taxpayer-funded Tulare Local Healthcare District, which is governed by a publicly elected five-person board.
Publicity surrounding the lawsuit has spurred citizen activism that resulted in two incumbent board members being defeated last year and a recall election defeat of another incumbent in July, Do said. A fourth incumbent resigned Aug. 23, so the chances of reaching a settlement have increased, he added.
“If there is a settlement, it would have to be structured in a way that sets a precedent,” Do said. “We don’t want other hospitals to get any ideas about trying something like this.”
The opening paragraph of medical staff plaintiffs’ post-trial brief can be seen as a legal clarion call to hospitals contemplating similar action.
“In this case,” the brief begins, “defendants are asking this court to bless an act that not only defies statutory law, public policy, and their own bylaws, but is also unprecedented in the history of the state, and this country, and which no expert in this case—despite more than 150 years of combined industry experience—has ever seen or even heard of before.”
Staff self-governance webinar set
The CMA is hosting a Sept. 13 webinar, 12:15–1:15 PDT, on medical staff rights and self-governance under federal and California statutes. The CMA’s Do will be the lead presenter and, while the Tulare case will be cited prominently in the program, it will not be its sole focus, he said. The webinar is free for CMA members and $99 for nonmembers.