Checklist · Healthcare

Facing a Privileges Action or Conducting Peer Review: A Practical Checklist

42 U.S.C. § 11112

Type
Checklist
Jurisdiction
National
Date
2025-02-01
Topic
Healthcare

This checklist runs a medical staff matter from both chairs. It opens with the actions that must occur in the first week, when the decisions that determine the outcome are made and usually made wrong. It works the bylaws, the definition of investigation, the thirty-day reporting threshold, and the hearing request deadline that waives everything if missed. It provides the physician's objection and evidence-demand sequence for the hearing record, and the hospital's compliance sequence for each of the four statutory standards, with the reasonable-effort element treated at length because it is where hospitals most often fail. It covers privilege by forum, credentialing and reappointment, the employment clause that bypasses the entire structure, settlement terms, parallel proceedings, and the comparative data that decides a meaningful share of these matters.

Facing a Privileges Action or Conducting Peer Review: A Practical Checklist

Healthcare > Medical Staff Privileges, Peer Review, and Credentialing | Published 1 February 2025 - Updated 17 October 2025 | UpLaw - uplaw.us

Part 0 — The first week

☐ ⚠️ Retain counsel experienced in this specific field now, not after the hearing ☐ ☐ Obtain the bylaws in effect on the operative date, plus every policy incorporated by reference ☐ ☐ ⚠️ Do not resign, withdraw an application, or take a leave until the reporting consequence is analyzed ☐ Surrender while under investigation is reportable and reads worse than most adverse actions. ☐ Ask in writing whether an investigation is open, and preserve the answer ☐ ☐ Preserve your own records — schedules, charts you can access, correspondence, notes — before access is cut off ☐ ☐ Build the timeline: every protected act, complaint you made, business conflict, and every step of the process, with dates ☐ ☐ Notify malpractice and employment practices carriers ☐ Some policies cover privileges proceedings. ☐ Say nothing orally that is not also said in writing ☐

Part 1 — The governing framework

☐ Standards applied — 42 U.S.C. § 11112 ☐ Immunity — 42 U.S.C. § 11111 ☐ Findings — 42 U.S.C. § 11101 ☐ Definitions — 42 U.S.C. § 11151 ☐ Fee-shifting — 42 U.S.C. § 11113 ☐ ☐ ⚠️ The presumption runs against the physician. A court asks whether the process was adequate, not whether the medicine was right. ☐ Origin understood — Patrick v. Burget; California Retail Liquor Dealers Association v. Midcal Aluminum ☐ ☐ Is the hospital public or private ☐ Is the physician employed, contracted, or independent ☐ ☐ Is the specialty governed by an exclusive contract ☐ Jefferson Parish Hospital District No. 2 v. Hyde ☐

Part 2 — Reporting analysis, run before anything else

☐ Is the proposed action longer than thirty days ☐ ⚠️ Twenty-nine days is not reportable; thirty-one is. The clinical difference is nothing; the career difference is total. ☐ Would a resignation now be "while under investigation" ☐ ☐ Reporting obligation — 42 U.S.C. § 11133 ☐ Query duty — 42 U.S.C. § 11135 ☐ Reporter immunity — 42 U.S.C. § 11137 ☐ Regulations — 45 C.F.R. Part 60 ☐ ☐ Other databases and consequences — 42 U.S.C. § 1320a-7e; exclusion under 42 U.S.C. § 1320a-7 ☐ ☐ Licensing board reporting obligation checked separately ☐ ⚠️ A settlement that avoids a Data Bank report but triggers a board referral has solved the smaller problem. ☐ If a report exists: statement drafted ☐ dispute filed ☐ voiding explored ☐ Review addresses accuracy and whether reporting was required — never whether the action was justified.

Part 3 — Bylaws review

☐ Definition of "investigation" — dated, documented, communicated ☐ ☐ Notice requirements: specific acts ☐ dates ☐ patients by identifier ☐ criteria alleged unmet ☐ ☐ Hearing request deadline ☐ ⚠️ Calendar it the day the notice arrives. A missed request waives the hearing and the action becomes final. ☐ Panel composition rules ☐ Definition of "direct economic competition" ☐ Right to strike panelists ☐ ☐ Hearing officer selection ☐ ☐ Burden of proof and standard ☐ Frequently placed on the physician — inverted relative to ordinary litigation. ☐ Evidence exchange requirements and deadlines ☐ ☐ Right to counsel, and whether counsel may examine witnesses ☐ ☐ Record: transcript, who pays, who receives a copy ☐ ☐ Appellate review body and the board's role ☐ ☐ Summary suspension authority, duration, and review trigger ☐ ☐ Exclusive contract exemptions from hearing rights ☐

Part 4 — Physician's hearing sequence

☐ Respond in writing to every allegation, in detail, with records ☐ The response becomes part of the record a court reviews. ☐ Demand in writing, and preserve every refusal: the specific charges ☐ the criteria applied ☐ every document relied on ☐ risk-adjusted comparative data for the peer group ☐ panel composition and conflict disclosures ☐ the identity of the investigator ☐ the identity of the complainant ☐ ☐ Object on the record to every procedural defect ☐ ⚠️ Unpreserved objections are waived. ☐ Move to disqualify panel members with economic relationships, on a specific factual showing ☐ ☐ Establish on the record what was not provided ☐ ☐ Examine the investigator about what was reviewed and what the physician was asked ☐ ☐ Introduce the comparative data, or the refusal to provide it ☐ ☐ Establish the timeline of protected acts and business conflicts through documents ☐ ☐ Address proportionality: what lesser alternatives existed and whether they were considered ☐ ☐ Ensure a verbatim record exists; if the bylaws do not provide one, request one and preserve the denial ☐ ☐ ⚠️ Treat the hearing as the trial, because the record made here is the record.

Part 5 — Hospital compliance, standard by standard

Standard 1 — reasonable belief in furtherance of quality health care ☐ The concern documented contemporaneously, before any business conflict arose ☐ ☐ Quality data supporting the concern preserved ☐ ☐ No competing motive reflected in any communication ☐

Standard 2 — reasonable effort to obtain the facts ⚠️ Where hospitals most often fail ☐ The physician's written response solicited and considered ☐ ☐ Actual charts reviewed, not summaries ☐ ☐ External review obtained where the specialty is unrepresented on staff ☐ ☐ Risk-adjusted comparison against an appropriate peer group ☐ ☐ A written investigative record showing who reviewed what and when ☐

Standard 3 — adequate notice and hearing ☐ Notice states specific conduct and specific concerns ☐ ☐ Bylaws followed exactly ☐ Every departure documented and justified ☐ ☐ Panel conflicts screened and the screen documented ☐ ☐ Evidence disclosed ☐ Withholding it is the single most cited procedural defect. ☐ Investigation separated from adjudication ☐

Standard 4 — reasonable belief the action was warranted ☐ Lesser alternatives considered and documented ☐ ☐ Graduated response where the history permits ☐ ☐ Board states its reasons ☐

☐ Thirty-day threshold managed deliberately, particularly where a summary suspension is running ☐ ☐ ⚠️ Do not route a clinical concern through an employment termination ☐ It forfeits the immunity and creates its own exposure.

Part 6 — Summary suspension

☐ Imposed only where failure to act may result in imminent danger ☐ ☐ Authority confirmed in the bylaws ☐ Imposing person authorized ☐ ☐ Review scheduled within the bylaws period ☐ ☐ ⚠️ Duration tracked against thirty days ☐ The most common structural error is a suspension that drifts past the threshold while an investigation proceeds. ☐ Prompt post-deprivation process provided ☐ Mathews v. Eldridge; Arnett v. Kennedy ☐

Part 7 — Privilege by forum

☐ State peer review statute identified ☐ Scope determined: deliberations only ☐ whole file ☐ committee-generated only ☐ ☐ ⚠️ Federal courts applying federal common law have repeatedly declined to recognize a peer review privilege ☐ The same file can be protected in the state malpractice case and discoverable in the federal antitrust or civil rights case. ☐ Patient safety work product analyzed — 42 U.S.C. § 299b-21; 42 U.S.C. § 299b-22; 42 C.F.R. Part 3 ☐ ☐ ⚠️ Information required to be collected under other law does not become protected by routing it through a patient safety evaluation system. ☐ Confidentiality distinguished from privilege ☐ Bylaws confidentiality binds participants; it does not defeat a subpoena. ☐ Protected health information handling — 45 C.F.R. Part 164 ☐ ☐ Which forum will this dispute end in, and does the privilege apply there ☐

Part 8 — Credentialing and reappointment

☐ Organized medical staff and credentialing requirements — 42 C.F.R. Part 482 ☐ Survey — 42 C.F.R. Part 488 ☐ Provider agreements — 42 C.F.R. Part 489; 42 U.S.C. § 1395cc; definitions 42 U.S.C. § 1395x ☐ ☐ Other settings — 42 C.F.R. Part 483; 42 C.F.R. Part 484 ☐ Medicaid — 42 U.S.C. § 1396a ☐ ☐ Primary source verification complete ☐ Data Bank queried on application and biennially ☐ ☐ Privileges delineated by procedure, tied to training and current competence ☐ ☐ Focused and ongoing practice evaluation conducted as accreditation requires ☐ ☐ Negligent credentialing exposure assessed ☐ ⚠️ Sits in direct tension with peer review privilege — the plaintiff needs the file the statute protects. ☐ Call coverage obligations and their interaction with 42 U.S.C. § 1395dd ☐ ☐ Payment appeal context where privileges affect billing — 42 C.F.R. Part 405 ☐ ☐ Reappointment denial analyzed: is it a professional review action ☐ Does it trigger hearing rights and reporting ☐

Part 9 — Economic credentialing and exclusive contracts

☐ Any condition unrelated to competence identified: exclusive dealing ☐ non-investment covenants ☐ volume minimums ☐ payor participation ☐ ☐ State statutory restrictions checked ☐ ☐ Exclusive contract terms reviewed — termination of privileges without hearing ☐ ☐ Financial relationship overlay — 42 C.F.R. Part 1001 ☐ ☐ ⚠️ A physician in a hospital-based specialty should assume the exclusive contract, not the bylaws, governs their tenure.

Part 10 — The employment clause

☐ Does the employment agreement terminate privileges automatically on termination of employment ☐ ☐ Is termination without cause permitted, and on what notice ☐ ☐ ⚠️ This single clause can convert a protected process into an at-will termination with no hearing and, arguably, no report. ☐ Protections to negotiate: sever the automatic-termination link ☐ require cause ☐ route clinical concerns through the bylaws ☐ fix the characterization of any separation ☐ fix how inquiries will be answered ☐ ☐ Labor protections where employment exists — 29 U.S.C. § 157 ☐ ☐ Discrimination and retaliation exposure — 42 U.S.C. § 2000e-2 ☐

Part 11 — Comparative data

☐ Requested early, in writing, and specifically: risk-adjusted rates for the relevant procedure, all practitioners, defined period, de-identified as to others ☐ ☐ ⚠️ A refusal is itself evidence on standard two. ☐ Risk adjustment interrogated: acuity ☐ comorbidity ☐ emergency versus elective ☐ referral pattern ☐ ☐ ⚠️ A surgeon who accepts transfers and reoperations looks worse on unadjusted measures. That difference is the entire case in a meaningful number of matters. ☐ Denominator checked ☐ Small volumes produce unstable rates; a single outcome can move a practitioner from median to outlier. ☐ Comparison group identified: national benchmark ☐ facility peers ☐ registry ☐ ☐ Trend examined ☐ Whether the concern arose when the metric moved, or only after a business conflict, is timing evidence. ☐ Data preserved ☐ Data favorable to the physician has a way of becoming unavailable.

Part 12 — Sham peer review elements

☐ Timing — investigation opened shortly after a protected act ☐ Documented with dates ☐ ☐ Selective application — comparable or worse performers unreviewed ☐ Proved with comparative data ☐ ☐ Procedural irregularity — vague notice ☐ competitor panel ☐ withheld evidence ☐ complainant as investigator or decision-maker ☐ ☐ Shifting rationale across notice, hearing, and board decision ☐ ☐ Contemporaneous statements reflecting economic or personal motive ☐ These surface in the federal case where the privilege does not apply. ☐ ⚠️ A case consisting of a conviction that the criticism was unfair does not succeed. Say so early.

Part 13 — Antitrust assessment

☐ Jurisdiction — Summit Health, Ltd. v. Pinhas; Hospital Building Co. v. Trustees of Rex Hospital ☐ ☐ Rule of reason versus per se — Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co. ☐ ☐ No professional exemption — Goldfarb v. Virginia State Bar; National Society of Professional Engineers v. United States; Arizona v. Maricopa County Medical Society; Federal Trade Commission v. Indiana Federation of Dentists ☐ ☐ Ancillary restraint analysis — Broadcast Music, Inc. v. Columbia Broadcasting System; National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma; Leegin Creative Leather Products, Inc. v. PSKS, Inc. ☐ ☐ Two-actor requirement — Copperweld Corp. v. Independence Tube Corp.; contrast American Needle, Inc. v. National Football League ☐ ☐ Proof standard — Matsushita Electric Industrial Co. v. Zenith Radio Corp. ☐ Aftermarket theory — Eastman Kodak Co. v. Image Technical Services, Inc. ☐ ☐ State action — Parker v. Brown; narrowed by Federal Trade Commission v. Phoebe Putney Health System, Inc. ☐ ☐ Claims and remedies — 15 U.S.C. § 1; 15 U.S.C. § 2; 15 U.S.C. § 13; 15 U.S.C. § 15; 15 U.S.C. § 18 ☐

Part 14 — Public hospital due process

☐ Property interest analysis — Board of Regents v. Roth ☐ Do the bylaws create an entitlement ☐ ☐ Liberty interest — reputational harm plus loss of a tangible interest ☐ ☐ Process due — Mathews v. Eldridge balancing ☐ ☐ Bias — Withrow v. Larkin ☐ Combining investigative and adjudicative functions is not per se unconstitutional; disqualification requires a specific showing.

Part 15 — Settlement

☐ Physician priorities in order: no report ☐ favorable characterization if unavoidable ☐ neutral reference commitment ☐ resignation date outside any investigation ☐ privileges preserved elsewhere ☐ money ☐ ☐ Hospital priorities: finality ☐ release ☐ confidentiality ☐ departure ☐ protection against a later unreported-event claim ☐ ☐ Agreement to close the investigation without a professional review action ☐ ☐ ⚠️ Response-to-inquiry exhibit: exact language ☐ single authorized responder ☐ remedy for departure ☐ This clause matters more than the release. ☐ Agreed reference contact ☐ ☐ Commitment not to report, to report specified language, or to void an existing report ☐ ☐ Mutual non-disparagement binding named individuals ☐ ☐ Defined process for third-party credentialing queries ☐ ☐ Preservation or destruction terms for the investigative file ☐ ☐ Resignation effective on a date when no investigation is pending, and the record so reflects ☐

Part 16 — Parallel proceedings

☐ State licensing board — separate standard, separate procedure, public record ☐ ☐ Malpractice litigation — sequencing of testimony coordinated between counsel ☐ ☐ Payor credentialing — commercial networks, Medicare enrollment, Medicaid participation ☐ ☐ Employment claims — different forum, different privilege analysis ☐ ☐ Other facilities — bylaws typically require prompt self-reporting of adverse actions ☐ ☐ Program integrity — exclusion and integrity database exposure, far more consequential than the privileges outcome ☐ ☐ ⚠️ One chronology serving all forums ☐ One coordinating counsel ☐ Decide in advance what will be said in each ☐

Part 17 — Errors to avoid

☐ Building an expert clinical case instead of a process case ☐ ☐ Resigning while under investigation ☐ ☐ Missing the hearing request deadline ☐ ☐ Failing to object on the record ☐ ☐ Responding orally rather than in writing ☐ ☐ Hospital: relying on summaries rather than records, and never asking the physician ☐ ☐ Hospital: seating a competitor and documenting no conflicts screen ☐ ☐ Hospital: letting a summary suspension drift past thirty days ☐ ☐ Hospital: routing a clinical concern through employment termination ☐ ☐ Assuming state peer review privilege holds in federal court ☐ ☐ Assuming patient safety protection covers legally mandated data collection ☐ ☐ Signing an employment agreement without reading the privileges clause ☐ ☐ Settling without a response-to-inquiry exhibit ☐ ☐ Ignoring licensing board, payor, and other-facility consequences ☐

Part 18 — Matter timeline

Stage What happens Critical action Done
Day 0 Incident, metric flag, complaint, or contract conflict Note the date; nothing is yet an investigation ☐
Weeks 1–4 Inquiry; committee reviews cases ⚠️ Ask in writing whether an investigation is open; preserve the answer ☐
Weeks 4–12 Investigation; chart and external review Submit a full written response with records ☐
Recommendation Committee proposes an action Notice obligation attaches; check its adequacy ☐
Hearing request Short deadline, often thirty days ⚠️ Calendar on receipt; a miss waives everything ☐
Pre-hearing Panel selection, exchange, conflicts Object to everything now, on the record ☐
Hearing One to three sessions over weeks Build the record; demand a transcript ☐
Panel report Findings and recommendation Preserve objections to findings ☐
Appellate review Record review, usually no new evidence Written submission on the record ☐
Board decision Final; may reject the panel Request stated reasons ☐
Reporting Within the required period if reportable Draft the physician statement now ☐
Litigation After exhaustion of the bylaws process Forum choice drives the privilege analysis ☐

Part 19 — The evidence that decides

☐ Bylaws in the operative version, with incorporated policies ☐ ☐ The notice letter ☐ The single most examined document. ☐ Investigative file: who reviewed what, when, and what the physician was asked ☐ ☐ Risk-adjusted comparative data ☐ ☐ Panel composition and conflict disclosures ☐ ☐ Hearing transcript and all exhibits ☐ ☐ Board minutes and stated reasons ☐ ☐ Physician's timeline of protected acts and business conflicts ☐ ☐ Contemporaneous email, text, and meeting notes reflecting motive ☐ ☐ Employment agreement and its privileges clause ☐ ☐ Exclusive contract where the specialty is hospital-based ☐ ☐ Prior treatment of comparable physicians ☐ The hardest and most valuable evidence. ☐ ⚠️ Two items on this list touch medicine. The rest is process.

Part 20 — Bylaws amendments worth pursuing before any dispute

☐ Define "investigation" with a date and written notice to the physician ☐ ☐ Require notice stating specific acts, dates, patients by identifier, and criteria ☐ ☐ Define "direct economic competition" broadly; permit external panelists; allow peremptory strikes ☐ ☐ Independent hearing officer, not selected by the proposing party ☐ ☐ Place the burden on the party proposing the action ☐ ☐ Mandatory pre-hearing exchange with a consequence for late disclosure ☐ ☐ Right to risk-adjusted comparative data, de-identified ☐ ☐ Express right to counsel who may examine witnesses ☐ ☐ Verbatim transcript at the hospital's expense ☐ ☐ Documented consideration of lesser alternatives before revocation ☐ ☐ Physician review of a draft report where law permits ☐ ☐ Medical staff approval required for amendments, not board action alone ☐

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