... is for good men to do nothing.
Retaliation Against Physicians - Patrick O'Meara, MDO'Meara v Palomar Hospital
(Physician's right to fair treatment in medical staff probation process/ Physician's right to advocate for appropriate medical care)
Issue: In O’Meara, a physician was placed on probation unilaterally by the medical staff for alleged “inappropriate comments” made to patients’ families and other physicians on staff. There were no expressed concerns regarding the physician’s quality of care, however. Dr. O’Meara alleges these comments constituted his advocacy for medically appropriate care.
The terms of probation required that the doctor make no more “inappropriate comments” or be subject to a Medical Executive Committee recommendation of complete termination of privileges and membership. Dr. O’Meara was not permitted formal hearing rights as to the imposition of probation, because the MEC deemed its actions merely “observational,” and not affecting the physician’s rights or privileges in any way. Dr. O’Meara sued in state court for money damages.
The MEC succeeded in getting the lawsuit dismissed because, it claimed, under California law one cannot sue for damages without first exhausting remedies (i.e., internal hearing rights and all internal appeals). In this case, said the MEC, because it really didn’t “do” anything to Dr. O’Meara, there are no hearing rights, and he would have to wait for the MEC to “do” something, such as the threatened recommendation for termination to which would accrue hearing rights. Dr. O'Meara is appealing this ruling
On October 21, CMA filed an amicus curiae brief, in support of Dr. O'Meara in the California Court of Appeal, Fourth Appellate District, Division One. The CMA amicus brief argues (1) that Dr. O’Meara’s rights were indeed trampled by the MEC, that his status was changed relative to all other members of the medical staff to “probation,” (2) that his rights to advocate for necessary medical care were chilled due to the threat of the MEC to take action against him if it determined he “again” made “inappropriate comments” to anyone in the hospital, and (3) that the MEC suspended application of certain medical staff bylaw provisions as to Dr. O’Meara, specifically those permitting the MEC to take less drastic measures in case of a “repeat” of the alleged offending behavior, such as a formal letter of warning, or informal verbal or written letters of warning, or “other actions as deemed appropriate under the circumstances.”
CMA argued that the physician has no internal remedies to exhaust, that the MEC’s actions violate the anti-retaliation statute (Business & Professions Code §2056) and other case law requiring a physician’s actions to be linked to concerns about his quality of care before a medical staff may taken an action based on his “inability to get along” with others.
Outcome: On December 2, 2002, the California Court of Appeal, Fourth Appellate District, Division One ruled in favor of Dr. O'Meara in an unpublished opinion. The Court stated that, based on the facts as they were plead by Dr. O'Meara, the hospital allegedly did not provide a process for Dr. O'Meara to meaningfully contest the charges, and therefore did not provide a "quasi-judicial process". Accordingly, the Court rejected the hospital's argument that the physician had not exhausted his remedies and was therefore barred from bringing a lawsuit. The case has been returned to the trial court to proceed on the merits.