"Clean Hands" 2

Austin v. McNamara, Ninth Cicuit (1992)

In Austin v. McNamara (9th Cir. 1992), the Court of Appeals for the Ninth Circuit interpreted HCQIA to bestow immunity on a hospital regardless of its "animosity," "hostility," or "bad faith" in revoking a physician's privileges at the hospital. The Court held that "the test [for immunity under §11112(a)] is an objective one."

This precedent has been widely followed to exclude evidence of bad faith from lawsuits against hospitals for sham peer review. This precedent was distinguished by Clark v. Columbia/HCA Info. Servs., (2001), as follows:

The presumption of immunity has been interpreted by the federal courts almost exclusively in favor of finding immunity for peer review board members. [citing Austin as an example] In fact, in only two cases have federal courts reversed an order of summary judgment based on immunity because the physician demonstrated by a preponderance of the evidence that the board failed to give appropriate fair notice and procedures in accordance with § 11112(a)(3) - Islami v. Covenant Medical Center, Inc. and LeMasters v. Christ Hospital. In addition, in Brown v. Presbyterian Healthcare Services, the Tenth Circuit upheld a district court's finding that the peer review board lacked immunity because the board only investigated two patient charts before deciding to revoke the physician's privileges, which was not a reasonable effort to obtain facts under § 11112(a)(4). Moreover, in Brown the board reported false findings to the National Practitioner Data Bank pursuant to § 11137(c).

http://www.conservapedia.com/Austin_v._McNamara

From Medical Economics (2005)

Of the following statements, which best describes hospital peer review?

It's an impartial means of identifying and dealing with errant physicians.

It has been transformed into a weapon that enables established physicians and hospital administrators to dispatch mavericks, whistleblowers, rivals, and other nonconformists.

How is it that measures ostensibly taken to promote quality care by encouraging doctors to report incompetent, unethical, or impaired colleagues have earned the distrust of so many physicians? First, some background.

The launch of HCQIA and the NPDB In the 1980s, when the medical community revved up its efforts to identify negligent physicians via peer review and credentialing procedures, one targeted doctor—general surgeon Timothy Patrick, who then practiced in Astoria, OR—sued his accusers on the grounds that the review was designed to drive him out of business so competitors could co-opt his practice. A jury found in Patrick's favor and awarded him $650,000, which the court trebled. Organized medicine, concerned that the Patrick case would chill efforts to identify problem doctors, pushed for national legislation providing liability protection to physicians who file complaints against colleagues and serve on peer review panels. The resulting measure, the Health Care Quality Improvement Act of 1986, also established the National Practitioner Data Bank.

HCQIA gives peer reviewers near-complete immunity from claims for monetary damages arising from peer review actions, provided that several prerequisites are met:

The peer review was done in the belief that such action furthered quality healthcare.

Those bringing the action made a good-faith effort to obtain the facts.

The physician reviewed was given adequate notice and afforded due process.

The hospital had a reasonable belief that peer review action was warranted.

Although physicians brought before a peer review panel are entitled to legal representation and have the right to cross-examine witnesses, present evidence, and receive a written report of the final decision, the peer review system affords the accused little opportunity to appeal. A physician who feels he has been wronged can file a lawsuit claiming that the HCQIA standards weren't met. But proving bad faith is very difficult—and very expensive.

Moreover, many hospitals have made it extremely hard for physicians to defend themselves against malicious allegations. "It's often a guilty-until-proven-innocent scenario," says Steven I. Kern, a health law attorney in Bridgewater, NJ. "Medical staff bylaws often indicate that if you're summarily suspended pending a hearing or just charged with wrongdoing, the burden is on you to prove, with clear and convincing evidence, that the suspension or charges were arbitrary, capricious, or unreasonable. It doesn't matter if the suspension or charges were wrong. As long as the decision to suspend or charge wasn't made arbitrarily, you're removed from the medical staff."

One side: Peer review is misused "In the 30 years that I've been a health law attorney," says Kern, "I've never seen anyone who admits a lot of patients and is well-liked have a problem with the hospital disciplinary mechanism. On the other hand, if you're competing with such a doctor, especially if you're new to the hospital or on the wrong side of hospital politics, you're a potential target."

Not only is the peer review process corrupt, it's ineffective, says Ralph M. Bard, a physician turned attorney in Tullahoma, TN. "To Err Is Human, the Institute of Medicine's report on patient safety, was released after HCQIA and the NPDB had been in place for many years. Yet the report shows a high rate of medical errors—and that error rate remains high. Rather than being used to weed out bad doctors, peer review as it exists today is used primarily as a weapon against young, vulnerable practitioners."Peer review wasn't intended as a means to oust qualified physicians to the benefit of their more economically successful competitors, says James Lewis Griffith Sr., a malpractice attorney in Philadelphia. "Too often, however, the golden rule applies: He who has the gold makes the rules."

In fact, peer review and other quality assurance efforts are so inadequate, says a malpractice claims specialist who requested anonymity, that more bad doctors are identified by insurance companies after claims are filed than are identified by their peers. "Hospital-based peer review is an ineffective way of dealing with bad doctors or questionable medical care. Physicians are more likely to be sheltered by peer review than to have it used as a weapon against them."

http://www.modernmedicine.com/modernmedicine/article/articleDetail.jsp?id=147405&sk=&date=&pageID=4