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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
