Public Health Law Map - Beta 5 - Medical and Public Health Law Site

to deal fairly with citizens, these entities are required to provide some level of due
process. The more severe the deprivation that might result from the state action, the
more formal the required procedure. In the medical context, the criminal prosecution
of a physician for violating the controlled substances act would require the most
comprehensive protection of the physician’s rights. If a due process hierarchy were
established, it would be the following: (1) criminal law prosecutions, (2) state or
federal civil law prosecutions, (3) private civil law actions, (4) actions involving the
physician’s license, (5) peer review actions at governmental entities, (6) private peer
review regulated by state or federal law, (7) private peer review of independent
contractors, and (8) private peer review of employee physicians.
With two exceptions, the due process requirements for peer review in private
institutions are limited to the contractual provisions of the medical staff bylaws. This
is sometimes extended by state law provision, but the major exception is the federal
Health Care Quality Improvement Act (HCQIA) of 1986. This law does not set due
process requirements. It encourages private institutions to provide due process
protections by giving them conditional immunity from state and federal lawsuits over
peer review activities if they provide due process described in the law.
What is usually called due process is more accurately called procedural due process:
It refers to fair procedure. Procedural due process refers to the procedure used to
conduct the peer review. The procedure must be fair. Accused physicians must be
allowed to present their case to an impartial decision maker. This may include
examining the evidence, presenting and questioning witnesses, and appealing the
decision to a neutral reviewer. It is not necessary to conduct the proceedings as if
they are part of a court proceeding. The process may be informal, as long as it is
consistent and the physicians subject to review know the rules.
Substantive due process is an old legal notion that more nearly approximates a lay
idea of fairness. Courts use a substantive due process standard to invalidate rules or
laws with which they disagree. A peer review example would be a medical staff rule
banning osteopaths from the staff. A court might find that this rule, however fairly
and uniformly applied, violates substantive due process. This would be an expression
of the court’s belief that the exclusion of osteopaths would not serve to enhance the
quality of the medical care in the hospital. The court would be ruling on the
substance of the rule rather than its fair application.
Substantive due process is a consideration in peer review only if the review criteria
exclude classes of practitioners without evidence that this exclusion is reasonably
related to the quality of medical care. An example of a current controversy is the
blanket exclusion of podiatrists from many medical staffs. Podiatry is not a medical
specialty, but its practitioners are licensed by the state to provide medical care. These
state licensing laws also establish the scope of a professional’s practice. In some
states, hospital care is within the allowable practice of a podiatrist. In these states, a
podiatrist could argue that a governmental hospital that excluded all podiatrists was
violating their right to substantive due process. Whether the courts would agree is
another question.
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