HOSPITAL PEER REVIEW OF PHYSICIANS:
DOES STATUTORY IMMUNITY INCREASE RISK OF
UNWARRANTED PROFESSIONAL INJURY?
Eleanor D. Kinney, J.D., M.P.H.∗
TABLE OF CONTENTS
I. INTRODUCTION....................................................................................................
58
II. BACKGROUND......................................................................................................
60
A. The Institution of Peer Review.................................................................
60
B. The Health Care Quality Improvement Act...........................................
63
1. Statutory Provisions and Relevant Legislative History .............................. 64
2. Judicial Interpretation............................................................................... 67
III. RECENT EVIDENCE OF DYSFUNCTIONAL PEER REVIEW......................... 74
A. Reported Lawsuits ......................................................................................
74
TABLE 1......................................................................................................
75
B. Media Reports and Professional Commentary.......................................
76
C. The Extent of the Problem .......................................................................
79
IV. APPROACHES TO REFORMS..............................................................................
80
A. The Problems with Peer Review ..............................................................
80
B. Approaches to Reform...............................................................................
81
1. More Rigorous Adherence to Procedural Due Process Principles................ 81
2. Reform of the “Reasonable Belief” Standard............................................. 83
3. Effective Consequences for Hospitals and Physicians
that Abuse Peer
Review...................................................................................................... 84
4. More Effective Independent Oversight of Hospital
Peer Review
Proceedings ............................................................................................... 84
V. CONCLUSION ........................................................................................................
85
APPENDIX A...............................................................................................................
85
APPENDIX B ...............................................................................................................
87
∗ J.D. Duke University School of Law, 1973, M.P.H., University of North Carolina at
Chapel Hill, 1979, Hall Render Professor of Law &
Co-Director, William S. & Christine S. Hall
Center for Law and Health, Indiana University School
of Law – Indianapolis, Indianapolis, IN.
I am indebted to the following colleagues for suggestions
on this paper: David Orentlicher,
M.D., J.D., and Robert A. Katz, J.D. I am also indebted
to the following individuals for research
assistance with this paper: Emma Haw, Tom Donohoe, Tony
Pearson, Jackie Landress,
Faith Long Knotts and Margie Welsh.
58 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
I. INTRODUCTION
In 2004, a Texas jury awarded Dr. Lawrence Poliner
$366 million -- one
of the top ten largest jury verdicts that year1 – in his
lawsuit against a hospital
and several physicians for malicious peer review.2 Dr. Poliner left
a large physician
group and started competing with his former colleagues
in the same
hospital. According to the United States District for
the Northern District of
Texas, the hospital and peer review committee effectively
suspended Dr.
Poliner’s privileges to perform cardiac catheterizations
summarily on the basis
of one questionable case and without giving Dr. Poliner
an opportunity to
defend himself.3
In a recent California case, a jury awarded Dr. John
Ulrich, Jr. $4.3 million
for a hospital dismissal based on a disruptive physician
charge and findings
of incompetence that occurred after Dr. Ulrich publicly
challenged an
administrative decision to cut professional staff positions
at the hospital on
quality of care grounds.4 The California Medical Board’s
later review of Dr.
Ulrich’s patient care found no problems.
These cases followed an earlier case involving one
Dr. Kenneth Clark
who raised concerns that his hospital did not follow
appropriate procedures in
several areas and reporting these problems to the Joint
Commission on the
Accreditation of Healthcare Organizations (JCAHO) and other authorities.5
The hospital’s peer review committee determined
that Dr. Clark’s actions
1. Natalie White, Surgeon Awarded $366 Million for Revoked Hospital Privileges, 648 LAWYERS
WEEKLY
USA 20 (Sept. 27, 2004); Jury Awards $366 Million In Damages To Physician In Peer Review
Case, 13 BUREAU NAT. AFF. 1378 (Sept. 23, 2004);
2. Poliner v. Texas Health Systems, 2003 WL 22255677 (N.D. Tex. 2003),
rev’d, (5th Cir.
Jul. 23, 2008). See Myrle Croasdale, Defamation Award Could Chill Peer Review: A Dallas Cardiologist
Won $366 Million In A Lawsuit Claiming A Peer Review Panel
Intentionally Ruined His Career, AM.
MED. NEWS (Oct. 4, 2004), available at http://www.amaassn.
org/amednews/2004/10/04/prsd1004.htm).
3. In July 2008, as this article was in the publication
process, the United States Court of
Appeals for the Fifth Circuit reversed the decision
of the United States District Court for the
Northern District of Texas and entered judgment for
the defendants. (5th Cir. Jul. 23, 2008).
The Fifth Circuit ruled that the immunity under the
Health Care Quality Improvement Act
applied to the peer review actions in this case. Id.
4. Ulrich v. City & County of San Francisco, 2004
WL 1635542 (N.D. Cal. July 12, 2004).
Dr. Ulrich was discipline when he publically complained
about staff cutbacks by the health
department as “an injustice to patients.” See also Steve Twedt, Doctor Who Voiced
Protest Wins $4.3
Million Judgment, PITTSBURGH POST-GAZETTE, June 24, 2004, available at
http://www.peerreview.org/whistleblowers/6242004postgaz.pdf).; Steve
Twedt, A Negative
Data Bank Listing Isn’t Easy to Erase, Oct. 27, 2003, available at http://www.postgazette.
com/pg/03300/234532.stm.
5. Clark v. Columbia/HCA Info. Services, Inc., 25 P.3d 215 (Nev. 2001).
See Steve
Twedt, Doctors Who Spoke Out, PITTSBURG POST-GAZETTE, Oct. 27, 2003, available at
http://www.post-gazette.com/pg/03300/234534.stm.
Hospital Peer Review 59
were “disruptive” and terminated his staff
privileges. Dr. Clark’s court challenge
went to the Nevada Supreme Court which ruled that the
immunity provisions
in Health Care Quality Improvement Act, discussed below,6 did not
apply.
In these cases, the physicians had challenged the hospital’s
administration
and/or powerful doctors on the hospital’s medical
staff. Dr. Poliner was
a competitor of members of the peer review committee
and at odds with the
hospital administration who supported his competitors.
Dr. Ulrich had vocally
and publicly raised concerns about the quality of care
to the appropriate
authorities in the hospital administration. Dr. Clark
reported serious deficiencies
in quality to regulatory authorities.
In none of these cases was the conduct of the physician
ostensibly illegal
or even inappropriate. Indeed, arguably, their conduct
was commendable.
Dr. Poliner started practicing on his own while Dr.
Ulrich and Dr. Clark
raised quality concerns to the appropriate officials,
albeit not in private. All
three physicians paid dearly for their actions in terms
of their financial well
being and professional reputations. In all cases, hospitals
sought to invoke
the protection of immunity from sit in the Health Care
Quality Improvement
Act of 1985 (HCQIA)7 to limit judicial review of their
illegal conduct.
In Dr. Clark’s case, Clark v. Columbia/HCA Information Services, Inc.,8 the
Supreme Court of Nevada concluded that the peer review
authority did not
meet the statutory qualifications for immunity. So
did the United States District
Court for the Northern District of Texas in Dr. Poliner’s case,
Poliner v.
Texas Health Systems.9 In so doing, these courts were departing from the vast
majority of courts considering peer review immunity
under HCQIA who have
upheld immunity, even in the face of irregularities
in the peer review process.
This article addresses the question of whether strong
legal immunity of
hospital peer review of physicians in HCQIA and state
peer review confidentiality
statutes is appropriate in the highly competitive and
commercial market
for physician services in the United States today.
Specifically, does immunity
pose an unacceptable risk of unwarranted professional
injury to physicians?
The article examines the more recent, reported legal
cases, media reports of
disciplinary actions against physicians and professional
legal and medical
commentary on hospital peer review. The article suggests
that there is need to
reform the various legal immunities currently in place
for hospital peer review
of physicians and other procedural reforms of hospital
peer review committees
are also in order.
6. See notes 55-75 infra and
accompanying text.
7. Pub. L. 99–660, § 415, 100 Stat. 3787 (codified
as amended at 42 U.S.C. §§ 11111-5).
8. 25 P.3d 215, 222 (2001).
9. Poliner, 2003 WL 22255677, at 18.
60 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
II. BACKGROUND
This section describes the institution of peer review
and physician selfregulation
that is the controversial proceeding explored in this
article. This
section also describes the Health Care Quality Improvement
Act of 1985
which provides civil immunity to peer review proceedings.
A. The Institution of Peer Review
Medicine is a profession, which is defined as: “a
calling requiring specialized
knowledge and often long and intensive academic preparation”10 A distinct
feature of a profession is its obligation and authority
to regulate its
members and the practice of the profession. The profession
of medicine
regulates entry through state licensure boards, constituted
primarily by physicians.
11
Physicians practicing in American hospitals are organized
in the hospital
medical staff pursuant to state licensure law and also
private accreditation
standards. 12 An important aspect of self-regulation is credentialing
physicians
for appointment, retention and termination from hospital
medical staffs. Indeed,
hospital medical staff credentialing through peer review
is the primary
means of regulating physicians who practice in hospitals.
The Joint Commission on the Accreditation of Health
Care Organizations
(JCAHO) is the primary accrediting body for allopathic
hospitals in the
United States. As such, the JCAHO establishes standards
for the organization
and operation of the hospital medical staff. 13 States also require
that hospitals
have medical staffs that conduct peer review as a condition of licensure.14
The Medicare and Medicaid programs require that hospitals
have medical
staffs and engage in peer review in order to participate in these
programs.15
JCAHO standards require that a hospital have a medical
staff and that
the medical staff works with the hospital’s governing
board to “enhance the
quality and safety of care, treatment, and services provided to patients.”16 To
that end, the organized medical staff must create medical
staff by-laws that
10. “Profession,” Merriam-Webster http://aolsvc.merriamwebster.
aol.com/dictionary/profession (last visited Feb. 15,
2008).
11. Paul Van Grunsven, The Physician and State Regulations §
2.01, HEALTH CARE LAW DESK
REFERENCE
25 (Alison Barnes, Steve Fatum, Robert Gatter & Kevin
Gibson eds., 2001).
12. Van Grunsven, supra note 12, at 37-38, §3.01.
13. JOINT COMMISSION, COMPREHENSIVE ACCREDITATION MANUAL FOR HOSPITALS: THE
OFFICIAL
HANDBOOK, STANDARD MS 1.20-5.10
(2007).
14. See Timothy S. Jost, The Joint Commission on Accreditation of Hospitals: Private Regulation of
Health Care and the Public Interest, 24 B.C.L. REV. 835, 841-49 (1983).
15. 42 C.F.R. § 482.22 (2008).
16. Kathy Matzka, COMPLIANCE GUIDE TO THE JCAHO
MEDICAL STAFF STANDARDS
(2006).
Hospital Peer Review 61
describe the organizational structure of the medical
staff and the rules for its
self-governance.17
In 2007, recognizing problems with some hospital peer
review proceedings,
the Joint Commission on the Accreditation of Healthcare
Organizations
(JCAHO) issued new and reformed Medical Staff Standards for hospitals.18
The 2007 medical staff standards made major changes
to the peer review requirements.
Specifically, the major changes were required evaluation
of six
areas of general competence before the initial appointment. 19 The six areas of
competence include: – patient care, medical/clinical
knowledge, practicebased
learning and improvement, interpersonal and communication
skills,
professionalism and systems-based practice.20
The standards require “ongoing professional practice evaluation,”21
which can act” upon reported concerns regarding
a privileged practitioner’s
clinical practice and/or competence.”22 The standards
also authorize a “focused
professional practice evaluation” that is invoked
when a when a physician’s
performance raises concerns or when a hospital lacks
documented evidence
that the physician is competent to perform a privilege.23
Another important addition in the 2007 medical staff
standards is a provision
that a requirement that the medical staff implement
a conscientious and
effective peer review process. 24 Specifically, the Joint Commission
accreditation
manual for hospitals requires “mechanisms, including
a fair hearing and
appeal process, for addressing adverse decisions for
existing medical staff
members and other individuals holding clinical privileges
for renewal, revocation,
or revision of clinical privileges.”25 In stating the
rationale for MS 4.50,
the JCAHO guidance to the standards states the hearing
mechanisms should
“allow the affected individual a fair opportunity
to defend herself or himself
… to an unbiased hearing body of the medical
staff” along with an opportunity
to appeal to the governing body.26 This guidance
also specified the elements
of performance for MS 4.50: 27
• Is designed to provide a fair process that may differ for members
and non-members of the medical staff;
• Has a mechanism to schedule a hearing of such requests [for
hearings];
17. Id.
18. Id.
19. Id.
20. Id.
21. COMPREHENSIVE ACCREDITATION MANUAL, supra note 14, at MS 4.40.
22. Id. at MS 4.45.
23. Id. at MS.4.30.
24. Id. at MS 4.50.
25. Id.
26. Matzka, supra note 16, at MS -24.
27. Id.
62 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
• Has identified the procedures for the hearing to follow;
• Identifies the composition of the hearing committee as a committee
that includes impartial peers;
• With the governing body provides a mechanism to appeal adverse
decisions as provided in the medical staff by-laws.
In July 2008, JCAHO issued a “Sentinel Event
Alert” regarding the impact
of disruptive behavior on patient safety.28 At the same time
JCAHO
introduced new leadership standards for in all its
accreditation programs for
all health care organizations regarding disruptive behaviors.29 These standards
contain two elements of performance that require accredited
organizations
to create a code of conduct that defines acceptable
and unacceptable
behaviors, and to establish a formal process for managing
unacceptable behavior.
30 The new standards take effect January 1, 2009 for hospitals, nursing
homes, home health agencies, laboratories, ambulatory
care facilities, and
behavioral health care facilities across the United
States.
The primary rational for the new standards is that
“[i]ntimidating and
disruptive behaviors can foster medical errors, contribute
to poor patient satisfaction
and to preventable adverse outcomes, increase the cost
of care, and
cause qualified clinicians, administrators and managers
to seek new positions
in more professional environments.” (citation omitted)31 JCAHO went on to
define what intimidating and disruptive behaviors,
stating that they include:
“overt actions such as verbal outbursts and physical
threats, as well as passive
activities such as refusing to perform assigned tasks
or quietly exhibiting uncooperative
attitudes during routine activities.” 32 In addition,
JCAHO emphasized
that these behaviors are “often manifested by
health care professionals
in positions of power.” 33 Further, health care institutions
and other professionals
have often tolerated bad behavior without actions to
sanction and
mitigate it. The JCAHO alert substantiated the claims
about intimidating and
disruptive behavior with a few empirical studies, law
review articles, and several
descriptive commentaries on the phenomenon of such
behavior and its
impact on patient safety and satisfaction.34
28. Joint Commission on the Accreditation of Healthcare Organizations,
Sentinel Event
Alert: Behaviors that Undermine a Culture of Safety, (July 9, 2008), available at
http://www.jointcommission.org/SentinelEvents/SentinelEventAlert/sea_40.htm.
29. Press Release, Joint Commission Alert: Stop Bad Behavior among Health Care Professionals
Rude Language, Hostile Behavior Threaten Safety, Quality (July 9, 2008), available at
http://www.jointcommission.org/NewsRoom/NewsReleases/nr_07_09_08.htm
(This requirement
will be published as Leadership Standard in the 2009
accreditation manuals for
health care organizations).
30. JCAHO Sentinel Event Alert, supra note 28.
31. Id.
32. Id.
33. Id.
34. Id. (See JCAHO
bibliography for specific sources meeting these three categories.)
Hospital Peer Review 63
B. The Health Care Quality Improvement Act
In the 1980s, the Supreme Court eliminated the historical
immunity of
health care providers from the application of the federal antitrust
laws35 and
thereby imposed commercial competition rules on health care providers.36
While ultimately judicial decisions and federal policy
limited the role of antitrust
laws in the reorganization of the health care sector,37 the organized
medical professional was quite concerned about the
exposure of physicians to
antitrust liability at the time.38
In 1985, one Dr. Patrick recovered a $2.28 million
verdict including
treble damages in a federal antitrust suit. 39 Dr. Patrick started
practicing independently
in Astoria, Oregon after declining an invitation to
join the practice
of the Astoria. The defendant physicians, practicing
at the Astoria Clinic,
initiated and participated in hospital peer review
proceedings at the only
community hospital in town and voted to terminate Dr.
Patrick’s medical staff
privileges.
The Ninth Circuit reversed the verdict concluding that
the state action
doctrine under Parker v. Brown, 40 which immunizes
conduct that is regulated
by states, immunized the peer review proceedings in
this case. The United
States Supreme Court reversed the Ninth circuit ruling
that state action doctrine
did not exempt medical peer-review associated activities
from federal
antitrust liability and reinstated the verdict.41 The court pointed
out why the
elements of the state action doctrine were not met
in this case:
The mere presence of some state involvement or monitoring
does not suffice. . . . [A]ctive supervision . . .
requires that
state officials have and exercise power to review particular
35. Sherman Antitrust Act, Act of July 2, 1890, ch.
647, 26 Stat. 209 (codified as amended
at 15 U.S.C. §§ 1-7 (2008)).
36. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)
(eliminating the learned professions
exemption to the federal antitrust laws); Arizona v.
Maricopa County Med. Soc’y, 457
U.S. 332, 343-57 (1982) (holding that the maximum fee
agreements of a state medical society, as
price-fixing agreements, are per se unlawful under § 1 of the
Sherman Act). See also AMA v.
United States, 130 F.2d 233 (D.C. Cir. 1942), aff’d, 317 U.S. 519 (1943) (ruling that the practice
of medicine is trade or commerce within the meaning
of the federal antitrust laws); AMA v.
FTC, 638 F.2d 443(2nd Cir. 1980), aff’d by an equally divided court, 455 U.S. 676 (1982).
37. Thomas L. Greaney, Whither Antitrust? The Uncertain Future of Competition Law in Health
Care, 21 HEALTH AFFAIRS 185 (2000).
38. See Carl F. Ameringer, Federal Antitrust Policy and Physician Discontent: Defining Moments in
the Struggle for Congressional Relief , 27 J. HEALTH POL. POL’Y & L. 543 (2002); Clark C. Havighurst,
The Doctors’ Trust: Self-Regulation and the Law, 2 HEALTH AFFAIRS 64 (1983). See also Sara
Rosenbaum, The Impact of United States Law on Medicine as a Profession, 289 JAMA 1546, 1552-55
(2003).
39. Patrick v. Burget, 800 F.2d 1498, 1505 (9th Cir.
1986).
40. 317 U.S. 341 (1943).
41. 486 U.S. 94, 105-06 (1988), rev’g 800 F.2d 1498, (9th Cir. 1986).
64 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
anticompetitive acts of private parties and disapprove
those
that fail to accord with state policy.42
Following this verdict as well as many other similar
suits that arose during
the same period,43 medical and hospital associations
lobbied Congress
hard to obtain immunity under the federal antitrust
laws for physicians engaged
in peer review activities.44 The Federal Trade Commission, the
Department
of Justice and the House committees overseeing the
federal antitrust
laws vigorously opposed this immunity.45 The Department
of Justice submitted
a letter during a congressional hearing stating its
opposition to the
HCQIA bill’s proposed antitrust exemption:
From the antitrust standpoint, we believe that a need
for the
special antitrust exemption in H.R. 5540 covering peer
review
activities has not been demonstrated. The rule-ofreason
analysis that would apply in antitrust cases challenging
such activities recognizes the desirable precompetitive
potential
of legitimate peer review. On the other hand, keeping
such activities subject to appropriate antitrust review
encourages
quality health care by helping to ensure that innovative
and cost-effective providers are not excluded from
the market
through unreasonable private restraints. 46
1. Statutory Provisions and Relevant Legislative History
The Health Care Quality Improvement Act (HCQIA) accords
civil immunity
to liability for damages under federal antitrust laws,
as well as other
federal and state legal actions.47 Excepted are
actions brought by states attorney
general48 and under federal civil rights laws.49
However, statutory immunity according to the statute
is not absolute.
HCQIA states four procedural requirements for peer
review proceedings to
qualify for immunity. The peer review authority must
proceed first, with “the
42. 486 U.S. at 101.
43. See Tim A. Thomas, Denial by Hospital of Staff Privileges or Referrals to Physician
or Other
Health Care Practitioner as Violation of Sherman Act (15 U.S.C.A.
§§ 1 et seq.), 89 A.L.R. FED. 419
(1988).
44. John K. Iglehart, Congress Moves to Bolster Peer Review: The Health Care Quality Improvement
Act of 1986, 316 NEW ENG. J. MED. 960 (1987); see generally HEALTH CARE QUALITY
IMPROVEMENT
ACT OF 1986: A LEGISLATIVE HISTORY OF PUB. LAW NO. 99-660 (Bernard D.
Reams ed., 1990)
45. Inglehart, supra note 44 at 961.
46. Health Care Quality Improvement Act of 1986: Hearings before the Subcomm. on Civil and
Constitutional Rights of the H. Comm. on the Judiciary
on H.R. 5540 Health Care Quality Improvement Act
of 1986, 99th Cong., 2d Sess. 29-30 (1986) (letter of John R. Bolton, Assistant Attorney General,
Office of Legisl. and Intergovernmental Affairs to Honorable
Peter W. Rodino, Jr.,
Chairman, Comm. on the Judiciary, United States House
of Representatives).
47. Health Care Quality Improvement Act of 1986, 42
U.S.C. §§ 11101-52 (2008).
48. 42 U.S.C. § 11111(a)(1)(D) (2008); 15 U.S.C. § 15c
(2008).
49. 42 U.S.C. § 11111(a)(1)(D) (2008).
Hospital Peer Review 65
reasonable belief that the action was in the furtherance
of quality health care”
and, second, only “after a reasonable effort
to obtain the facts of the matter.”
50 The peer review authority must also provide “adequate notice and [a]
hearing” or “other procedures [which] are fair . . .
under the circumstances.”51
Finally, the peer review authority must act with a
reasonable belief that the
facts known after a reasonable investigation warrant the action taken.52
Also, the House Committee Report clearly stated that
it adopted a “reasonable
belief” rather than a “good faith”
standard as it wanted an objective
rather than a subjective standard for the judicial
evaluation of the facts relied
on by the peer review authority.53 Congress wanted
courts not to evaluate a
“subjective state of mind” but rather that
the information before the peer
review body would have be sufficient to support a “reasonable
belief” that the
action would restrict incompetent physicians and/or protect patients.54 Further,
Congress clearly thought wanted to be sure that judicial
determinations
of immunity would be streamlined and set a high standard
for piercing the
immunity. As the House Committee Report stated:
Reflecting the Committee’s belief that this standard
will be
met in the overwhelming majority of professional review
actions,
the subsection provides a presumption to that effect,
requiring a plaintiff to show, by clear and convincing
evidence,
that no such reasonable belief existed at the time
of
the professional review action. This presumption applies
only to the reasonable belief standard, not to the
other standards.
Those additional standards require a group engaged
in
peer review to make a reasonable effort to obtain the
facts, to
provide adequate due process, and to have a reasonable
belief
that the professional review action was warranted by
the facts
known.55
HCQIA does specify fair due process requirements for
peer review proceedings,
but, adherence to these requirements is not mandatory. 56 Rather
hospital will be “deemed to have met the adequate
notice and hearing requirement”
of subsection 11112(a) (3) if it has meet the requirements
of §
11112(b).57 These features include notice of 30 or more
days prior to the
hearing and a statement in the notice that a professional
review action has
been proposed to be taken against the physician and
the reasons for the pro-
50. 42 U.S.C. § 11112(a) (2008).
51. Id.
52. Id.
53. H.R. REP. 99-903, at 10 (1986).
54. Id; see also Anthony
W. Rodgers, Procedural Protections during Medical
Peer Review: A Reinterpretation
of the Health Care Quality Improvement Act of 1986, 111 PENN. STATE L. REV. 1047,
1055-57 (2007).
55. House Report, supra note 53,
56. 42 U.S.C. § 11112(b) (2008).
57. Id.; 42 U.S.C. § 11112(a)(3) (2008).
66 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
posed action. 58 The notice must also indicate that
the physician has a right to
a hearing and on what terms. The statute indicates
that the decision-maker
may not be in “direct economic competition with the physician
involved.”59
Additional procedural safeguards in § 11112(b) include
representation by
counsel of the physician’s choice, a record of
the proceedings available to the
physician for a reasonable charge, the right to call,
examine, and crossexamine
witnesses and the right to present evidence determined
to be relevant
by the hearing officer, regardless of its admissibility
in a court of law. In addition,
the physician has the right to receive the written
recommendation of the
arbitrator, officer, or panel, including a statement
of the basis for the recommendations,
and a formal written decision from the final decision-making
authority.60
These are exemplary due process standards and actually
comport with
the constitutionally mandated due process measures required in Goldberg v.
Kelly61 for the pretermination hearings of
welfare recipients. However, they
are not required but only recommended if the hospital
wants to ensure that it
has met the statutory standard for due process in §
11112(a)(3). The statute
then goes on to state: “[a] professional review
body’s failure to meet the conditions
described in this subsection shall not, in itself,
constitute failure to
meet the standards of subsection (a) (3) of this section.”
62 This provision has
allowed courts to overlook the procedural elements
of the peer review protections
in considering immunity and thereby effectively eviscerate
the due process
protections in § 11112(b).
Furthermore, only in litigation, can a targeted physician
ensure a hospital’s
compliance with HCQIA’s protections. In such
litigation, physicians are
then confronted with the HCQIA provision that professional
review actions
shall be presumed to have met the statutory standards
unless the “presumption
is rebutted by a preponderance of the evidence.” 63
HCQIA also established the National Practitioner Databank
to which
most malpractice judgments and settlements as well
as disciplinary actions by
hospital peer review committees must be reported to
and maintained by the
federal government.64 Another congressional concern was
perceived problems
with poor quality physician care.65 At the time,
the United States was
58. 42 U.S.C. § 11112(b).
59. 42 U.S.C.. § 11112(b)(3)(A)(ii) (2008).
60. 42 U.S.C. § 11112(b).
61. Goldberg v. Kelly, 397 U.S. 254, 255, 262-63 (1970).
62. 42 U.S.C. § 11112(b) (2008).
63. 42 U.S.C. § 11112(a) (2008); see also Joshi v. St. Luke’s Episcopal-Presbyterian Hosp.,
142 S.W.3d 862, 866 (Mo. Ct. App. 2004).
64. 42 U.S.C. §§ 11131-11153 (2008).
65. In 42 U.S.C. §111101 (2008)) Congress made the following
findings:
(1) 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.
Hospital Peer Review 67
experiencing a crisis in the availability and affordability
of medical liability
insurance and there was great concern about the quality
of care of medical
care.66
The legislative history indicates that Congress believed
that immunity for
peer review was essential to ensure that hospitals
would report errant physicians
to the National Practitioner Data Bank. As the House
Committee Report
stated:
Thus, there is a clear need to do something to provide
protection
for doctors engaging in peer review if this reporting
system is to be workable. To that end, the bill provides
limited,
but essential, immunity. Doctors and hospitals who
have acted in accordance with the reasonable belief,
due
process, and other requirements of the bill are protected
from damages sought by a disciplined doctor. The bill
protects
innocent and often helpless consumers from abuses by
bad doctors without insulating improper anticompetitive
behavior
from redress.67
2. Judicial Interpretation
Clearly Congress intended that the procedural requirements
in § 11112(a)
for peer review proceedings would serve as a check
against the abuse of peer
review by competitors or others with inappropriate
motives. Ideally, courts
should provide an adequate check over hospital peer
review and thereby deter
abusive peer review. The judicial jurisprudence implementing
these procedural
protections indicates that courts may well have abdicated
this responsibility.
Indeed, this jurisprudence suggests considerable reluctance
on the part
of court to assume this oversight role in an adequate
fashion. The apparent
attitude of most courts toward their role is reflected
in the following statement
of one court: “[i]t is not up to the courts to
second-guess hospitals in
(2) There is a national need to restrict the ability
of incompetent physicians to move
from State to State without disclosure or discovery
of the physician’s previous damaging
or incompetent performance.
(3) This nationwide problem can be remedied through
effective professional peer
review.
(4) The threat of private money damage liability under
Federal laws, including treble
damage liability under Federal antitrust law, unreasonably
discourages physicians
from participating in effective professional peer review.
(5) There is an overriding national need to provide
incentive and protection for
physicians engaging in effective professional peer review.
66. See Kenneth E. Thorpe, The Medical Malpractice ‘Crisis’: Recent Trends
and the Impact of
State Tort Reforms, HEALTH AFF., Jan. 21, 2004, at W4-20, available at
http://www.healthaffairs.org; Eleanor D. Kinney, Malpractice Reform in the 1990s: Past
Disappointments, Future Success?, 20 J. HEALTH POL., POL’Y & L. 99, 100 (1995).
67. House Report, supra note 53, at 3.
68 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
their decisions as to the best way to deliver services;
it is up to the institution
itself.”68
Following enactment, the United States Court of Appeals
for the Fourth
Circuit upheld the constitutionality of the immunity
provisions of the Health
Care Quality Improvement Act on grounds that the act
was rationally related
to legitimate government purpose of facilitating the
frank exchange of information
among health care professionals conducting peer review
inquiries
without the fear of reprisals in civil lawsuits.69 Courts also have
acknowledged
HCQIA’s general purpose to improve medical care
by encouraging
physicians to identify and discipline physicians who
are incompetent or engage
in unprofessional behavior. However, prophetically,
one court acknowledged,
“At its heart, the HCQIA was intended to deter
antitrust suits by disciplined
physicians.”70
Courts have generally accepted the judicial interpretation
of the statutory
standard for evaluating a peer review body’s
deliberations and decisions. That
prevailing judicial interpretation is: “Might
a reasonable jury, viewing the facts
in the best light for the [plaintiff], conclude that
he has shown, by a preponderance
of the evidence, that the defendants’ actions
are outside the scope of
Section 11112(a)?”71 The Nevada Supreme Court observed
that most courts,
in interpreting the language in § 11112(a)(1) requiring
that the action be based
on a reasonable belief that it was in furtherance of
quality health care, have
rejected plaintiff’s claims when actions were
alleged to be on the basis of personal
bias, discrimination, improper motive, or other subjective bases.72 In
these cases, the only evidence presented was of subjective
biases or motives
and no evidence showing that the board’s decision
was objectively unreasonable.
The Nevada Supreme Court decision, Clark v. Columbia/HCA Information
Services, Inc.,73 is one of the few cases in which a court has denied HCQIA
immunity to a peer review decision. Its analysis provides
important insights
into how courts have approached the implementation
of HCQIA’s immunity.
Accordingly, courts have been reluctant to pierce the
veil of HCQIA immunity.
The Clark court also observed that federal
courts had interpreted the
68. Lyons v. Saint Vincent Health Center, 731 A.2d.
206, 213-14 (Pa. Commw. Ct. 1999).
69. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 212 (4th
Cir. 2002); see also
Steve Twedt, Law Gives Hospital Panels Wide Powers over Doctors, PITTSBURGH POST-GAZETTE,
Oct. 30, 2003, available at http://www.post-gazette.com/pg/03302/235117.stm.
See also John
Miles, Part II. Application of Antitrust Principles to the Health Care Sector, Chapter 10. Practitioner
Credentialing Based on Peer Review in 2 HEALTH CARE
AND ANTITRUST L. § 10:8 (2007).
70. Gordon v. Lewistown Hosp., 423 F.3d 184, 201 (3d Cir. 2005), cert. denied, 126 S. Ct.
1777, (2006).
71. See, e.g., Misischia v. St. John’s
Mercy Medical Center, 30 S.W.3d 848, 858 (Mo. App.
2000); Gateway Cardiology, P.C. v. Wright, 204 S.W.3d
676 (Mo.App. 2006).
72. Clark v. Columbia/HCA Info. Serv., Inc., 25 P.3d
215, 223 (Nev. 2001).
73. Id. at 222-25.
Hospital Peer Review 69
presumption of immunity almost exclusively in favor
of finding immunity for
peer review board members,74 commenting that:
In fact, in only two cases have federal courts reversed
an order
of summary judgment based on immunity because the
physician demonstrated by a preponderance of the evidence
that the board failed to give appropriate fair notice
and procedures
in accordance with § 11112(a)(3).75
In addition, the Nevada Supreme Court noted,76 the United States
Court
of Appeals for the Tenth Circuit upheld a district
court’s finding of no immunity
where the peer review body reviewed only two patient
charts before deciding
to revoke the physician’s privileges.77
The recent decision of the United States Court of Appeals
for the Fifth
Circuit overturning the jury verdict in Poliner v. Texas Health Systems78 was consistent
with prior court decisions applying the standards for
immunity of peer
review activities under HCQIA discussed above. The
Fifth Circuit, in contrast
to the district court, concluded that voluntary abeyance
of Dr. Poliner’s
privileges in the cardiac catheterization laboratory
(the only action against
Poliner at issue in the case) was a covered peer review
proceeding and, further
that it met the standards for HCQIA immunity. The Fifth
Circuit observed
that the so-called reasonable belief standard is met
if “the reviewers, with the
information available to them at the time of the professional
review action,
would reasonably have concluded that their action would
restrict incompetent
behavior or would protect patients.” 79 The Fifth Circuit
noted further that
HCQIA “does not require that the professional
review result in an actual improvement
of the quality of health care, nor does it require
that the conclusions
reached by the reviewers were in fact correct.” 80 Further, regarding the
second immunity standard, the Fifth Circuit concluded
that “HCQIA does
not require the ultimate decision maker to investigate
a matter independently,
but requires only a reasonable effort to obtain the facts.”
81
In addition, courts have been reluctant to apply strict
due process standards
to the quality of the procedures used in peer review proceedings.82 For
example, one court stated that “[T]he relevant
inquiry under [HCQIA] is
whether the totality of the process leading up to the
. . . ‘professional review
74. Id. at 222
75. Id. at 222-223, citing Islami
v. Covenant Medical Center, Inc., 822 F.Supp. 1361 (N.D.
Iowa 1992).
76. Id. at 223.
77. Brown v. Presbyterian Healthcare Servs., 101 F.3d
1324 (10th Cir.1996).
78. Poliner v. Texas Health Sys., 537 F.3d 368 (5th Cir. 2008), rev’g 2003 WL 22255677
(N.D. Tex. 2003).
79. Id. at 378.
80. Id.
81. Id. at 380.
82. See Karen Jo McGinn, Due Process Considerations in Suspension of a Physician’s
Hospital Staff
Privileges, 32 AM. JUR. TRIALS 1 (2007).
70 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
action’ . . . evidenced a reasonable effort to obtain the facts
of the matter.”83
Another court described the test as follows:
Since the actions of a private institution are not
necessarily
those of the state, the controlling concept in such
cases is fair
procedure and not due process. Fair procedure rights
apply
when the organization involved is one affected with
a public
interest, such as a private hospital.84
In one decision, the court granted immunity even when
the hospital violated
its own bylaws by failing to include requisite number
of medical staff
members in hearings preceding final decision on revocation
of physician’s
staff privileges and nevertheless concluded that the
hospital had complied
with HCQIA’s so-called “safe harbor”
provisions regarding “adequate notice
and hearing” for the physician.85
Several courts, confronted with the issue, have refused
to invoke the exception
even when there are competitors involved in the proceeding.
For
example, in Harris v. Bradley Memorial Hospital and Health Center,86 the court
concluded, even in a proceeding involving a competing
physician, the HCQIA
immunity stands if the procedure was objectively reasonable
and fair:
The plaintiff presents no specific evidence of such
bad faith,
other than the fact that [one physician reviewer] is
an economic
competitor. Even if the plaintiff had presented evidence
of bad faith, the case law clearly establishes that
bad
faith is irrelevant to HCQIA claims. If the defendant’s
process
was objectively reasonable and fair as required by
the act,
the defendant’s bad faith, without more, will
not suffice to
strip the defendant of statutory immunity.87
In Manzetti v. Mercy Hospital of Pittsburgh,88 the Pennsylvania Supreme
Court held that the hospital and reviewers were entitled
to immunity under
HCQIA regardless of evidence that the physician’s
competitors were involved
in the peer review proceeding. The court stated that
evidence of self-interest,
bias or conflicts of interests by the reviewers is
immaterial if breaches of quality
were demonstrated. The Supreme Court held that the
“reasonable effort”
requirement under the following circumstances:
The requirement that the peer review body expend a
“reasonable
effort to obtain the facts” does not require
that the
83. Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 637
(3rd Cir. 1996).
84. Goodstein v. Cedars-Sinai Med. Ctr., 66 Cal. App.
4th 1257 (1998).
85. Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d
461 (6th Cir. 2003) (applying
42 U.S.C. §§ 11111(a)(1) & (3)).
86. Harris v. Bradley Memorial Hosp., 2005 WL 1433841
(Conn. Super. Ct. 2005).
87. Id. at *4.
88. Manzetti v. Mercy Hosp. of Pittsburgh, 776 A.2d 938 (2001); see also Charles I. Artz,
Swinging Pendulum of Peer Review Immunity, PHYSICIANS’ NEWS DIGEST, Nov. 2001, available at
http://physiciansnews.com/law/1101.html.
Hospital Peer Review 71
investigation be flawless. Rather, it connotes that
the investigation
must be conducted in a sensible fashion.89
There are numerous examples in which hospital peer
review proceedings
were characterized by mistakes and other irregularities
in the underlying evidence.
For example, in Brader v. Allegheny General Hospital,
the court ignored
the demonstrably inaccurate conclusions in the report
of the hospital’s outside
expert, concluding that the other reports were “otherwise thorough.”90 The
Court implied that the expert report must be entirely
mistaken, and that the
mistakes must be obvious. Because they were not, the
hospital’s decision was
not unreasonable, and the first and fourth prongs of
the HCQIA immunity
test were satisfied. In Donnell v. HCA Health Services of Kansas, Inc.,91 the Kansas
Court of Appeals upheld the ruling of the trial court
on summary judgment
that physician peer reviewers are immune from liability
under HCQIA
even if the review conducted is allegedly “sloppy” or
“grossly negligent.”92 In
Weiters v. Roper Hospital, Inc., 93 the court ruled that a reasonable jury could not
conclude that the evidence of a vendetta would overcome
the presumption
that the action was taken to improve health care.
In Meyer v. Sunrise Hospital, 94 the Nevada Supreme Court held that a hospital’s
decision to terminate a physician based upon a single
incident, albeit a
death, regardless of the high quality of care the physician
provided throughout
the remainder of his career, was sufficient to protect
the hospital under
HCQIA’s immunity provisions. Of note, one justice
of the Nevada Supreme
Court, who felt compelled to uphold the HCQIA immunity,
stated that
HCQIA can sometimes be used, “not to improve
the quality of medical care,
but to leave a doctor who was unfairly treated without any viable
remedy.”95
That Justice also stated:
Basically, as long as the hospitals provide procedural
due
process and state some minimal basis related to quality
health
care, whether legitimate or not, they are immune from
liability.
Unfortunately, this may leave the hospitals and review
board members free to abuse the process for their own
purposes.
. . .96
89. Manzetti, 776 A.2d at 948.
90. Brader v. Allegheny Gen. Hosp., 167 F.3d 832, 840
(3d Cir. 1999).
91. Donnell v. HCA Health Servs., 28 P.3d 420 (Kan. Ct. App. 2001);
see also Artz, supra
note 88.
92. Donnell, 28 P.3d at 424.
93. Wieters v. Roper Hosp., 58 Fed. Appx. 40, 46 (4th Cir. 2003);
see Steve Twedt, The Cost
of Courage: When Right Can Be Wrong, PITTSBURGH POST-GAZETTE., Oct. 27, 2003, available at
http://www.post-gazette.com/pg/03300/234531.stm.
94. Meyer v. Sunrise Hosp., 22 P.3d 1142 (Nev. 2001); see also Artz, supra note 88.
95. Id. at 1153-54.
96. Id.
72 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
Finally, in Poliner v. Texas Health Systems,97 the Fifth Circuit concluded that
the process accorded Dr. Poliner in connection with
the voluntary abeyance in
privileges in the cardiac catheterization laboratory
for two weeks was adequate.
98 The first reason was that the suspension was less than two weeks so
no hearing was required.99 Second, the defendants were “fully
warranted” in
determining that a suspension was necessary to prevent imminent danger.
100
Regarding the last HCQIA requirement that an action
be taken “in the reasonable
belief that the action was warranted by the facts known
after such
reasonable effort to obtain facts,”101 the Fifth Circuit
concluded the temporary
suspension was “tailored to address the health care concerns”
raised. 102
In a 2001 article, an attorney who represents physicians
in peer review
proceeding reviewed cases in which courts invoked the
immunity of the
Health Care Quality Improvement Act even where there
was considerable
evidence of misconduct on the part of the peer review committee.103 This
author concluded that, in his experience:
peer review is initiated against a physician for one
of three
reasons: (1) by economic competitors for financial
reasons;
(2) in retaliation against the physician for not ‘playing
ball’ in
one manner or another (economic or otherwise); or (3)
in retaliation
for the physician raising concerns about other physicians’
care and seeking to have those providers’ outcomes
reviewed.
104
Several legal commentators have argued that the antitrust
immunities
under federal law should be repealed or limited.105 Of interest,
several student
notes have analyzed the problem of the abuse of peer
review and its protec-
97. 537 F.3d 368 (5th Cir. 2008).
98. Id. at 370.
99. Id. at 382.
100. Id.
101. Poliner, 537 F.3d at 376-77.
102. Id. at 384.
103. Artz, supra note 88.
104. Id.
105. See, e.g., Katherine Van Tassel,
Hospital Peer Review Standards and Due Process:
Moving From
Tort Theories To Contract Principles Based on Clinical Practice
Guidelines, 36 SETON HALL L. REV.1179
(2006); Robert S. Adler, Stalking the Rogue Physician: An Analysis of the Health Care Quality Improvement
Act , 28 AM. BUS. L.J. 683 (1991); Lisa M. Nijm, Comment, Pitfalls of Peer Review: The Limited
Protections of State and Federal Peer Review Law for Physicians,
24 J. LEGAL MED. 541 (2003); George
E. Newton II, Maintaining the Balance: Reconciling the Social and Judicial Costs of Medical Peer Review
Protection, 52 ALA. L. REV. 723 (2001); Craig W. Dallon, Understanding Judicial Review of Hospitals’
Physician Credentialing and Peer Review Decisions, 73 TEMP. L. REV. 597 (2000); Lu Ann Treviño, The
Health Care Quality Improvement Act: Sword or Shield? 22 T. MARSHALL L. REV. 315 (1997); Pauline
M. Rosen, Medical Staff Peer Review: Qualifying the Qualified Privilege Provision, 27 LOY. L.A. L. REV.
357 (1993); Mark A. Colantonio, The Health Care Quality Improvement Act of 1986 and Its Impact on
Hospital Law, 91 W. VA. L. REV. 91 (1988).
Hospital Peer Review 73
tion by the Health Care Quality Improvement Act.106 Much of this
concern
reflects an ongoing apprehension among many scholars
that antitrust immunity
of physician peer review activities does not warrant
immunity anymore
than other beneficial commercial activities.107
106. See, e.g., Rodgers, supra note 57, at 1048; Yaan H.H. van Geertruyden, Comment, The
Fox Guarding the Henhouse: How the Health Care Quality
Improvement Act of 1986 and State Peer Review
Protection Statutes Have Helped Protect Bad Faith Peer Review
in the Medical Community, 18 J. CONTEMP.
HEALTH
L. & POL’Y 239 (2001); see also Leigh Ann Lauth, The Patient
Safety and Quality Improvement
Act of 2005: An Invitation for Sham Peer Review in the Health
Care Setting, 4 IND. HEALTH L.
REV. 151 (2007).
107. See, e.g., Kurt Erskine, Square Pegs and Round Holes: Antitrust Law and Privileging
Decision,
44 U. KAN. L. REV. 399 (1996); Charity Scott, Medical Peer Review, Antitrust, and the Effect of Statutory
Reform, 50 MD. L. REV 316 (1991); John Neff, Physician Staff Privilege Cases: Antitrust Liability
and the Health Care Quality Improvement Act, 29 WM. & MARY L. REV. 609 (1988); Clark
C.
Havighurst, Professional Peer Review and the Antitrust Laws, 36 CASE W. RES. L. REV. 1117 (1985).
74 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
III. RECENT EVIDENCE OF DYSFUNCTIONAL PEER REVIEW
The cases of Doctors
Poliner, Ulrich and Clark
are not isolated incidents.
There is much evidence
that hospitals and physicians
have gone after other
physicians in inappropriate
peer review proceedings.
This article reviews the
following evidence of dysfunctional
peer review: (1)
cases from Westlaw and
Lexis and various legal
digests on Westlaw, (2)
published journalistic reports,
and (3) web pages of
two physician organizations
dedicated to assisting
physicians in peer review
proceedings, the Semmelweis
Society and the Peer
Review Justice Center. 108
A. Reported Lawsuits
Lawsuits brought by
physicians challenging
hospital peer review proceedings
and decisions
against them have been
plentiful since the 1970s.109
Antitrust lawsuits emerged
108. Semmelweis Soc’y Int’l, http://www.semmelweis.org/
(last visited Nov. 3, 2008);
Center for Peer Review Justice, Inc., http://www.peerreview.org/
(last visited Nov. 3, 2008).
109. See, e.g., Miles supra note 72, at § 10:8; Karen Jo Mcginn, Due Process Considerations in
Suspension of a Physician’s Hospital Staff Privileges, 32 AM. JUR. TRIALS 1 (2007); Thomas,
supra note
46; Scott M. Smith, Construction and Application of Health Care Quality Improvement Act of 1986, 121
A.L.R. FED. 255 (1994).
Westlaw & Lexis: “peer review” and
“sham”
within the same paragraph in the “All Cases”
database.
Westlaw & Lexis: “peer review,” “faith”
and/or “bad faith” within the same paragraph
in the “All Cases” database.
Westlaw: Cases in the digest under the following
“keys”: 198H HEALTH, 198HI Regulation
in General, 198HI(C) Institutions and
Facilities, 198Hk268 Staff Privileges and Peer
Review, 198Hk273 k. Suspension or termination
of privileges; discipline, and 198Hk274 k.
Liability or immunity.
John Miles, Part II. Application of Antitrust
Principles to the Health Care Sector, Chapter
10. Practitioner Credentialing Based on Peer
Review in 2 HEALTH CARE AND ANTITRUST
L. § 10:8 (2007)
Karen Jo McGinn, Due Process Considerations in
Suspension of a Physician’s Hospital Staff Privileges,
32 AM. JUR. Trials 1 (2007).
ALRs: Tim A. Thomas, Denial by hospital
of staff privileges or referrals to physician
or other health care practitioner as violation
of Sherman Act (15 U.S.C.A. §§ 1 et
seq.), 89 A.L.R. FED. 419 (1988);
Scott M.
Smith, Construction and Application of Health
Care Quality Improvement Act of 1986, 121
A.L.R. FED. 255 (1994).
Hospital Peer Review 75
in the 1980s after the United States Supreme Court
ruled in several major
decisions that the federal antitrust laws did apply
to the health care sector and
its actors after all.110
Cases analyzed were lawsuits brought by physicians
on a variety of theories
to challenge an adverse peer review decision over a
five year period from
2003 to 2007. The data bases and sources from which
these cases were found
are presented in Figure 1. Only cases in which the
court has made a judgment
on the merits were included. Cases involving denials
of applications for privileges
or disciplinary proceedings before state licensure
and disciplinary authorities
were not included. At Table 1 are presented data on
the reported
cases, including date of decision, cause(s) of action,
application of HCQIA
and/or state statutory immunities, and the final disposition
of the case. A
list of the cases included in Table 1 is presented
in Appendix A.
TABLE 1
CHARACTERISTICS OF PHYSICIAN LAWSUITS
CHALLENGING PEER REVIEW DECISIONS, 2003-2007
ULTIMATE OUTCOME
Favorable Unfavorable Other
3
The Poliner case
is included in
this number
although the jury
verdict was reversed.
See note
2 supra and accompanying
text.
30 1 case reversed and
remanded summary
judgment for physician
because of disputed
facts.
1 case remanded the
case because the
plaintiff had not exhausted
available
remedies.
Tort
Contract
Civil
Rights
Due
Process
Federal Antitrust
State
Antitrust
Other
23 16 8 8 12 5 1st Amend.
110. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)
(eliminating the learned professions
exemption to the federal antitrust laws); Arizona v.
Maricopa County Med. Soc’y, 457
U.S. 332 (1982) (holding that the maximum fee agreements
of a state medical society, as pricefixing
agreements, are per se unlawful under § 1 of the
Sherman Act).
76 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
INVOCATION OF HCQIA AND/OR STATE IMMUNITY STATUTES
HCQIA
Immunity
Invoked
HCQIA Immunity
Pierced
State Peer Review
Immunity Invoked
State Peer Review
Immunity
Pierced
18 2 4 1
Physicians did not fare well in the reported cases.
Of all 35 lawsuits between
2003 and 2007 – a five year period -- physicians
lost 30 cases – a great
majority. In 18 cases (about half), courts upheld the
immunity under HCQIA
and found for the defendants. The only reported case
in which HCQIA immunity
was ultimately pierced successfully was Ulrich v. City & County of San
Francisco,111 the one of two cases discussed above in which the plaintiff physicians
received multimillion dollar verdicts, 112 In Poliner v. Texas Health Systems,
the Fifth Circuit overturned the multi-million dollar jury verdict.113 In Doe v.
Grant, 114 the appellate court overturned a $6 million verdict on a defamation
claim on grounds that a state statute accorded immunity
to the peer review
proceedings in which the defaming statements were made.
It is difficult to tell from the cases whether these
three cases are aberrations
or indicative of a larger problem. Cases generally
do not provide much
information about the facts of the case other than
those facts relevant for
determining if there were sufficient facts at the time
to persuade reasonable
minds that quality was at risk – a pretty tough
standard for the physician to
overcome. The media reports discussed in the next section
suggest that the
immunity is protecting some highly inappropriate conduct
on the part of hospital
peer review bodies.115
B. Media Reports and Professional Commentary
The mainstream and medical media have included many
articles reporting
on hospital peer review of physicians and abuses in this review.116 In
111. See note 4 supra and
accompanying text.
112. See notes 1-4 supra and
accompanying text.
113. See notes 1-3 supra and
accompanying text.
114. 839 So.2d 408 (La. Ct. App. 2003).
115. See infra Part III.B.
116. Roland F. Chalifoux, So What Is a Sham Peer Review? 7
MEDSCAPE GEN. MED. 47 (2005);
William N. Johnson, Shammed I Am in Peer Review: Due Process Does Not Apply for Physicians Facing
Sham Peer Review, GEN. SURGERY NEWS
(2004), available at
http://www.semmelweis.org/Acrobat/article_sham%20i%20am.pdf; Charles
Bond, The War Is
On: Why Your Medical Staff Needs to Incorporate and Obtain
Its Own Independent Counsel, 6 MEDSCAPE
GEN
MED 57 (2004); Greg Piche, The Disagreeable Physician: Disruptive or Disputative? HEALTH
LAWYERS
WKLY, April 28, 2005, available at
http://www.healthlawyers.org/Content/ContentGroups/Publications2/Health_Lawyers_Wee
Hospital Peer Review 77
2005, Time Magazine published a story
about multiple cases of these abuses.117
In 2007, the Atlanta Journal-Constitution noted
that bad faith peer review was an
important part of serious problems at Grady Memorial
Hospital in Atlanta
that generated great concern for JCAHO.118 A Pittsburgh
journalist published
a series of articles examining the use of peer review
proceedings and
other retaliation against physicians who spoke up about
poor quality care or
otherwise challenged the hospital’s leadership.119 At Appendix B is presented
the titles to those articles and other media articles
reporting on other inappropriate
actions against physicians.
Further, a recent editorial in the Journal of the American College of Cardiology
decried abusive disciplinary proceedings against physicians.120 The American
Association of Physicians and Surgeons has made fighting
these abusive proceedings
a cause celebre.121 Targeted physicians
have created organizations,
such as the Semmelweis Society International and the
Center for Peer Review
Justice, to raise conscientiousness about these abusive
proceedings and provide
targeted physicians with legal assistance and other information.122
The organized medical profession is concerned. The
American Medical
Association (AMA) has recognized the problem of abusive disciplinary
prokly2/
Volume_3/Issue_25/The_Disagreeable_Physician_Disruptive_Or_Disputative_.htm;
Verner S. Waite, Sham Peer Review: Napoleonic Law in Medicine, 8 J AM PHYSICIANS & SURGEONS
83 (2003), available at http://www.semmelweis.org/Acrobat/article_waite_napoleonic.pdf;
John
Zicconi, Peer Review: Due Process or Professional Assassination? PHYSICIAN’S RESOURCE, Mar.-Apr.
2001; David Townend, Hospital Peer Review Is a Kangaroo Court, 77 MED. ECONOMICS 133 (2000),
available at http://www.memag.com/memag/article/articleDetail.jsp?id=122302.
117. Jeff Chu, Peer Review: Doctors Who Hurt Doctors, TIME, Aug. 15, 2005, at 52, available
at
http://www.time.com/time/magazine/article/0,9171,1090918,00.html.
118. JCAHO Threatens to Shut Down Grady Hospital, THE ATLANTA JOURNAL CONSTITUTION
(Dec. 4, 2007).
119. Steve Twedt, The Cost of Courage: How the Tables Tuen on Doctors, PITTSBURGH POSTGAZETTE,
Oct. 26, 2003, available at www.postgazette.com/pg/03299/234499.stm
(The article
is the first in a series of articles on different occasions
of so-called sham peer review and actions
against “disruptive” physicians around the
country).
120. William W. Parmley, Clinical Peer Review or Competitive Hatchet Job, 36 J. AM .COLLEGE OF
CARDIOLOGY
2347 (2000).
121. Am. Ass’n of Physicians and Surgeons, Sham Peer Review,
http://www.aapsonline.org/peerreview.htm (last visited
Nov. 3, 2008); Lawrence R. Huntoon
LR. Editorial: Abuse of the “Disruptive Physician” Clause, 9 J AM PHYSICIANS & SURGEONS 68
(2004); Lawrence R. Huntoon, Editorial: Sham Peer Review and the Courts, 11 J AM PHYSICIANS &
SURGEONS
4 (2006); American Association of Physicians and Surgeons,
RESOLUTION 61-01,
2004: Sham Peer Review, http://www.aapsonline.org/resolutions/2004-1.htm (last visited Nov. 3,
2008).
122. See, e.g., Semmelweis, supra note 111; Society, Bryan G. Hall, The Health Care Quality
Improvement Act of 1986 and Physician Peer Reviews: Success
or Failure? (2005),
http://www.semmelweis.org/articles/success%20or%20failure.pdf
(last visited Nov. 3, 2008).
78 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
ceedings against physicians.123 It has also provided guidance on
how to identify
and to discipline a disruptive physician.124
However, the AMA continues to defend immunity for peer
review under
current law. The position of the AMA regarding two
recent lawsuits exemplifies
the issues at stake. In Chadha v. Charlotte Hungerford Hospital,125 a physician
challenged a hospital’s report to the National
Practitioner Data Bank and the
Connecticut Department of Public Health regarding her
fitness to practice
medicine, which led to the loss of her medical license.
The appellate court
had ruled that physicians who participated in a state
investigation of a physician
are not entitled to absolute immunity under state peer
review immunity
statutes from a civil lawsuit claiming defamation.126 The Supreme
Court of
Connecticut ultimately overruled the appellate court
and ruled that immunity
was appropriate. 127
Following the appellate decisions in this case as well
as a California appellate
court in another case, 128 an editorial in American Medical News,129 made
the case for absolute immunity for peer review. Noting
that the courts were
concerned that absolute immunity would give physicians
an “opportunity to
abuse the system to affect competition or to knowingly
pass along false or
misleading information,”130 the editorial concluded: “But
it is generally
unlikely that physicians will use the system in that way.”131 The editorial then
explained why physicians would not engage in abusive
peer review:
It is not only that physicians are expected to personally
embrace
the professional and ethical standards that would make
such an action untenable. Discovery of such a dishonest
act
123. American Medical Association, Physicians and Disruptive Behavior, Jul. 2004,
http://www.ama-assn.org/ama1/pub/upload/mm/21/disruptive_physician.doc;
Speak No
Evil? When Physicians Share Concerns, Their Words Aren’t
Always Welcome, AMA VOICE 4-6 (2004).
124. AMA, COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, PHYSICIANS WITH DISRUPTIVE
BEHAVIOR, E-9.045 (2004), available at
http://www.peerreview.org/disruptive_physician/articles/AMA%20(Professionalism)%20E-
9_045%20Physicians%20with%20Disruptive%20Behavior.htm.
125. 822 A.2d 303, 306 (Conn. App. Ct. 2003); see also Tanya
Albert, Defamation Lawsuits
May Have Chilling Effect on Peer Review, AM. MED. NEWS, (Mar. 1, 2004) available at
http://www.ama-assn.org/amednews/2004/03/01/prsa0301.htm).
126. Chadha v. Charlotte Hungerford Hosp. 865 A.2d 1163,
1176 (Conn. 2005).
127. Chadha, 822 A.2d at 305-6.
128. Hassan v. Mercy Am. River Hosp., 118 Cal. Rptr.
2d 81, (Cal. Ct. App. 2002) (the
court ruled that the state peer review immunity statute
did not grant absolute immunity to
participants in the peer review process and expressly
rejected the medical profession’s arguments
in favor of absolute immunity).
129. Editorial, Peer Review: The Case for Absolute Immunity, AMNEWS Mar 15, 2004, available at
http://www.ama-assn.org/amednews/2004/03/15/edsa0315.htm.
130. Id.
131. Id.
Hospital Peer Review 79
would seriously jeopardize their standing among colleagues
and in the institutions where they practice. 132
Nevertheless, it is noteworthy that some in the medical
profession have
questioned whether peer review is an effective way
to protect quality of care
in hospitals and to address incompetent and/or disruptive physicians.133
C. The Extent of the Problem
It is important to get some sense of the universe of
hospital disciplinary
actions against physicians to assess the nature of
the problem. The National
Practitioner Data Bank (NPDB) is probably the best
if imperfect source of
data on the number of peer review actions against physicians.
The NPDB is a
central repository of information about, among other
actions, “professional
review actions primarily taken against physicians and
dentists by hospitals and
other health care entities, including health maintenance
organizations, group
practices, and professional societies.” 134 The NPDB estimates,
while acknowledging
probably under reporting, that actions involving clinical
privileges
reported to the national practitioner data bank ranged
from 900 to 1,100
per year between 2002 and 2005.135 This is a surprisingly small number
of
actions. The judicial decisions and media reports thus
represent more than a
miniscule proportion of the peer review proceedings
involving physicians that
American hospitals conduct annually.
Further, the media reports in particular tend to focus
on cases in which
the physician ultimately prevailed in litigation or
obtained a resolution that
appeared to justify his or her conduct. In these media
reports, there are two
predominant characteristics of the targeted physicians.
They were outspoken
about patient quality and safety issues and perceived
as whistleblowers by the
hospital leadership. Or they are competitors of the
targeted physicians.
Obviously, not every peer review of a physician is
unwarranted, abusive
or malicious. No doubt badly behaved physicians can
pose a threat to patient
safety and the smooth operation of health care facilities.
And legal immunity
does protect physicians participating in peer review
from lawsuits by appropriately
sanctioned physicians. However, the processes for regulating
physician
conduct should be designed to operate in a fair manner
with respect to
physicians while assuring protection of the public.
The evidence discussed in
132. Id.
133. See Gerald Weiss, Is Peer Review Worth Saving? 82 MED. ECON. 46 (2005); Tanya Albert
& Damon Adams, Peer Review under Fire: Real Problems or Trumped-Up Accusations? AMNEWS (Oct.
10, 2005), available at http://www.ama-assn.org/amednews/2005/10/10/prsa1010.htm.
134. U.S. Department of Health and Human Services, Health
Resources and Services Administration,
Bureau of Health Professions, Practitioner Data Banks
Branch, National Practitioner
Data Bank 2005 Annual Report 11 (2006).
135. Id. at 83, tbl. 1.
80 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
this article suggests that this idea has not been attained
in many peer review
proceedings. One reason for this lack of attainment
is the fact that the
HCQIA provides so much protection that it shields undesirable
and even
illegal conduct on the part of the hospital and physicians
that initiate and conduct
some peer review proceedings.
IV. APPROACHES TO REFORMS
This section presents some ideas for the reform of
peer review that
would improve peer review proceedings with the twin
objectives of avoiding
abuses while ensuring that the essential process of
professional review of professional
conduct proceed effectively.
A. The Problems with Peer Review
One major problem with hospital peer review is that
HCQIA’s immunity
provisions are designed in a way that physicians are
at risk for unwarranted
professional injury. A case can be made that the HCQIA
immunity provisions
should be repealed.136 However the repeal of HCQIA is probably
unlikely given the firm position in favor of immunity
among the organized
medical profession. Thus, it might be more sensible
to consider how HCQIA
might be reformed to protect physicians from unwarranted
professional damage.
There are four specific problems with HCQIA’s
immunity scheme that
reform might address.
First, the HCQIA provisions to assure due process in
peer review proceedings
are inadequate. Often peer review proceedings lack
the basic elements
of procedural due process such as an unbiased decision-maker
and
opportunity to confront witnesses and evidence. A major
reason for due
process inadequacies is no supervision exists for either
the evidentiary and
procedural aspects of the proceeding. Of note, the
2007 JCAHO medical
staff standards do emphasize decisions in peer review
proceedings should be
based on sound evidence.137
Second, the “reasonable belief” standard
has been judicially interpreted
to accord immunities when serious evidentiary or procedural
irregularities are
present. As judicially interpreted, the standard puts
the targeted physician in a
very difficult position. Unless the physician’s
record and experience of clinical
care in the hospital is virtually perfect, it is possible
for other physicians and
staff, including those with an ulterior agenda, to
find and document some
infraction of the standards for high quality clinical
care that would be sufficient
to support the “reasonable belief” standard.
136. See Eleanor D. Kinney, The Corporate Transformation of Medical Specially Care: The
Exemplary
Case of Neonatology, 36 J. HEALTH L., MED. & ETHICS 790 (2008).
137. JOINT COMMISSION, COMPREHENSIVE ACCREDITATION MANUAL FOR HOSPITALS, supra
note 14, at MS 4.50. See notes 24-27 supra and
accompanying text.
Hospital Peer Review 81
Third, there has not been effective judicial, administrative,
JCAHO or
other independent oversight of hospital peer review
proceedings to ensure
even that HCQIA provisions for protecting the physician
are enforced and
that peer review decisions are evidenced-based, fair
and appropriately motivated.
Without oversight, no guarantee exists that decision
makers and initiators
do not have conflicts of interest or inappropriate
personal motives for
initiating peer review proceedings.
Arguably the 2007 JCAHO medical staff standards described
above
should do much to address the problems with bad faith peer review.138 These
new standards are clearly a step forward if only that
they indicate that JCAHO
is aware of the problem with peer review in some hospitals
and is willing to
address it. However, these standards still do not provide
for independent
peer review or oversight of the peer review process.
If JCAHO takes this
problem seriously and gives great attention to past
peer review proceedings in
the survey and accreditation process, than hospitals
might be more careful in
the conduct of their peer review. It remains to be
seen if JCAHO reforms
and surveys will be sufficient.
B. Approaches to Reform
Given the aforementioned considerations and problems,
this article suggests
four specific reforms. These include:
• Require more rigorous adherence to established principles of procedural
due process in the design of peer review proceedings
that are
eligible for HCQIA immunity.
• Establish higher standards for the evidence that must be demonstrated
to meet the “reasonable belief” standard.
• Ensure that hospitals’ conduct of inappropriate peer review proceedings
are subject to consequences that are effective deterrents
to the
abuse of peer review.
• Provide more effective oversight of hospital peer review proceedings
to ensure more accountability from the hospital and
participating
physicians that peer review proceedings are fair and
accurate.
1. More Rigorous Adherence to Procedural Due Process
Principles
Neither the decisions of reviewing courts nor the 2007
JCAHO Medical
Staff standards enunciate process requirements that
are completely consistent
with federal constitutional law. In Mathews v. Eldridge,139 the United States
Supreme Court stated that the “specific dictates of due process”140 generally
requires consideration of three distinct factors:
138. See id.
139. 424 U.S. 319 (1976).
140. Id. at 335.
82 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
First, the private interest that will be affected by
the official
action; second, the risk of an erroneous deprivation
of such
interest through the procedures used, and the probable
value,
if any, of additional or substitute procedural safeguards;
and
finally, the Government’s interest, including
the function involved
and the fiscal and administrative burdens that the
additional
or substitute procedural requirement would entail.141
Applying this test to accepted hospital peer review
of physician conduct
is instructive. Regarding the first factor of the affected
private action, it goes
without saying that the interest of targeted physicians
is great. Initially, there
is great public investment in the training of physicians.
This investment in
education and training for physicians $140,000 for
public schools and
$225,000 for private schools142 -- figures that do not include post-graduate
training for specialties. A1993 federal district court decision,
Purgess v. Sharrock,
143 found that a physician’s career is worth $4.6 million. Given the reporting
of peer review decisions to the National Practitioner
Data Bank and
acknowledged catastrophic consequences of loss of medical privileges,144 the
private interest of physicians is indeed great.
The second factor of the Mathews v. Eldridge test is especially
instructive.
This prong assesses whether the features of the proceeding
are adequate to
mitigate the risks of error and assure accurate decisions.
The capability of
eliciting good evidence is an important aspect of reaching
accurate decisions.
Thus, evidentiary rules or practices that permit consideration
of inherently
unreliable evidence such as anonymous statements without
opportunity to
confront the maker of the statement are extremely problematic.
Also, peer
review proceedings that are based on a few or minor
infractions in an otherwise
exemplary career are also problematic.
Another important feature of a hearing that enhances
the ability of ascertaining
the accuracy of decisions is to be sure that decision-makers
do not
have a conflict of interest or personal grievances
with the physician before the
proceeding. Clearly an impartial decision-maker is
crucial to proper evaluation
of evidence and enhancing the accuracy of the ultimate
determination.
Clearly, given the availability of alternative organizations
that are able to conduct
high quality peer review, it seems that hospitals should
be required to
utilize independent peer review organizations if they
cannot assemble a genuinely
disinterested peer review body.
The third factor, the interest of the hospitals and
their patients to maintain
the quality of care and patient safety is certainly
great. However, other
141. Id.
142. Gail Morrison, Mortgaging Our Future — The Cost of Medical Education, 352 NEW ENGL. J.
MED. 117, 117 (2005).
143. 1993 WL 426524 (S.D.N.Y. Oct 19, 1993). Rodgers, supra note 57, at 1049, n. 17.
144. See William J. Tabor, The Battle for Hospital Privileges, 249 JAMA 526, 526 (1983) (calling
loss of privileges “an economic catastrophe”). See Rodgers, supra note 57, at 1049, n. 17.
Hospital Peer Review 83
interests such as the desire to undo a competitor or
a whistleblower are not
legitimate and should not be protected under any circumstances.
At present,
HCQIA immunity provisions effectively protect these
illegitimate interests.
Yet, as described above, HCQIA, while specifying due
process standards
for peer review proceedings, does not require them. 145 Further, because it
permits courts to still grant immunity if the statutory
elements of process are
not actually present, 146 the statutory requirements are mitigated
and constitutional
standards are consequently not enforced. Congress could
greatly improve
the procedural integrity of peer review proceedings
by eliminating the
“escape” provision in § 11112(c) and require
that courts only grant immunity
provisions when hospitals demonstrate compliance the
procedural due process
requirements in § 11112(b). By statutory amendment
or regulation, federal
law should require that courts evaluate the process,
including the characteristics
of decision-makers, according to the three factor test of Mathews v. Eldridge.
2. Reform of the “Reasonable Belief” Standard
The “Reasonable Belief” standard also needs
reform. Congress should
amend HCQIA or the Department of Health and Human Services
might
promulgate regulations to clarify what is required
for a showing of “reasonable
belief” to quality for HCQIA immunity. As interpreted
by the courts, it
seems that any evidence that would sustain a belief
that the physician should
be disciplined seems to be sufficient to support the
decision regardless of
what other evidence is adduced in the proceeding. Such
laxity in the quality of
evidence is unfair to physicians.
There is an analogous circumstance in which the United
States Supreme
Court redefined an important evidentiary standard that
court interpretations
had made unworkable. This circumstance was the reinterpretation
of the substantial
evidence standard in federal administrative law by
the United States
Supreme Court in NLRB v. Universal Camera Corp.147 Prior to this decision,
some courts had interpreted the substantial evidence
standard as permitting
merely one piece of evidence to support the agency
decision regardless of the
other evidence adduced at the hearing.148 In Universal Camera, the Court ruled
that the evidence to support an agency decision is
only substantial when all
relevant evidence in the record as a whole is considered.149
145. See notes 50-53 supra and accompanying text.
146. See note 69 supra and accompanying text.
147. 340 U.S. 474 (1951).
148. Id. at 477-79.
149. Id. at 490.
84 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
In the case of the HCQIA “reasonable belief”
standard, Congress should
specify the quality of evidence that will satisfy the standard.150 Specifically, the
standard could be amended to require a consideration
of the existing record as
a whole such as is required under the federal substantial
evidence test.
3. Effective Consequences for Hospitals and Physicians
that Abuse Peer Review
There need to be adverse consequences for hospitals
and physicians that
deliberately engage in abuse peer review practices.
Consequences should also
attend peer review proceedings in which a member of
the peer review body
has a genuine conflict of interest as a competitor
in particular or in a knowingly
controversial relationship with the physician before
peer review.
Crafting effective sanctions that deter abusive peer
review while not deterring
good faith physician participation in peer review is
a true challenge.
Perhaps such sanctions and deterrents could be part
of the JCAHO accreditation
process. Another approach may be to permit aggrieved
physicians to
report their concerns about participants in abusive
peer review to the National
Practitioner Data Bank. In any event, under any approach
to reform, sanctions
against hospitals and medical staffs that initiate
or participate in abusive
and inappropriate disciplinary proceedings against
physicians must be strong
enough to constitute a real deterrent to abusive practices.
4. More Effective Independent Oversight of Hospital
Peer Review Proceedings
Clearly, under current law and judicial interpretation
of same, courts
have proven to provide ineffective oversight of hospital
peer review. Thus,
other capable entities must be identified and designated.
One approach would be to add the monitoring and sanctioning
abusive
peer review to the federal government’s responsibilities
regarding the National
Practitioner Data Bank. However, given the large number
of hospitals and
limited federal agency resources, it is not likely
that this oversight would be
effective. It is also highly likely that physicians
and hospitals would oppose
such a regulatory approach.
Another approach is to have Quality Improvement Organizations
(QIOs) provide an independent review and supervision
function. QIOs are
physician-dominated organizations and conduct reviews
of the quality of
medical care provided to Medicare beneficiaries.151 Today, a national
network
of fifty-three QIOs, in each state, territory and the
District of Columbia,
review the provision of Medicare services in hospitals
and other health care
150. See Rodgers, supra note 57 (for suggestions for
reform of the reasonable belief standard).
151. 42 U.S.C. § 1320c-3 (2008).
Hospital Peer Review 85
institutions.152 Most importantly, they are independent
and, by virtue of their
regulatory duties for the Medicare program, they are
accustomed to confronting
hospital management as well as physicians on quality
and safety issues.
They are also familiar with legal processes for review
of physician conduct.
Indeed, many already perform hospital peer review for
hospitals pursuant to
contract on a voluntary basis. Also, their independent
reviews would necessarily
be conduct outside the public limelight and in an administrative
type process.
Congress, the Department of Health and Human Services
or JCAHO
could easily require that hospitals use QIOs to conduct
peer reviews if truly
unbiased physician-makers could not be found within
the hospital. Also,
JCAHO could certainly hospitals to use QIOs for all
peer review proceedings
by providing a presumption of regulatory in the survey
and accreditation
process when peer review is conducted independently.
V. CONCLUSION
In sum, it is necessary for hospitals to have effective
mechanisms in
place to protect patients and the quality of care.
Clearly reforms of peer review
are in order to assure that these systems are in place.
All physicians on
the medical staff should be able to voice concerns
about the quality of patient
care and patient safety as well as conduct business
alongside powerful competitors
without fear of reprisals that damage their professional
reputation.
Otherwise there is great risk to the institution of
peer review and the medical
profession’s regulation of the practice of medicine
in hospitals.
APPENDIX A
CASES INCLUDED IN TABLE 1
Curtsinger v. HCA, Inc, 2007 WL 1241294 (Tenn. Ct.
App. Apr. 27, 2007)
Jenkins v. Methodist Hospitals of Dallas, 478 F.3d 255, 262 (5th Cir. 2007).
Reed v. Franklin Parish Hosp. Serv. Dist., 2007 LEXIS
6133 (D. La. 2007)
Schindler v. Marshfield Clinic, 2007 WL 60924 (W.D.
Wis. Jan. 4, 2007).
Tolwin v. Ceders-Sinai Med. Ctr., 2007 LEXIS 1067 (Ca.
App. Feb. 13, 2007)
Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461
(6th Cir. 2003).
Gateway Cardiology, P.C. v. Wright, 204 S.W.3d 676
(Mo. Ct. App. 2006).
152. CMS, Quality Improvement Organizations (QIOs), available at
http://www.cms.hhs.gov/qio/default.asp.
86 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
Bakare v. Pinnacle Health Hosps., Inc., 469 F. Supp.
2d 272 (D. Pa. 2006).
Chadha v. Charlotte Hungerford Hosp., 906 A.2d 14 (Conn.
App. Ct. 2006).
Cohlmia v. Cardiovascular Surgical Specialists Corp.,
et al., 448 F. Supp. 2d
1253 (N.D. Okla. 2006).
D’Arrigo v. South Jersey Hosp. Sys., Inc., 2006
WL 2795337 (N.J. Super. Ct.
Law Div. Sept, 27, 2006).
Feyz v. Mercy Mem’l Hosp., 475 Mich. 663, 719
N.W.2d 1(Mich. 2006)
Hourani v. Benson Hosp., 211 Ariz. 427, 122 P.3d 6
(Ct. App. Div. 2 2005),
review denied, (Apr. 20, 2006)
Kinnard v. United Reg’l Health Care Sys., 194
S.W.3d 54 (Tex. App. 2006)
McLeay v. Bergan Mercy Health Systems Corp., 270 Neb.
693, 708 N.W.2d 592
(2005)
Pardo v. Gen. Hosp. Corp., 446 Mass. 1, 841 N.E.2d
692 (Mass. 2006).
Poliner v. Tex. Health Sys., 2006 WL 770425 (N.D. Tex.
March 27, 2006), rev’d
No. 06-11235 (5th Cir. Jul. 23, 2008).
Vesom v. Atchison Hosp. Assoc., 2006 WL 2714265 (D.
Kan. 2006).
Virmani v. Presbyterian Health Services Corp., 2006
WL 2347490 (4th Cir.
2006).
Gorden v. Lewistown Hosp., 423 F.3d 184 (3d Cir. 2005),
cert. denied, 126 S.
Ct. 1777 (US 2006).
Harris v. Bradley Mem’l Hosp. and Health Ctr.,
2005 WL 1433841 (Conn. Super.
Ct. May 19, 2005).
Kaiser Found’n Hosps., et al. v. The Superior
Court of Sacramento County,
128 Cal. App. 4th 85 (Cal. Ct. App. 2005).
Lee v. Trinity Lutheran Hospital, 408 F.3d 1064 (8th
Cir. 2005).
Mileikowsky v. Tenet Healthsystem, 128 Cal. App. 4th
531, 27 Cal. Rptr. 3d
171 (2d Dist. 2005), review denied, (Aug. 17, 2005)
and petition for cert. filed
(U.S. Nov. 15, 2005)
Zisk v. Quincy Hosp., 834 N.E.2d 287 (Mass. App. Ct.
2005).
Joshi v. St. Luke’s Episcopal-Presbyterian Hosp.,
142 S.W.3d 862, 866
(Mo.App. 2004).
Miller v. St. Alphonsus Regional Medical Center, Inc.,
139 Idaho 825, 87 P.3d
934 (2004)
Moore v. Rubin, 2004 WL 2803237 (Ohio Ct. App. Sept.
17, 2004).
Odom v. Fairbanks Mem’l Hosp., 2004 WL 1435153
(Alaska, June 23, 2004).
Ulrich v. City & County of San Francisco, 2004
WL 1635542 (N.D. Cal. July
12, 2004).
Ching v. Methodist Children’s Hosp., 134 S.W.3d
235 (Tex. App.2003).
Hospital Peer Review 87
Doe v. Grant, 839 So. 2d 408 (La. Ct. App. 2003).
Patton v. St. Francis Hosp., 260 Ga.App. 202, 581 S.E.2d
551 (Ga. Ct. App.
2003).
Quini v. Paradise Valley Hosp., 2003 LEXIS 1874 (Cal.
App. Feb. 27, 2003).
Wieters v. Roper Hosp., Inc., 58 F.App’x 40,
46 (4th Cir. 2003).
APPENDIX B
ARTICLES ON PHYSICIAN DISCIPLINE
ARTICLES BY STEVE TWEDT, PITTSBURGH POST-GAZETTE
The Cost of Courage: How the Tables Turn on Doctors
(The First of a
Series), Oct. 26, 2003, at http://www.post-gazette.com/pg/03299/234499.stm
(visited Apr. 30, 2008). (Introductory Article for the series on apparently
inappropriate discipline of physicians).
“America’s physicians, sworn to protect
their patients from harm,
increasingly face a surprising obstacle -- their own
hospitals. In small
medical centers and large ones like Yale and Cornell,
doctors who step
forward to warn of unsafe conditions or a colleague’s
poor work say
they have been targeted by hospital administrators
or boards.”
Dispute over Treatment of Heart Patients Derails Career,
Oct. 26, 2003, at
http://www.post-gazette.com/pg/03299/234497.stm (visited
Apr. 30, 2008).
Doctors who Spoke Out, Oct. 26, 2003, at http://www.postgazette.
com/pg/03299/234497.stm (visited Apr. 30, 2008).
“All over the nation, physicians who have spoken
out about dangerous
hospital practices or poor performance by colleagues
have been
punished. Here are a few examples.”
*Dr. John Flynn, Anadarko, Oklahoma reported of a colleague for
abandoning a patient to state and federal authorities
and lost his staff
privileges.
*Dr. Gil Mileikowsky, Encino, California questioned his
hospital’s failure to review certain cases he
believed demonstrated
substandard care and the hospital on grounds of disruptive
behavior.
(See 128 Cal. App. 4th 531, 27 Cal. Rptr. 3d 171 (2d Dist. 2005).
See
also Rules of Fair Play Don’t Always Apply, Oct. 27, 2003, at
http://www.post-gazette.com/pg/03300/234533.stm (visited
Apr. 30,
2008).
When right can be wrong, Oct. 27, 2003, at http://www.postgazette.
com/pg/03300/234531.stm (visited Apr. 30, 2008).
See Wieters v. Roper Hosp., Inc., 58 F.App. 40 (4th
Cir. 2003).
88 13 MSU JOURNAL OF MEDICINE AND LAW 57 (2009)
A Negative Data Bank Listing Isn’t Easy to Erase,
Oct. 27, 2003,
http://www.post-gazette.com/pg/03300/234532.stm (visited
Apr. 30, 2008).
See note 4 supra. See also See Steve Twedt, Doctor Who Voiced Protest Wins $4.3
Million Judgment. PITTSBURGH POST-GAZETTE. June 24, 2004, (accessed June 22,
2006, at http://www.peerreview.org/whistleblowers/6242004postgaz.pdf);
Ulrich v. City & County of San Francisco, 2004
WL 1635542 (N.D. Cal. July 12,
2004).
Doctors Who Spoke Out, Oct. 27, 2003, http://www.postgazette.
com/pg/03300/234534.stm (visited Apr. 30, 2008).
“All over the nation, physicians who have spoken
out about dangerous
hospital practices or poor performance by colleagues
have been
punished. Here are a few examples:”
*Dr. Kenneth Clark, Reno, Nevada lost privileges at a local hospital
after reporting poor care of patients to outside agencies.
See note 5
supra
*Dr. Silvana Riggio, Philadelphia, Pennsylvania was forced out of a
medical center after complaining of serious quality
and safety breaches
by colleagues.
*Dr. John Rabkin, Portland, Oregon won a $500,000 jury verdict
after being removed as director of the medical center’s
liver transplant
program following his report of an unexpectedly high
death rate
among a colleague’s patients.
Centre County Hospital Critics Soon Unwanted, Oct.
28, 2003, at
http://www.post-gazette.com/pg/03301/234729.stm (visited
Apr. 30, 2008).
Doctors Pay for Reporting Suspicions, Oct. 28, 2003, at http://www.postgazette.
com/pg/03301/234730.stm (visited Apr. 30, 2008).
Doctors Who Spoke Out, Oct. 28, 2003, at http://www.postgazette.
com/pg/03301/234727.stm (visited Apr. 30, 2008).
“All over the nation, physicians who have spoken
out about dangerous
hospital practices or poor performance by colleagues
have been punished.
Here are a few examples.”
*Dr. Gregory Flynn, Sarasota, Florida lost his privileges for
criticizing the hospital for poor training of staff,
unsafe conditions,
lack of supplies and other problems. A jury awarded
him $8.6 million.
*Drs. Morton Burrell, Arthur Rosenfield and Robert
C. Smith,
New Haven, Connecticut were informally disciplined and demoted
upon complaining about inadequate staffing and other
problems.
*Dr. Kyle Bressler, Naples, Florida settled a $3 million whistle
blower lawsuit for what he said was retaliation for
his reporting to
authorities infractions in quality.
Doctors Who Spoke Out, Oct. 29, 2003, at http://www.postgazette.
com/pg/03302/235118.stm (visited Apr. 30, 2008).
“All over the nation, physicians who have spoken
out about dangerous
hospital practices or poor performance by colleagues
have been
punished. Here are a few examples.”
Hospital Peer Review 89
*Dr. Jerome Finkelstein, New York, New York lost his medical
school faculty position upon complaints about the disturbing
conduct
of other colleagues.
*Drs. Mark Murfin and Bruce Frank, Centralia, Illinois were
suspended for “disruptive behavior” after
going public about the
hospital’s inadequate quality controls and Medicare
billing practice.
*Dr. David Shaller, Wilkes-Barre, Pennsylvania was
fired from the
Veterans Affairs Medical Center after trying to expose
poor patient care.
Doctor Says Whistleblowers Need More Protection, Oct. 30, 2003,
at
http://www.post-gazette.com/pg/03302/235115.stm (visited
Apr. 30, 2008).
Law Gives Hospital Panels Wide Powers over Doctors, Oct. 30,
2003, at
http://www.post-gazette.com/pg/03302/235117.stm (visited
Apr. 30, 2008). See
Freilich v. Upper Chesapeake Health, Inc., 313 F.3d
205 (4th Cir. 2002).
ADDITIONAL ARTICLES
Natalie White, Top Ten Jury Verdicts of 2004: Surgeon Awarded $366 Million for
Revoked Hospital Privileges, LAWYERS WEEKLY USA (2006) (accessed May 4, 2006,
at http://www.lawyersweeklyusa.com/usa/6topten2004.cfm
Phil Galewitz, Suspended Surgeon Regains Post at JFK, PALM BEACH POST, June 4,
2004, 1A.
Roxana Popescu, Doctor Rejects List of Conditions, Ends Ties to Tri-City Hospital,
UNION-TRIBUNE, July 11, 2004, available at
http://www.signonsandiego.
com/news/northcounty/20040711-9999-1mi11doctor.html
Paul Sisson, Federal Judge Restrains Tri-City Medical
Center, North County
Times, April 15, 2004, available at http://www.nctimes.com/articles/
2004/04/16/news/coastal/22_38_384_15_04.txt
