1. Medical Staffs Under Assault
A Message from CMA President
Ron Bangasser, MD
Due to the extraordinary events unfolding in Southern California, we are sending this OMSS Advocate Newsletter to every medical staff in the state. Reflecting a trend that appears to be gaining momentum across the country, the medical staff of Community Memorial Hospital in Ventura (CMH) is being stripped of its rights to be organized and to self-govern. This case ultimately may set legal precedent in California regarding medical staff self-governance. As you will see elsewhere in this newsletter, the CMH hospital administration is waging a slash-and-burn campaign to intimidate and control the hospital medical staff. Among other things, the hospital administration has taken control of the medical staff dues fund, nullified medical staff elections, prohibited any medical staff member who has a "financial conflict of interest" with the hospital’s business goals from holding an elected medical staff office, serving on any medical staff committee, or having any right to vote as a medical staff member. After nearly two years of increasing aggression by the hospital administration, the medical staff finally sued the hospital in late April.

At CMA’s Annual Meeting, the House of Delegates unanimously committed CMA support and resources to the medical staff at CMH. Just last week, the American Medical Association also declared its strong support of the medical staff.

As you read this newsletter, please understand that this is only another example of efforts being employed by hospital administrations across the country to take away medical staffs’ right to self-governance. CMA is mobilizing its resources to visit medical staffs, county societies and other medical organizations in the state to inform them of the nature of this case in Southern California. We are also seeking contributions to the CMA Legal Defense Fund to support the medical staff at CMH financially in its battle for survival. We ask that you bring this to your Medical Executive Committee and, have your medical staff, commit to $5,000, $10,000 or more to the fight to save medical staff self-governance at Community Memorial Hospital in Ventura. Fund donation forms for medical staffs and individual physicians are attached for your use. If you are one of the medical staffs in the state that does not belong to CMA’s Organized Medical Staff Section, you will also find an application form in this newsletter.

My message is a call to arms for all medical staffs in the state to join organized medicine to preserve the organized medical staff, its right to govern itself without interference from the lay hospital administration, and to fight to preserve quality care and assure patient safety. There is no time to waste. Please have your medical staff’s executive committee or medical staff as a whole consider this issue immediately, and give generously to the California Medical Association Legal Defense Fund in support of the CMH medical staff. This will be a long hard fight, but it’s a fight I believe organized medicine can win. Thank you for your generous support.

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2. Interview with Chief of Staff John Hill, MD
Following are excerpts from a June 26 interview with Ventura physician Dr. John Hill. Dr. Hill is one of over 250 physicians embroiled in a medical staff self-governance battle at Community Memorial Hospital of Ventura (CMH). Dr. Hill was elected to the office of Chief of Staff but has not been recognized by the hospital administration. An aggressive hospital CEO and Board of Directors have taken numerous actions to infringe on physician rights and medical staff autonomy. The entire CMA interview will be posted to http://www.calphys.org shortly.

CMA: What impact has the medical staff situation at CMH had on you personally?

Doctor Hill: Well, I’ve had to change my practice patterns. I’ve taken the majority of my practice to another hospital. I am now doing essentially all of my surgery at St. Johns Hospital in Oxnard. It is a bit inconvenient because it’s about 20 minutes away from my office in the best of circumstances. There certainly is a significant amount of traffic I have to contend with. The good news is I drive right by St. Johns Hospital every morning coming to work, so making rounds is not a problem. But it is a dislocation that I certainly didn’t expect to be involved in at this stage of my practice. I’ve been at practice here at Ventura for almost 31 years, and all of that time I’ve done 99.9% of my work at the Community Hospital.

CMA: Has there also been an emotional toll on you?

Doctor Hill: Well certainly. I am distressed from many standpoints, but one in particular. I have taken care of, I would say conservatively, at least half or more of the Board as patients. I take care of their families, I know them socially, my wife knows them socially, my kids have known their kids, and to be painted with such a brush by the administration and the board has been very distressing to me. I have been, essentially, portrayed as a pariah and heretic, and that certainly has been a wakeup call to me, how superficial friendships can be.

CMA: One of the first signs that a conflict was developing between the hospital administration and the medical staff, was the non-renewal of a radiologists contract. What was the motivation for going after the radiology group?

Doctor Hill: Economic. The administrator was going to start a new prostate institute, and he explored many options and finally came up with a radiologist from Michigan who did cryo-therapy of the prostate, and he was going to bring this radiologist to Ventura; and this was part of the problem with our previous radiologist. The Administration wants to put this new man from Michigan in as a full member of the group. He was not going to take any call, and then it even got so bad I think the Administration wanted to make him the chief of the group. . . Now again, the Hospital is constantly looking for little niches to increase their profit margin. Some niches are bigger than others. The medical staff really had no input into this decision, and this was kind of the etiology of all of the radiology problems.

CMA Do you see that Bakst [CEO of CMH] has really been pretty much the leader-instigator. Without him, would something like this still have happened with the other folks that are on the board?

Doctor Hill: Oh, I don’t think it would at all, I really don’t. He has been here for 24 years. He has woven a web, he had built his power base, and he is a very bright fellow. He has ingratiated himself to a lot of people. There are a lot of people that are beholden to him. One thing you have to remember, you have a fairly significant group of physicians who have contracts with the hospital. Most of these contracts can be cancelled on 30 or 60-day notice without cause. And, for example, the emergency room physicians, the radiologists, the pathologists, these people have to watch their "p’s and q’s" around him, and in that same vein, he was really able to stack the medical staff executive committee with people who were like thinkers. And a lot of this I would say is our fault to some degree. You know, we went through all of this managed care thing, and capitation, and all these threats to our practice; our overhead increasing, our reimbursement decreasing, malpractice problems; all sorts of things that caused us to be less involved in the hospital because we were so involved in just trying to keep our heads above water, pay our overhead and make a living. And it took something pretty significant, I think, to wake us up and realize that probably we had left the barn door open to some degree.

CMA: What is the mood of the Ventura physicians that are involved in fighting this? Do you feel encouraged at this point that you are going to succeed and prevail?

Doctor Hill: I would like to say the involvement of CMA and AMA has been a big boost to all of us. It has really helped morale and makes us feel like we are not a voice in the wilderness. The hospital is an 800-pound gorilla, and their MO is to spend us into the ground. They have a very large amount of money. Actually this hospital was going to build a new hospital out of monies on hand. It has been a very profitable hospital, and that is one of the problems with our Board. They always say, well, "we’re making money, we’re making money," but at what cost are we making money? So, we certainly felt like the little guys out there. We have spent a lot of our own money. It is almost frightening how much we have had to put into this, so we really, really, really appreciate this involvement from CMA and AMA.

CMA: Besides CMA and AMA support, is there anything else that would help keep your motivation high?

Doctor Hill: We have to keep the word out. We have tried to continue having meetings even though the hospital has cancelled our regular meetings, and I would add that we have not had an actual general staff meeting held in the hospital since last August. We had an election last November, but after the election was over, the meeting was summarily adjourned by last year’s Chief of Staff without any business being done. So it is important to us to keep the word out, keep the morale up, and let people know that we are still in there and we’re not going to give up.

CMA: What kind of message should be delivered to other medical staffs throughout California about what is happening to you?

Doctor Hill: I think that is tremendously important. You have to be aware of what is happening out there. You have to be vigilant, because hospitals are becoming more and more intrusive into medical staff policies, procedure, and you have to be aware… it is essential to have legal counsel for the staff. Also, you have to have control of your staff funds because, as you mentioned, they essentially absconded with our funds, and they were certainly afraid that we would use the $250,000 in our medical staff fund to sue them. So I have emphasized, you have to have control of your funds.

Now, one other thing that I think is very interesting, and I just found this out as a result of trying to appeal to other hospitals for some help in this - about half of the hospital medical staffs don’t have their own staff fund, which I think is just terrible. I mean, you may have an administration and board that you trust, but things change, and you should protect yourself and have control of your own funds and have your own funds.

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3. AMA Delegates See Trend In Self-Governance Violations
AMA OMSS Assembly delegates became angry upon hearing repeated tales of hospital medical staffs around the country being deprived of various rights of self-governance by their hospital administrations. OMSS delegates repeatedly told of self-governance battles at Brooklyn Hospital, Toledo Hospital and Toledo Children’s Hospital, Community Memorial Hospital of Ventura (a.k.a. San Buenaventura Hospital), and hospitals in Florida and Montana, among others. Their anger was stoked further by the perceptions of many that the Joint Commission was not adequately enforcing its own hospital accreditation standards in the area of medical staff self-governance. Joint Commission standards require that the medical staff be organized and self-governing, and vests the medical staff with overall responsibility for the quality of care provided in the hospital.

The delegates from the OMSS carried their message to the AMA House of Delegates loud and clear, resulting in the passage of two resolutions. First, the House adopted Resolution 614 declaring the AMA’s strong support for the medical staff of San Buenaventura Hospital in Ventura, California, in its fight to preserve medical staff self-governance. The same resolution declared AMA’s support of any medical staff whose rights of self-governance are being threatened by the hospital administration or the governing body. Lastly, the resolution requested that the AMA Litigation Center consider providing assistance for appropriate cases in this area.

The AMA also adopted Resolution 528, instructing the AMA’s commissioners on the Joint Commission to "urge the aggressive enforcement of the Medical Staff Standards" even if it means a hospital’s accreditation is placed in jeopardy for lack of compliance. It further asked the JCAHO to better educate medical staffs and hospitals as to how the complaint process works when the JCAHO receives information regarding violations of the Medical Staff Standards. Testimony at the House by key figures at Joint Commission asserted that JCAHO takes the issue of violations to medical staff rights and bylaws very seriously, to the extent that they are considered equivalent to sentinel events. According to testimony offered by JCAHO, a process to review complaints it receives is in place and violations between the hospital and medical staff that are not resolved will place the hospital’s accreditation status at risk.

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4. Amending Medical Staff Bylaws - Be Very Cautious
As discussed elsewhere in this newsletter, there is at least one hospital administration obsessively controlling its medical staff to the detriment of medical staff’s right of self-governance and its ability to assure quality of care and patient safety on an organizational level. One way this type of behavior can begin to manifest is when the hospital administration asks the medical staff to adopt inappropriate changes to the medical staff bylaws.

In the Community Memorial Hospital in Ventura case, the hospital first amended its own corporate bylaws to unseat the three major elected medical staff leader from the hospital board. Instead, the board decided it would seat medical staff representative it finds acceptable. The hospital then demanded the medical staff change the medical staff bylaws to be consistent with the corporate bylaws in this regard. The medical staff refused to do so. Hospital administration then proceeded to unilaterally amend the medical staff bylaws under the pretext that Joint Commission Standards required those bylaws to be consistent with the corporate bylaws in all respects. (This rationale, of course, ignores Joint Commission Standard MS.2.1 prohibiting unilateral amendment of the medical staff bylaws!)

When considering amending the medical staff bylaws, the medical staff should retain its own attorney not hired by, or otherwise connected with, hospital administration in order to obtain an unbiased evaluation that represents the medical staff’s interests in order to safeguard self-governance. CMA also offers a medical staff bylaws analysis service. To obtain further information on this service, see CMA On-Call document #1703, or call Elizabeth Snelson, JD, at (651) 293-0321 (email at easesq@snelsonlaw.com).

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5. Support Medical Staff-Self Governance:
Contribute to the CMA Legal Defense Fund
The physicians of Community Memorial Hospital (CMH) of Ventura are facing an aggressive and well-financed administration in court. Please help by donating funds to the CMA Legal Defense fund. We encourage medical staffs to contribute as well as physicians. (Contributions to the CMA LDF are not political contributions.) Medical staffs that have no separate dues fund may consider asking their members to donate a specified amount, e.g., $100 per person.

Medical staffs and physicians can donate by following the instructions online at http://www.calphys.org/html/defense.asp. For questions about contributing to the Fund, call Robin Strimling at 415/882-5110.

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6. Joint Commission Revises Medical Staff Standards
Under its "Shared Visions - New Pathways" program, the Joint Commission on Accreditation of Healthcare Organizations has published a major revision to its hospital accreditation standards, effective January 1, 2004. The revised standards, including the new medical staff standards, were posted on the Joint Commission website on June 13, (see http://www.jcaho.org ). Among other things, the medical staff standards will, for the first time, explicitly require the governing body to comply with the medical staff bylaws. This is in addition to the requirements, existing both now and in the new standards, that amendments to the bylaws are not effective unless approved by the governing body, and that unilateral amendment of the bylaws is prohibited. While it was always implicit in the standards that the hospital may not violate the medical staff bylaws which it previously approved, this explicit requirement hopefully will permit the Joint Commission to cite the hospital solely based on a violation of the medical staff bylaws. The new requirement is not a standard per se, however. It is embodied in new components of the standards called "Elements of Performance," scoring for which is not discussed on the website. We are hopeful, however, that the Joint Commission intends to enforce this requirement fully, and we commend the Joint Commission for making this important modification.

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7. We have questions for you:
Please help us learn more about medical staff dues funds, how prevalent they are, and how they are administered. Some medical staffs may not have a fund, some may have one but it may be under the control of hospital administration, and others may have sole discretion to use the fund as it wishes. In order to better understand how most medical staffs utilize medical staff dues funds across the state, please send your response to these questions to Robin Strimling, CMA Organized Medical Staff Section. Email to rstrimling@cmanet.org. Thank you.

Does your medical staff have a dues fund? If no, you do not need to proceed with the next questions.

What are the sources of monies to the medical staff fund (e.g., application and reapplication fees, annual or monthly members' dues, etc.)?

Are expenditures from fund under the sole control of the medical staff? If not, please explain.

Are there any medical staff or other policies mandating the purposes for which the fund can and cannot be used? If so, please explain.

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8. Legal Counsel for the Medical Staff: Consistent or Conflicting Interests?
By Greg Abrams, J.D., CMA Legal Counsel
From time to time, chiefs of staff and other medical staff officers in California call CMA to ask whether the hospital’s legal counsel should handle legal questions and other legal issues which the medical staff faces. Often, hospital administration gives the medical staff a number of reasons why it should use the hospital’s attorney instead of hiring its own counsel. Some of these include the hospital administration’s willingness to pay the legal fees for the attorney, the medical staff’s or chief of staff’s personal familiarity with the hospital’s attorney, and the seductive argument that the medical staff is not really "separate" from the hospital itself, and therefore should not have a separate attorney. This latter argument strikes at the heart of the medical staff’s legal status in California as "self-governing." For a number of reasons the medical staff should obtain independent legal counsel in order to assure that its own legal interests are fully and zealously represented.

The medical staff may encounter serious problems from relying on the hospital’s attorney to represent it. These problems arise from the fact that the hospital's attorney is ethically bound to represent the client’s interests, in this case, the hospital administration’s interests. The interests of the medical staff can diverge significantly from the interests of the hospital governing body or administration in a number of areas, e.g., where issues impact preservation of the medical staff’s self-governance and integrity. When the hospital attorney also represents the medical staff, the potential for a conflict of interest arises because the attorney owes a superior duty to the client-hospital. The attorney is therefore unable to zealously protect the rights and interests of the medical staff where they differ from those of the hospital, and medical staff interests can suffer. Both CMA and the AMA have addressed this issue by recommending that the medical staff retain separate counsel.

In choosing independent legal counsel, the AMA recommends that the attorney should (1) have an understanding of medical staff structure, responsibilities and functions, and (2) be knowledgeable about health law, antitrust law, hospital accreditation standards and applicable federal and state laws and regulations. Additionally, both the CMA and AMA recommend that the following disclosures be made prior to retaining separate counsel to avoid any real or perceived conflicts of interest on the counsel’s part and to assure his or her loyalty: (a) whether the lawyer or the firm in which he or she is associated or employed has ever represented the hospital as a client and/or received payment from the hospital or another party on behalf of the hospital for the legal services provided; (b) whether the hospital has paid legal fees to the lawyer or the law firm with which he or she is associated or employed for legal opinions or advice on matters pending before the hospital governing board and/or hospital administration; and (c) whether the lawyer or the firm with which he or she is associated or employed has represented or provided legal opinions and advice to other hospitals in the community or to a local or state hospital association or other health care entities.

QUESTIONS TO ASK BEFORE HIRING AN
ATTORNEY TO REPRESENT THE MEDICAL STAFF

Regarding Conflict of Interest:

1. Have you ever represented the hospital as a client and/or received payment from the hospital or another party on behalf of the hospital for the legal services you have provided?

2. Have you ever had your (or your law firm’s) legal fees for legal opinions or advice paid on matters pending before the hospital governing board and/or hospital administration?

3. Have you or your firm ever represented or provided legal opinions and advice to other hospitals in the community or to a local or state hospital association or other health care entity? If so, which ones?

4. Have you ever represented an individual physician on our medical staff? If so, how long ago? Are you still representing this physician? Did you represent the physician in a matter adverse to the medical staff?

Regarding Qualifications and Ability:

1. How many years have you been practicing law?

2. Do you specialize in representing medical staffs?

3. What other medical staffs have you represented and for how long?

4. What areas of law make up your practice other than medical staff representation? What percentage of your practice is made up of these other areas?

5. Why do you believe the medical staff should be self-governing?

6. What kinds of medical staff issues/cases do you handle best of all?

7. Have you handled issues/cases similar to the one we are presenting to you?

8. How do you handle disputes between the medical staff and the hospital administration/board?

9. What types of matters will you consult with me/us on before making a decision on my/our behalf?

10. Are you a litigator? If our situation is likely to end up in trial, how much experience do you have in court? Have you ever handled litigation by a medical staff against the hospital administration/board?

11. What are your rates? How much might this entire matter cost?

12. Who else from your office will be working on my/our situation and what rate is their work billed at?

13. Do you have an office system that permits you to return phone calls quickly? What is that system?

14. How will you keep us informed of the progress of our issue/case?

15. What do you see as the steps needed to resolve this issue/case? What are some factors that may change this?

16. How long may it take to resolve this particular matter?

17. What things do you require me/us to do as you handle our issue/case?

Contact: CMA’s legal information line, 415/882-5144 or legalinfo@cmanet.org.

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9. Order CMA's 2003 Model Medical Staff Bylaws
CMA’s 2003 Annotated Model Medical Staff Bylaws is now available. You can purchase the 129-page print edition or a searchable and interactive CD-ROM (or both). The bylaws are free to members of CMA’s Organized Medical Staff Section. Nonmembers can choose either the print edition or the CD-ROM for $200 or both for just $250. Order from Beatrix Erdei at 415/882-5107 or berdei@cmanet.org.

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10. OMSS Membership
Because this is special issue of the Advocate, many non-members are receiving a copy. In order for us to continue advocacy efforts in the fight for medical staff self-governance and other issues, we need everyone to join!

The CMA-OMSS is here to serve.

* CMA Hotline for questions from Medical Executive Committee members, Chiefs-of-Staff, and Medical Staff Coordinators

* CMA's Annotated Model Medical Staff Bylaws (available in CD or hard copy -- copies can be provided to all members of Medical Staff Bylaws Committees)

* Quarterly OMSS Advocate newsletter
providing updates on current events and issues

* Speakers Bureau on Medical Staff-related issues (e.g., Fair
Hearings, Peer Review, Emergency On-Call Coverage, HIPAA)

* California Participating Physician Application

* CMA On-Call Documents and advice specifically
geared to answer medical staff concerns including:

* Medical Staff On-Call Requirements

* Economic Credentialing/Exclusive Contracts

* Fair Hearing Requirements and Disruptive Physicians

* Peer Review Immunities

* Legal Counsel for the Medical Staff

* Advice to Well-Being Committees

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11. HIPAA for Procrastinators
CMA’s newest HIPAA offering is hour-long lectures that will focus on key HIPAA issues of concern to most physicians. The HIPAA Uniform Electronic Transaction Rules takes effect October 16, 2003. Many health plans, clearinghouses, software vendors and medical practices are not ready. Learn what you need to do now to be sure you get paid after October 16. The lectures will also cover issues on compliance with the privacy and security regulation and how to avoid costly mistakes.

The lectures are suitable for medical staff CME programs and will receive one hour CME credit. Steven Fleisher, CMA’s chief HIPAA consultant and former associate general counsel, will present the program at your hospital. The fee is $1000 for OMSS member hospitals and $1200 for others. A two hour version is also available. Contact Steve at 415.882.5159 or sfleisher@cmanet.org.

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12. Fulfill AB487 Mandate - Pain Management and End of Life Care
In California’s Regulatory Environment
September 13, 2003 /The Westin Santa Clara
January 9-10, 2004 / Sheraton Gateway LAX

Workshops include: Palliative Medicine; Pharmacologic Management of Chronic Pain; Back Pain; Cancer Pain;How Laws and Regulation are Enforced in California

Sponsored by California Medical Association

Find information at http://www.cmanet.org  or call 415/882-3375