1

* Member of the New Jersey Bar. Oxford University, BM, BCh 1974 (Medicine and Surgery); Rutgers Law

School-Newark, JD, 2000; Seton Hall School of Law, LL.M (Health Law) 2005. The author represented

the plaintiff in Cowell v. Good Samaritan Hospital. This article benefitted from discussion with Mr. Henry

Kloppenburg, Q.C.

Cowell v. Good Samaritan: How and Why the Washington Legislature Should

Amend RCW 7.71 to Protect Physicians from Abuses of Medical Peer Review

Currently Being Shielded Under the Health Care Quality Improvement Act.

Nicholas Kadar*

Abstract

In 1987, the Washington legislature enacted RCW 7.71 whereby it adopted

the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101-

11152, to protect medical peer review. RCW 7.71 also created a private cause of

action for physicians “occasionally hurt by peer review decisions”, because the

Legislature concluded that peer review decisions “based on matters unrelated to

quality and utilization review need[ed] redress”. RCW 7.71 was intended to

balance the benefits of peer review to the public against the harms caused by peer

review decisions not related to a physician’s competence or professional conduct.

In Cowell v. Good Samaritan, the Washington Court of Appeals destroyed

this balance between the potentially beneficial and harmful effects of peer review,

and joined other jurisdictions that have protected abuses of the peer review

process under HCQIA by holding defendants immune for an unwarranted peer

review action that did not comply with HCQIA’s fairness and reasonableness

standards. The court also construed RCW 7.71 to permit defendants it had held

immune under HCQIA to recover attorneys’ fees and costs under the mandatory

fee-shifting provision of RCW 7.71.030(3). The court’s construction of RCW 7.71

is inconsistent with the plain language of the statute, will have the effect of

deterring physicians from even attempting to defend themselves against

questionable peer review actions, and defeat the remedial purpose of RCW 7.71.

This article argues that RCW 7.71 can and should be amended not only to

prevent misapplication of the statute’s fee-shifting provision but also to prevent

peer review abuses from being protected under HCQIA. Since legislative intent is

the touchstone of the U.S. Supreme Court’s preemption analysis, the legislative

history of HCQIA is reviewed to demonstrate that the immunity provisions of the

original bill were repeatedly cut back to ensure that HCQIA could not be applied

to protect peer review abuses. This legislative history, and respect for federalism,

make it extremely unlikely that the U.S. Supreme Court would construe HCQIA as

preempting state laws intended to protect physicians from abuses of the peer

2

review process. The article concludes by arguing that RCW 7.71 should be

amended to prevent peer review abuses because the legal protection currently

being afforded these abuses under HCQIA not only harms competent physicians

but is detrimental to the peer review process itself, and ultimately to public safety.

Table of Contents

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. THE LEGISLATIVE HISTORY OF HCQIA, AND THE

REASONS CONGRESS ENACTED THE STATUTE . . . . . . 13

A. Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Congress’ primary purpose in enacting HCQIA . . . . . . . 16

C. Amendments made to H.R. 5540 following hearings

in the House Judiciary Committee . . . . . . . . . . . . . . . . . 18

1. The burden of proof to rebut the presumption

of immunity was reduced to the preponderance

of the evidence . . . . . . . . . . . . . . . . . . . . . . . . . 18

2. The definition of professional review action was

amended to ensure that pretextual actions would

not be protected . . . . . . . . . . . . . . . . . . . . . . . . 19

3. Amendments to the fee-shifting provisions

of 42 U.S.C. § 11113 . . . . . . . . . . . . . . . . . . . . 22

II. FLAWED CONSTRUCTIONS OF HCQIA AND ITS

LEGISLATIVE HISTORY HCQIA HAVE CAUSED

PROTECTION OF PEER REVIEW ABUSES . . . . . . . . . . . . . 22

A. The non-review doctrine does not modify the standard

of review under § 11112(a), which is not deferential . . . 23

B. Whether evidence is sufficient to rebut HCQIA’s

presumption of immunity is a factual question, not a

question of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

C. Courts are not evaluating evidence offered to rebut

HCQIA’s presumption of immunity correctly. . . . . . . . . 29

III. THE PEER REVIEW PROCESS CAN BE READILY

MANIPULATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

IV. COWELL v. GOOD SAMARITAN: PROTECTION OF

UNWARRANTED PEER REVIEW UNDER HCQIA . . . . . . . 40

A. Evidence that termination of plaintiff’s hospital

privilege was unreasonable under § 11112(a)(4) . . . . . . 48

B. Evidence that the peer review process

violated § 11112(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 49

V. HOW RCW 7.71 SHOULD BE AMENDED . . . . . . . . . . . . . . 50

A. Amendments to RCW 7.71.010 . . . . . . . . . . . . . . . . . . . 50

3

1 See WASH. REV. CODE § 7.71.020 (2010) (stating that the Act would apply as of July 26, 1987). “Peer

review” is a generic term for the process used to monitor the quality and appropriateness of medical care.

Like most States, Washington already had several statutes that protected medical peer review, but, unlike

HCQIA, they offered no protection against federal antitrust suits. See WASH. REV. CODE § 4.24.240

(2010) (providing “immunity from civil damage actions for good faith performance of duties on peer

review committee and good faith reporting of information including testimony.”); WASH. REV. CODE §

4.24.250 (2010) (providing “for good faith presentation of evidence to peer review committee.”); WASH.

REV. CODE § 70.41.200 (2010) (providing immunity”for good faith participation and providing of

evidence to quality improvement committee.”).

2 See WASH. REV. CODE § 7.71.010 (2010), which provides:

“The legislature finds the assurance of quality and cost-effectiveness in the delivery of health care

can be assisted through the review of healthcare by health care providers. It also recognizes that

some peer review decisions may be based on factors other than competence or professional

conduct. Although it finds that peer review decisions based on matters unrelated to quality and

utilization review need redress, it concludes that it is necessary to balance carefully the rights of

the consuming public who benefit by peer review with the rights of those who are occasionally

hurt by peer review decisions based on matters other than competence or professional conduct.

The legislature intends to foreclose federal antitrust actions to the extent Parker v. Brown, 317

U.S. 341 (1943), allows and to permit only those actions in RCW 7.71.020 and 7.71.030.”

3 See Rao v. Board of County Comm’rs, 80 Wn.2d 695, 686, 497 P.2d 591, 592 (1972) (“private hospitals

have the right to exclude licensed physicians from the use of their facilities, such exclusion resting within

the discretion of the managing authorities”) (citing Health Coop. of Puget Sound v. King County Med.

Soc’y, 39 Wn.2d 586, 497 P.2d 591 (1951)).

B. Amendments to RCW 7.71.030(3) . . . . . . . . . . . . . . . . 51

C. HCQIA does not preempt the amendments to

RCW 7.71 required to safeguard against peer

review abuses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

VI. WHY HCQIA SHOULD BE AMENDED . . . . . . . . . . . . . . . . 55

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

__________________________________________________________________

INTRODUCTION

In 1987, the Washington legislature enacted RCW 7.71, and adopted the

Health Care Quality Improvement Act of 1986 (HCQIA) as part of a statutory

scheme to protect medical peer review.1 At the same time, the legislature created a

private cause of action for physicians “occasionally hurt by peer review decisions”,

because it concluded that peer review decisions based on matters “unrelated to

quality and utilization review need[ed] redress.”2 A statutory remedy was required

because there was no action at common law for improper or unwarranted peer

review actions,3 and HCQIA did not create a remedy for peer review actions that

4

4 Hancock v. Blue Cross-Blue Shield of Kan., Inc., 21 F.3d 373, 374-75 (10th Cir. 1994); Bok

v. Mut. Assurance, Inc., 119 F.3d 927, 928-29 (11th Cir. 1997); Wayne v. Genesis Med. Ctr.,

140 F.3d 1145, 1147 (8th Cir. 1998).

5 42 U.S.C. § 11151(9) defines ‘professional review action’ as

“an action or recommendation of a professional review body which is taken or made in the conduct of

professional review activity, which is based on the competence or professional conduct of an individual

physician (which conduct affects or could affect adversely the health or welfare of a patient or patients),

and which affects (or may affect) adversely the clinical privileges, or membership in a professional

society, of the physician. Such term includes a formal decision of a professional review body not to take an

action or make a recommendation described in the previous sentence and also includes professional

review activities relating to a professional review action. In this chapter, an action is not considered to be

based on the competence or professional conduct of a physician if the action is primarily based on—

(A) the physician’s association, or lack of association, with a professional society or association,

(B) the physician’s fees or the physician’s advertising or engaging in other competitive acts

intended to solicit or retain business,

(C) the physician’s participation in prepaid group health plans, salaried employment, or any

other manner of delivering health services whether on a fee-for-service or other basis,

(D) a physician’s association with, supervision of, delegation of authority to, support for, training

of, or participation in a private group practice with, a member or members of a particular class of

health care practitioner or professional, or

(E) any other matter that does not relate to the competence or professional conduct of a

physician.

6 See 42 U.S.C. § 11112(a) (2010), which provides:

(a) In general. For purposes of the protection set forth in [42 U.S.C. § 11111(a)], a professional

review action must be taken–

(1) in the reasonable belief that the action was in the furtherance of quality health care,

(2) after a reasonable effort to obtain the facts of the matter,

(3) after adequate notice and hearing procedures are afforded to the physician involved or after

such other procedures as are fair to the physician under the circumstances, and

(4) in the reasonable belief that the action was warranted by the facts known after such

reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

A professional review action shall be presumed to have met the preceding standards necessary for

the protection set out in [42 U.S.C. § 11111(a)] unless the presumption is rebutted by a

preponderance of the evidence.

7 See 42 U.S.C. § 11111(a)(1), Limitations on damages for professional review actions.

“If a professional review action (as defined in [42 U.S.C. § 11151(9)] of a professional review

did not meet its statutory standards for immunity.4

HCQIA merely provides a defense to liability for money damages under

state and federal law for ‘professional review actions’5 by hospitals against

physicians that meet the reasonableness and fairness standards of the statute.6 The

defense is referred to as ‘immunity’, and that convention will be followed in this

article, but the defense is not a true immunity, and the word immunity does not

appear in the statute.7 Unlike the qualified immunity government officials have

5

body meets all the standards specified in [42 U.S.C. § 11112(a)], except as provided in subsection

(b)--

(A) the professional review body,

(B) any person acting as a member or staff to the body,

(C) any person under a contract or other formal agreement with the body, and

(D) any person who participates with or assists the body with respect to the action,

shall not be liable in damages under any law of the United States or of any State (or political

subdivision thereof) with respect to the action. The preceding sentence shall not apply to

damages under any law of the United States or any State relating to the civil rights of any person

or persons, including the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. and the Civil Rights

Acts, 42 U.S.C. 1981, et seq. Nothing in this paragraph shall prevent the United States or any

Attorney General of a State from bringing an action, including an action under section 4C of the

Clayton Act [15 U.S.C. § 15c] where such an action is otherwise authorized.

8 Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

9 Decker v. IHC Hosps., Inc., 982 F.2d 433, 436 (10th Cir. 1992) (“The HCQIA's legislative history

supports our conclusion that the act establishes immunity from liability only.”); Manion v. Evans, 986

F.2d 1036, 1042 (6th Cir. 1993) (holding that HCQIA does not confer a right not to stand trial); Singh v.

Blue Cross/Blue Shield of Massachusetts, Inc., 308 F.3d 25, 35 (1st Cir. 2002). (“Moreover, immunity

under the HCQIA is immunity from damages only...”). In Mathews v. Lancaster Gen. Hosp., 87 F.3d 624,

632 (3d Cir. 1996), the Third Circuit referred to the immunity as “immunity from suits for money

damages”, and other circuits have cited this language. See Poliner v. Texas Health Systems, 537 F.3d

368, 376 (5th Cir. 2008); Sugarbaker v. SSM Healthcare, 190 F.3d 905, 911 (8th Cir. 1999). However,

HCQIA provides only a defense to liability, not immunity from having to stand trial. See infra note 20.

10 A “professional review body” is defined as:

“a health care entity and the governing body or any committee of a health care entity which

conducts professional review activity, and includes any committee of the medical staff of such an

entity when assisting the governing body in a professional review activity”. See 42 U.S.C. §

11151 (10) (2010).

11 See supra note 7. A separate subsection immunizes those who provide information to professional review

bodies. See 42 U.S.C. § 11111(a)(2) (providing a defense from liability to persons who provide

information to a professional review body, unless the information is false, and the person providing knew

it was false).

12 See supra note 6.

from civil rights actions under 42 U.S.C. § 1983, which is immunity from suit as

well as civil damages,8 HCQIA does not provide immunity from suit.9 HCQIA

applies broadly to ‘professional review bodies’,10 and individuals who participate

in, or assist these bodies with their peer review actions, but does not apply to state

or federal civil rights laws.11 The statute creates a presumption that peer review

actions meet HCQIA’s statutory standards, and physicians have the burden to

rebut the presumption of immunity by a preponderance of the evidence.12

“Any...matter that does not relate to the competence or professional

conduct of a physician” is excluded from HCQIA’s definition of professional

6

13 See supra note 5, subsection(E).

14 See infra, § I.C.2.

15 Id.

16 See e.g. Sugarbaker v. SSM Health Care, 190 F.3d 905, 914 (8th Cir. 1999) (“In the HCQIA immunity

context, the circuits that have considered the issue all agree that the subjective bias or bad faith motives of

the peer reviewers is irrelevant”); accord Poliner v. Texas Health System, 537 F.3d 368, 379-80 (5th Cir.

(“Our sister circuits have roundly rejected the argument that such subjective motivations overcome

HCQIA immunity, as do we.”) (footnote and citations omitted).

17 See WASH. REV. CODE § 7.71.030(1) (2010) (“This section shall provide the exclusive remedy for any

action taken by a professional peer review body of health care providers as defined in RCW 7.70.020, that

is found to be based on matters not related to the competence or professional conduct of a health care

provider.”).

18 See WASH. REV. CODE § 7.71.030(2) (2010) (“Actions shall be limited to appropriate injunctive relief,

and damages shall be allowed only for lost earnings directly attributable to the action taken by the

professional review body, incurred between the date of such action and the date the action is functionally

reversed by the professional peer review body.”).

19 See WASH. REV. CODE § 7.71.030(3) (2010) (“Reasonable attorneys' fees and costs as approved by the

court shall be awarded to the prevailing party, if any, as determined by the court.”).

20 See WASH. REV. CODE § 7.71.030(4) (2010) (“The statute of limitations for actions under this section

shall be one year from the date of the action of the professional review body.”).

21 See supra note 2.

22 See supra note 17.

review action.13 This catchall provision was intended to apply to any action not

genuinely motivated by quality of care concerns.14 The provision was added

because lawmakers were concerned that actions taken for illegitimate reasons may

not appear as such on their face.15 However, courts have ignored this legislative

history, and have held that the motives underlying peer review actions are

irrelevant to whether hospitals are immune under HCQIA.16

RCW 7.71.030(1) created a private cause of action where none existed

before “for any action taken by a professional peer review body of health care

providers... that is found to be based on matters not related to the competence or

professional conduct of a health care provider.”17 The remedies available are

limited to injunctive relief and earnings lost from the peer review action during the

period the action was taken and subsequently reversed.18 The statute has a

mandatory fee-shifting provision,19 and a one-year statute of limitations.20 The

limited nature of the remedy was intended “to balance carefully” the benefits of

peer review to the public against “the rights of those who are occasionally hurt by

peer review decisions.”21

These remedies are available only for peer review actions that are not based

on a physician’s competence or professional conduct,22 whereas HCQIA applies

7

23 See supra note 5.

24 153 Wn.App. 911, 255 P.3d 294 (Wash. App. 2009). The appeal was transferred from Division II to

Division I.

25 Danny Maher & Tim Layton, Attorney’s fees: Doctors face new threat in challenging peer review

actions, WSMA Newsletter, September 2010 at 10-11 (arguing that inappropriate award of attorney’s fees

under RCW 7.71 will deter wrongly disciplined physicians from even attempting to defend themselves,

and expressing the Society’s intent to lobby the legislature to amend and clarify RCW 7.71) (available at:

http://pamelacowellmd.com/blog/wp-content/uploads/2010/11/WSMA-Newsletter-September-2010.pdf).

26 See 42 U.S.C. § 11113 (2010). Payment of reasonable attorneys' fees and costs in defense of suit.

“In any suit brought against a defendant, to the extent that a defendant has met the standards set forth

under section 412(a) [42 USCS § 11112(a)] and the defendant substantially prevails, the court shall, at

the conclusion of the action, award to a substantially prevailing party defending against any such claim

the cost of the suit attributable to such claim, including a reasonable attorney's fee, if the claim, or the

claimant's conduct during the litigation of the claim, was frivolous, unreasonable, without foundation, or

in bad faith. For the purposes of this section, a defendant shall not be considered to have substantially

prevailed when the plaintiff obtains an award for damages or permanent injunctive or declaratory relief.”).

27 155 Wn.App. 626, 230 P.3d 203 (2010).

28 Id. at 642-43, 230 P.3d at 211.

29 See Salama v. Overlake Hospital, et al., Case No.: 08-2-01897-1 (Wash. Sup. Ct. King County, April 9,

2010) (Judgment and Order, granting attorney’s fees under RCW 7.71.030). The court previously denied

summary judgment under HCQIA, and held that RCW 7.71 did not apply to the case. See Order, denying

summary judgment, August 28, 2009 and Order, granting partial summary judgment, October 9, 2009.

See also Smigaj v. Yakima Valley Mem. Hosp. Ass’n, Case No. 08-2-04305-2 (Wash. Sup. Ct. Yakima

Cty, November 22, 2010) (Memorandum and Order, awarding attorneys’ fees and costs under RCW 7.71

and 42 U.S.C. § 11113). Before Cowell was decided, the court had denied defendants’ CR 12(b)(6)

only to actions based on competence or professional conduct.23 Therefore, RCW

7.71 and HCQIA cannot apply to the same claims. Nevertheless, in Cowell v.

Good Samaritan,24 the Washington Court of Appeals allowed defendants, held

immune under HCQIA, to recover their attorneys’ fees and costs under RCW

7.71. The decision sent shock waves through Washington’s medical community

because it adumbrated that hospitals held immune under HCQIA in Washington

would be able to recover attorneys’ fee and costs under the mandatory fee-shifting

provision of RCW 7.71.030(3) instead of HCQIA’s fee-shifting provision,25 which

requires proof that the plaintiff’s claim was “frivolous, unreasonable, without

foundation, or brought in bad faith.”26

This is exactly what has come to pass. In Perry v. Rado,27 decided four

months after Cowell, Division III of the Washington Court of Appeals affirmed a

Benton County trial court’s decision holding the hospital defendants immune under

HCQIA, and awarding the defendants attorney’s fees, costs and expenses under

RCW 7.71.28 Two trial courts have also awarded attorneys’ fees and costs to

hospital defendants under RCW 7.71 subsequent to Cowell, notwithstanding that

before the Cowell decision each court had held RCW 7.71 inapplicable to the case

because the hospital’s peer review action was based on the physician’s competence

or professional conduct.29

8

motion, and held RCW 7.71 inapplicable because the hospital’s action was based on competence or

conduct. See Memorandum and Order, April 9, 2009. After Cowell was decided, the Smigaj court held

defendants immune under HCQIA, and granted summary judgement, see Memorandum and Order,

September 9, 2010, and awarded attorney’s fees, see Memorandum and Order, November 24, 2010, for a

questionable peer review actions that had attracted local media attention. See Leah Ward, Not What the

Doctor Ordered, Yakima-Herald Republic, January 24, 2009

(http://www.yakima-herald.com/stories/2009/01/24/not-what-the-doctor-ordered).

30 See CP 49-71 (First Amended Complaint). The tort claims were based on the publication of factually

false, defamatory statements about the plaintiff to peer review committees and the National Practitioner’s

Data Bank with knowledge of falsity. Dr. Cowell sought an injunction under RCW 7.71.030(1) in the

event defendants were not found immune under HCQIA, notwithstanding that the termination of her

privileges was ostensibly based on her professional conduct, because RCW 7.71 was a remedial statute,

see Owner’s Ass’n v. FHC, LLC, 166 Wn.2d 178, 205-06, 207 P.3d 1251, 1265 (2009), courts construe

remedial statutes liberally “in order to effectuate the remedial purpose for which the statute was enacted”,

see State v. Grant, 89 Wn.2d 678, 685, 575 P.2d 210, 213 (Wash. 1978), and RCW 7.71’s purpose was to

redress harms caused by “peer review decisions based on matters not related to quality”. See supra note 2.

Therefore, she argued that actions that do not comply with the standards of § 11112(a) should be treated

constructively as not based on competence or professional conduct.

31 See CP 1999 (Order, July 11, 2008, granting defendants’ CR 56 motion).

32 See CP 2001 (Order, July 25, 2008, awarding $296,656.50 of the total of $364,474.00 claimed under

RCW 7.71.030). The court construed attorney’s fees liberally to include all “expenses”, and even allowed

as “reasonable” a $95 dinner for one attorney on the night before an out-of-town deposition. See CP 1926.

Defendants likely sought most of their fees and costs under RCW 7.71.030(3) because the Washington

Court of Appeals declined to award attorneys’ fees under 42 U.S.C. § 11113 to defendants it had held

immune under § 11111(a)(1). See Morgan v. Peacehealth, 101 Wn.App. 750, 776, 14 P.3d 773, 787

(Wash. App. 2000).

33 CP 2465 (Defendants’ Motion for Attorneys’ Fees, Expenses, Costs and Disbursements Pursuant to CR

54(1) and (2)).

34 111 Wn.2d 396, 759 P.2d 418 (1988).

35 This argument confused causes of action with remedies. There is no defense to an injunction separate

from the challenge to the presumption of immunity. That is why the “defense” to the injunction consisted

of two sentences, and relied on no facts learned through discovery. The “defense” consisted of the

assertion that because defendants’ actions were based on Dr. Cowell’s competence and professional

conduct, RCW 7.71 did not apply. See CP 2438 (“Moreover, because the professional review action

undeniably related to plaintiff’s competence or professional conduct, plaintiff’s claims must be

The plaintiff’s causes of action in Cowell were not based on the alleged

wrongfulness of the termination of her privileges but on incidental torts committed

during the peer review process.30 The court granted defendants’ motion for

summary judgment on these claims because it held defendants immune under

HCQIA.31 The court then awarded most of defendants’ attorneys’ fees under RCW

7.71.030(3).32 Defendants claimed they were entitled to recover attorney’s fees

under RCW 7.71.030(3) because Dr. Cowell’s request for an injunction and legal

claims related to a “common core of facts and circumstances”, they had segregated

their attorney’s fees, and further segregation was not possible.33 Defendants

contended that under the Washington Supreme Court’s holding in Travis v. Horse

Breeders,34 they could recover fees and costs they ostensibly could not segregate

either under RCW 7.71.030 or 42 U.S.C. § 11113.35

9

dismissed.”) (Defendants’ Reply Brief in Support of CR 12(b)(6) and CR 56 Motions to Dismiss

Plaintiff’s Claims)).

36 See id. at 634, 230 P.3d at 207.

37 155 Wn.App at 632-34, 230 P.3d at 207 (termination based on violation of a performance agreement,

which was imposed because of questionable judgment and management of bowel injuries during

laparoscopic surgery).

38 Id. at 635, 230 P.3d at 208. The court also held the hospital immune under HCQIA, granted summary

judgment on plaintiff’s remaining claims. Id. These were for breach of contract and fraud, breaches of

fiduciary duties, tortious interference, reinstatement of medical staff membership and clinical privileges;

and declaratory relief. The court permitted the plaintiff to amend his complaint to seek an injunction, but

he declined to do so. Id. The court did not hold defendants immune for the claim that the hospital

tortiously interfered with Dr. Perry’s privileges at another hospital, but the plaintiff did not pursue this

claim. Id.

39 101 Wn.App. at 766, 14 P.3d at 787 .

40 Perry, 155 Wn.App at 642-43, 230 P.3d at 211-12 (citing Cowell, 153 Wn.App. at 942).

41 See supra note 2, § 7.71.010 (recognizing that “some peer review decisions may be based on factors other

than competence or professional conduct...[and] that peer review decisions based on matters

unrelated to quality and utilization review need redress”) and supra note 17, § 7.71.030(1) (stating that

statute provides exclusive remedy for any action taken by a peer review body...that is found not to be based

on matters not related to competence or professional conduct of a health care provider.”).

42 See supra note 2.

Most of plaintiff’s claims in Perry, by contrast, were based on the

wrongfulness of the hospital’s peer review action itself, which Dr. Perry claimed

denied him due process, breached a duty of good faith and fair dealing, and

violated RCW 7.71,36 notwithstanding that the hospital’s action on his privileges

was based on his competence and professional conduct .37 The court dismissed

these claims under CR 12(b)(6), because it held that they were outside the

remedies allowed by RCW 7.71.38 The court did not hold, as it had ten years

earlier in Morgan,39 that RCW 7.71 did not apply because the hospital’s action was

based on the physician’s competence or professional conduct, and awarded all

attorney’s fees under RCW 7.71.030 because “all claims for relief relied on ‘a

common core of facts and circumstances’”, as in Cowell.40

To justify awarding hospitals, held immune under HCQIA, attorneys’ fees

and costs under RCW 7.71.030(3), Cowell and its progeny have turned RCW 7.71

on its head by basing the applicability of the statute on the nature of the plaintiff’s

allegations instead of the reasons for the defendants’ actions against the plaintiff,

as the statute’s plain language requires.41 Whether the plaintiff’s underlying claims

are based on the alleged wrongfulness of the peer review action itself, as in Perry,

or on independent torts committed during the peer review process, as in Cowell,

determines only whether RCW 7.71.030(1) provides the exclusive remedy for the

plaintiff’s claims, not whether the statute applies to the case at all.42 Cowell and

Perry conflated whether the statute applies, with what remedies are available if the

statute applies.

By its plain language, the RCW 7.71 applies only if the underlying action

10

43 Id. (Using the phrase “competence or conduct” repeatedly to define the purpose of the statute).

44 See supra note 17, § 7.71.030(1).

45 State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318, 320 (2003) (courts must construe statutes consistent with

their purpose to give effect to the legislature’s intent, avoiding strained or absurd results in so doing).

46 See supra note 2 (stating that “peer review decisions based on matters not related to quality and utilization

review need redress.”).

47 See supra note 26.

48 Cowell v. Good Samaritan Cmty. Health Care, 169 Wn.2d 1002, 236 P.3d 205 (2010).

49 Perry v. Rado, 169 Wn.2d 1024, 238 P.3d 503 (2010).

50 See infra, § II.

51 See e.g. Ward, supra note 29; Jeff Chu, Doctors Who Hurt Doctors, Time, Aug. 7, 2005

(http://www.time.com/time/magazine/article/0,9171,1090918,00.html); Steve Twedt, The Cost of

was not based on a physician’s competence or professional conduct.43 A finding

that defendants are immune under HCQIA is tantamount to a finding that their

actions against the plaintiff were based on the plaintiff’s competence or

professional conduct, and, therefore, RCW 7.71 cannot have any application. Even

if the physician alleges that the hospital’s actions were pretextual, and not actually

based on competence or professional conduct, it is what the court finds the action

to have been based on, not what the plaintiff alleged that it was based on, that

determines whether the statute applies to the case at all.44

The Cowell court’s interpretation of RCW 7.71 leads to a result the

Washington legislature could not have intended.45 The Washington legislature

enacted RCW 7.71 to provide equitable and legal relief to physicians harmed by

peer review decisions “not related to quality”.46 But Cowell and its progeny have

left physicians worse off than they would have been had the Washington legislature

never enacted RCW 7.71 to provide them a remedy.

Under HCQIA, prevailing defendants may recover attorneys’ fees and costs

only if the plaintiff’s action or conduct of litigation was “frivolous, unreasonable,

without foundation, or in bad faith.”47 By permitting prevailing defendants to

recover under RCW 7.71.030(3)’s mandatory fee-shifting provision, and

circumvent these preconditions for recovering attorneys’ fees and costs, Cowell

will deter physicians from even attempting to defend themselves against improper

peer review actions by the threat that the mandatory fee-shifting provision of RCW

7.71 will be automatically triggered if the hospital is held immune under HCQIA.

By denying petition for review in Cowell48 and Perry,49 the Washington Supreme

Court has effectively approved this new interpretation of RCW 7.71 that flies in

the face of the statute’s plain language.

The decisions in Cowell and Perry come at a time when the need to protect

physicians from improper peer review actions is far greater than it was when RCW

7.71 was enacted. Lower federal courts have interpreted HCQIA inconsistently

with its plain language and legislative history.50 These interpretations have led to

protection of peer review abuses, and are raising growing concern.51 Lower federal

11

Courage: How the Tables Turn on Doctors, Pittsburgh Post-Gazette, Oct. 26, 2003

(http://www.post-gazette.com/pg/03299/234499.stm). See also William W. Parmley, Clinical Peer Review

or Competitive Hatchet Job, 36 J. Am. Coll. Cardiol. 1 (2000); Charles R. Koepke, Physician Peer

Review Immunity: Time to Euthenize a Fatally Flawed Policy, 22 J. Law & Health 1 (2009); Eleanor J.

Kinney, Hospital Peer Review of Physicians: Does Statutory Immunity Increase the Risk of Unwarranted

Professional Injury? 13 MSU J. Med. & Law 57 (2009); Note: Procedural Protections During Medical

Peer Review: A Reinterpretation of the Health Care Quality Improvement Act of 1986, 111 Penn. St. L.

Rev. 104 (2007); Michael J. Panella, The legal ramifications under the health care quality improvement

act of physicians labeled disruptive for advocating patient quality of care issues, 24 J.L. & Com. 281

(2004-2005); Note: The Fox Guarding the Henhouse: How the Healthcare 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).

52 Lockhart v. Fretwell, 506 U.S. 364, 375-376 (1993) (Thomas, J., concurring) (Supremacy Clause does not

require state courts to follow rulings by federal courts of appeals on questions of federal law); accord State

v. Barefield, 110 Wn.2d 728. 730, 756 P.2d 731, 733 n.2 (Wash. 1988) (citations omitted) (stating that

Washington courts are not bound by inferior federal court interpretations of federal law).

53 Meyer v. Sunrise Hosp., 22 P.3d 1142, 1149-50 (Nev. 2001).

court interpretations of federal law do not bind state courts,52 and the U.S.

Supreme Court has not granted petition for certioriari in a single case involving

HCQIA to date. Nevertheless, as the following concurrence by two justices of the

Nevada Supreme Court indicates, lower federal court interpretations of HCQIA

are being followed even by state courts that recognize that the interpretations

protect and encourage peer review abuses, and leave physicians without any viable

remedy:

“I must concur in the result reached in the majority opinion because

HCQIA sets such a low threshold for granting immunity to a hospital’s

so-called peer review. 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 without regard to

quality medical care. This is particularly probable since most courts

have indicated that the legislative history of HCQIA bars consideration of

the subjective motives or biases of peer review boards

Here, hospital administrators, immediately upon recognizing a public

relations problem, decided that Dr. Meyer was to be the hospital's

scapegoat for the unfortunate death of a patient...Unfortunately, the

immunity provisions of HCQIA sometimes can be used, not to improve the

quality of medical care, but to leave a doctor who is unfairly treated

without any viable remedy.”.53 (Boldface added).

Other courts are also protecting unjustified actions against competent

physicians for similar reasons, even if they have not explained them as explicitly.

For example, the Maryland Special Court of Appeals held a hospital immune for

12

54 Bender v. Suburban Hosp. Inc., 758 A.2d 1090 (Md. Ct. Sp. App. 2000) (quoted texts are on pages 1093,

1100, 1100, 1103 and 1113 of the opinion). In Jenkins v. Methodist Hospital of Dallas, No. 3:02-CV-

1823-M, 2004 U.S. Dist. LEXIS 28094 (N.D. Tex. Aug. 18, 2004) at *48 n.8, the U.S. District Court for

the Northern District of Texas even held a defendant physician immune who the court acknowledged had

knowingly provided false information to peer review committees about the plaintiff physician.

55 See Health Care Quality Improvement Act of 1986: Hearings Before the Subcomm. on Health and the

Environment of the House Comm. on Energy and Commerce, 99th Cong., 2d Sess. (March 18 and July

15, 1986) [hereinafter “Hearings on H.R. 5110”].

56 See Health Care Quality Improvement Act of 1986: Hearings Before the Subcomm. on Civil and

Constitutional Rights of the House Comm. on the Judiciary, 99th Cong., 2d Sess. (Oct. 8 and 9, 1986)

[hereinafter “Hearings on H.R. 5540”].

57 See infra, § I.A.

58 Id.

revoking the privileges of a physician who, the court admitted, had an “excellent

professional reputation”, a “legitimate gripe”, and who “put patient welfare above

all else”, “not for want of a wrong”, but because “to her misfortune” her claims

against the hospital brought “the HCQIA into play”, and, “as reprehensible as

some of [the peer reviewer’s] actions may have been, they succeed as a matter of

law”.54 In the majority of cases, however, as in Cowell, the unreasonable or

pretextual nature of the peer review action is not be apparent from the face of the

court opinions.

This article argues that the Washington legislature can and should amend

RCW 7.71 to restore its remedial purpose, and protect physicians in the State of

Washington from peer review abuses. Parts I reviews, the legislative history of

HCQIA, and the amendments made by the House Committee on Energy and

Commerce (HCEC),55 and subsequently by the Subcommittee on Civil and

Constitutional Rights of the House Committee on the Judiciary (House Judiciary

Committee or HJC),56 that cut back the scope of the original immunity to ensure

that it could not be used to shield peer review actions taken for illegitimate

reasons.57 Courts have completely ignored these second round of amendments.58

Part II reviews the constructions of legislative history and intent that have caused

lower federal court to interpret and apply HCQIA in a way that protects peer

review abuses.

Hospitals, of course, deny that they abuse the peer review process.

Therefore, to demonstrate that Cowell involved an unjustifiable peer review action

that is not apparent from the face of the court’s opinion, Part III first reviews the

peer review process to explain why it can be so easily manipulated and made to

appear legitimate, and Part IV reviews some of the evidence that created genuine

issues of material fact about the reasonableness and fairness of the hospital’s

action, but that were omitted from, misstated in, or contradicted by “findings” in

the court’s opinion that were made up out of whole cloth. The relevant portions of

the Clerk’s Papers that were before the court are cited to permit these facts to be

independently verified.

Part V describes the amendments to RCW 71.71 that would safeguard

13

59 See Horner, supra note 1 at 456 n.4 (summarizing the history of bill’s passage through Congress).

60 See Hearings on 5110 at 1 (Statements of Rep. Waxman).

61 Patrick v. Burget, 800 F.2d 1498, 1509 (9th Cir. 1986) rev’d on other grounds 486 U.S. 94 (1988).

62 See 132 Cong. Rec. H 11590 (daily ed. Oct 17, 1986) (“in the Patrick case, the hospital dropped out [of]

the lawsuit before the verdict was rendered, leaving the defendants doctors with no insurance whatsoever.

As a result of the verdict, at least one doctor had 100 percent of his income garnished for months”.)

(Statements of Rep. Waxman).

63 See Cong. Rec. H 9963 (daily ed. Oct. 14, 1986) (statement of Rep. Wyden); accord statements of Rep.

Tauke, id. ( “one of the major deterrents to effective peer review [was] the threat hanging over physicians

or hospital administrators involved in peer review that they may be sued under State and Federal antitrust,

defamation and other statutes by a doctor they are planning to discipline or have disciplined, even when

the review and disciplinary action are clearly motivated by concern over quality of care”). See also Steve

Twedt, Rules of Fair Play Don’t Always Apply, Pittsburgh Post-Gazette, October 27, 2003

(“Pittsburgh lawyer John Horty, who is nationally known for his work on hospital legal issues,

said the immunity provision in the health care act came out of discussions he'd had with former

U.S. Rep. Ron Wyden, D-Ore., and later Rep. Henry Waxman, D-Calif., because of lawsuits such

as the one brought by Oregon physician Dr. Timothy Patrick to overturn an unfavorable peer

physicians from peer review abuses now protected under HCQIA, and argues that

the U.S. Supreme Court is highly unlikely to construe them as preempted by

HCQIA. Part VI argues that RCW 7.71 should be amended because the adverse

consequences of protecting peer review abuses extend beyond the harms inflicted

on physicians to the peer review process itself. It demonstrates, by reference to the

facts of Cowell, that when hospitals use the peer review process as a pretext to

blame physicians for adverse events, dangerous systemic factors that jointly

contribute to adverse events will not be addressed, will remain in the system, and

continue to pose a risk to patients. It is concluded that consideration of patient

safety, no less than the harms inflicted on competent physicians, justify legislation

to stop the legal protection of peer review abuses.

I. THE LEGISLATIVE HISTORY OF HCQIA, AND THE REASONS

CONGRESS ENACTED THE STATUTE.

A. Legislative History.

The bill eventually enacted into law as HCQIA was first introduced in the

HCEC as H.R. 4390 by Representative (now Senator) Wyden from Oregon.59 At

the time, Congress was debating “a crisis in medical malpractice...that threatene[d]

to drive physicians out of practice, leaving their patients stranded without care.” 60

During these debates, an Oregon jury returned a verdict for a physician on his

antitrust claim against a hospital and peer reviewers,61 which, when trebled, yielded

an award of almost two million dollars, and caused one peer reviewer’s income to

be garnished for several months.62 Lawyers representing hospital groups seized on

the Patrick verdict to convince lawmakers that “doctors participating in peer

review face the tremendous risk...that they will be sued for their actions against a

colleague.”63 However, they subsequently conceded during their testimonies before

14

review ruling...Horty co-authored that section of the law [providing immunity to hospitals].”

(http://www.post-gazette.com/pg/03300/234533-84.stm).

64 See Hearings on H.R. 5110 at 276 (testimony of Mr. Jack Owens, Executive Vice President, American

Hospital Association).

65 Id. at 297 (testimony of Mr. John Horty, President of the National Council of Community Hospitals).

66 See supra note 55.

67 See Horner, supra note 1.

68 H.R. Rep. No. 99-903, 99th Cong., 2d Sess., pt. 1 [Hereinafter “H.R. Rep. No. 99-903"]

69 Id. at 9 (“Initially, the Committee considered establishing a very broad protection from suit for

professional review actions. In response to concerns that such protection might be abused and serve as a

shield for anti-competitive economic actions under the guise of quality controls, however, the Committee

restricted the broad protection.”)

70 Id. at 12 (“a court might determine at an early stage of litigation that the defendant has met the [§

11112(a)] standards, even though the plaintiff might be able to demonstrate that the professional review

action was otherwise improper.”)

71 See 132 Cong. Rec. H9957-H9960 (daily ed. Oct. 14, 1986) (statements by Rep. Waxman) (describing and

discussing twelve amendments made to H.R. 5540 following hearings in the House Judiciary Committee).

72 Id. at H9961 (“The testimony presented to the Judiciary Committee shows that peer review often has the

result if not the intent of discriminating against minority and foreign born doctors.”) (Statements of Rep.

Edwards); Hearings on 5540 at 29-31 (Letter from Assistant Attorney General Bolton presenting the

“views of the Department of Justice on H.R. 5540” recommending against adopting the bill).

73 Hearings on H.R. 5510 at 348 (stating that standard for immunity “could present a considerable problem

for a physician whose privileges are jeopardized in an action which not primarily based on his

competence, but which may be the result of a ‘turf battle’ among medical practitioners”.) (Statements

submitted on behalf of the American Academy of Family Physicians).

74 132 Cong. Rec. H9959 (daily ed. Oct. 14, 1986) (“For example, an action taken against a physician

Congress that “plaintiff-physicians rarely have prevailed in these cases”,64 and that

“hospitals are, with only rare exceptions, successful in defending such cases”.65

Nevertheless, the bill was amended, and reintroduced in the HCEC as H.R. 5110

by Representatives Wyden, Waxman, Madigan and Tauke, debated in the HCEC

on March 18 and July 15, 1986,66 reintroduced again as H.R. 5540 on September

18, 1986 after further amendments,67 and voted out of the HCEC on September

26, 1986 with the recommendation that the bill be adopted.68

Before H.R. 5540 was voted out of the HCEC, the scope of immunity was

narrowed to protect against anticompetitive conduct.69 However, peer review

actions improper in other respects could still satisfy the standards of § 11112(a),

and would be protected.70 Therefore, the scope of immunity was narrowed further

following hearings in the House Judiciary Committee on October 8 and 9, 1986.71

Although discriminatory actions against racial minorities most concerned

lawmakers,72 they were equally emphatic that actions based on “turf battles”,73 the

type of patients treated, or the style of a physician’s practice were just as

unacceptable, and would not obtain immunity under HCQIA.74 The immunity that

15

because of a style of practice or a pattern of patients that do not generate sufficient revenue for the hospital

would not be covered by this bill.”) (Statements of Rep. Waxman explaining Amendment No. 10).

75 See id. at H9962 (Statements of Rep, Madigan). Accord Mathews v. Lancaster General Hosp., 87 F.3d

624, 633 (3d Cir. 1996) (stating that HCQIA’s purpose was to “deter antitrust suits by disciplined

physicians.”). HCQIA’s proponents anticipated that the bill’s reporting requirements would precipitate a

surge of federal antitrust suits, and considered the “very limited immunity” that remained to be essential

to protect peer reviewers from the threat of treble damages posed by federal antitrust suits. See 132 Cong.

Rec. H9962 (daily ed. Oct. 14, 1986) (“the reporting mechanism established by this legislation is likely to

lead to more litigation...”) (Statements of Rep. Madigan); 132 Cong. Rec. H11589 (daily ed. Oct. 17,

1986) (stating that “The immunity left after these modifications is very limited but essential.”)

(Statements by Rep. Waxman).

76 See 132 Cong. Rec. HH9960 (daily ed. Oct. 14, 1986) (statements by Rep. Edwards).

77 Id. (“the bill, as reported and with the changes now recommended...does not create an incentive to more

effective voluntary peer review, it would instead shield illegal peer review action from effective challenges

brought by those doctors who find themselves improperly sanctioned by peer review committees.”)

(statements of Rep. Edwards); Id. at H9964 (“Perhaps most troubling, there is no mechanism in H.R. 5540

to guarantee that physicians will, in fact, participate in more peer review if the bill is passed.”) (statements

of Rep. Rodino).

78 See Patrick, 800 F.2d at 1509.

79 See id. at 1507.

80 132 Cong. Rec. H11590 (daily ed. Oct 17, 1986) (statements of Rep. Waxman); Hearings on H.R. 5540 at

48-49 (“I appreciate that any form of immunity raises concerns about the potential for mischief that might

be visited by doctors on their colleagues for improper reasons. But, let me say that numerous -- some

might say endless -- discussions with those interested in, and affected by, our bill, to remove such cause

for alarm. I am now convinced that we have addressed every legitimate objection that has been raised to

the bill.”).

remained was intended to “provide very limited immunity from liability for

allegations of antitrust violations by disciplined physicians”.75

The House Judiciary Committee held hearings on H.R. 5540 “to provide a

more complete record of the implications of the immunity and due process

provisions set forth in title I [the immunity provisions] of H.R. 5540.”76 The HJC

recommended deleting Title I based on the concerns that the immunity was

unnecessary, could be misused to protect improper actions against physicians, and

provided no actual incentive to engage in effective peer review.77 Two days after

H.R. 5540 was reported out of the HCEC, these concerns were vindicated by the

Ninth Circuit’s decision in Patrick.

The Ninth Circuit described the peer reviewers’ conduct in Patrick as

“shabby, unprincipled and unprofessional”,78 and found “substantial evidence that

the defendants acted in bad faith in the hospital’s peer review process”.79 To

assuage the concerns of HCQIA’s opponents in the House Judiciary Committee,

Representative Waxman, the floor manager of the bill, repeatedly emphasized that

“bad faith peer review activities permitted by the Patrick case would never obtain

immunity under H.R. 5540,”80 and explained that the extensive revisions made to

the bill had cut back the scope of the immunity to preclude abuses:

16

81 Id. at H11589.

82 See e.g., Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992); Bryan v. James E. Holmes Regional

Med. Ctr., 33 F.3d 1318, 1322 & n.3 (1994) cert. denied 524 U.S. 1019 (1995); Brader v. Allegheny Gen.

Hosp., 167 F.3d 832, 839 (3rd Cir. 1999); Wayne v. Genesis Med. Ctr., 140 F.3d 1145, 1148 (8th Cir.

1998); Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461, 468 (6th Cir. 2003); Gordon v.

Lewistown Hosp., 423 F.3d 184, 201 (3rd Cir. 2005); Wahi v. Charleston Area Med. Ctr., 562 F.3d 599,

609 (4th Cir. 2009).

83 Hearings on H.R. 5540 at 47 (Statement of Representative Waxman); § 11101(2).

84 See Hearings on H.R. 5110 at 191 (Statements of Rep. Waxman); id. at 193 (Statements of Rep. Wyden).

85 132 Cong. Rec. H9963 (“Mr. Speaker, the bill before us today will create an important first line of

defense against malpractice: ridding the profession of bad doctors is the first line of defense against

malpractice. As such, it is the first step toward a national malpractice strategy.”) (Statements of Rep.

Wyden). See also Hearings on H.R. 5540 at 58-60 (presenting statistics that a small minority of

physicians account for a large proportion of malpractice claims - for example, 3% of physicians account

for 48% of malpractice claims in Florida) (Statement of Sidney Wolfe for Public Citizen Health Research

Group). The misplaced belief that HCQIA would have a salutary effect on medical malpractice claims,

and, hence, malpractice insurance premiums, was the likely reason that so many medical organizations

supported HCQIA. See e.g., 132 Congr. Rec. H (daily ed. 14, 1986) (Statement of Rep. Tauke that

American Medical Association strongly supported H.R. 5540).

86 Hearings on 5110 at 191 ( “When doctors identify another doctor as failing to meet professional

standards, the all-too-common solution has been to say, ‘Quit practicing here and we won’t tell anyone’”.)

(Statement of Rep. Waxman); id. at 216 (Hospitals...often force impaired physicians to resign to avoid

“These provisions have undergone a number of revisions in the legislative

process. I stress this because most of the objections raised about earlier

versions of H.R. 5540 (and its predecessor H.R. 5110) have been

addressed in recent drafts, and particularly in the provisions that are now

before the House.”81

Representative Waxman was referring to the extensive revisions made to H.R.

5540 following hearings in the HJC after H.R. 5540 was voted out of the HCEC.

Courts have completely ignored these amendments.82

B. Congress’ primary purpose in enacting HCQIA.

The primary reason Congress enacted HCQIA was to prevent “a small -

but deadly - group of incompetent and unprofessional physicians who cause[d]

serious injury and needless death” from being able to conceal their records, move

from state to state, and continue to practice and injure patients.83 HCQIA’s

proponents believed that this “small - but deadly - group of incompetent and

unprofessional physicians” contributed significantly to the perceived medical

malpractice crisis,84 and that preventing these physicians from practicing was the

“first step in a national malpractice strategy”.85 Lawmakers recognized that the

problem created by these physicians was not that no one knew who they were, but

that “[t]ypically they cut a deal with the hospital to leave town - - carrying good

references in return for not suing the hospital.”86 Instead of sanctioning hospitals

17

adverse publicity and fail to report those inadequacies known to them.”) (Statement of Wayne W. Alberts,

M.D., Medical Director, Kaiser Foundation Health Plan of the Mid-Atlantic States); 132 Cong. Rec.

H9957 (daily ed. Oct. 14, 1986) (“This bill focuses on those instances in which physicians injure patients

through incompetent or unprofessional service, are identified as incompetent or unprofessional by their

peers but are dealt with in a way that allows them to continue to injure patients. The reporting system in

this legislation would virtually end the ability of incompetent doctors to skip from one jurisdiction to

another without detection.”) (Statements of Representative Waxman).

87 42 U.S.C. §§ 11131-11137; Hearings on H.R. 5540 at 48 (“the essential feature of H.R. 5540 is its

reporting system”) (Statements of Rep. Waxman).

88 132 Cong. Rec. H9960 (daily ed. Oct. 14. 1986) (Statements of Rep. Edwards).

89 See Hearings on H.R. 5440 at 83 (“I submit to the committee that somebody is running scared from a

phantom problem. So far as I can determine from the legislative history, the real concern has been with

antitrust litigation. Yet, in fact, the antitrust theory is pretty much a bust for doctors seeking retribution

for wrongfully deprived privileges”) (statements of Victor Glasberg, Esquire).

90 Wayne W. Alberts, M.D., Medical Director, Kaiser Foundation Health Plan of the Mid-Atlantic States,

acknowledged in response to questions by Rep. Taube that he had never been sued for providing

references that mentioned quality of care issues, but claimed to know of “successful suits filed against less

than exemplary references” and of “several suits in the Washington area at this time that are in progress

because of references written about physicians”. Hearings on H.R. 5110 at 225. However, Dr. Alberts did

not cite any specific case. Under the bylaws of most hospitals, physicians are not free to refuse committee

assignments, and hospitals must have infection control, quality assurance and utilization review programs

to receive accreditation by the Joint Commission on the Accreditation of Health Care Organizations

(“JCAHO”). See e.g., The 1991 Joint Commission Accreditation Manual for Hospitals at 69-73, 215-21,

281-83.

91 A few plaintiffs have prevailed since HCQIA was enacted. See e.g., Brown v. Presbyterian Health Care

Services, 101 F.3d 1324 (10th Cir. 1996). Some other plaintiffs defeated motions for summary judgment

on antitrust claims after HCQIA became law, but these were short-lived victories that were reversed by the

trial court itself or on appeal, based on antitrust principles, not HCQIA immunity. See Miller v. Indiana

Hosp., 843 F.2d 139 (3rd Cir. 1988) (reversing a grant of summary judgment although four years later the

court affirmed a grant of a renewed motion for summary judgment, see Miller, 975 F.2d 1550 (1992));

Nanavati v. Burdette Tomlin Memorial Hosp., 857 F.2d 96 (1988) (affirming grant of defendant’s motion

j.n.o.v. reversing jury verdict for the plaintiff); accord Scott, supra note 38 at 352 (stating that “[n]o court,

commentator or enforcement agency has ever suggested that in such a case [where the requirements of 42

U.S.C. § 11112(a) were met], peer review participants potentially face antitrust liability”); Boczar v.

Manatee Hosps. & HealthSys. Inc., 993 F.2d 1514 (11th Cir. 1993) (reversing trial court’s grant of motion

j.n.o.v. reversing jury verdict for plaintiff).

that engaged in these practices, HCQIA’s proponents established a “reporting

system” - Title II of the bill - that became the National Practitioner’s Data Bank

(NPDB).87

The reporting system received bipartisan support in the House Judiciary

Committee,88 but the immunity provisions of the bill were rejected as directed at a

“phantom problem”.89 None of the 22 witnesses who provided oral or written

testimonies to Congress in support of HCQIA presented any evidence that

physicians were deterred from engaging in peer review by the threat of legal

liability, and simply asserted this belief in conclusory fashion.90 No one cited any

case in which a physician prevailed on an antitrust claim based on a hospital’s peer

review action prior to Patrick, and there appear to have been no such cases.91

18

92 Susan O. Scheutzow, State Medical Peer Review: High Cost But No Benefit - Is It Time for a Change? 25

AM. J. L. AND MED. 7, 8 (1999); accord Horner, supra note 1 at 461 n.27 (stating that 44 states had

passed statutes immunizing hospital boards from liability arising out of peer review actions by the time

HCQIA was enacted). See also 132 Cong. Rec. H9961 (daily ed. October 14, 1986) (“It is very difficult,

under existing state and federal law, to challenge fairly administered review actions...Therefore, peer

review participants’ fear of damage claims is unfounded.”) (Statements of Rep. Edwards); 132 Cong. Rec.

H 11590 (daily ed. Oct. 17, 1986) (“Simply stated, State shield laws provide protection only for State - not

Federal - causes of action. In fact, it is the very comprehensiveness of State shield laws that has led to so

much federal litigation”) (Statements of Rep. Waxman). Accord Hearings on H.R. 5110 at 275 (“Early

law suits against hospitals tended to assert constitutional bases for relied, e.g. property and liberty interests

in the right to practice a profession...As these causes of action thus ceased to be effective, plaintiffs have

pursued other bases for litigation, including federal and state antitrust statutes, as well as state common

law of defamation”) (prepared statements of Mr. Owen).

93 See e.g., WASH. REV. CODE § 4.24.250 (2010) (stating that “Good faith presumed but subject to rebuttal

by clear cogent and convincing evidence that information was knowingly false or deliberately

misleading.”).

94 Hearings on H.R. 5540 at 47 (“I want to make it clear, however, that we fully agree that we cannot

tolerate abuses of the peer review system, and that H.R. 5540 was never intended to protect such

abuses...To reiterate: nothing in H. R. 5540, as currently drafted, would protect the type of abuses that I

have referred to.”).

95 132 Cong. Rec. H9957-H5560 (daily ed. Oct. 14. 1986) (Statements of Rep. Waxman, describing twelve

amendments, several of which included more than one change to the language in the bill).

Physicians asserted federal antitrust claims in the first place because most states

had immunity statutes that protected peer reviewers from state law claims who had

acted in good faith.92 Moreover, good faith was often presumed, and had to be

rebutted by clear and convincing evidence.93

C. Amendments made to H.R. 5540 following hearings in the

House Judiciary Committee.

Representative Waxman attempted to persuade members of the House

Judiciary Committee that H.R. 5540, as voted out of the HCEC, was neither

intended to protect, nor could protect, peer review abuses, and, therefore, needed

no further amendment,94 but the HJC rejected his reassurances. Numerous

amendments were made to the bill following hearings in the HJC,95 three of which

are relevant here: (1) reduction in the burden of proof required to rebut the

presumption of immunity; (2) amendment to the definition of “professional review

action” in § 11151(9); and (3) amendment to the fee-shifting provision of § 11113.

1. The burden of proof to rebut the presumption of

immunity was reduced to the preponderance of the

evidence.

The burden of proof required to rebut § 11112(a)’s presumption of

immunity was reduced from clear and convincing evidence to the preponderance of

19

96 See 132 Cong. Rec. H9958-H9959 (daily ed. Oct. 14, 1986) (comments to “Amendment No. 7"). The

presumption of immunity was originally applied only to the first standard, § 11112(a)(1), but extended to

all four standards to avoid the inference that these were affirmative defenses that defendants had to prove

rather than part of the plaintiff’s burden of proof. Id.

97 See California v. Mitchell Bros. Santa Ana Theater, 454 U.S. 90, 93 (1981).

98 See Santosky v. Kramer, 455 U.S. 745, 763 n.13 (1982).

99 See Hearings on H.R. 5540 at 47, ¶ 2 (Statements of Rep. Waxman).

100 See 132 Cong. Rec. H9963 (daily ed. Oct. 14, 1986) (Statements of Rep. Tauke).

101 See Hearings on H.R. 5110 at 198, Section 102 (a)(1) (the predecessor to § 11112(a)(1)).

102 See supra note 7, subsection (a)(1) (applying the immunity provisions of § 11111(a)(1) to actions taken

“in the reasonable belief that the action was in the furtherance of quality health care.”).

103 See H.R. Rep. 99-903 at 10.

the evidence standard following hearings in the HJC.96 The clear and convincing

evidence standard is “reserved to protect particularly important interests”,97

whereas the preponderance of the evidence standard “ is employed... when an

incorrect finding of fault would produce consequences as undesirable as...an

incorrect finding of no fault.”98 Therefore, by reducing the physician’s burden of

proof, Congress sent a clear signal that it was as important to avoid falsely

accusing physicians of incompetence as to identify incompetent physicians.

Reinforcing this clear signal were the repeated and emphatic reassurances of

Representative Waxman and HCQIA’s other proponents that “abuses of the peer

review system” cannot be tolerated,99 and that HCQIA applied only to actions

“undertaken with the clear motive to improve the quality of health care and carried

out giving the physician every opportunity to defend his or her record.”100

2. The definition of professional review action was

amended to ensure that pretextual actions would not be

protected.

Under H.R. 5110, immunity extended to any professional review action

taken “in good faith in furtherance of quality health care”.101 When the HCEC

amended and reintroduced H.R. 5110 as H.R. 5540, it replaced this original “good

faith” standard with the more objective “reasonable belief” standard.102 The HCEC

explained that the change was made

“[i]n response to concerns that ‘good faith’ might be misinterpreted as

requiring only a test of the subjective state of mind of the physicians

conducting the professional review action”.103

Nevertheless, members of the House Judiciary Committee remained

concerned that “actions brought for illegitimate reasons may not appear as such on

20

104 See 132 Cong. Rec. H9959 (daily ed. Oct. 14, 1986) (“This subsection reflects the concern that

professional review actions brought for illegitimate reasons may not appear as such on their face.”)

(Statements of Rep. Waxman explaining Amendment No. 10, and why § 11151(9) was amended by the

addition of subsection 11151(9)(E)).

105 Hearings on 5540 at 95 (“It cannot be presumed that peer-review actions are necessarily for the

betterment of health care...it is likely that the process will be abused for anti-competitive and anti-social

purposes.”) (Statements of David H. Weinstein, et al. and Lawyers Committee for Civil Rights Under

Law).

106 See supra note 5, subsection(E).

107 See 132 Cong. Rec. H9959 (daily ed. Oct. 14, 1986) (Statements of Rep. Waxman). When H.R. 5540 was

voted out of the HCEC, it already contained a list of four exclusions. See 42 U.S.C. § 11151(9)(A)-(D).

These were originally intended to be “illustrative, not exclusive”. See 132 Cong. Rec. H11591 (daily ed.

Oct. 17, 1986) (Statements of Rep. Waxman).

108 132 Cong. Rec. H9959 (daily ed. Oct. 14, 1986) (Statements of Rep. Waxman to Amendment 10).

109 132 Cong. Rec. H9959 (daily ed. Oct. 14, 1986) (“For example, an action taken against a physician

because of a style of practice or a pattern of patients that do not generate sufficient revenue for the hospital

would not be covered by this bill.”) (Statements of Rep. Waxman explaining Amendment No. 10).

110 See id. at H9957.

their face”,104 and that the peer reviewers’ stated reasons for their actions may not

have been the actual reasons for their action.105 Therefore, § 11151(9) was

amended, and a catchall provision added to make it clear that HCQIA did not

apply to “any... matter that does not relate to the competence or professional

conduct of a physician.”106

Representative Waxman explained that the catchall provision was intended

to “avoid the inference that any matters not listed in this subsection are necessarily

based on competence or professional conduct.”107 This catchall exclusion was

specifically intended to apply to

“[t]he more serious issues [which] arise when actions are stated to be for

legitimate reasons, but are challenged as not genuinely based on the

competence or professional conduct of an individual physician.”108

Representative Waxman made it clear that pretextual actions “would not be

covered by this bill” , whether the motivation underlying the pretextual action was

the type of patients treated or the physician’s style of practice, no less than if the

motivation was anticompetitive or discriminatory.109

“The immunity provisions have been restricted so as not to protect

illegitimate actions taken under the guise of furthering the quality of health

care.”110

The amendments to §§ 11112(a) and 11151(9), and the reasons them,

indicate that Congress intended the reasonableness and fairness standards of §

11112(a) to apply only to actions taken because of genuine concerns about a

21

111 132 Cong. Rec. H9963 (daily ed. Oct 14, 1986) (Statements of Rep. Tauke).

112 132 Cong. Rec. H11589 (daily ed. Oct. 17, 1986) (“At one point, the scope of immunity in this bill was

substantially broader than it is currently. In response to a number of criticisms, we narrowed the bill’s

scope...”) (Statements of Rep. Waxman). Accord Hearings on H.R. 5540 at 103 (“The earlier drafts of

similar version of this were much more extreme, and I think this is an improved, substantially improved

version from ones that were first introduced.”) (Statements of Mr. Arthur N. Lehrer).

113 See e.g., Sugarbaker v. SSM Health Care, 190 F.3d 905, 914 (8th Cir. 1999) (“In the HCQIA immunity

context, the circuits that have considered the issue all agree that the subjective bias or bad faith motives of

the peer reviewers is irrelevant”); accord Poliner, 537 F.3d at 379-80 (“Our sister circuits have roundly

rejected the argument that such subjective motivations overcome HCQIA immunity, as do we.”) (footnote

and citations omitted).

114 The psychology of improperly motivated peer review is outside the scope of this article, suffice it to say

that it is much more complex than the simplistic motivations to which it has been attributed under the

rubric of “Sham Peer Review” and attendant folk psychology. See Editorial: Lawrence Huntoon, Sham

Peer Review and the Courts, available at: http://www.jpands.org/vol11no1/huntoon.pdf. These accounts

are notable for their absence of any supporting facts or research. See Steve Twedt, Group Probes Doctor

Reviews, available at: http://www.peerreview.org/twedt/acrobat/group.pdf. (noting that Huntoon declined

to name the hospital that had allegedly subjected him to “sham peer review”). There is a large literature

indicating that goals can be activated outside of conscious awareness. See e.g., John A. Bargh, et al, The

automated will: Nonconscious activation and the pursuit of behavioral goals, 81 J. PERS. & SOC.

physician’s competence or professional conduct. If an action was pretextual, and

not genuinely motivated by a desire to further the quality of health care, HCQIA

would not apply at all. But the mere fact that peer reviewers were genuinely

motivated by a desire to further the quality of healthcare was also not sufficient to

immunize them for their actions. For immunity to attach, even actions taken in

good faith had to be was objectively reasonable.

HCQIA’s other sponsors also emphasized that the statute would only apply

to properly motivated peer review actions:

“The Health Care Quality Improvement Act provides carefully defined

immunity...for peer review actions undertaken with the clear motive of

improving the quality of care and carried out in manner giving the physician

under review every opportunity to defend his or her record...We drafted,

redrafted, and then drafted again to provide that (1) the protection is

afforded only to quality of care motivated reviews of physicians.”111 (Italics

added)

These reassurances, and the fact that without them the House would not

have passed the immunity provisions of HCQIA,112 further indicate that Congress

intended HCQIA to apply only to actions genuinely motivated by quality of care

concerns. Nevertheless, lower federal courts have repeatedly held that the motives

underlying peer review actions are irrelevant to immunity under HCQIA.113 They

based their holding on the fact that the standard of review under § 11112(a) is

objective, but this is a non-sequitur. Motivation is relevant to whether HCQIA

applies at all, not to whether the presumption that the standards of § 11112(a)

were met have been rebutted.114 Motivation is a factual question. Lawmakers on

22

PSYCHOL. 1014 (2001). Justification theory can also explains why people acquiesce in injustices from

which they have nothing to gain. See e.g., Gary Blasi & John T. Jost, System Justification Theory and

Research: Implications for Law, Legal Advocacy, and Social Justice, 94 CAL. L. REV. 119 (2006).

115 See supra notes 104 & 105.

116 See Hearings on H.R. 5110 at 202, H.R. 5110, Section 103.

117 See H.R. Rep. No. 99-903 at 6, Section 103 (“Courts are permitted to award attorneys’ fees to defendant

who prevails and whose professional review action met standards of this bill.”).

118 See supra note 26.

119 Id.

120 The statute provides that reasonable fees and costs “shall be awarded”, see supra note 20, which is

construed as mandatory language. See State v. Goins, 151 Wn.2d 728, 749, 92 P.3d 181, 191 (2004)

(“Fundamental to statutory construction is the doctrine that “shall” is construed as mandatory language

and “may” is construed as permissive language.”).

both sides of the house conceded that why a peer review action was taken may not

be apparent from the face of the action itself, and the reasons hospitals give for

their actions may not have been their actual reasons.115

3. Amendments to the fee-shifting provision of § 11113.

Award of reasonable attorneys’ fees and costs to a prevailing defendant

was compulsory under H.R. 5110.116 In the version of H.R. 5540 voted out of the

HCEC, the compulsory language was changed, but no express conditions were

placed on awarding attorney’s fees to a prevailing defendant.117 Section 11113 was

amended following hearings in the House Judiciary Committee, and prevailing

defendants permitted to recover reasonable attorneys’ fees and costs only “if the

claim, or the claimant’s conduct during the litigation of the claim, was frivolous,

unreasonable, without foundation or in bad faith.”118

The fee-shifting provisions of § 11113 and RCW 7.71.030 are very

different. Section 11113 permits an award of attorneys fees only to prevailing

defendants, and only if the defendants prove that the conditions in the statute were

met.119 The award of attorneys’ fees and costs under RCW 7.71.030(3) to the

prevailing party, if any, is mandatory.120 Current efforts by hospitals in the State of

Washington, held immune under HCQIA, to recover of attorneys’ fees and costs

under RCW 7.71.030 are an obvious attempt to circumvent HCQIA’s conditions

for recovering costs and attorney’s fees by prevailing defendants.

II. FLAWED CONSTRUCTIONS OF HCQIA AND ITS LEGISLATIVE

HISTORY HCQIA HAVE CAUSED PROTECTION OF PEER

REVIEW ABUSES.

Courts are protecting peer review abuses because they are applying an

incorrect standard to review evidence offered to rebut HCQIA’s presumption of

immunity on motions for summary judgment. The standard of review being applied

23

121 See e.g., Bryan, 33 F.3d at 1322.

122 Poliner, 537 F.3d at 381.

“The HCQIA does not gainsay the potential for abuse of the peer review process. To the contrary,

Congress limited the reach of immunity to money damages. The doors to the courts remain open

to doctors who are subjected to unjustified or malicious peer review, and they may seek

appropriate injunctive and declaratory relief in response to such treatment.”

Accord, Bryan, 33. F.3d at 1322 n.2 and 1333 n.24.

123 See e.g., Meyer, 22 P.3d at 1153 (stating, “as long as the hospitals...state some minimal basis related to

quality health care...they are immune.”) (Shearing J, and Rose, J. concurring); accord Bender, 758 at

1102 (“The sole issue here is whether the basis for Suburban’s challenged professional review action is in

the main sufficient.”).

124 Meyer, 22 P.3d at 1149 (stating that “court will affirm a grant of summary judgment unless a reasonable

jury, viewing the facts in light most favorable to Meyers, could conclude by a preponderance of the

evidence that the hospital’s actions fell outside the protection afforded by section 11112(a).”)

125 Id.

126 See infra, § II.C.

127 Id.

128 Id.

129 Bryan, 33. F.3d at 1332-33.

130 See infra, § II.B.

in most jurisdictions was developed by lower federal courts based on incorrect

interpretations of legislative intent. Courts misconstrued the balance Congress

struck between protecting physicians engaged in peer review, and physicians

harmed by improper peer review actions, as skewed in favor of protecting peer

reviewers because they disregarded the legislative history of H.R. 5540 after it was

voted out of the HCEC.121 They also conflated the so called non-review doctrine

that antedated HCQIA’s enactment with the standard of review under § 11112(a),

and erroneously concluded that Congress intended physicians harmed by improper

peer review actions to seek injunctions, not monetary relief.122 An alloyed,

deferential standard of review emerged under which courts do not actually

consider whether the evidence is sufficient to permit a reasonable jury to conclude

that the hospital’s action was unreasonable,123 language to the contrary

notwithstanding.124 They ask instead only whether there is sufficient evidence to

conclude that the hospital’s action was reasonable.125 If the answer is affirmative,

as it always will be,126 courts infer that no reasonable jury could find for the

physician as a corollary.127 This is a non-sequitur. Under this inquiry physicians

harmed by improper peer review actions can rarely prevail, because the hospital’s

action is always deemed reasonable and fair under § 11112(a).128 Treating

immunity under HCQIA as a question of law for the court to decide129 has

contributed to the development of this incorrect standard.130

24

131 See Natale v. Sisters of Mercy of Council Bluffs, 52 N.W.2d 701, 709 (Iowa 1952) stating that “[i]t is a

fundamental and generally accepted rule that courts will not interfere with the internal management of a

private corporation.” See generally Craig W. Dallon, Understanding Judicial Review of Hospitals’

Physician Credentialing and Peer Review Decisions, 73 TEMP. L. REV. 597, 630-38 (2000).

132 See Rao, supra note 3.

133 Pierson v. Orlando Reg. Healthcare Sys., 1261, 1289 (M.D.Fla. 2009) (“While Plaintiff may certainly

request injunctive relief as a remedy where appropriate, there must be an underlying claim upon which to

base the request.”); Ryan v. Hennepin County, 29 N.W.2d 385, 387 (Minn. 1947) (“Injunctive relief is a

remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be

granted.”).

134 Sandler v. Dimensions Healthcare Corp., 836 A.2d 655, 664 (Md. 2002).

135 See Ritter v. Bd. of Comm’rs, 96 Wn.2d 503, 515, 637 P.2d 940, 948 (1982) (justifying non-review based

on “the judiciary’s limited capacity to question competently a hospital administration’s discretion in such

matters.”). Accord Owens v. New Britain Gen. Hosp., 643 A.2d 233 (Conn. 1994).

136 See Natale, 52 N.W.2d at 709 (stating that if the acts or omissions of a hospital’s board of trustees were

“fraudulent...or otherwise wrongfully injurious to another ...[they] would be liable as any other private

corporation, so offending”; Cooper v. Delaware Valley Med. Ctr., 654 A.2d 547 (Pa. 1995) ((stating that

an injunction to have a hospital’s staffing decision changed and suits for damages under tort and contract

theories should be distinguished, and only equitable actions challenging a hospital’s staffing decision

should be denied judicial review).

137 See e.g., Clark v. Columbia/HCA Info. Servs., 25 P.3d 215, 220 (Nev. 2001):

“Courts will not stand idly by if peer review board actions are arbitrary or capricious, contravene

public policy, or are contrary to state or federally mandated tort protections; nor will courts

decline to review peer review board actions that violate contracts or a hospital's own bylaws.

Courts are reluctant to interfere in decisions grounded in the review boards’ areas of expertise,

A. The non-review doctrine does not modify the standard of

review under § 11112(a), which is not deferential.

The non-review doctrine stands for the principle that courts will not

reverse the staffing decisions of private hospitals on equitable grounds.131

Physicians sought injunctions to enjoin hospitals from taking allegedly improper

actions on their hospital privileges because there was no action at common law on

which relief could be granted for such actions.132 Since an injunction is a remedy,

not a cause of action,133 these physicians were effectively asking courts to create a

cause of action on which an injunction could be granted.134 Courts declined to find

legal theories on which to grant injunctions because they felt unqualified to decide

the merits of the staffing decision, and, therefore, whether an injunction should

lie.135

The non-review doctrine applied only to the credentialing or staffing

decisions of a hospital. It did not affect the adjudication of incidental legal claims

arising under tort, contract or other legal theories.136 Therefore, if, for example, the

peer reviewers committed a tort or breached a contract during the peer review

process, the non-review doctrine did not impair the physician’s ability to recover in

tort or contract.137

25

but the tangential involvement of the peer review process does not foreclose judicial intervention

in the types of disputes normally dealt with in the courts.

138 Greisman v. Newcomb Hosp., 192 A.2d 817, 820-23 (N.J. 1963).

139 Egan v. St. Anthony’s, 244 S.W.3d 169, 171 n.3 (Mo.banc 2008). Although Egan included the

Washington Supreme Court decision in Rao, supra note 3, among the decisions that have modified the

non-review doctrine, this reading may be questioned. See Rao, 80 Wn.2d at 697, 497 P.2d at 592(“There

may be merit in the plaintiff's criticism of the broad rule laid down in the Group Health case; however,

we are not prepared to reconsider that rule until a case comes before us in which the plaintiff offers to

show that the discretion lodged in the managing authorities of a private hospital has been abused.”).

140 See e.g., Bass v. Ambrosius, 520 N.W.2d 625, 627-29 ( Wisc. Ct. App. 1994) (whether hospital complied

with its own bylaws reviewed under a contract theory, because hospital bylaws construed to be a contract);

Owens,643 A.2d at 239-40 ( holding that it is implied by statutory requirement to adopt bylaws, even

though bylaws did not create a contract).

141 Mahmoodian v. United Hosp. Ctr., 404 S.E.2d 750, 761 (W.Va. 1991) (holding that actions of private

hospitals are reviewable under the common law doctrine of fairness, and that an element of fairness is that

there be sufficient evidence to support the hospital’s action, or, equivalently, that actions are not arbitrary;

and capricious). However, there remains no substantive cause of action sounding in improper or

unwarranted denial of medical staff privileges by a private hospital, and for such a cause of action to exist

the legislature has to create one. This is, of course, what the Washington legislature did when it enacted

RCW 7.71. Prior to the enactment of RCW 7.71 the Washing

142 In re Peer, 749 N.W.2d 822 (Minn.App. 2008) (upholding temporary injunction barring physician from

being disciplined because there was sufficient that the action was taken with malice); Doe v. Comm. Med.

Cen., 221 P.3d 651 (MT 2009) (granting preliminary injunction and enjoining hospital from reporting

physicians to the National Practitioners’ Data Bank where suspension of the physicians privileges was

based on matters not authorized by the hospital’s bylaws - refusal to waive confidentiality to his family’s

medical records, and grant hospital personnel blanker authority to review them).

143 See supra note 7.

144 See supra notes 136 & 137.

145 Impereal v. Suburban Hosp. Ass’n, 37 F.3d 1026, 1030-31 (1994).

The principal that the staffing decisions of private hospitals are entirely

discretionary, and courts are without legal authority to review them, was first

rejected by the New Jersey Supreme Court in 1963 on public policy grounds.138

The doctrine has since been modified in most jurisdiction,139 and courts will review

denial or revocation of hospital privileges, without implementing legislation, to

ensure either that the hospital complied with its bylaws140 or that its action was

supported by sufficient or substantial evidence.141 Nevertheless, injunctions have

still only been granted in rare and exceptional cases, and only on a temporary

basis.142

HCQIA provides a defense to legal claims143 to which the non-review

doctrine had no application.144 HCQIA does not apply to injunctions,145 and,

therefore, does not change the status quo ante with respect to injunctions or the

non-review doctrine. Nevertheless, lower federal courts have taken the

inconsistent positions that, by enacting HCQIA, Congress simultaneously intended

to “reinforce the preexisting reluctance of courts to substitute their judgment on

26

146 See Bryan, 33 F.3d at 1337 (citing Mahmoodian, supra note 140).

147 See supra note 122.

148 As a practical matter, courts will not enjoin hospitals from taking peer review actions that satisfy the

reasonableness and fairness standards of § 11112(a), because the action will pari passu satisfy the

sufficient or substantial evidence standard requirement for such actions. See Greisman, supra note 137;

Mahmoodian, supra note 140. An injunction will also not lie on a breach of contract theory, unless the

action itself was not authorized by the bylaws, see Doe, supra note 141, because the court will either find

that there was substantial compliance with the bylaws, or hold that because the hospital is immune, and

the physician’s legal claims were dismissed on summary judgment, no independent causes of action

remained in the case on which an injunction could be granted, and, therefore, will not even reach the

merits of the injunction. See Moore v. John Deere Health Plan, Inc., No.: 3:07-CV-484 (E.D.Tenn. March

11, 2010) (slip op., at 43).

149 See Feyez v. Mercy Mem. Hosp., 719 N.W.2d 1, 8 (Mich. 2006) (stating, “[t]he judicial nonintervention

doctrine is a judicially created common-law doctrine”).

150 See Sandler, 836 A.2d at 673 (rejecting the substantial evidence standard for determining compliance

with the hospital’s bylaws as appropriate for determining compliance with statutory standards of

immunity because there was no evidence in the statutory enactments that the Legislature intended to limit

the applicability of the “normal rules of civil procedures” to determine if tort and contract claims lay

“within the scope of State or Federal Immunity”).

151 See Fed. R.Civ. P. 38 (“The right of trial by jury as declared by the Seventh Amendment to the

Constitution — or as provided by a federal statute — is preserved to the parties inviolate.”) and CR 38

(“Right to jury trial preserved.”).

152 Feyez, 719 N.W.2d 1, 10.

153 Feyez, 719 N.W.2d at 4 (noting that “there is no basis, statutory or otherwise, to justify the application of

a nonintervention doctrine to general staffing decision of a private hospital” and holding that “this

doctrine cannot supplement or supplant the statutory immunity provisions granted by our Legislature.”).

154 See Charity Scott, Medical Peer Review, Antitrust, and the Effect of Statutory Reform, 50 MD. L. REV.

316, 403 (1991). Accord Sandler, 836 A.2d at 671 (rejecting contention that without deference to the

hospital’s decision, courts will be “forced to reconsider and second-guess the medical judgment of [peer

review committees].”).

the merits for that of health care professionals and of the governing bodies of

hospitals in an area within their expertise”,146 and that physicians seek injunctions,

not monetary relief, from improper peer review actions.147 However, conflating the

standards of review under HCQIA and the non-review doctrine has affected not

the standard for granting injunctions,148 but how evidence offered to rebut

HCQIA’s presumption of immunity is reviewed.

A judicially created prudential doctrine149 cannot modify the procedural

rules of the forum under which motions for summary judgments are reviewed,150 or

impair the constitutional right to a jury trial.151 Nor can it supplant “the statutory

regime governing the peer review process enacted by the Legislature.”152

Therefore, the non-review doctrine can neither modify the standard for immunity

under § 11112(a),153 nor modify how evidence is reviewed under the forum’s

summary judgment statute to determine if the presumption of immunity under §

11112(a) has been rebutted.154

Nevertheless, courts have construed the standards of § 11112(a) as

27

155 Bryan, 33. F.3d at 1322.

156 See supra note 154.

157 See supra note 103.

158 See supra, § I.C.2.

159 See supra, § I.C. It also arguably contravenes one of the bedrock principles of due process that a person

should not be a judge of his or her own case. John V. Orth, DUE PROCESS OF LAW (2003) pp. 15-32

(discussing Dr. Bonham’s Case, 77 Eng. Rep. 638, 652 (1610), in the wider context of procedural due

process, and noting that the case has been widely cited by American courts).

Court do defer to peer reviewers in some respects. For example, once the court has determined

that the standards of § 11112(a) have been met, the court’s inquiry is at an end, and the court is not

authorized to tell hospitals what remedial action it should take. See e.g., See N. Colo. Med. Ctr., 27 P.3d

at 840 (“[w]here the requirements of section 11112(a) are fulfilled, we need not extend our inquiry

further”); Meyer, 22 P.3d at 1151 (“issue is not whether... judge or jury believes... penalty was too

harsh”). However, there is a caveat: the action must be reasonably related to the areas of concern. See

Mathews, 87 F.3d at 636 (only privileges to perform spine surgery, the area of concern, were restricted);

Manzetti v. Mercy Hosp. of Pittsburgh, 776 A.2d 938, 942 (Pa. 2001) (suspension limited to cardiac

surgery, the cause of concern, and privileges to perform vascular surgery unaffected); Poliner, 537 F.3d at

384 (temporary restrictions “tailored to address health care concerns” - cardiac catheterization - and left

Poliner’s other privileges “untouched”). Hospitals that are acting pretextually try to circumvent this

limitation by framing allegations against the physician in terms of vague, general concerns about

“judgment”, which they then claim applies to all areas of practice.

160 See 33 F.3d at 1332-33 (“HCQIA is a question of law for the court to decide...Under no circumstances

should the ultimate question of immunity from monetary liability be submitted to the jury.”).

embodying the reluctance to grant injunctions under the non-review doctrine.155

This reluctance to grant injunctions has translated into a reluctance to find peer

review actions unreasonable, and peer review processes unfair, within the meaning

of 11112(a). Because courts deferred to peer reviewers under the non-review

doctrine, they now defer to peer reviewers to determine what is reasonable under §

11112(a). The practical result has been that courts accept as reasonable and fair

under § 11112(a) whatever the peer reviewers actually did in a particular case.

Nothing in the plain language of HCQIA authorizes deference to peer

reviewers.156 Lawmakers expressly rejected subjective good faith as sufficient for

immunity,157 and amended § 11151(9) out of concern that the peer reviewers’

stated reasons for their action may not have been their actual reasons for the

action.158 These amendments to H.R. 5540 evidence an intent that reasonableness

and fairness under § 11112(a) be judge by objective, not deferential, standards. To

defer to the very individuals who took the action as to what is reasonable is to

invite the kind of abuses lawmakers were emphatic HCQIA was not intended to

protect, and is inconsistent with legislative intent.159

B. Whether evidence is sufficient to rebut HCQIA’s presumption

of immunity is a factual question, not a question of law.

The Eleventh Circuit first held that HCQIA was a question of law for the

court to decide in Bryan v. James E. Holmes Regional Medical Center.160

28

161 Reyes v. Wilson Mem. Hosp., 102 F.Supp.2d 798, 810 (1998).

162 Id.

163 Harlow v. Fitzgerald, 457 U.S. 800 (1982).

164 Mitchell, 472 U.S. at 526.

165 Anderson v. Creighton, 483 U.S. 635, 639 (1987).

166 See supra notes 7 & 9.

167 See supra notes 6 & 7.

168 See Singh v. Blue Cross/Blue Shield of Massachusetts, Inc., 308 F.3d 25, 33 (1st Cir. 2002).

169 Id. The Tenth Circuit has also rejected the Eleventh Circuit’s construction of HCQIA, and allows juries to

decide the reasonableness of peer review actions. See Brown, supra note 91. The U.S. Supreme Court has

However, questions of law “do not depend on the satisfaction of evidentiary

burdens.”161 Since a hospital’s immunity depends on the sufficiency of the

physician’s rebuttal evidence, “it is clear that the reasonableness or adequacy of a

particular review action is a question of fact, to be resolved by the trier of fact.”162

Bryan’s holding was based on an invalid analogy between HCQIA’s immunity and

the qualified immunity government officials have against civil rights actions under

42 U.S.C. § 1983.163 The two immunities are not analogous.

Immunity from § 1983 actions is a question of law for two reasons. First,

the immunity against § 1983 actions is an affirmative defense to suit. Therefore,

whether there is immunity is a threshold question of whether the defendant can be

made to stand trial at all,164 and a jury cannot decide whether a defendant should

stand trial. Second, the immunity hinges on the objective reasonableness of a

government official’s action in the light of legal rules that were clearly established

when the action was taken.165 Whether a legal rule was clearly established at a

given point in time is a quintessentially legal question that does not depend on any

case specific facts.

HCQIA immunity, by contrast, is a defense to liability for money damages,

not a defense to suit.166 The immunity depends on the reasonableness of a

professional review action based on facts known when the action was taken, not

legal rules.167 “There is no comparable legal question involved in the immunity

analysis under HCQIA” as there is in the analysis of immunity from § 1983

actions.168 Therefore, as the First Circuit explained, juries can decide the question

of immunity under HCQIA because,

“[a]lthough peer review actions are not within the common experience of

jurors, they are not so esoteric that they cannot be fairly evaluated by

jurors, perhaps with the assistance of expert witnesses. Also, we routinely

ask jurors to evaluate the quality of medical care in medical malpractice

cases. As this case illustrates, the quality of medical care is often at the core

of a peer review dispute under the HCQIA. Therefore, we see no reason

why juries should be excluded entirely from immunity determinations under

the HCQIA.”169

29

not granted certiorari to resolve this split among the circuits. See Meyers v. Riverside Hosp., 128 S.Ct.

1740 (2008); Wahi v. Charleston Area Medical, 130 S.Ct. 1140 (2010).

170 979 F.2d at 734.

171 id.

172 See Singh, 308 F.3d at 34 n.7 (“Given Bryan’s inconsistency...we decline to adopt its designation of

HCQIA immunity determinations as pure questions of law off limits to a jury.”). The court also said that

Bryan’s holding contradicted the holding of other circuits that “a jury may in principle make a HCQIA

immunity determination” but the Tenth Circuit is the only other circuit that has so held. See Brown, supra

note 91. See also Scott, supra note 148 at 386 (stating, “In the end, the judge is to decide not whether a

verdict ought to be returned in the nonmoving party’s favor, but rather whether a reasonable jury could

return one”, and noting that “[t]his determination takes considerable detachment and objectivity.” Id.

n.349).

173 Singh, 308 F.3d at 36.

174 Bryan, 33 F.3d at 1333.

175 Id.

176 See Nave v. Seattle, 68 Wn.2d 721, 725, 415 P.2d 93, 95 (Wash. 1968) (grant of summary judgment

constitutional only “where there are no issue of fact to be determined by a jury”); Morse v. Antonellis, 149

Wn.2d 572, 574-75, 70 P.3d 125, 126 (2003).

177 Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that to decide a motion for summary judgment courts

A test to determine the sufficiency of evidence offered to rebut §

11112(a)’s presumption of immunity was first formulated by the Ninth Circuit in

Austin v. McNamara.170 Under this test, the court asks: “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 § 11112(a)?”171 All courts nominally apply this test. However, this test cannot

be applied by courts that treat HCQIA immunity as a question of law, because a

court cannot simultaneously ask whether a jury could conclude that the action was

unreasonable, and at the same time decide itself what is reasonable.172 The court

can determine that the evidence of reasonableness is so one sided that no

reasonable jury could find for the defendants,173 but that is not the same thing as

the court itself deciding what is reasonable. Under Bryan’s holding, juries are

permitted to decide only “subsidiary issues” related to the question of immunity,

“such as whether the physician was given adequate notice of the charges”.174 They

are never permitted to determine whether a particular action was unreasonable in

the light of facts known at the time the action was taken.175

C. Courts are not evaluating evidence offered to rebut HCQIA’s

presumption of immunity correctly.

On a motion for summary judgment, courts cannot resolve factual disputes

or decide which of two versions of events to believe without abrogating the nonmoving

party’s right to trial by jury,176 unless no reasonable person could believe

one of the versions of events.177 If a jury could reasonably find for either the

30

should not adopt versions of facts “blatantly contradicted by the record”).

178 See Miller v. Arctic Alaska Fisheries, 133 Wn.2d 250, 265, 944 P.2d 1005, 1012-13 (1997) (“If there is

any justifiable evidence from which reasonable minds might find for the nonmoving party, the issue is for

the jury.”) (citations omitted).

179 Herron v. King Broadcasting, 109 Wn.2d 514, 522, 746 P.2d 295, 301 (1987) (“Despite this heavy burden

[referring to burden of public officials to prove malice in a defamation claim], as with ordinary summary

judgment motions, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be

drawn in its favor.”) (citing Anderson v. Liberty Lobby, 477 U.S. 242 (1986)).

180 See Scott, supra note 153 at 402.

181 Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150-51 (2000) (“the court should give credence

to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is

uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested

witnesses.”) (quoting 9A C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2529, p. 300

(2d ed. 1995) with approval).

182 See Browning v. Ward, 70 Wn.2d 45, 48, 422 P.2d 12, 14 (1966).

183 See Walker v. N.M. & S. Pac. R.R. Co., 165 U.S. 593, 596 (1897).

moving or the non-moving party, summary judgment would be improper.178

Therefore, to defeat a motion for summary judgment the non-moving party needs

only to prove that a jury could find in its favor. The nonmoving party does not

have to prove that a jury could not render a verdict for the moving party.

The very purpose of the right to a jury trial is to have juries, not judges,

decide who prevails on a legal claim when reasonable minds could come to

different conclusions on that question. The obvious corollary is that where the

nonmoving party presents sufficient evidence to allow a jury to render a verdict in

its favor, the evidence will also be sufficient to allow a jury to render a verdict in

the moving party’s favor. If it were otherwise, and the evidence proved that a jury

could not render a verdict for the moving party, the nonmoving party would be

entitled to summary judgment.

To determine if the nonmoving party has presented sufficient evidence to

allow a jury to find in its favor, the court must accept as true all the non-moving

party’s evidence, and draw all reasonable inferences from the evidence in a light

most favorable to the non-moving party.179 The defendant’s denials and contrary

arguments are irrelevant to this determination.180 Although the court should review

the record as a whole, it should consider only evidence offered by the moving

party that a jury would be required to believe.181 No element of discretion is

involved in this evaluation.182

Evidence must be evaluated in this way to preserve the constitutional right

“that questions of fact in common law actions shall be settled by a jury, and that

the court shall not assume directly or indirectly to take from the jury or to itself

such prerogative”.183 Only if the court constructs what amounts to a best case

scenario of the evidence that represents the best light in which a jury could

reasonably view the evidence from the nonmoving party’s perspective, and a jury

could not reasonably render a verdict for the nonmoving party based on this best

case scenario, does summary judgment pass constitutional muster.

31

184 See Scot, supra note 153 at 402. (“On the issue of defendants’ purpose in undertaking their peer review

action, summary judgment should be handled similarly with or without HCQIA.”)

185 See Granfinanciera, S.A., v. Nordberg, 492 U.S. 33, 51-52 (1989) (“Congress lacks the power to strip

parties contesting matters of private right of their constitutional right to a jury trial.”). Accord Sofied v.

Fibreboard Corp., 112 Wn.2d 636, 651 (1989) (“the Legislature cannot intrude into the jury's fact-finding

function in civil actions”); Galloway v. United States, 319 U.S. 372, 373 (1943) (Congress can only

withdraw from juries “cases in which the claimant puts forward insufficient evidence to support a

verdict.”).

186 Richard Posner, The Jurisprudence of Scepticism, 86 MICH. L. REV. 827, 865 (1988) (stating that it is

“naive” to believe that one can “infer the nature of the judicial process from the rhetoric of legal

opinions.”); Reyes, 102 F.Supp.2d at 810 (conceding that “[i]n permitting the issue of HCQIA immunity

to be resolved on summary judgment, these courts have not always been careful in their explanation of the

analysis involved.” but claiming that “courts are unanimous in holding that the ultimate question of

whether a defendant is entitled to this immunity is a question of law.”).

187 Reyes, 102 F.Supp.2d at 811 (citation omitted). The cases cited by the court stand only for the proposition

that the standards under § 11112(a) are objective.

188 See Singh, 308 F.3d at 36.

Evidence presented to defeat a motion for summary judgment based on

HCQIA immunity cannot be evaluated any differently,184 because Congress cannot

abrogate the right to a jury trial.185 How courts actually decide motions for

summary judgment based on HCQIA is rarely apparent from the face of the

decided cases because courts couch their analysis in boilerplate language that does

not reveal how the record in a particular case was actually evaluated.186

Nevertheless, it is apparent that on a motion for summary judgment based on

HCQIA immunity courts consider only whether the evidence is sufficient for a jury

to conclude that the hospital’s action was reasonable, and not whether the

evidence is sufficient to allow a jury to conclude that the hospital’s action did not

comply with one or more of the standards of § 11112(a).

For example, the Reyes court held “what is relevant, and dispositive, is

whether there existed an objectively reasonable basis for the defendant’s

actions.”187 But this is a statement of what is required for immunity, not a correct

statement of what is required to defeat the presumption of immunity on summary

judgment. The requirements for immunity, and the requirement to rebut the

presumption of immunity, are not the same.

To ask only whether there is sufficient evidence for a jury to conclude that

the hospital’s action was reasonable is to ask only whether a jury could render a

verdict for the moving party. The dispositive question on summary judgment,

however, is whether a jury could reasonably render a verdict for the non-moving

party - the physician. The fact that a jury could conclude that the hospital’s action

was reasonable does not necessarily mean that a jury could not conclude that the

action was unreasonable. Only “if the evidence of reasonableness...is so one-sided

that no reasonable jury could find that [the hospital’s action was not reasonable

would] the entry of summary judgment do[] no violence to the plaintiff's right to a

jury trial.”188

32

189 See Deming v. Jackson-Madison County Gen. Hosp. Dist., 553 F.Supp.2d 914, 925 (W.D. Tenn. 2008)

(“what is relevant, and dispositive, is whether there existed an objectively reasonable basis for the

defendant’s actions.”) (citations omitted); accord Blume v. Marian Health Ctr., 503 F. Supp.2d 1103,

1110 (N.D.Iowa 2007) (“A hospital can receive HCQIA immunity, but only by being able to show that it

has complied with the relevant HCQIA sections.”). Accord, Bender, supra note 54.

190 See Meyer, 22 P.3d at 1149-50.

191 This is evident from the following question by the Cowell court at oral arguments (September 9, 2009):

“Have you shown that a jury could conclude that no reasonable person could conclude that she acted

outside her privileges?” Since Dr. Cowell’s privileges were terminated because the hospital alleged that

she had exceeded the scope of her surgical privileges, see infra, § IV, the court was effective asking

whether the plaintiff had proved that no one could conclude that the hospital’s allegations were true - i.e.

no reasonable person could find for the hospital. The question the court should have asked is whether a

reasonable person could conclude that Dr. Cowell had not exceeded the scope of her privileges, i.e. find in

her favor.

192 WASH. CONST. art. I, § 21.

193 Singh, 308 F.3d at 32-36.

194 For example, proof of the fact that no one has heard or seen a person given rise to the factual presumption

that the person is dead. See Scott, supra note 154 at 348 n.157 (1991) (citing 21 C. WRIGHT AND K

GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5122 at 561).

195 Id at 348-49.

196 Id.

The incorrect standard described by Reyes is widely applied.189 The Meyer

concurrence implicitly adopted this standard by opining that if there is some

minimal basis for the hospital’s action, that is sufficient for immunity.190 The

Cowell court also confused the proper inquiry, and implied that if a reasonable

person could conclude that the plaintiff had done what she had been accused of

doing - i.e. that the hospital’s allegations were true - that was enough for

immunity.191 These interpretations are not merely incorrect constructions of a

statute, they violate the constitutional right to trial by jury.192

In Singh, the First Circuit rejected the plaintiff’s argument that he was

denied a right to a jury trial because the court, not the jury, decided the

reasonableness of the defendants’ actions, but only because the court rejected

Bryan’s construction of HCQIA that confines the role of the jury to deciding

subsidiary questions of fact.193 This leaves unanswered whether the majority of

courts that follow Bryan are deciding motions for summary judgment based on

HCQIA immunity in a constitutionally permissible manner, and implies that they

are not.

Misunderstandings about the legal effect of HCQIA’s presumption seems

to have contributed to the constitutionally questionable manner in which courts are

reviewing evidence offered to rebut HCQIA’s presumption of immunity. A true

legal presumption is a presumption about facts based on proof of other facts

(called the basic facts).194 Section 11112(a) makes no assumptions about facts.195

Its presumption is merely a burden-shifting device, rather like “presumption of

innocence”.196 It shifts the burden to prove that the defendants were not acting in

33

197 Id.

198 See Singh, 308 F.3d at 33 n.6 (explaining that the statutory presumption “simply adds another element to

the plaintiff’s case”).

199 376 U.S. 254 (1964); Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986) (private defamation plaintiff

bears the burden to prove falsity of statements by a media defendant).

200 Hepps, 475 U.S. at 770 (stating that because under the common law a person was assumed to have a good

reputation, the falsity of a defamatory statement was presumed). Accord Wilson v. Scripps-Howard

Broadcasting, 642 F.2d 371, 374 (6th Cir. 1981) (explaining that although falsity was an element of a

cause of action for defamation under the common law, once a published statement was shown to be

defamatory, falsity was presumed).

201 See e.g., Morgan, 101 Wn.App at 766, 14 P.3d at 782-83.

202 See Bender, 758 A.2d at 1107 (“The HCQIA’s standards further raise the bar.”).

203 See Bhatt v. Brownsville Gen. Hosp.,No. 2:03-cv-1578 (W.D.Pa Jan. 20, 2006) at 33 (citations omitted).

204 See Scott, supra note 154 at 403 n.498 ( “argument has usually been rejected that when a presumption is

invoked against a party with the burden of proof should operate to increase the weight of the burden of

proof, citing 21 C. WRIGHT AND K GRAHAM, FEDERAL PRACTICE AND PROCEDURE:

EVIDENCE § 5126 at 611-12).

compliance with the standards of § 11112(a) onto the plaintiff-physician, rather

than require the defendants to prove that their actions complied with the standards

of § 11112(a) as an affirmative defense.197 The presumption essentially adds an

added element to the plaintiff’s causes of action,198 in the same way that, for

example, proof of falsity became an added element of a cause of action for

defamation following “constitutionalization” of the law of libel by New York Times

v. Sullivan and its progeny.199 Falsity was previously assumed once the plaintiff

proved that a defamatory statement had been published about him/her, because

under the early common law good reputation was presumed.200

Courts consistently refer to the presumption of immunity as creating an

“unusual twist”,201 and appear to construe the presumption as increasing the

physician’s burden of proof.202 For example, despite the fact that the physician’s

burden to rebut the presumption of immunity is by a preponderance of the

evidence, the lowest burden known to the law, the Western District of

Pennsylvania, quoting Third Circuit precedents, stated

“The statutory presumption that a peer review action is valid unless proved

otherwise results in an ‘unusual standard’ for granting summary judgment

to a defendant, as ‘the plaintiff bears the burden of proving that the peer

review process was not reasonable...In this way, ‘the HCQIA places a high

burden on a physician to demonstrate that a professional review action

should not be afforded immunity’.”203

This is incorrect. Who has the burden of proof is unrelated to what the burden of

proof is.204 Therefore, HCQIA’s presumption of immunity does not affect the non34

205 Singh, 308 F.3d at 33 (explaining that non-moving party’s burden to defeat a motion for summary

judgment based on HCQIA immunity “remains similar to the burden faced by any plaintiff confronted

with a properly supported motion for summary judgment.”).

206 Nicholas Kadar, Systemic Bias in Peer Review: Suggested Causes, Potential Remedies, 20 J.

LAPAROENDOSC. & ADV. SURG. TECH. 123 (2010); D. Kernaghan & G.C. Penney, Do panels vary when

assessing intrapartum adverse events? The reproducibility of assessments by hospital risk management

groups, 15 QUAL. SAF. HEALTH CARE 359 (2006).

207 Rodney A. Hayward, et al., Evaluating care of general medicine inpatients: how good is implicit review?

118 ANN. INT. MED. 550 (1993).

208 Timothy P. Hofer, et al., Discussion between reviewers does not improve reliability of peer review of

hospital quality, 38 MEDICAL CARE 152 (2000) (finding that only within group agreement is increased by

discussion, between group agreement is not increased).

209 Maureen A Smith, et al. Peer Review of the Quality of Care: Reliability and sources of variability for

outcome and process assessments, 278 JAMA 1573 (1997); Robert A. Caplan, et al., The effect of

outcome on physician judgments of appropriateness of care, 265 JAMA 1957 (1991).

210 See Kadar, supra note 206.

211 Eymand v. Pan American Airways, 795 F.2d 1230, 1233-34 (5th Cir. 1986).

moving party’s burden of proof.205

III. THE PEER REVIEW PROCESS CAN BE READILY

MANIPULATED.

“Peer review” consists of retrospective review of patients’ medical records

selected on the basis of outcome indicators such as complications, reoperations, or

readmissions to hospital within 30 days. The process is highly subjective, and

different physicians, reviewing the same cases, usually disagree over specific

aspects of care, the global quality or appropriateness of care, or the cause(s) of

adverse outcomes.206 Therefore, the reproducibility of peer review, even under

optimal research conditions, is low, and barely more than would be expected by

chance.207 Surprisingly, agreement is not significantly improved by extensive

training of the reviewers, the use of objective criteria for review, or by having

disagreeing reviewers discuss the cases.208

The low rate of agreement between peer reviews in a research context has

been attributed to wide variation in practice norms, and the inability to avoid

hindsight and outcome biases,209 but additional factors are implicated in an

adversarial setting.210 One court, commenting on expert testimony in the medical

malpractice context, opined “[w]e know from our judicial experience that many

such able persons present studies and express opinions that they might not be

willing to express in an article submitted to a refereed journal of their discipline or

in other contexts subject to peer review.”211

Like all judgments, the evaluation of medical care can be greatly influenced

by what information is provided to the reviewers, and how their tasks are defined

35

212 Hillel J. Einhorn & Robin M. Hogarth, Behavioral decision theory: Processes of Judgment and Choice 32

ANN. REV. PSYCHOL. 53 (1981).

213 See Kadar, supra note 206 at 126-27. See also Mario Pandelaere & Siegfried Dewitte, Is this a question?

Not for long. The statement bias, 42 J. EXP. SOC. PSYCHOL. 525 (2006) (demonstrating that questions can

be remembered as statements because they are processed as propositions with a “question”-tag, which may

become dissociated from the statement).

214 See Kadar, supra note 206 at 126-27; see also THOMAS E. GILOVICH, HOW WE KNOW WHAT ISN’T

SO (1991) at 9-72 (discussing cognitive determinants of questionable beliefs).

215 Kadar, supra note 206 at 125.

216 But see Meyers, 341 F.3d 461 at 464 (stating that Board assumed full responsibility for the physician’s

reappointment and advancement “because of his concerns with the manner in which the peer review

process was being handled.”).

and structured.212 A negative impression can be created in the minds of reviewers

about the physician under review before they actually review anything at all, by the

nature of the cases selected for review, and by what questions the reviewers are

asked to address about those cases.213 These impressions in turn create

expectations that will greatly influence how the medical records are reviewed,

what facts are attended to and remembered, what assumptions are made, what

inferences are drawn, and what conclusions reached.214

For example, two external reviewers, who reviewed the same 26 cases

without each other’s knowledge for two different, unaffiliated hospitals, criticized

14 (61%) of 23 uncomplicated, randomly selected controls between them, none of

which had been previously criticized. That the reviewers had not simply detected

problems missed in the ordinary course of peer review was evident from the fact

that they criticized completely different cases, and even the one case they both

criticized, they criticized for completely different reasons.215

Peer review is a multi-tiered process, and a substantial paper record is

created by the time the process has run its course. This record can create the

surface impression that several committees, comprised of different individuals,

reviewed the same information, and independently came to similar conclusions.

The record tends to validate itself by making it appear that for the hospital’s action

to be unwarranted would require collusion between an improbable number of

physicians. This impression is illusory. The same information is not reviewed

independently by several individuals, and the process can be manipulated without

any widespread collusion among members of the medical staff.

Information on which peer review actions are based enters the process at

the lowest tier, and the accuracy, validity, and completeness of the information are

rarely checked at higher levels. The Board of Trustees (Board) ultimately decides

who is granted privileges at a hospital, but the de facto decision maker is the

Medical Executive Committee (MEC) to which the Board almost always defers on

medical matters.216 However, with rare exceptions, the MEC does not gather and

review the medical facts on which it bases its recommendations to the Board. This

is done by an ad hoc, investigating committee (IC). Hospitals can greatly influence

an IC’s recommendation, and, therefore, the information that gets passed up the

36

217 For example, in Cowell, the President of the Medical Staff selected the three members of the IC. CP 264

(letter appointing IC). He selected his own partner, CP 1388 (Deposition testimony of Dr. Maureen

Smith),a general surgeon who was the neighbor and hunting partner of a member of the Board, CP 1048-

49 at 5:23-6:5 (Deposition testimony of Dr. Robert Wright, stating also that their families “socialized a

lot”), who was later appointed to the second of two Appellate Review Committees, CP 177 (certification of

Bruce Dammeier), and a family physician, CP 239 (IC’s report), who was the personal physician of the

same board member. CP 42, ¶ 55, 79, ¶ 39 (First Amended Complaint and Answer).

218 For example, when recipients of information are not motivated to review information very effortfully,

source characteristics of the information can determine whether the information is believed, how the

information is elaborated, and judgments of validity of arguments based on the information. See e.g.,

Rene Ziegler, et al Matching the message source to attitude functions: Implications for biased processing,

41 J. EXP. SOC. PSYCHOL. 645 (2005). How information is acted upon is also affected whether choices are

framed in terms of acceptance or rejection. For example, who is awarded custody of a child can depend on

whether the question is framed as who should have custody or who should be denied custody. See Eldar

Shafir, Choosing versus rejecting: Why some options are both better and wrote than others, 21 MEMORY

& COGNITION 546 (1993).

219 CP 258-59 (RFCA); CP 1304 at 39:14-25 (Testimony of Cecil Snodgrass, M.D., stating that RFCA not

based on Dr. Cowell’s failure to videotape procedures or on her exceeding the scope of her privileges).

220 CP 269-70 (letter drafted by hospital’s external counsel notifying the IC that it had been appointed to

conduct an investigation omitted any reference to the RFCA or the allegations it contained).

221 See e.g. CP 1065 at 109:15-18

“Q. By the way, did you review what you didn't realize was a request for a corrective action,

but you reviewed that letter from Snodgrass to Lambert, yes?

A. No.” (Testimony of Dr. Robert Wright, member of IC);

Accord CP 1343 at 18:10-14

“Q. Okay. Let me just establish, you reviewed Exhibit 2, correct, which is the request for

corrective action against Dr. Cowell from Snodgrass, you reviewed that?

A. I do not remember seeing this piece before.” (Testimony of Dr. Maureen Smith member

of IC).

222 The hospital’s medical staff bylaws only authorized investigations into allegations in a RFCA if they were

“supported by reference to the specific activities or conduct which constitute the grounds for the

request.”). See CP 572, Art. IV, Sec. 6a.1.

peer review decisional chain, by the individuals they select to conduct

investigations,217 and by how they are briefed about what they are to investigate.218

This is how the hospital seems to have manipulated the IC’s investigation in

Cowell.

In Cowell, an IC was appointed to investigate allegations about Dr.

Cowell’s clinical practice in a Request for Corrective Action (RFCA).219 However,

the IC was not informed that it was appointed to investigate the allegations in a

RFCA,220 and it neither investigated them or even knew that a RFCA had been

made until after its investigation was concluded.221 The IC was steered into

investigation allegations on which the RFCA was not based,222 and that were

ultimately used to justify terminating Dr. Cowell’s privileges, by being asked to

review a table compiled in the medical staff office that summarized select aspects

37

223 CP 234-37 (Table compiled in medical staff office summarizing past peer review but omitting significant

information and findings). See also CP 1163 (Testimony of Colleen O’Brien, stating that she compiled

the information contained in a table she presented to the IC before the IC met). A common way to induce

bias and false beliefs is to keep repeating allegations. See Ian M. Begg, et al, Dissociation of Processes in

Belief: Source Recollection, Statement Familiarity, and the Illusion of Truth, 121 J. EXP. PSYCHOL.

GENERAL 446 (1991).

224 See e.g., CP 1369 at 46 (Testimony of Dr. Smith stating that she did not know that Dr. Cowell had

videotaped two of her procedures or that she notified Dr. Kornberg that the nurses could not operate the

video equipment when she tried to videotape her procedures); accord CP 1052 at 32 (Testimony of Dr.

Wright, stating that he was unaware of the same information); see also CP 1058 (stating that Dr. Wright

did not know that the manager of the operating room was placed in charge of ensuring that Dr. Cowell’s

laparoscopic cases were videotaped or of the results of the focused review); CP 1059 at 65 (stating that Dr.

Wright had also not read the external reviewer’s report).

225 CP 1060 at 83:13-20 (Testimony of Dr. Wright, stating that he did not know why the IC had been asked

to review past cases. “It was part of our mandate, apparently. I don't know why, but that apparently was

part of our mandate.”).

226 See Clermont v. Fallon Clinic, No. 2001-1512 B, 1998 Mass. Super. LEXIS 738 (Mass. Super. Ct. May

15, 2003) at *21 (finding that the investigating committee did not conduct a reasonable investigation

because the physician presented evidence that “the committees did not engage in their own independent

investigation...did not look at the relevant medical records...[but] relied on various audits that were

conducted of [the physician’s] medical records...relied on information provided by Harding...relied on

Coe's summary of [the physician’s] general surgical cases...without attempting to... independently review

the relevant medical records and patient charts...[and] did not independently investigate [the physician’s]

outcome data but instead relied on the information provided by Stoker.”)

227 CP 1060 at 83:11-12 (“I presumed that what had been done before was reliable.”) (Testimony of Dr.

Wright).

228 CP 237-57 (all documents bearing the footer “SEADOCS” were drafted in the Seattle offices of Miller

Nash). See CP 1116, ¶ No. 112-13 (admitting that IC report was “compiled through the use of word

processing software in the Seattle office of Miller Nash.”).

of all previous reviews of Dr. Cowell’s cases.223 However, the IC was not provided

with all the relevant information or documents about these prior investigation or

their findings.224 Nor did the IC understand why it was being asked to re-review

past investigations.225

Although an IC will usually review some medical records itself, most of

what an IC reviews is second- and third-hand information consisting of external

reviews, incident reports, and the minutes of standing committees. The IC almost

invariably accepts the information it is provided as accurate and reliable without

any independent investigation.226 This is also what the IC did in the Cowell case.227

Hospitals can also influence the outcome of an investigation by having

lawyers write the IC’s report, rather than have the IC’s dictations transcribed in

the medical staff office. In this way, the hospital can bring to the committee’s

attention information it would otherwise have disregarded as unimportant or

irrelevant, and lead it to conclusions the IC would not otherwise have drawn. This

also occurred in the Cowell case. The hospital’s lawyers drafted the IC’s report,228

which contained factual assertions that were not true, that could not have

originated with the IC, but that the IC simply accepted as true without any

38

229 For example, the report contains a statement that Dr. Cowell performed a laparoscopic procedure on

January 21, 2006 that was not videotaped, and for which she should have had, but did not have, a proctor

present. CP 254, ¶ 2. There is no reference to this case in the table the IC reviewed. CP 237. Moreover,

the head of the medical staff office who drafted the table was monitoring Dr. Cowell’s laparoscopic cases

in 2006, and she testified that Dr. Cowell did not have a case in 2006 that should have been but was not

proctored. CP 1156-57 at 4:18-5:7 (Testimony of Colleen O’Brien). Furthermore, the patient’s operative

report states that the case was videotaped, CP 1656 (last sentence), and when a member of the IC was

questioned about this case, he did not know what case was being referred to. CP 1092 at 92 (Testimony of

Dr. Robert Wright).

230 See generally KEITH E. STANOVICH, DECISION MAKING AND RATIONALITY IN THE MODERN

WORLD (2010) at 48-49.

231 See e.g., id. at 22-38 (describing the framing and endowment effects); see also Chris Guthrie & Tracey E.

George, The Futility of Appeal: Insights into the “Affirmance Effect” on the United States Courts of

Appeals, 32 F. U. ST. L. REV. 358 (2004-2005).

232 System Justification Theory may explain this well-established empirical phenomenon. See Blasi & Jost,

supra note 114.

233 For example, in Perry, the hospital appealed the findings of a hearing committee, and an appellate review

committee of the Board rejected the hearing committee’s findings, and adopted the original

recommendations of the MEC. See Perry, 155 Wn.App. at 634.

234 See CP 1488-89 (hospital counsel’s letter identifying witnesses to be called at the first hearing, but

producing no documents); compare CP 159 (HC’s report listing witnesses who testified at the first

hearing). See CP 581, § 11.ii (Bylaws requiring hospital to produce exhibits and witnesses).

235 CP 580, § 11.i (Bylaws stating, “There is no right of discovery in connection with the hearing.”).

independent verification.229

Opting in and opting out are not cognitively equivalent processes.

Individuals will generally not “opt out” of agreements or commitments they would

not have opted into.230 This lack of invariance is caused by cognitive biases that

influence decisions, permit choices to be manipulated,231 and present many

opportunities to influence the recommendations an IC makes to the MEC.232

The MEC almost always accepts the recommendations of an IC without

any independent investigation. Most members of the MEC are not sufficiently

knowledgeable about medical standards in the specialty of the physician under

review to make independent quality judgments in specific cases because only one

or two MEC members will be in the same specialty as the physician under review.

Although physicians are entitled to a hearing on any adverse recommendation by

the MEC, the Board is not required to accept the recommendation of the hearing

panel, if this differs from the MEC’s recommendation.233

Hospital hearings can also be manipulated to deny physicians a full and fair

opportunity to defend themselves. For example, at the first hearing on Dr.

Cowell’s suspension, the hospital failed to disclose key witnesses or produce

documents prior to the hearing as required by the bylaws.234 Physicians have no

subpoena power, they have no discovery rights, and they cannot speak with any

witnesses identified by the hospital prior to the hearing .235 Good Samaritan also

prejudiced Dr. Cowell at the first hearing by failing to call key witnesses, and by

39

236 Dr. Cowell attempted to call a circulating nurse to testify, but she was told by her supervision not to speak

with Dr. Cowell, CP 992 at 12:8-17, even though the two had a very cordial working relationship, and the

nurse testified that she enjoyed working with Dr. Cowell, and described her as a “very nice lady”. See CP

992 at 13:1-13.

237 CP 1502-03 (Minutes of August 7, 2006 MEC meeting, containing report on first hearing); CP 1604

(Minutes of January 3, 2007 MEC meeting, reporting on second hearing); CP 1391 at 19:18-20

(Testimony of Dr. Lambert, stating that HC reports not provided to the MEC). See also CP 1313 at 96:17-

97:2 (testimony of Dr. Snodgrass, a member of the MED, stating that he did not know and did not believe

that two HCs determined that his allegations in the RFCA lacked a substantial factual basis).

238 CP 582, ¶ No. 15. For example, there is no requirement, for example, that the MEC formally affirm or

modify its original recommendation in the light of the HC’s findings. Id.

239 CP 582, ¶ No. 16; CP 1567.

240 CP 1569-81 (draft report captioned “MEC Proposed Form of Decision and Recommendation”).

241 CP 204-219 (ARC report). An introduction was added by corporate counsel that contained no findings of

facts, CP 204-05. A “substantial compliance” provision in the bylaws was also inserted, CP 208-09, Art.

IV, Sec. 7(g)(4), that the applicable bylaws did not actually contain. CP 584 (indicating that there is no

“substantial compliance” provision in Art. IV, Sec. 7(g)).

242 For example, the Chairman of the ARC, Bishop David Wold, testified as follows concerning the assertion

in the report the lawyers drafted, and that he signed, that Dr. Cowell exceeded the scope of her privileges

on “multiple” occasions with “knowing indifference or defiance”:

Q. Did you read anything, other than the arguments of counsel, to that effect?

A. Aside from arguments of counsel?

Q. Yes.

A. No.

Q. So it's fair to say, Bishop, is it ...you don't know whether she did it deliberately or not,

that's fair, is it?

A. Yes. See CP 1837 at 59:4-13.

discouraging witness from testifying whom Dr. Cowell wished to call.236

The hospital also controls what is done with the HC’s findings. For

example, Good Samaritan did not provide either the reports of HCs or the hearing

records to the MEC, as required by the medical staff bylaws.237 The way the

bylaws are structured can further preclude any meaningful consideration of the

MEC’s - and, hence the IC’s - original adverse recommendation. For example,

Good Samaritan’s medical staff bylaws do not state what the MEC is to do with

the information contained in the HC’s report, should that information be

inconsistent with its earlier recommendation.238 There is also no appeal from the

MEC’s recommendations, only appeal from the HC’s subsequent

recommendations, and the Board is required to give equal weight to the

recommendation by the MEC and the HC.239

The summary information provided to the Board can also be censored.

Appeals from adverse recommendations are usually heard by an Appellate Review

Committee (ARC), not the full Board, and the Board relies on the ARC’s report.

In Cowell, the lawyers who represented the hospital at the hearings, i.e. one of the

parties to the dispute, wrote the ARC’s report on which the Board relied to

terminate Dr. Cowell’s privileges.240 The ARC adopted the report verbatim,241

without checking the accuracy or completeness of the statements it contained.242

40

Bishop Wold gave the following testimony concerning the assertion in the report that Dr. Cowell refused

to take “meaningful responsibility for the issues raised in quality assurance review but took the

opportunity to criticize hospital administration, medical staff, and other physicians”:

Q. This is just a conclusion, isn't it?

A. That's correct.

Q. Right. And I'm just saying to you, is there any basis for that conclusion that you know

of?

A. I believed at the time there was.

Q. Believed because somebody wrote this for you and you trusted the person, or meaning

you actually saw something with your own eyes?

A. Believed that I trusted what was presented. See CP 1844 at 86:18-87:1.

243 CP 1775 at 6:13-20:

Q. Did you read anything besides the report?

A. No.

Q. You have no basis, actually, to know whether the statements in the report are accurate,

do you?

A. No.

Q. Okay. In other words, you didn't double-check whether these --

A. No. (Testimony of Mr. Bill Phillip, board members who voted for termination).

Accord CP 1586 at 7:7 (“Yeah, I did not do any independent checking.”) (Testimony of Mr. Nelson,

another board member who voted for termination). Only three members of the Board voted for

termination, which was considered a quorum.

244 See SP 204-19. For example, the report fails to state that Dr. Cowell was investigated and her privileges

suspended based on allegations about her clinical competence that were all found by the HC to lack a

substantial factual basis. Therefore, the Board did not know that the justifications for the termination were

made up during the investigation into the RFCA. The report fails to state that the Dr. Cowell performed

the LAVHs with Dr. Michaelson, it fails to state that Dr. Eun had earlier determined the Dr. Cowell had

practiced within the scope of her privileges despite performing an LAVH with Dr. Michaelson.

245 See infra note 274.

The Board also accepted the ARC’s report without conducting any independent

investigation.243 Material information was withheld from the report,244 and the

report was embellished with factual assertions that were not the findings of any

committee.245

IV. COWELL v. GOOD SAMARITAN: PROTECTION OF

UNWARRANTED PEER REVIEW UNDER HCQIA.

Cowell involved the unjustified termination of a physician’s hospital

privileges on pretextual grounds after she proved that all allegations about her

clinical practice “lacked a substantial factual basis”. The hospital’s actions were

unprecedented to judge by the decided cases. Good Samaritan Hospital (GSH)

repeatedly investigated Dr. Cowell, and summarily suspended her hospital

privileges, for one reason, and then permanently terminated her privileges for

completely different and unrelated reasons, and concealed all information favorable

to Dr. Cowell that was inconsistent with the termination from the MEC and the

Board. However, this cannot be gleaned from the court’s opinion because the

41

246 The court’s opinion also misstated most of Dr. Cowell’s arguments, and imputed to arguments to Dr.

Cowell that she never made. See e.g., infra note 291.

247 CP 1057-58 at 57:22-58:1

“Q: By the way, did you know of any case in which all these concerns resulted in any

adverse outcome for the patient or any significant complication?

A. No. I thought that was odd...”) (Deposition testimony of Dr. Robert Wright, member of

the IC).

248 CP 942 at 17:1-2 (Testimony of Toni Foster) (stating that several Ob-Gyns were found to be outliers when

data were gathered in preparation for the audit of GSH’s Obstetrical Unit by the American College of

Obstetricians and Gynecologists).

249 CCP 355 (results of focused review); CP 1092 at 106:7-13 (Deposition testimony of Maureen Guzman,

GSH’s former Director of Quality Management).The investigations began after Dr. Cowell moved her

practice from Lakewood to back to Puyallup, Washington, where Good Samaritan Hospital is located, and

became the only female Ob-Gyn in private practice not employed by the hospital in the area. Good

Samaritan had hired Dr. Cowell and other female Ob-Gyns, to compete with Ob-Gyns on its medical staff

who were all self-employed and male. Dr. Cowell entered into a separation agreement with the hospital,

and opened a practice in Lakewood, but moved her practice back to Puyallup after the hospital in

Lakewood announced plans to close its Obstetrical Unit.

250 CP 188, ¶ No.1; 189-192, ¶ 2 (Second HC report). Dr. Cowell’s cases were not reviewed in the same

manner as the cases of other Ob-Gyns. See CP 1090 at 98:20-99:10 (stating that it is not normal practice

to re-review the medical records of cases, she had not seen it with any other physician, but had seen it

occur with Dr. Cowell’s cases) (Deposition testimony of Maureen Guzman). Dr. Cowell’s cases were

reviewed and re-reviewed multiple times, Id. at 99:13-100:21 - some at least four times - to bolster

allegations about new cases. Cases were designated “room for improvement” for trivial reasons, and then

reclassified in the medical staff office as “standard not met”. See CP 1160 at 22:9-13 (Testimony of

Colleen O’Brien); CP 733, ¶ 9 (Declaration of Dr. Cowell describing two cases designated “room for

improvements” and subsequently reclassified as “standard not met”). In this way, a bogus statistic was

created in Dr. Cowell’s credentialing file that failed to meet accepted standards in her care of nine

patients, which was later cited in the IC’s report. See CP 242, ¶ 3.

251 LAVH is an acronym for laparoscopically assisted vaginal hysterectomy.

opinion omitted, misstated and even made up material “findings” from whole cloth

to reject Dr. Cowell’s evidence, and justify holding the hospital immune under

HCQIA.246

Dr. Cowell, a board certified/recertified obstetrician-gynecologist (Ob-

Gyn) with over 30 years of clinical experience, was repeatedly investigated over a

five year period, notwithstanding that all her cases had good outcomes,247 and,

unlike some of her peers,248 she was repeatedly found not to be an outlier on

quality outcome indicators.249 These investigations were all based on allegations

about Dr. Cowell’s clinical care, and all the allegations were found by a Hearing

Committee (HC) to lack a substantial factual basis.250

Good Samaritan nevertheless terminated Dr. Cowell’s privileges on April

17, 2007, for completely different reasons. The hospital alleged that Dr. Cowell

had exceeded the scope of her surgical privileges by performing four operations

called LAVHs251 before she had been granted privileges to perform LAVHs, and

that she failed to cooperate with the peer review process by “disregarding”

requests to videotape her laparoscopic procedures, and that these actions

42

252 CP 204-19 (Second ARC report stating reasons for the recommendation to adopt the MEC

recommendation to terminate Dr. Cowell’s privileges).

253 See supra, § III.

254 Cowell, 153 Wn.App at 930, 225 P.3d at 304.

255 Id. at 930, 225 P.3d at 305.

256 See CP 1242 at 81:8-13 (Testimony of Dr. Kevin Taggart, Chairman of IC).

endangered patients.252 No one had ever made such allegations before. The

allegations were made up by the IC during its investigation ostensibly into a RFCA

that was not based on these allegations.253 Nor were the allegations based on new

facts discovered during the investigation into the RFCA. However, no one reading

the Cowell opinion could know these facts because the opinion contains the

following, contrary “findings” that were made up out of whole cloth:

“the record contains abundant evidence of concerns about Cowell’s

performance of procedures beyond the scope of her privileges and her

inability to have her procedures properly videotaped and monitored. In the

light of this record, Cowell’s claim that such concerns were “shifting

justifications for disciplinary action” lacks merit.”254

“In sum, the MEC’s recommendation and the Board’s decision were based

on long-standing concerns that Cowell’s conduct - namely, her

performance of LAVHs without privileges and her failure to comply with

videotaping and monitoring requirements - negatively impacted patient

care”.255

These assertions were not true. There was no basis for them in the record,

and they were contradicted by testimonies of the hospital’s own agents or former

agents in the record before the court. For example, the Chairman of the IC, and

former Director of Quality management, testified, respectively, as follows:

Q. And you did not come across, did you, any document, peer review,

letters, or anything from anybody suggesting that Dr. Cowell had --

telling her that she had exceeded the scope of her privileges,

correct?

A. Correct.256

>

Q. ... Did you hear anyone ever say, in any committee, that Dr.

Cowell had exceeded the scope of her privileges?

A. No.

Q. Was ever any determination made, while you were there, in

connection with her reapplication for privileges, that Dr. Cowell

had practiced outside the scope of her privileges?

43

257 See CP 1088 at 93:5-11 (Testimony of Maureen Guzman, former Director of Quality Management). See

also CP 1087 at 89:20-24:

Q. Did you hear anybody in any committee, or, indeed, outside of a committee, somebody

like Dr. Mott or Dr. Morris, ever raise any questions about Dr. Cowell's cooperation

with the peer-review process?

A. No. (Testimony of Maureen Guzman).

>

Q. And none of those minutes make any allegation that she had exceeded the scope of her

privileges, does it? -- there's no document making that allegation before the

investigating committee made that allegation, is there?

A. Don't recall seeing any of that information. See CP 1542 at 24:2-9.(Testimony of Dr.

Yamamoto, member of Hearing Committee).

>

Q. ...I understand you didn't agree with everything she said, but she cooperated, didn't she?

A. Yes, she did. See CP 1481 at 26:3-6. (Testimony of Dr. Ronald Morris, Guzman’s

successor as Director of Quality Management).

>

“I found that Dr. Cowell cooperated fully with the peer review of her cases and with our efforts to

arrange for focused review of her cases”. See CP 1666, ¶ No. 3. (Affidavit of Janet Barrett,

Guzman’s predecessor as Director of Quality Management).

>

Dr. Rose: You’re asking me if she actually put patients at risk?

Counsel: Yes.

Dr. Rose: I don’t believe so. See CP 1561 at 28:3-6.(Testimony of Dr. Andrea Rose,

member of Hearing Committee).

258 CP 1615 (Affidavit of Dr. Michaelson)

259 CP 1210 (Answer to Interrogatory No. 5). The hospital did not accept the cases Dr. Cowell had performed

at other hospitals, although this is normal practice. See CP 1098 (Answers to Requests for Admission

Nos. 23 & 24).

260 See supra note 258.

261 Id., ¶ 2 .

A. No.257

Dr. Cowell performed the four LAVHs at issue under the supervision of a

Dr. Michaelson, who had privileges to perform LAVHs,258 because Dr. Kornberg,

Chairman of Surgery, asked Dr. Cowell to provide more documentation of her

experience with LAVHs before he would credential her for these procedures.259

Dr. Michaelson executed an affidavit in which he described his role as that of a

“mentor”, and stated that he took responsibility for each LAVH, would have

intervened had Dr. Cowell performed anything incorrectly, and that the patients

were exposed to no greater risk than had they been his patients.260 Dr. Cowell

suggested that Dr. Michaelson bill as the surgeon but because he had not evaluated

the patients preoperatively and would not be following them post-operatively, he

declined, which is why he was listed as an “assistant” in the operative reports.261

Nevertheless, the court’s opinion implied that Dr. Michaelson was only an

observer by stating that Dr. Cowell “relie[d] on evidence showing that she

44

262 Cowell, 153 Wn.App at 927, 225 P.3d at 303.

263 Id. at 933, 225 P.3d at 306.

264 CP 239-57 (IC report).

265 Id.

266 CP 1604 (minutes of MEC meeting concerning second hearing)

267 CP 204-19 (second ARC Report).

268 CP 1507 at 12:22-13-21.

269 CP 1595 at 40:20-41:4.

270 153 Wn.App. at 923, 225 P.3d at 301. These findings were presumably omitted to permit the court to

reject Dr. Cowell’s contention that reliance on the IC’s was unreasonable. Id. at 933, 225 P.3d at 306 (

“Cowell has [not] shown that reliance on the IC's report by other reviewers in the process was

unreasonable.”).

271 153 Wn.App. at 935, 225 P.3d. at 307 (stating, “Dr. Donald Russell, an MEC member who stated that he

was unaware that the first HC found no substantial factual basis that Cowell provided substandard care in

the abscess and placenta cases.”). Compare CP 1507 at 13 (testifying that if Dr. Russell had known that

performed the four LAVHs in the presence of Dr. J. Michaelson”.262 The court’s

opinion also made up the following “findings” out of whole cloth:

“The IC further noted that, even if another physician had been in the

operating room to watch or assist Cowell, operating on a patient as an

attending surgeon without privileges was a violation of the bylaws.”263

This statement was also not true. The IC’s report contains no such statements.264

The IC’s report did not even state that Dr. Cowell performed the LAVHs with Dr.

Michaelson.265

The fact that all the allegations about Dr. Cowell’s clinical practice were

found by a HC to lack a substantial factual basis was withheld both from the

MEC266 and Board.267 The testimonies of Dr. Don Russell, a member of the MEC,

and Mr. Michael Nelson, one of three Board members who voted for termination,

indicated that the information withheld from the MEC and Board was material. Dr.

Russell testified that had he known that all the allegations about Dr. Cowell’s

clinical practice were found to lack a substantial factual basis, he would not have

voted to recommend termination.268 Mr. Nelson testified that if the information

provided to him at his deposition but omitted from the Appellate Review

Committee (ARC) report on which he relied, were true, it called into question the

termination.269

Again, no one reading the Cowell opinion could know these facts because

the opinion stated only that that the HC found insufficient evidence that Dr.

Cowell’s practice failed to meet accepted standards, and omitted that all

allegations about Dr. Cowell’s patient care were found to lack a substantial factual

basis.270 The court’s opinion also stated only that Dr. Russell and Mr. Nelson were

not aware of some of the HC’s findings,271 and omitted that the information

45

all the allegations about Dr. Cowell’s clinical care were found to lack a substantial factual basis, he would

not have voted to terminate her privileges). See also 153 Wn.App. at 937, 225 P.3d. at 308 (stating,

“Cowell cites the deposition testimony of Mr. Mike Nelson, a Board member who stated that he was

unaware of favorable findings made by both the first and second HC”, and omitting that Mr. Nelson

testified that the information withheld from the ARC’s report called into question the termination).

272 The court’s contention that these testimonies indicated only that there was a disagreement between the

first and second HC, see 153 Wn.App. at 935-36, 225 P.3d. at 307, is a non-sequitur. Both Dr. Russell

and Mr. Nelson were referring to the information withheld from them about the findings of the second

HC, not comparing the findings of two HCs. And they testified that the information withheld from them

would have made them vote differently on the termination, or called the termination into question. (The

first hearing was on the suspension, the second was on the termination of privileges. Only the termination

was appealed.)

The second HC also did not disagree with the first HC. CP 198 (“As stated above, the Hearing

Committee does not criticize the suspension, which is not an issue before it...”) (Second HC Report). The

first and second HC disagreed only over whether Dr. Cowell met her burden to prove that the allegations

about one patient, referred to as the Jehovah’s Witness case or JW, lacked a substantia factual basis, but

material witnesses and their allegations were not disclosed before the first hearing, see CP 1488-89

(hospital counsel’s letter identifying witnesses to be called at the first hearing); compare CP 159 (listing

witnesses who testified at the first hearing). The first HC did not find that Dr. Cowell committed any

errors in her management of JW. See CP 1498 at 8:6-7 (“She failed to sustain the burden of proof, not that

we found proof of error.”) (Testimony of Dr. John Russell). Moreover, neither the reasonableness of the

suspension, nor the reasonableness of the first HC’s findings, were issues on appeal.

273 See 153 Wn.App. at 937, 225 P.3d. at 308.

274 For example, the ARC’s report asserted, “The evidence in the record is also undisputed that this

procedure, LAVH, is considered to be a significantly more advanced laparoscopic procedure than the

laparoscopic procedures for which [Petitioner] had privileges.” CP 216, ¶ 2 (CP 1577, ¶ 2). The IC’s

report contains no such findings, CP 239-57, and the HC made no such findings:

Q. So if anybody misrepresented that you had determined, and that it was in the record, that the

laparoscopic component of what she did was more complex...significantly more complex than

withheld from them would have caused them to vote differently or question the

termination.

The testimony omitted was material to the dispositive question of whether

a jury could reasonably have concluded that the termination of Dr. Cowell’s

privileges was unreasonable under § 11112(a)(4). If a member of the MEC, who

voted to recommend termination, would have voted differently had he known the

information that was withheld from the MEC, and if a member of the Board, who

voted to adopt the recommendation, stated that the information withheld from the

Board called into question the termination, it would be arbitrary and capricious to

infer that no reasonable jury could conclude that termination of Dr. Cowell’s

privileges was unreasonable based on the information withheld from the MEC and

Board.272

The court’s contention that the fact that the HC recommended revocation

of Dr. Cowell’s surgical privileges, if not all her privileges, undercuts the inference

that the Board might have voted differently had it been fully apprized of the

facts,273 is a non-sequitur. Mr. Nelson was aware of the HC’s recommendation.

This was recited in the ARC’s report on which the Board relied, and the reasons

for the recommendation were even embellished in the report by “findings” the HC

never made.274 Yet, Mr. Nelson still concluded that the information withheld from

46

the procedures for she had privileges, you never made any such finding, did you?

A. No. Our job was not to make the determination in terms of complexity, it was to determine

whether she was credentialed or not.

CP 1552 at 22:10-18. (Testimony of Dr. Yamamoto, member of HC). The following testimony by Bishop

Wold, the Chairman of the ARC, indicates that the ARC also did not make this finding:

Q. I mean, that is a factual statement?

A. Yes.

Q. Now, what I'm asking you is did somebody write that for you and you relied on their sort

of --

A. Yes.

Q. And who wrote that for you?

A. I presume it was counsel. See CP 1837 at 56:6-18.

275 The HC report (written by the hearing officer) also contained the following “finding”, which the HC never

actually made, and that is inconsistent with the record before the HC:

“on multiple occasions [Dr. Cowell] performed surgical procedures exceeding the quite limited

scope of surgical privileges that she had been granted, including but not limited to laparoscopic

vaginal hysterectomies when she did not have privileges to perform that procedure”. See CP 195,

¶ 4.

This statement was not true. Only Dr. Cowell’s laparoscopic privileges were “limited”. She had

unrestricted privileges to perform all other types of gynecological procedures. See CP 489-94, 1170-72.

Moreover, the HC was aware of this:

Q. ...So you were aware that she had the full range of nonlaparoscopic surgical procedures -

A. Yes, sir.

Q. -- so she could do vaginal hysterectomies, abdominal hysterectomies, yes?

A. Yes, sir.

Q. Repair cystoceles, yes?

A. Yes. See CP 1550 at 17:11-18 (Testimony of Dr. Yamamoto).

276 See CP 1562 at 32:18-33:5.

277 For example, to dismiss the fact that Dr. Lambert, the President of the Medical Staff, misrepresented the

findings of the first HC (on the suspension) to the MEC, see CP 160 (findings of first HC). Compare CP

1502 (Dr. Lambert’s representations to the MEC about the hearing committee’s findings), the court’s

opinion stated, “Cowell had the opportunity to challenge Lambert’s representations, as summarized in the

minutes [of the MEC], before subsequent reviewing panels”. See Cowell, 153 Wn.App at 935, 225 P.3d at

307. This is not true. Dr. Cowell first learned of Dr. Lambert’s misrepresentation after she obtained the

minutes of the MEC meeting through discovery in her law suit, long after the peer review process had

concluded. See CP 1502 (Bates Stamped GSCH 000028, indicating that, unlike documents obtained

during the peer review process, this document was obtained through discovery in Dr. Cowell’s law suit).

By way of another example, the court’s opinion claimed that Dr. Cowell “called and cross-examined

witnesses” before the ARC. See 153 Wn.App. at 938, 225 P.3d at 308. This is not true. Dr. Cowell had no

the Board called into question the termination. Moreover, although the HC

credited the IC’s conclusions about Dr. Cowell exceeding the scope of her

privileges, the HC, like the IC, disregarded that Dr. Cowell had performed the

LAVHs with Dr. Michaelson.275 Dr. Rose, a member of the HC, subsequently

conceded that a physician on staff at the hospital who did not have privileges to

perform a procedures for which she did have privileges could perform the

procedure with her.276

This summary by no means exhausts the material facts omitted from the

court’s opinion, or made up out of whole cloth.277 Several representations in the

47

such right under the bylaws, which were in the record before the court. See CP 582-84 (Art. IV, Sec. 7(f)

and (g), describing GSH’s appellate procedures).

278 See Grimwood v. Univ. of Puget Sound, Inc.,110 Wn.2d 355, 359, 753 P.2d 517, 519 (Wash. 1988)

(citations omitted).

279 For example, the HC rejected the contention in the IC’s report that Dr. Cowell “continues to display a

pattern of behavior detrimental to her relationship to nurses and other practitioners and thus ultimately to

the care of her patients”, stating that it found “no substantial factual basis in the record for this finding”.

CP 193, No.1. The HC further noted that:

“the limited evidence that [Dr. Cowell] had difficult relations with certain nurses and medical

providers was offset by testimonials from other nurses and medical providers, as well as patients,

extolling [Dr. Cowell’s] high quality of care, level disposition, and calmness under pressure.” Id.

“no substantial factual basis was presented to [the HC] on which to find that [Dr.

Cowell]...behaved inappropriately with nurses, behaved erratically under stress, or was ‘erratic,

inappropriate and labile’ as the Investigating Committee determined.” See CP 188, last para.

“nor is there a reasonable basis for the conclusion that her conduct has endangered patients”. See

CP 195, No.5, ¶ 1.

All these findings were omitted from the court’s opinion. See 153 Wn.App. at 928, 225 P.3d at 303

(stating only that the IC’s report “thoroughly documented this history and expressed these concerns in

support of its recommendation to the MEC that Cowell's privileges be terminated.”).

280 For example, the court’s contention that “internal and external reviews of Dr. Cowell cases raised further

questions about her...ability to work with others”, see 153 Wn.App. at 928, 225 P.3d at 303, is the court’s

own factual finding because no one - not even the IC - ever claimed that Dr. Cowell was “difficult to work

with”. On the contrary, the record was replete with evidence that almost everyone enjoyed working with

Dr. Cowell, see CP 968, 975, ¶ 5, 980, 983-84, ¶ 7, 986, 988, 997 at 11:4, 1000 at 7:25-8:4, 1006 at 5:13-

19, 1011 at 6:17, 1015, ¶ 3. Even the nurse whose baseless allegations triggered a focused review of all of

Dr. Cowell’s cases described Dr. Cowell as “one of the nicest persons [she] had ever met”. See CP 964 at

148:21-149:6 (Testimony of Jean Horner). The court mischaracterized the incident and the nurse’s

allegations as: “A nurse alleged that Cowell failed to check the dosage of terbutaline given to a patient and

argued with nurses about a prolapsed umbilical cord.” See Cowell, 153 Wn. App. at 919, 225 P.3d at 299

n.3. The HC’s report stated, “This Hearing Committee did not find a substantial factual basis for the

allegation that in the Terbutaline case [Dr. Cowell] gave a full ampule of terbutaline to the patient or

pulled a prolapsed umbilical cord out of the vaginal introitus to show Jean Horner, a Labor and Delivery

Nurse.” See CP 189, ¶ 1.

281 For example, the external reviewer never recommended placing restrictions on Dr. Cowell’s privileges.

See 153 Wn.App. 928m 225 P.3d at 303 (stating that “external reviews of Cowell’s cases...reinforced

placing restrictions on her privileges.”). The external reviewer recommended that GSH have its

Obstetrical Unit reviewed by the American College of Obstetricians and Gynecologists because he

concluded that the attitudes of the nurses were “institutionalized”, which caused him to ask “Why is the

young patient being harassed and demeaned?” and “What is the agenda of the nursing staff?” See “CP

396, ¶ No. 1 (Italics in original). The reviewer concluded that “the surgeon was clearly not familiar with

opinion were also not “facts”, understood as “an event, an occurrence, or

something that exists in reality...what took place, an act, an incident, a reality as

distinguished from supposition or opinion.”278 They were recitations of allegations

in the IC’s report that a HC subsequently found to “lack a substantial factual basis”

by a HC,279 or the court’s interpretations of facts280 or of events from which all

details favorable to Dr. Cowell were omitted.281

48

laparoscopic surgery”, see CP 398, but his conclusion was based solely on the written report of an

anesthesiologist, and he was not provided the patient’s medical records. See CP 1208, No. 7 (response to

document request stating that defendants did not have a complete copy of this patient’s medical records).

The anesthesiologist testified at the hearing to his opinions, but the HC rejected them, and “did not find

breaches of the standard of care or other inappropriate conduct” by Dr. Cowell in this case. See CP 190, ¶

2.

282 The same applies to the allegations about videotaping. In addition to the testimony by GSH’s Directors of

Quality Management that Dr. Cowell cooperated with the peer review process, see supra note 249, the

hospital admitted that there was nothing Dr. Cowell did or failed to do that prevented it from videotaping

her laparoscopic procedures. See CP 1102-03, Nos. 46-51 (Answers to Requests for Admission).

283 CP 1202-04 (Minutes of June 27, 2002 Surgery Committee Meeting).

284 CP 1221 (Reappointment Summary Form signed by Dr. Eun on March 21, 2003, indicating that Dr.

Cowell practiced within the scope of her privileges).

285 CP 1158 at 6:3-8 (deposition testimony of Colleen O’Brien, stating that operating room has a list of every

physician’s surgical privileges); CP 1628, ¶ 4 (affidavit of Maureen Guzman, stating that operating room

personnel would have known when Dr. Cowell scheduled the LAVHs with Dr. Michaelson that she did

not have privileges in these procedures but that Dr. Michaelson did have privileges).

286 CP 184-200(HC report).

287 CP 204-19 (ARC report)

A. Evidence that termination of plaintiff’s hospital privileges

was unreasonable under § 11112(a)(4).

Dr. Cowell presented evidence from which a jury could reasonably

conclude that she did not exceed the scope of her surgical privileges, and,

therefore, that termination of her privileges was unreasonable under §

11112(a)(4).282 Dr. Kornberg, who had declined to credential Dr. Cowell for

LAVHs until she could demonstrate more experience, attended a Surgery

Committee Meeting on June 17, 2002, at which the first LAVH that Dr. Cowell

performed with Dr. Michaelson was presented, and he said nothing about Dr.

Cowell exceeding the scope of her privileges or being unauthorized to perform

LAVHs even with Dr. Michaelson.283 On the contrary, Dr. Eun, Chairman of Ob-

Gyn, who also attended the meeting, determined that Dr. Cowell had practiced

within the scope of her privileges when he subsequently recommended her for

reappointment to the GSH medical staff in March, 2003.284 The operating room

also knew that Dr. Cowell had not yet been granted privileges in LAVHs, but did

not prevent her from performing these operations with Dr. Michaelson.285

The IC’s report, the HC’s report,286 and the ARC’s report on which the

Board relied,287 all omitted to state that Dr. Cowell had performed the four

LAVHs with Dr. Michaelson. This information was critical because Dr. Cowell

proved through the testimonies of the hospital’s own agents and former agents, as

well as an outside expert, that a physician on staff at a hospital, including GSH,

who does not have privileges to perform a procedure can perform that procedure

with another physician on staff at the hospital who does have privileges to perform

the procedure, and, therefore, that she had not exceeded the scope of her

49

288 See supra note 276, testimony of Dr. Rose; CP 1349 at 49:18-23 (Testimony of Dr. Smith). The court

considered some of these facts but only under § 11112(a)(2), and did not consider the reasonableness of

the termination under § 11112(a)(4) in the light of this evidence. See 153 Wn.App. at 939, 225 P.3d at

309.

289 CP 1628, ¶ 3 (affidavit of Maureen Guzman); CP 1122, ¶ No. 1 (Affidavit of Dr. Sanfilippo).

290 CP 1628, ¶ 5.

291 See Opening Brief at 28-30. Dr. Cowell never argued that “informal review procedures do not satisfy the

HCQIA”, as the court claimed. See 153 Wn.App. 936, 225 P.3d at 307.She also never claimed that the

proceedings were unfair because “the first HC differed in its conclusions regarding Cowell’s clinical

competence”. Id. at 935-36, 225 P.3d at 307. Nor did Dr. Cowell claim that “the peer review process

should resemble formal trial and appellate court proceedings”, or question the fairness of the peer review

process because she “did not have an opportunity to further challenge the second ARC’s recommendation

before it was adopted by the Board”, as the court implied. Id. at 937-38, 225 P.3d at 308.On the contrary,

Dr. Cowell emphasized the differences between these processes at oral arguments in response to the

court’s false assumptions about GSH’s appeal process, as the following excerpt from oral argument on

September 9, 2009, indicates:

PANEL JUDGE BECKER: ...when the board was considering, as you say, the appellate review

committee report written by the lawyers -- did she have the opportunity to say, Look, there's more

to it than this. You need to see this and that and the other thing?

MR. KADAR: No, Your Honor...

>

PANEL JUDGE LEACH: You had an opportunity, your client did, to appear before the board; is

that correct?

MR. KADAR: No. Absolutely not...I don't know where Your Honor gets that from...

privileges.

Dr. Rose, a member of the HC, and Dr. Smith, a member of the IC, both

testified that a physician on the Good Samaritan medical staff who did not have

privileges to perform a procedure could perform that procedure with them if they

had privileges to perform the procedure.288 Maureen Guzman, and Dr. Joseph

Sanfilippo, an Ob-Gyn with extensive experience in peer review and credentialing,

both reviewed Dr. Michaelson’s affidavit, and testified that Dr. Cowell did not

exceed the scope of her privileges by performing the four LAVHs with Dr.

Michaelson.289 Guzman further testified that Dr. Donald Mott, Good Samaritan’s

Vice President of Medical Affairs, performed a knee operation with another

physician long after Dr. Mott had relinquished his surgical privileges at Good

Samaritan,290 indicating that senior hospital administrators were aware that a

physician can perform a procedure for which he or she does not have privileges

with another physician who does.

B. Evidence that the peer review process violated § 11112(a)(3).

Dr. Cowell contended that the hospital’s procedures violated §

11112(a)(3) because material information was concealed from the Board, which

effectively denied her a proper opportunity to be heard.291 No matter how much

process a person receives, if material information is concealed from the ultimate

decision maker then the person has been denied an opportunity to be heard in the

50

292 Id. Dr. Cowell also argued that the procedures were inherently unfair because the Board was required to

give equal weight to the recommendations of the MEC and the HC, even though the MEC’s

recommendation was made prior to the hearing.

293 See 153 Wn.App. at 934, 225 P.3d at 306 (acknowledging that Dr. Cowell contended that “material

information was with-held from both the MEC and the Board”, and stating, “Before addressing the merits

of these arguments, we briefly describe the procedures provided under GSH's medical staff bylaws”, but

never actually addressing the argument.

294 Id. at 938, 225 P.3d at 308.

295 See Gabaldoni v. Washington County Hosp. Ass’n, 250 F.3d 255, 261-62 (4th. Cir. 2001) (granting

summary judgment because there was “no evidence to suggest that the summaries provided to the Board

were materially insufficient or misleading”). See H.R. Rep. No. 99-903 at 11, 99th Congr., 2d Sess. (1986)

(“it is the Committee's intent that physicians receive fair and unbiased review to protect their reputations

and medical practices”).

296 See supra note 2.

297 By expressly foreclosing federal antitrust actions permitted at that time (1987) by the U.S. Supreme

Court’s decision in Parker v. Brown, 317 U.S. 341 (1943), the legislature likely believed that

anticompetitive objectives would most likely motivate improper actions.

only forum, and by the only individuals, that matter.292 Although the court

acknowledged this argument, it never addressed it, or acknowledged that material

information was withheld from the Board.293

The court held that HCQIA does not require any level of appellate review,

and appeared to imply that, therefore, it was irrelevant whether or not material

information was withheld from the Board.294 But even if HCQIA does not require

an appeal, it does not follow that a hospital that chooses to provide physicians an

appeal can misuse the process to conceal information from the ultimate decision

maker. Even if there had been no appeal, GSH would still have been required to

inform the Board of the HC’s findings, and if it had withheld information from the

Board in the way it withheld information from ARC’s report, the process would

not have passed muster under § 11112(a)(3).295

V. HOW RCW 7.71 SHOULD BE AMENDED.

To give effect to RCW 7.71’s original remedial purpose, and safeguard

physicians from peer review abuses currently being protected under HCQIA, the

definitional and fee-shifting provisions of the statute need to be amended. HCQIA

does not preempt these amendments.

A. Amendments to RCW 7.71.010.

The purpose of RCW 7.71 was to balance the public benefits against the

private harms that medical peer review can create.296 The harms caused by peer

review result from improper and unjustified peer review actions.297 The legislature

did not define the harms for which it intended RCW 7.71 to provide a remedy in

51

298 See supra note 2.

299 See supra note 17 (§ 7.71.030(1), describing the type of actions to which the statute’s remedies applied as

any action not based on a health care provider’s competence or professional conduct).

300 See supra, § 1.A.

terms of improper or unwarranted peer review actions.298 The statute was drafted

in language that merely indicated that RCW 7.71 applied to actions to which

HCQIA did not apply.299 However, since the legislative history of HCQIA

available at the time the Legislature enacted RCW 7.71 made it clear that HCQIA

was never intended to apply to improper peer review actions,300 it can be inferred

that RCW 7.71 was intended to provide a remedy for harms caused by such

actions.

Any statutory private cause of action intended to protect physicians against

improper and unjustified actions that is defined as a remedy for actions not based

on a physicians competence or professional conduct will be a nullity, because

hospitals always claim their actions against physicians are based on their

competence or professional conduct. Therefore, RCW 7.71.010 needs to be

amended to clarify its purpose. This can be readily achieved by specifying that the

intent of the statute is to protect physicians harmed by improper and unwarranted

peer review actions, rather than by actions “not based on competence or conduct”.

Improper or unwarranted actions should be defined as

“any action by a professional review body that is not supported by

substantial evidence or motivated by a genuine and objectively reasonable

belief that the action was necessary to prevent an incompetent or

unprofessional health care provider from practicing, or that is not based on

articulable reasons why the action was necessary to protect patients from

unreasonable risk of harm”.

RCW 7.71.010 should also be amended to clarify that the statute provides

the exclusive remedy only for claims based on the peer review action itself, and

does not preempt relief for independent torts or breaches of contract committed

during the peer review process. This can also be readily accomplished by adding

language to the effect that the provisions of RCW 7.71 “shall not be deemed to

impair or affect any other rights or remedies provided that they are not based on a

peer review action itself”.

Finally, the statute needs to state expressly that the legislature intends that

the nature of a peer review action, that is, whether it is improper or unwarranted,

to be treated as factual questions to be decided consistent with Washington’s

constitution and procedural rules.

B. Amendments to RCW 7.71.030(3).

The fee-shifting provision of RCW 7.71.030(3) needs to be amended to

clarify who counts as a prevailing party. The statute provides that “[r]easonable

attorneys’ fees and costs as approved by the court shall be awarded to the

52

301 See supra note 20 (italics added).

302 “If any” cannot be construed to quality “attorneys’ fee and costs” as defendants in Cowell contended. First,

this would violate the principle of apposition - that relative, adjectival or prepositional clauses and phrases

qualify the immediately preceding noun or noun phrase. Second, it would render the qualification “as

determined by the court” redundant, as attorneys’ fees and costs are already qualified by “as approved by

the court” in the sentence.

303 See Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303, 1308 (1999) (citations

omitted).

304 Id.

305 State v. J.B., 149 Wn.2d 444, 450; 69 P.3d 318, 320 (Wash. 2003) (citations omitted).

306 Id.

307 See Whatcom County, supra note 334.

308 See supra note 306 (stating that “[t]he plain meaning of a statute may be discerned ‘from all that the

Legislature has said in the statute and related statutes which disclose legislative intent about the provision

in question.’”) (citations omitted).

309 See supra notes 2 & 17.

prevailing party, if any, as determined by the court”.301 Although the statute

expressly contemplated that there may not be a prevailing party, and authorized

courts to determine if there is one or not, it gives no guidance as to how this

determination is to be made.302

All language in a statute must be given effect, and no portion construed as

meaningless or superfluous,303 but it is unclear in what factual circumstances the

Legislature intended that there would be no prevailing party. If a statute is

ambiguous, courts construe the statute to effectuate the legislature’s intent “within

the context of the entire statute”,304 and in the light of “all that the Legislature has

said in the statute and related statutes.”305 Words cannot be added that the

legislature chose not to use,306 but literal construction of statutory language should

be avoided “if it would result in unlikely, absurd or strained consequences”, and

the “purpose of an enactment should prevail over express but inept wording.”307

The fee-shifting provision of RCW 7.71.030(3) makes sense only if

“prevailing party” is understood to mean a party who recovers under RCW

7.71.030(1). In other words, to prevail means prevail under RCW 7.71, not prevail

on the law suit as a whole. Under this construction, defendants can never be a

prevailing party, and could never recover attorneys’ fees and costs under RCW

7.71.030(3), because hospitals and peer reviewers cannot recover under RCW

7.71.030(1). This construction is entirely consistent with the purpose of RCW 7.71

and the overall statutory scheme the Legislature adopted.308

The purpose of RCW 7.71 was to create a private right of action for

physicians, not hospitals or peer reviewers, and provide relief for physicians

harmed by improper and unreasonable peer review decisions.309 RCW 7.71 does

not apply to hospitals or peer reviewers who engage in appropriate peer review. It

applies to physicians harmed by peer review. It was the purpose of HCQIA and

other state statutes, not RCW 7.71, to protect hospitals and peer reviews engaged

53

310 See supra notes 1 & 7.

311 See supra, § I.B.

312 See supra note 17 (providing that the remedies of RCW § 7.71.030(2) prescribes the exclusive remedy for

“any action... found to be based on matters not related to the competence or professional conduct of a

health care provider.”) .

313 Id.

314 See 42 U.S.C. § 11115(a), which provides,

“Except as specifically provided in this subchapter, nothing in this subchapter shall be construed as

changing the liabilities or immunities under law or as preempting or overriding any State law which

provides incentives, immunities, or protection for those engaged in a professional review action that is in

addition to or greater than that provided by this subchapter.”

in legitimate peer review.310 To interpret RCW 7.71 as applying to hospitals and

peer reviewers, as well as physicians under review, is to destroy its remedial

purpose, and to upset the careful balance the Legislature adopted between the

harms and benefits of peer review.

If a physician challenges a hospital’s action as not genuinely based on his or

her competence or professional conduct, and the court finds that the action was

indeed pretextual, the plaintiff is a prevailing party, and would be entitled to

attorneys’ fees under RCW 7.71.030(3).311 If the physician prevails, it would be

equitable to make an award of reasonable attorneys’ fees and costs mandatory

because under the proposed definition of improper peer review, the physician

could only prevail if the hospital’s action was not supported by substantial

evidence or was improperly motivated, that is, if the action was “without

foundation” and in “bad faith”, which mirror the requirements for awarding

attorneys’ fees and costs to defendants under § 11113.

If, however, the court finds that the action was based on the physician’s

competence or professional conduct, RCW 7.71.030(1) has no application.312

There is then no prevailing party under the statute because the statute does not

apply to the action at all. If the court further finds that the physician fails to rebut

the presumption that the action was reasonable and fair under § 11112(a), the

defendants will be able to recover their attorneys’ fees and costs under § 11113, as

long as the plaintiff’s claims were “frivolous, unreasonable, without foundation or

in bad faith.” 313 To permit defendants held immune under HCQIA to recover

under RCW 7.71.030(3) instead of 42 U.S.C. § 11113 is tantamount to compelling

courts to award of attorneys’ fees and costs for non-frivolous challenges to peer

review actions brought in good faith, which would deter challenges to questionable

peer review actions, and defeat the remedial purpose of RCW 7.71.

C. HCQIA does not preempt the amendments to RCW 7.71

required to safeguard against peer review abuses.

A state can provide greater immunity to hospitals and peer reviewers than

HCQIA provides, but it cannot provide less.314 RCW 7.71 created a private right

54

315 Wash. Rev. Code. § 71.71.030(1) and 030(2), supra note 11 & 26.

316 Id.

317 See supra note 1.

318 See supra note 52.

319 See Department of Revenue v. ACF Industries, Inc., 510 U.S. 332, 345 (1994).

320 See supra note 4.

321 Riegel v. Medtronic, Inc., 552 U.S. 312, 333 (U.S. 2008) (Ginsberg, J., dissenting) (“Preemption analysis

starts with the assumption that ‘the historic police powers of the States [a]re not to be superseded . . .

unless that was the clear and manifest purpose of Congress.’”, quoting Rice v. Santa Fe Elevator Corp.,

331 U. S. 218, 230 (1947)).

322 Id. (quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.

S. 645, 655 (1995)).

323 Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996).

324 Riegel, supra note 313 (quoting Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S.

707, 718 (1985)).

325 Cipollone v. Liggett Group, Inc., 505 U. S. 504, 516 (1992).

326 See supra note 7.

of action to provide relief to physicians harmed by peer review decisions.315 RCW

7.71 did not create immunity for hospitals or peer reviewers for appropriate peer

review actions.316 That was the purpose of HCQIA and other state statutes.317

Nothing in HCQIA preempts state laws intended to protect physicians from the

harms caused by abuses of the peer review process.

Only the U.S. Supreme Court’s interpretations of federal law bind the

States.318 The Court’s precedents and respect for federalism make it highly unlikely

that it would construe HCQIA as preempting State legislation intended to protect

physicians from abuses of the peer review process. The Court “will interpret a

statute to preempt the traditional state powers only if that result is ‘the clear and

manifest purpose of Congress’.”319 Since HCQIA does not create a private cause

of action,320 it obviously does not have the “clear and manifest purpose” of limiting

state statutes that do create a private cause of action to protect physicians from

abuses of medical peer review.

The Court’s starting presumption is that State law is not preempted.321 This

presumption against preemption is greatest “where federal law is said to bar state

action in fields of traditional state regulation.”322 Healthcare is a field traditionally

regulated by the States.323 Therefore, because HCQIA regulates healthcare, the

U.S. Supreme Court will presume “that state and local regulation related to

[HCQIA]...can normally coexist with federal regulations.”324 The Court would be

highly unlikely to hold that this presumption is defeated by a state statute that

provides relief from improper peer review actions.

The Court considers Congressional intent as the “ultimate touchstone of

pre-emption analysis”.325 Nothing in the language of HCQIA,326 or the purpose for

55

327 See supra, § I.B.

328 See supra, § I.A.

329 See Scot, supra note 154 at 379, stating, “HCQIA does not specify, on a motion for summary judgment,

what procedural effect is to be given the statutory presumption that defendants acted in accordance with

the four immunity standards of subsection 11112(a).”)

330 Id.

331 See e.g., Johnson v. Fankell, 520 U.S. 911, 919 (1997).

332 Goodwich v. Sinai Hosp. of Baltimore, 680 A.2d 1067, 1077-78 (Md. 1996); accord Manzetti, 776 A.2d

at 946 (applying a “synthesis” of state summary judgment law and HCQIA).

333 See Sofie v. Fibreboard Corp., 112 Wn.2d 636, 644, 771 P.2d 711, 716 (1989) (Noting that the right to a

jury trial governed solely by Washington’s constitution because the Seventh Amendment does not apply to

the States through the Fourteenth Amendment).

334 See Felder v. Casey, 487 U.S. 131, 138 (1988) (Stating that the proposition is “unassailable” that

“States may establish the rules of procedure governing litigation in their own courts” as long as they do

not defeat a federal right) (citations omitted).

335 See Cooper, 654 A.2d at 547 (acknowledging that “[t]he worst possible punishment for a physician is a

which it was enacted,327 expressly prohibits States from protecting physicians from

abuses of the peer review process masquerading as actions based on competence

or conduct, or from prescribing what shall constitute an improper peer review

action within their jurisdictions. On the contrary, the legislative history of HCQIA

makes it unambiguously clear that Congress never intended to protect such

abuses.328

Courts protect peer review abuses by granting summary judgment to

defendants whose peer review actions were unreasonable or improperly motivated.

States can protect against improper findings of immunity under HCQIA through

procedural rules because HCQIA does not specify how courts should decide

motions for summary judgment based on HCQIA.329 Nor does HCQIA “explicitly

state what effect the plaintiff’s failure to produce any rebuttal evidence would

have.”330 This is consistent with the general principle, repeatedly approved by the

U.S. Supreme Court, that federal law takes state courts as it finds them.331 If,

therefore, a State had no statute authorizing summary judgment, HCQIA would

not compel the State to dismiss a law suit related to a peer review action even if

the action complied with HCQIA’s statutory standards for immunity. Motions for

summary judgement based on HCQIA are reviewed under the procedural law of

the forum.332 The U.S. Supreme Court cannot tell States how to administer their

own court rules and procedures that do not violate rights protected by the

Fourteenth Amendment,333 or abrogate federal rights of recovery,334 and, as noted,

HCQIA creates no right of action.

VI. WHY RCW 7.71 SHOULD BE AMENDED.

Termination of a physician’s hospital privileges is tantamount to

professional capital punishment335 because it not only devastates the physician

56

denial of privileges based upon the physician’s ‘poor performance, inferior qualifications, or disruptive

behavior’.") (quoting Jacqueline Oliverio, Note, Hospital Liability for Defamation of Character During

the Peer Review Process: Sticks and Stones May Break My Bones, but Words May Cost Me My Job, 92

W. VA.L.REV. 739 (1990)).

336 Id. (concluding that “[f]inding gainful employment in the hospital setting after a poor review is unlikely

as a result of the provisions of [HCQIA].”)

337 See supra notes 85-87.

338 See e.g., Lucien L. Leape, Error in Medicine, 272 JAMA 1851 (1994); James Reason, Human error:

models and management, 320 BMJ 768 (2000); Thomas W. Nolan, System changes to improve patient

safety, 320 BMJ 771 (2000).

339 Saul N. Weingart, et al., Epidemiology of medical error, 320 BMJ 774 (2000) (stating examples of

malevolent providers are rare, and that there is little evidence that medical errors are due to “bad apples”).

340 Kenneth J. Rothman & Sander Greenland, Causation and Causal Inference in Epidemiology, 95 AM. J.

PUBLIC HEALTH S144 (2005) (discussing multicausality in terms of a set of jointly sufficient causes).

“Enabling conditions” are necessary but not sufficient causes that are usually not thought of the “cause” of

an event, but can often be more easily controlled or regulated that other necessary causes in a jointly

sufficient set that are viewed as “the” cause of an event.

341 See Reason, supra note 338 at 768 (suggesting that blaming individuals is emotionally more satisfying

than blaming institutions).

342 See supra note 338. See also Dankelman & C.A. Grimbergen, Systems approach to reduce errors in

surgery, 19 SURG. ENDOSC. 1017 (2005) (contending that a systems approach is required to reduce the

frequency of surgical errors because only such an approach provides insights into the causes of error);

Dianne Kennedy, Analysis of Sharp-end, Frontline Human Error: Beyond Throwing Out “Bad Apples”,

19 J. NURS. CARE QUAL. 116 (2004) (arguing for “strategies for preventing patient injury by refining

system flaws”); M van Beuzekom, et. al., Assessing system failures in operating rooms and intensive care

units, 16 QUAL. SAF. HEALTH CARE 45 (2007) (same).

professionally and financially, but stigmatizes the physician in ways only the

criminal law usually can.336 Such actions can be justified only by substantial

evidence of incompetence or unprofessional conduct. Bad outcomes, or even

mistakes, are not in themselves evidence of incompetence. Subjective opinions

about the causes of bad outcomes or mistakes, as about most medical matters,

vary, and an adverse subjective opinion alone does not establish incompetence or

provide a justification for what are frequently career ending decisions by hospitals.

The understanding of medical errors has advanced significantly since

HCQIA was enacted. HCQIA’s “bad apples” premise - that a small but deadly

group of physicians cause most of the needless iatrogenic injuries and deaths, and

account for most of the medical malpractice suits337 - although beguiling, is now

considered deeply flawed.338 There are undoubtedly unscrupulous and incompetent

physicians who harm patients, but they are rare.339 The causes of medical errors are

multifactorial, and almost always involve jointly necessary “enabling conditions”

without which errors could not have occurred.340 Although it is easier and more

satisfying to blame individuals,341 health care cannot be made safer by simply

blaming individuals when things to wrong. To improve safety, hospitals must

design safer operating conditions that make errors less likely.342 This was the

fundamental recommendation of the highly influential, Institute of Medicine’s

57

343 LINDA T. KOHN, et al. eds. TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM (2000) p 179 (arguing

that ‘‘improving patient safety requires fixing the system, not fixing blame’’).

344 See Nolan, supra note 338

345 Atul Gawande, When doctors make mistakes, The New Yorker, 1st February, 1999. The frequency of

being sued is also poorly correlated with the quality of care rendered. See Ilene N. Moore, et al.,

Rethinking Peer Review: Detecting and Addressing Medical Malpractice Claims Risk, 59 VAND. L.REV.

1175 (2006). Although physicians who have been sued are more likely to be sued again, and at least half

of all malpractice claims are against physicians who have been sued more than once, these physicians, as

a group, are not demonstrably more incompetent, negligent or unprofessional than their colleagues who

have never been sued, nor is the quality of their patient care inferior. Id. at 194-97 . Factors other than

professional competence seem to predispose physicians to being sued, such as poor communication skills.

Id. at.1197-200.

346 David Woods, Behind human error: Human factors research to improve patient safety, Testimony at the

National Summit on Medical Errors and Patient Safety Research www.apa.org/ppo/issues/smederrors.html

at 2.

347 During the eight years that Dr. Cowell practiced GSH, the hospital had five CEOs, three Directors of

Quality management, CP 732, ¶ No. 6, 1173-74, and chronic financial problem that culminated in staff

layoffs in 2006. CP 764. In 2005, Good Samaritan received only conditional accreditation because the

Director of Facilities submitted a falsified report to the Joint Commission on Accreditation of Health Care

Organizations (JCAHO ). CP at 92:16-22. It had been cited for using unapproved range orders. CP 1088

at 91:3-6.

348 CP 1115-16 Requests for Admission Nos. 107-111 (admitting that no action was taken on a serious

surgical error by a hospital-employed Ob-Gyn because it was appropriately managed).

349 David W. Townsend, Hospital Peer Review is a Kangaroo Court, MEDICAL ECONOMICS, February, 2000

report, To Err is Human.343

Most preventable adverse events are caused by competent doctors who

face significant adverse consequences for bad outcomes, and, therefore, already

have significant extra-professional incentives to avoid them.344 As the Harvard

surgeon, Atul Gawande, put it, “The real problem isn’t how to stop bad doctors

from harming, even killing their patients; it’s how to prevent good doctors from

doing so”.345 One thing all safety experts agree on is that this cannot be achieved

by blaming, shaming, punishing and admonishing physicians:

[A] “culture of blame [which is] operationalized in terms of pursuit of

culprits, threats of disciplinary actions, and threats of stigmatization

degrades performance, cooperation and learning...[and] blame [even if

disguised as accountability] drives out information about systemic

vulnerabilities, stops learning, and undermines the potential for

improvement”.346

Hospitals that misuse peer review are usually plagued with intractable

systemic problems that place patients at risk.347 They respond to adverse outcomes

by either dismissing them as unavoidable mishaps348 or blaming specific physicians,

and the route they choose is based on factors unrelated to the quality of medical

care.349 Either way, the enabling conditions that allowed the error to occur remain

58

at 1 (stating that physicians vulnerable to unwarranted peer review actions are solo practitioners,

physicians new on the staff, and physicians who do procedures that are new or different).

350 See CP 570, ¶ No. 3 (stating that IC investigating a RFCA is required to submit a written report within 30

days). The IC did not even invited Dr. Cowell to an interview until after the JW, on May 3, 2006. CP 264.

The RFCA was made on March 3, 2006. CP 258.

351 See CP 243-252, ¶ No. 3 (claiming, inter alia, that JW was in shock through her stay in the recovery

room, her systolic blood pressure never having been greater than 88 mms/hg). Compare CP 1442

(indicating that JW’s blood pressure in the recovery room was initially the same as it was before surgery,

and dropped five minutes after the last of four doses of Fentanyl).

352 CP 190-192, ¶ No. 3; 196 (last para) (“As discussed above, most of the findings of the Investigating

Committee concerning the Jehovah’s Witness patient lack a substantial factual basis. Based on the

evidence presented to it, the Hearing Committee finds that [Dr. Cowell] met the standard of care. The

Hearing Committee finds that there was not a substantial factual basis that [Dr. Cowell’s] use of the

tenaculum caused a potentially life-threatening vaginal wall and uterine artery laceration, that she failed

to recognize a severe, life-threatening complication, that she failed to ask for appropriate help, that she

recommended sending the patient home with hot packs when she should have understood that further

surgery was unnecessary, or that the patient had a hysterectomy as a result of her failures in her clinical

practice.”) The only allegation about JW that the HC found to be true was that Dr. Cowell dictated the

operative report late. CP 190 (last para).

353 CP 243 (last para) (stating that patient was in shock when she left the Surgery Center, and in shock in the

ambulance). In fact, the ambulance report showed that JW’s blood pressure was normal when the

ambulance personnel arrived at the Surgery Center, and normal in transit from the Surgery Center to the

main hospital, but the hospital concealed the ambulance report from the peer review committees and Dr.

Cowell. See Affidavit of Kevin Heidel, Critical Care Technician available at

http://pamelacowellmd.com/blog/wp-content/uploads/2010/11/Affidavit-of-Kevin-Heindel-Critical-Care-T

echnician.pdf

354 CP 191, ¶ 3 (“there is no substantial factual basis for the finding that the patient was in shock... that was

unrecognized by [Dr. Cowell]. Administration of 200 micrograms of Fentanyl over a very short period of

time appears to have played a substantial role in the development of the patient’s hypotension.”).

in the system, and continue to pose a threat to patients. Cowell is paradigmatic of

this problem.

The attack on Dr. Cowell’s clinical practice in the IC’s report was based

almost entirely on her management of what was referred to as the Jehovah’s

Witness case or JW. This was not a case on which the RFCA was based, but

occurred three weeks after the investigation into the RFCA should have been

completed.350 The IC devoted nine pages of its 17-page, single-spaced report to

this one case, and its allegations were replete with factually false assertions that

were flatly contradicted by the patient’s medical records.351 The HC rejected all

these allegations as “lacking a substantial factual basis”,352 but these findings were

omitted from the court’s opinion.

The IC’s most serious criticism was that JW went into shock in the

recovery room following surgery, and that everyone except Dr. Cowell had

recognized this.353 In fact, no one claimed JW was in shock, and the HC rejected

this allegation as lacking a substantial factual basis because excessively rapid

administration of the narcotic, Fentanyl, by a recovery room nurse, not continued

bleeding that Dr. Cowell had missed, caused JW’s blood pressure to fall in the

recovery room.354

59

355 CP 1449 at 22:13-16 (Testimony of Michelle Waterland, R.N.)

356 Id. at 22:17-19.

357 Id. 22:20-23.

358 See CP 1476-77 (Nursing Policies and Procedures).

359 See supra note 269

360 CP 1475 (pre-printed Surgery Center medication order).

361 Id.

362 CP at 1479-80 (Testimony of Ronald Morris, M.D. at 10:25-11:4). A “range” order is one that specifies

the range of individual doses that can be administered. They are only valid if accompanied by instructions

on how the specific does within the range is to be selected. See CP 1082 at 66:21-67:13 (Testimony of

Maureen Guzman).

363 CP 1088 at 91:3-6.

364 CP 1449 at 25:17-20. Pre-printed orders in the main hospital provide that individual doses of Fentanyl

can be repeated every 5 minutes. Nurse Waterland gave JW four doses of Fentanyl over 10 minutes, i.e.

she gave the maximum dose at twice the maximum rate.

365 CP 1115-16 (Requests for Admission Nos. 107-111).

Two system flaws jointly caused this medication error. First, the

preprinted “range” order for Fentanyl signed by the Director of the Surgery

Center,355 pursuant to which the recovery room nurse administered Fentanyl at an

excessively rapid rate,356 did not specify how frequently individual doses of the

drug could be repeated in adults.357 Second, nurses received inadequate

instructions on how to administer Fentanyl pursuant to this range order.358

Preprinted orders are regularly reviewed and revised. In August, 2007,

eight months after the HC determined that excessively rapid administration of

Fentanyl had caused JW’s blood pressure to fall in the recovery room,359 the

preprinted range order pursuant to which the Fentanyl was administered was

revised.360 However, the deficiency in the range order was not corrected,361 even

though the range order violated JCAHO standards,362 and Good Samaritan had

already been cited for using improper range orders in the past.363 The nurses also

received no remedial instructions. The nurse who gave the maximum dose of

Fentanyl over 10 minutes in April, 2006, testified in May, 2008 that she did not

believe that she had given the Fentanyl at an excessively rapid rate, and that she

could in fact have given the maximum does at an even faster rate - over eight

minutes.364

Several months before the JW case, an hospital-employed Ob-Gyn

lacerated the internal iliac artery during a laparoscopic procedure, which he failed

to recognize, and, therefore, required reoperation, but the complication was

dismissed as a mishap.365 A year before the JW case, the external reviewer at the

University of Washington, who reviewed five of Dr. Cowell’s cases, recommended

that Good Samaritan have its Obstetrical Unit reviewed by ACOG, not that Dr.

60

366 See supra note 281.

367 CP 943 at 17:1-2 (Testimony of Toni Foster, Director of Maternal-Child Services); CP 1096 at 106:5-6

(Testimony of Maureen Guzman).

Cowell be disciplined.366 His recommendations were not followed, notwithstanding

that data collected for the review revealed that several physicians, although not Dr.

Cowell, were outliers on quality indicators.367 Important opportunities to improve

the quality of care were lost by each decision.

Destruction of Dr. Cowell’s practice, and legal protection of the hospital’s

action against her, have clearly not made Good Samaritan a safer hospital at which

to be treated or encouraged effective peer review. The legal protection accorded

Good Samaritan’s actions have merely perpetuated systemic deficiencies that pose

a genuine risk to patients. The knowledge that Washington courts will protect the

kind of peer review action Good Samaritan took against Dr. Cowell will

undoubtedly embolden hospitals to use the peer review process more readily in the

future to further ends unrelated to improving the quality of health care.

CONCLUSION

HCQIA is a flawed statute because it creates no incentives to engage in

effective peer review, its immunity provisions are unnecessary, and the purported

need for them was never supported by empirical evidence. The problems HCQIA

has created, however, are not the result of these deficiencies. They have resulted

from interpretations of the statute that are inconsistent with its purpose, plain

language and legislative history. These interpretations have done nothing to

improve the quality of care, reduce the frequency of medical malpractice claims or

improve public safety. They have only protected and encouraged abuses of the

peer review process, inflicted great hardships on competent physicians, and have

likely retarded the adoption of more effective quality oversight systems by

hospitals like Good Samaritan.

The Cowell court’s interpretation of RCW 7.71 has made this situation

considerably worse by allowing hospitals held immune under HCQIA to recover

attorneys’ fees and costs under the mandatory fee shifting provisions of RCW

7.71.030(3). This will have the effect of deterring physicians from even challenging

questionable peer review actions, and will undoubtedly encourage more blatant

abuses of the peer review process in the future.

The Washington legislature can redress the antisocial consequences that

have resulted from the misapplication of HCQIA by amending RCW 7.71 to

ensure that pretextual peer review actions do not receive immunity, and attorneys’

fees and costs are not awarded for non-frivolous but unsuccessful challenges to

peer review actions. The U.S. Supreme Court is highly unlikely to construe

HCQIA as preempting state statutes whose purpose to protect physicians against

peer review abuses.