Administrative Law Adjudications Involving Healthcare Professionals: Mental Health Expert Testimony

Article excerpt

Mental health experts are often needed to provide expert testimony about a respondent healthcare professional's retrospective mental state and prospective fitness for duty. This calls for the expert to parse the degree to which educational deficiency and mental illness were substantial contributing factors to any alleged past misconduct, and to offer recommendations for prospective mental health treatment and educational and supervisory remediation of any diagnosed disorders or deficiencies. Unlike adjudication of malpractice-in which the goal is to make an injured party whole by financial compensation for negligent harm-the goal of administrative agency investigation, adjudication, and peer review is to protect the public by serving as an overseer of the quality of the profession. Health care agency investigators and finders of fact require mental health experts who can discern applicable standards of care and procedure and who can offer opinions that may differ in nature substantially from those typically required in ordinary malpractice litigation.

Key WORDS: Administrative law, expert witnesses, healthcare professionals, malpractice.

Mental health experts may be called upon to examine healthcare professionals - in this context, "respondents" - who are defending themselves against complaints of alleged misconduct. Such complaints are submitted to healthcare or other governmental agencies that have jurisdictional oversight authority for the respondent, and some allegations of misconduct may implicate the healthcare professional's mental state.

This legal landscape differs substantially from that of both civil and criminal legal arenas in which mental health experts may be familiar with providing expert reports and trial testimony. For one thing, healthcare agencies increasingly have mandated a level of interprofessional collaboration and civility unparalleled in other professions (American Medical Association, 2000; Massachusetts Board of Registration in Medicine, 2001).

With the passage of the Healthcare Quality Improvement Act of 1986 (HCQIA), "peer review" in healthcare was transformed from a lay expression to a legal term of art, replete with federal statutory definitions (42 U.S.C. § 11112 1986). HCQIA - best known for the creation of the National Practitioner Data Bank (Guirguis-Blake, Fryer, Phillips, Szabat, & Green, 2006) - also inducted a panoply of health care agencies to be part of Congress' proposed remedy for the frequency of malpractice, given the observation that "the increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State" (42 U.S.C. § 11101 1986). In an effort to increase the oversight of healthcare and its practitioners, Congress chose to create an administrative law network with "peer review" authority and reporting responsibility regarding each respective organization's members.

The legal bases of healthcare "peer review"

HCQIA defines healthcare "peer review" as a "professional review action" - specifically, "an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician" (42 U.S.C. § 11151 1986).

HCQIA also establishes the minimal due process provided for a respondent by an investigating agency. The most important elements of HCQIA's due process definitions are that the peer review in question must be conducted (a) in the reasonable belief that the action was to promote quality healthcare; (b) after a reasonable effort to obtain the facts; (c) after adequate notice (including notice of the reasons for the action and a list of the witnesses, if any, expected to testify at the hearing on behalf of the professional review body) and adequate notice of the hearing and hearing procedures; (d) in the reasonable belief that action was warranted by the facts known; and (e) with an understanding that the respondent can be represented by an attorney, present evidence, and call, examine and cross-examine witnesses before a neutral hearing officer (42 U. …

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