Chapter 10.C.1 (or 4.C.1.) -- Medical Staff Structure and Physician Unions

For insightful analysis of how hospital-physicians relations are changing within the traditional medical staff structure, see John D. Blum, Beyond the bylaws: hospital-physician relationships, economics, and conflicting agendas,  53 Buff. L. Rev. 459-498 (2005).

Bucking the judicial trend in other states, Kessel v. Monongalia County General Hospital Co., __________ (W. Va. 2004) struck down a hospital's exclusive contract for anesthesia services because it infringed the excluded physicians' right to practice and, interestingly, patients' rights to choose their own physicians (even anesthesiolgists!).  It is noteworthy that the hospital in question was a public (county) hospital, not a purely private hospital. 

The increased attention to the need to improve quality of care has led to renewed calls for hospital management to assert more authority over the medical staff.  John D. Blum, Feng shui and the restructuring of the hospital corporation: a call for change in the face of the medical error epidemic, 14 Health Matrix 5-34 (2004); Symposium, The Hospital-Medical Staff Relationship: An Issue of Quality, 12 Ann. Health L. 179 (2003).

A new form of "economic credentialing" has emerged, known as "conflict credentialing" or "competitive credentiality," in which hospitals refuse privileges to physicians who establish specialty facilities that compete with the hospital's services, under the theory that there is an economic conflict of interest between the two parties.  See Beverly Cohen, An Examination of the Right of Hospitals to Engage in Economic Credentialing, 77 Temp. L. Rev. 705 (2004); Elizabeth A. Weeks, The New Economic Credentialing: Protecting Hospitals from Competition by Medical Staff Members, 36 J. Health L. 247 (2003); Robert J. Milligan & Michelle Notrica, Plata o Plomo: Hospital Medical Staff Relations in the Era of Conflicts Credentialing, Health Lawyers News 22 (Oct. 2004); Comment, 88 Marq. L. Rev. 413-439 (2004).  As discussed in Section E, the legality of this practice has also been challenged as a violation of Medicare's "anti-kickback" statute.  

In California, a heated dispute over this issue at one hospital (Community Memorial Hospital of San Buenaventura) led to the state medical association sponsoring a bill, that was enacted in 2004, affirming the self-governing status of the hospital medical staff and its right to be legally represented as a distinct entity, separate from the hospital.  See Am. Med. News, July 21, 2003; 13 BNA Health L. Rev. 1397 (2004).  For an entertaining video providing the medical association's point of view, see  http://www.calphys.org/html/bb465.asp

For another decision finding physicians' covenants not to compete void for public policy, see Murfreesboro Medical Clinic, P.A. v. David Udom, ________ (Tenn. 2005).  For thorough analysis of this area of law, see S. Elizabeth Wilborn Malloy, Physician restrictive covenants: the neglect of incumbent patient interests,  41 Wake Forest L. Rev. 189-236 (2006).

The 6th Cir. rule that "floor nurses" in nursing homes have supervisory status that bars union representation because they oversee nursing assistants and exercise discretionary authority.  Extendicare Health Services Inc. v. NLRB (6th Cir. 2006)

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