Court orders Dr.'s reinstatement after revocation of privileges.

CASE ON POINT: Hourani v. Benson Hospital, 2005 WL 2364945 P.2d--AZ

CASE FACTS: Dr. Abdulkadir Hourani, a board-certified, pulmonary critical-care specialist, was licensed to practice medicine Arizona. From 2000 to 2002, he was employed by EmCare, Inc., which contracted with Benson

Hospital to provide the hospital with emergency room physicians. In December 2000, the hospital's Medical Staff Executive Committee began to investigate the quality of Dr. Hourani's care and subsequently voted to recommend to the Governing Board that it revoke his privileges at the hospital. The Executive Committee informed Dr. Hourani of its decision. He requested a hearing. After the hearing, the hearing officer issued a report stating that, of the eight cases discussed in his report, "variances" had occurred in three of the cases in which "the care varie[d] from the norm that had been established in Emergency Medicine." However, the hearing officer made no official recommendations to revoke Dr. Hourani's hospital privileges, stating at the hearing that "it is up to the Medical Staff to decide whether privileges are revoked or not revoked." After considering the hearing officer's report, the Executive Committee remained in favor of recommending to the Governing Board that the physician's privileges be revoked. Dr. Hourani appealed the Executive Committee's recommendation to the Appellate Review Committee. After a hearing the Appellate Review Committee adopted the Executive Committee's recommendation and revoked Dr. Hourani's privileges. The Governing Board accepted the recommendation and revoked Dr. Hourani's privileges. Dr. Hourani sought injunctive relief from the Superior Court, arguing that the hospital's proceedings had denied him due process. The parties both moved for summary judgment. The Superior Court of Arizona denied the hospital's motion but granted Dr. Hourani's motion and ordered that he be reinstated. The hospital appealed.

COURT'S OPINION: The Court of Appeals of Arizona affirmed the judgment of the lower court in part, reversed it in part and remanded the case. The court affirmed the lower court's judgment denying the hospital's cross-motion for summary judgment. Because it found as a matter of law that the unchallenged lack of a recommendation from the hearing officer was insufficient to invalidate the entire process and that questions of material fact existed as to whether other procedural violations occurred during the proceedings leading up to the revocation. The court reversed the judgment of the lower court on that issue and remanded the case back to the superior court.

LEGAL COMMENTARY: The court reviewed the trial court's denial of the hospital's motion for summary judgment de novo. The court noted that Arizona law requires that hospitals have a peer review process in place to have members of their medical staffs evaluated by a peer review process. In order to "encourage lull and frank discussions and decision-making" in a process that can be both time consuming and contentious, the legislature granted immunity to physicians engaging in peer review by limiting legal remedies against them to injunctive relief, and providing that no hospital of other individual involved in participating in the peer review process be liable in damages to any person who is denied privileges to practice in a hospital in which his privileges have been suspended, limited or revoked. Under Arizona law, the only remedy is injunctive relief. The court thoroughly reviewed the legislative history involved. The court first identified procedural defects, which the parties had not argued. One was that the hearing officer had failed to recommend a sanction. The court observed that the hearing officer alluded to "variances" but did not recommend any specific action in response to them. The court observed that under the hospital's by laws, the Executive Committee was bound to consider the hearing officer's findings as well as his recommendation. However, the lower court found that in this case, the Executive Committee could not, have considered what was not provided. "The failure of the hearing officer to have included recommendations not only deprived the Executive Committee of the benefit of those recommendations, but similarly deprived the Appellate Review Committee and the Governing Board." The court found that the Appellate Review Committee was only required to consider the hearing officer's report; it was not bound by it in any way. Dr. Hourani did not present any evidence that he suffered any prejudice from the hearing officer's failure to recommend a sanction. Accordingly, the court concluded that, as a matter of law, the hearing officer's failure to make a recommendation invalidated the proceeding. The court proceeded to find that the peer review process was flawed because one physician member was appointed to the Appellate Review Committee as the practitioner peer. The hospital's bylaws required that the Appellate Review Committee be composed of three members, two members of the Governing Board and one practitioner peer. The bylaws further provided, inter alia, that the peer "shall not be in direct economic competition with the affected practitioner ..." This was not the case!

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.