The Medical staff counselor
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Although most state courts to date have upheld the validity of exclusive contracts, this article points out that exclusive contracts still raise serious antitrust and corporate practice of medicine issues, and such contracts may not, in many cases, terminate the privileges of physicians already on staff. The medical staff is encouraged to become involved in determining whether any exclusive contract is warranted and whether medical staff bylaws should tie continued practice at the hospital to the existence of the contract.
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Hospitals are increasingly entering into exclusive contracts with physician to operate a hospital department. Physicians who are not parties to the exclusive contract are foreclosed from providing any of the covered services and, in most instances, from access to the hospital equipment and facilities necessary for rendering such services. This article focuses on the substantive and procedural legal issues that arise with regard to physicians whose privileges are reduced or terminated as a result of an exclusive contract arrangement and factors that will be considered by hospitals in negotiating exclusive contracts.
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This article sets forth numerous insight and practical suggestions for conducting medical staff hearings in compliance with the Health Care Quality Improvement Act of 1986. The authors examine when a practitioner is entitled to a hearing, how to prepare for a hearing, and how the hearing itself should proceed, from the opening statement to the hearing panel's recommendation.
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In analyzing the effect of Patrick v. Burget upon peer review, the authors conclude that the decision was not "an atom bomb" and that physicians who wish to work for changes in state law to ensure the availability of the state action exemption for peer review actions will find substantial guidance in the decision.
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The Health Care Quality Improvement Act, which often protects hospitals and medical staffs from damages resulting from physician credentialing decisions, offers no protection for (1) credentialing decisions affecting allied health practitioners or (2) challenges to exclusive contract between physicians and hospitals. Since many antitrust-health care actions have involved those two situations, antitrust litigation in those areas is not likely to decline. This article outlines steps that hospitals and their medical staffs can take to minimize the antitrust risks in awarding exclusive contracts and in decisions regarding the credentialing of allied practitioners.