Key Evidence: Peer review initiated for
Economic retaliation >70% of time.
In
the book “Health care crisis-the search for answers”,
by John H. Fielder, Ph D, edited by Bruce Jennings, MA, David
Orentlicher, MD, JD, and Marvin Dewar, MD, JD., Fielder estimated, in
the chapter entitled “Abusive peer review, health care reform”,
that peer review was initiated for economic reasons as much as 70% of
the time. He felt the hospital bylaws are fatally deficient in due
process and fail to protect doctors who are falsely accused. Hospitals
are not democratic institutions and it is difficult many times to
improve quality without frequently confronting entrenched political and
financial interests and putting your career in jeopardy.
Other sources place the rate of retaliatory peer review as much higher.
Attorney Kevin J. Mirch of Nevada places the rate of bogus peer review
at higher than 90%. Evidence compiled by multiple attorneys in the
Poliner case agrees that the level of bogus peer review is in that
range. Doctors and lawyers who work in this area are impressed that the
rate of wrongful bad
faith peer review is very high,
regardless of exactly how high it is.
Verner Waite, MD, FACS,, personally reviewed more than 1000 cases of
physician peer-review, and determined that at least 80% (and probably
90%) of peer reviews are performed in bad faith, for economic or other
reasons.
At present, no standards or definitions exist to guide objective peer
review. In the absence of verified standards, it is hard to argue that
any peer review can be done objectively under the current circumstances.
Peer review is at present the death sentence for a doctor’s career. With
the best evidence that unmerited peer review is in the range of 70- 90%
by the most knowledgeable sources in the country, it appears that a
moratorium is urgently needed while objective measures and procedures
with due process can be put in place.
False
evidence has been shown to be used at these reviews with alarming
frequency. In one case, a peer review was actually forged. No patient
can be protected by such mendacity. These reviews are counterproductive
and lead to poorer patient outcomes. It may be that continuous quality
improvement will offer a means by which safety, quality and integrity
may be guaranteed more effectively.
John B. Payne, DO and James Murtagh, Jr. MD.
Money and Vengeance
We
have advised
orthopedic surgeons, cardiologists, OB/GYNs, thoracic surgeons,
anesthesiologists, ophthalmologists, family physicians, internists
and other specialists in hospital peer review cases and medical
staff privileges litigation. More often than not in our experience,
peer review is initiated against a physician for one of three
reasons: (1) by economic competitors for financial reasons; (2) in
retaliation against the physician for not "playing ball" in one
manner or another (economic or otherwise); or (3) in retaliation for
the physician raising concerns about other physicians’ care and
seeking to have those providers’ outcomes reviewed. The state
"whistleblower" law does not protect these physicians. The
Pennsylvania Peer Review Protection Act, which allows physicians to
litigate tort and contract breach claims in state court against
hospitals whose peer review is effectuated by malice or bad faith,
has been "trumped" (although not technically preempted) by the
federal HCQIA immunity standards.
Shifting Sands
Hospital bylaws impose difficult legal standards and burdens on
physicians. Typically, after a physician is the subject of an
adverse recommendation or an adverse action by a medical executive
committee, the physician is given a fair hearing. Traditional
notions of fairness might lead one to believe that the hospital
would have the burden of proof by at least a preponderance of the
evidence to demonstrate the physician’s quality of care was below
some recognized and measurable standard warranting a quality of care
concern. After all, hospitals have a legitimate concern about
corporate liability and "negligent credentialing" following the
Supreme Court’s Nason Hospital decision in 1991.
Absolutely every set of hospital bylaws
we have reviewed do not
contemplate a truly fair system for the physician being reviewed.
Instead of the hospital accepting the burden of proof with a
reasonable standard based upon measurable guidelines for quality
infractions, the bylaws shift the burden of proof to the physician
and create a nearly impossible standard to overcome. The physician
typically has the burden to prove that the hospital’s decision was
arbitrary and capricious. Some bylaws even state that the physician
must prove that there was no material basis for the action or there
was a complete absence of facts in the record to support the action.
An utterly biased, sloppy, negligent and mistake-riddled report by
an outside reviewer still cannot be overcome by this enormous burden
if there is just a shred of truth in the report.
Practical Effect
As the case law illustrates, the physician’s economic competitors
and antagonists can initiate the peer review process, retain outside
consultants and virtually direct the outcome of the report that will
form the basis of the hospital’s adverse action. After the
antagonist’s bias, conflict of interest, self-interest, direct
economic competition and retaliation motives are all effectuated,
they are immaterial and not reviewable by the courts, since all of
those problems purportedly can be remedied by retaining a
three-member independent panel to conduct the hearing.
Most fair hearing panels are truly independent. But, even if the
panel calls "balls and strikes" fairly, the burden of proof and
standard of review are so high it cannot be overcome practically.
There is no legal remedy or recourse to the physician under the
"totality of the circumstances" test. Hospitals have figured out
that all they need to do is establish an independent fair hearing
panel, give minimal due process at that final phase of the case, and
their immunity will be intact.
JCAHO Doesn’t Care
The JCAHO accreditation manual for hospitals contains medical
staff standards. One standard requires "mechanisms, including a fair
hearing and appeal process, for addressing adverse decisions for
existing medical staff members and other individuals holding
clinical privileges for renewal, revocation, or revision of clinical
privileges." When discussing the broad HCQIA immunity and typical
hospital bylaws burden shifting and standard setting procedures that
are anything but fair and balanced, JCAHO staff take the position
that they "don’t care about detail" even if, as applied, the
physician has no chance to overcome the standards.
Courts Don’t Care
Although courts have no hesitancy involving themselves in the
intricacies of physician practice in the context of medical
malpractice liability, courts take a contrary view when physicians
seek redress as a result of faulty peer review and retaliation. In
Lyons v. St. Vincent Health Center, Commonwealth Court
stated: "It is not up to the courts to second-guess hospitals in
their decisions as to the best way to deliver services; it is up to
the institution itself."
Early Intervention Strategy
A physician subjected to peer review may have little chance of
surviving unless early and aggressive measures are taken.
Understanding the case law and limitation on judicial remedies, it
is prudent for the physician and counsel to quickly retain the best
conceivable expert in the subject area to address the outside
reviewer report. In many cases, it becomes very clear that the
outside reviewer’s report significantly overstates quality of care
infractions, is based on no published peer reviewed medical journal
articles or positions, and is academically pedantic without taking
into consideration reasonable and acceptable standards of care.
Successful resolution using this strategy can be achieved with
minimal disruption to the physician, including perhaps CME and
monitoring, without causing a damaging Data Bank entry.
The Health Care Quality Improvement Act of 1986
and Physician Peer Reviews: Success or Failure?
By: Bryan G. Hall
The Master Said to Narendra:
“Have you become an experienced physician?”
Quoting a Sanskrit verse he said, “He who has killed only
a hundred patients is a novice in medicine;
but he becomes an expert after killing a thousand.”
- Ramakrishna
Abstract
In the early 1980’s, in response to numerous newspaper articles
reporting cases of physician ineptitude, the medical community
increased its efforts to limit the practice of incompetent
physicians through the implementation of professional peer review
and credentialing procedures for a physician’s obtaining of hospital
privileges and membership. However, as the decade progressed, the
success of the peer review process became hindered by an increase in
lawsuits filed by the disciplined physician against the individual
review committee and hospital.
In response to this increase in litigation, the Health Care Quality
Improvement Act (HCQIA) of 1986 was passed by Congress with the
expectation that it would help protect hospitals and individual’s
participating on medical peer review committees from potential
liability in the form of money damages after the revocation of a
physician’s hospital privileges. The Act has established standards
for the hospital peer review committees, provides immunity for those
involved in peer review, and has created the National Practitioner
Data Bank, a system for reporting physicians whose competency has
been questioned or when the physician has been sanctioned.
The effect of HCQIA on many of those that have been on the receiving
end of a bad faith peer review committee has been unjust and unfair.
Critics argue that the HCQIA helps foster an environment in the
medical community that, instead of promoting the goal of quality
health care in America, allows the peer review process to be
perverted for political and economic motives. This report will
analyze the current peer review process and the importance of
hospital privileges, the standards and immunity provided by the
Health Care Quality Improvement Act, as well as a critique of the
Act regarding its protection of bad faith or malicious peer review
committee. This report will also offer some suggested remedies in
order to ensure a more equitable and just peer review system and
thus help realize the primary goal of the Act, the implementation of
the best quality health care system possible.
Introduction
The doctor “under the microscope.” Such is the position felt by many
physicians who are scrutinized by hospital peer review committees.
It is argued by some that due to state law and the passage of the
Health Care Quality Improvement Act of 1986, medical peer review
committees have become prone to misuse by those with a vendetta or
dislike for the reviewed physician, and thus the primary purpose of
the Act – to attempt to guarantee the best quality health care
system possible - has become tainted and perverted. As children, we
are told that “sticks and stones may break your bones, but words
will never hurt you.” However, this sentiment is untrue in the
professional world, where negative words, justified or not, that are
reflected in a medical peer review can potentially have a horrible
effect on a physician’s reputation and adversely affect his or her
professional and economic opportunities.
A hypothetical case has been advanced: Dr Amelia Adams, fresh from
medical school and a successful residency, began her profession as a
cardiologist with an established health maintenance organization
(HMO).[1] While working hard as the third member of the team of
cardiologists, Dr. Adams began to realize that the training of the
other doctors was out of date, by much as twenty years.[2] As a way
to help her colleagues, without embarrassing any of the older
physicians by pointing out their outdated methods, Dr. Adams began
an informal training program on the new trends and techniques in
cardiology.[3]
However, the senior cardiologist felt the new techniques were too
expensive, and they were summarily rejected.[4] Disappointed and
discouraged at the decision, Dr. Adams became very blunt in
expressing her disappointment, and as a result of her outspoken
attitude, Dr. Adams began to be viewed as a threat by the senior
medical staff.[5] Indeed, other cardiologists began to refuse to do
rounds on her patients, and began to spread false rumors as to her
competency – and ultimately, the senior physician publicly ridiculed
her for an isolated incident concerning a procedure that Dr. Adams
had completed that had led to nonfatal complications for the
patient.[6]
Later, Dr. Adams was confronted by the senior staff and was asked to
resign her position in the department; she refused to voluntarily
resign, and was subsequently threatened with an ad hoc peer review
investigation - the word that was used to describe the action to
take place was “screw-tinized.”[7] The only option given to her was
a “transfer” to a lower paid position in the internal medicine
department, and Dr. Adams, unwilling to accept this offer, tried to
relocate and seek employment as a cardiologist at other
institutions.[8] However, her attempts failed. She was advised that
until the problems she had at the HMO were dealt with, she would not
be able to move.[9] Upon reapplying for her cardiology privileges at
the HMO, the incident concerning the nonfatal complications was
brought up, and the doctor’s report to the executive committee
described her work as “below the acceptable standards.”[10]
Unfortunately, the senior staff’s bad behavior in this case is not
limited to the world of the hypothetical.
One only has to look at the recent case involving Dr. Kenneth Clark
to realize that, unfortunately, bad faith peer reviews are not
limited to hypothetical situations. While working as a psychiatrist
with staff privileges at the Truckee Meadows Hospital, Dr. Clark had
concerns that the hospital was not following appropriate procedures
on a wide variety of care.[11] His concerns included the providing
deficient child psychiatric care, the hospital’s policy of premature
patient discharge once the patient’s insurance lapsed, as well as
the hospital’s use of his superb credentials to improperly qualify
an affiliate hospital for accreditation, even though Dr. Clark did
not work there.[12]
In order to correct these deficiencies, and to bring government
attention to the problems, Dr. Clark wrote a series of letters to
the federal insurance provider CHAMPUS, JCAHO, and the Nevada State
Board of Medical Examiners.[13] In response to Dr. Clark’s actions
of going outside of the hospital’s administration, a peer review
meeting was held which determined that Dr. Clark’s actions were
disruptive, and would “eventually have an adverse impact on the
quality of health care at the hospital” and subsequently terminated
his physician privileges at Truckee Meadows Hospital.[14]
Dr. Clark took his case to court, and faced the uphill battle of
proving that the termination of his hospital privileges was excluded
from the protection of HCQIA.[15] Finally, however, the Supreme
Court of Nevada held that the hospital’s actions were not entitled
to HCQIA immunity because the terminating of Dr. Clark’s hospital
privileges was due to his activities as a whistleblower, and that
the termination was not “in the reasonable belief that the action
was in furtherance of quality health care.”[16] Indeed, the court
went on to state that it was the physician in this case who
attempted to improve the quality of health care at the hospital by
reporting improper conduct.[17]
Unlike many other physicians in his position, Dr. Clark was able to
rebut the presumption that the peer review was fair – it was a rare
victory for doctors who are maligned and have their reputations
slandered due to bad faith or malicious peer reviews. But what about
the countless cases similar to the hypothetical Dr. Adams, and
others who are not able to overcome that presumption due to a system
that is skewed toward granting immunity to peer review committees at
the sake of professional healers reputations and livelihoods?
Statement of the Issue
While the passage of the Health Care Quality Improvement Act of 1986
was passed with the intention of promoting the best quality health
care system, it has subsequently had some unintended negative
affects. Specifically, the peer review immunity and the limits on
discoverability provided by the Act contribute to allowing peer
review members to engage in arbitrary, bad faith, or malicious peer
review hearings without fear of successful reprisal by the unjustly
disciplined physician. In addition, the Act’s implementation of the
National Practitioner Data Base has created the opportunity for
unjust negative publicity and damage to the reputations of those
physician’s that are on the wrong end of a bad faith or malicious
peer review.
Analysis
I. Physician Peer Review and Hospital Privileges
In the 1980’s, the health care profession increased its efforts to
limit the practices of incompetent physicians through the promotion
of credentialing and professional peer review.[18] To sustain the
honor of a physician’s practice, an intricate system of peer
evaluation has evolved, and this system provides for the review and
critique of physicians who may be perceived as damaging to the
profession of physicians.[19] Generally, state licensure and
accreditation standards require hospitals, as well as a few other
health care entities, to examine and evaluate the competency and
quality of care provided by physicians who have, or are requesting,
hospital privileges.[20] The Joint Commission on Accreditation of
Health Care Organizations (JCAHO) has defined hospital privileges as
the “permission to provide medical or other patient care services in
the granting institution, within well-defined limits, based on the
individual’s professional license and his experience, competence,
ability, and judgment.”[21]
There are essentially two situations in which hospitals have
determined the clinical competency of physicians; either when a
physician first applies for medical staff membership and privileges,
or when each physician who is already a member of a medical staff is
required to periodically apply for reappointment for membership and
privileges.[22] The established procedures for conducting a peer
review is generally found in the hospital’s bylaws, and provides
that the hospital is required to engage in continuous clinical
evaluation and monitoring of its physicians, as well as those
applying for privileges.[23]
A review will primarily consist of a thorough assessment of the
physician’s records of surgeries and other performed procedures, in
order to search for erroneous diagnoses, unnecessary procedures, and
other errors.[24] Once the review is completed, the members of the
review committee will forward their recommendations to the
hospital’s governing board to either grant, reinstate, or deny
hospital staff privileges, or to make recommendations on any
appropriate disciplinary measures if the physician’s clinical
performance was viewed as substandard or dangerous to patients.[25]
Many view the medical peer review process as highly beneficial for
the hospital, physicians, and the community as well, stating that
its intended results are that hospitals hire and retain only
competent physicians; physician’s benefit by obtaining medical and
educational review of their work, and upon obtaining privileges, are
given access to operating facilities, medical equipment, and support
staff; and that the community benefits by having access to the
highest quality of physicians and medical services.[26] A
physician’s right to access a hospital once the physician has been
granted privileges to admit patients and to use the hospital’s
resources is essential for the success of the physician’s
practice.[27]
In today’s technical and complex world, it is very rare and almost
impossible for a physician to have a financially successful practice
without hospital privileges.[28] Indeed, with the increasing
technology and support services that only hospitals can usually
afford (such as patient wards, staffed operating rooms, and medical
equipment), it is imperative that physicians obtain hospital
privileges; consequently, any denial or restriction of a physician’s
hospital privileges will have a destructive effect on the
physician’s practice.[29] Yet, to maintain their privileges,
physicians must allow themselves to be reviewed by the hospital’s
peer review committee, and many in the medical community are now
concerned that the peer review process is terribly flawed in its
conduct and treatment of the reviewed physician.[30] It is argued
that federal law, such as HCQIA, as well as state laws have helped
promote a peer review process that has minimal concern for the
ultimate goal of quality health care, but instead is used as an
instrument for political and economic motives, that is, a “review
performed in bad faith, or with malice.”[31]
II. The Health Care Quality Improvement Act of 1986
As the 1980’s wore on, the efficiency and success of the peer review
process became mired down as a result of an increase in litigation
initiated by the disciplined physician, in many cases alleging
antitrust violations by the reviewing hospital.[32] Physicians
denied privileges would likely argue that the denial of privileges
violated Sections 1 and 2 of the Sherman Antitrust Act, which
proclaims illegal “every contract, combination in the form of trust
or otherwise, or conspiracy, in restraint of trade,”[33] and that
the formation of a monopoly or attempt to form a monopoly is also a
violation.[34] Essentially, the excluded physician will argue that
the subsequent restriction on their practice was “the result of the
anti-competitive motives of peer reviewers who perform the same
services at the hospital or health care entity.”[35] The physician
denied hospital privileges and claiming a violation of Section 1 of
the Sherman Act must prove: an effect on interstate commerce, a
conspiracy or combination, and restraint of trade;[36]and if the
argument is successful, and it is proven that there was a violation
of antitrust law, the individual physicians participating on the
peer review committee can be subjected to treble damages.[37]
The defense of these lawsuits was, of course, costly and time
consuming; in addition, hospital physicians on the peer review
committees began to fear retaliatory lawsuits from those physician’s
who were denied privileges, which began to limit the effectiveness
of the process of “seeking out and dealing with incompetent
physicians.”[38] Thus, on November 14, 1986, Congress enacted the
Health Care Quality Improvement Act of 1986, in order to, among
other things, protect those individuals engaged in professional
review.[39] Section 11101 of the Act, titled “Findings,” establishes
the main reasons for the Act’s passage:
(1) The increasing occurrence of medical malpractice and the need to
improve the quality of medical care have become nationwide problems
that warrant greater efforts than those that can be undertaken by
any individual state.
(2) There is a national need to restrict the ability of incompetent
physicians to move from state to state without disclosure or
discovery of the physician’s previous damaging or incompetent
performance.
(3) This nationwide problem can be remedied through effective
professional peer review.
(4) The threat of private money damage liability under federal laws,
including treble damage liability under federal antitrust law,
unreasonably discourages physicians from participating in effective
professional review.
(5) There is an overriding need to provide incentive and protection
for physicians engaging in effective professional peer review.[40]
It was the jury verdict of $2.2 million in damages to the reviewed
physician in Patrick v. Burget that provided the main impetus for
the passage of the Health Care Quality Improvement Act.[41] Briefly,
in 1972, Dr. Timothy Patrick was a vascular surgeon practicing in
the small Oregon community of Astoria, and became a member of the
medical staff of the town’s only hospital, Columbia Memorial (CMH),
and an employee of the Astoria Clinic.[42] In 1973, the partners of
the clinic invited Dr. Patrick to become a partner in the clinic;
the offer was declined and Dr. Patrick instead started his own
competing clinic.[43] In retaliation, the physicians at the Astoria
Clinic consistently refused to have professional relations with Dr.
Patrick, and as a result Dr. Patrick’s clinic was referred virtually
no patients, even though the Astoria Clinic at times did not have a
general surgeon on staff.[44] Over the following years, the
relationship between the Astoria Clinic physicians and Dr. Patrick
continued to deteriorate, finally culminating in complete collapse
when a partner of the Astoria Clinic initiated peer review of Dr.
Patrick in order to terminate his privileges at CMH.[45] The review
hearing was held, with the case against Dr. Patrick focusing on only
nine out of the 2,000 to 2,500 surgeries that the he had performed
while working in Astoria.[46]
Dr. Patrick did not await the conclusion of the hearing and, after
claiming that result of the hearing was preordained, and that the
executive committee members were not paying attention, he resigned
his privileges at the hospital.[47] Dr. Patrick then filed a lawsuit
against CMH and the individual physicians, alleging violations of
Sections 1 and 2 of the Sherman Act.[48] Upon the completion of
litigation, the jury found that Dr. Patrick was the victim of a
malicious peer review[49] and that there was an antitrust violation,
and thus awarded Dr. Patrick $650,000, which was then trebled by the
court.[50] It was in response to this decision, that Congress
addressed the issue of encouraging peer review through statutory
protections by the enactment of the Health Care Quality Improvement
Act of 1986.[51] In fact, Representative Ron Wyden remarked during
the introduction of the Act that the jury award in Burget was a
precise example of the need for legal protection of those physicians
who participate in a peer review process.[52] It should also be
recognized the in addition to the HCQIA, each state and the District
of Columbia has also passed its own peer review statutes that
encourage the quality control of physicians practicing in the
state.[53]
In essence, HCQIA was passed to address Congress’s concern that,
without legal protection, physicians would be hesitant to
participate on peer review committees as a result of retaliatory
antitrust lawsuits initiated by the reviewed physician.[54] The
Health Care Quality Improvement Act is comprised of three basic
elements: first, it provides immunity from liability any peer review
activity that has met due process standards; second, HCQIA mandates
that hospitals and insurance carriers report to a national data bank
information that relates to the professional competence of
physicians, and thirdly, it requires hospitals to request
information from the data bank for all physicians who apply for or
have privileges at their institutions.[55]
However, the Act is considered to be more than an antitrust or peer
review exemption; its advocates contend that the primary purpose of
the Act was “not just to protect the peer review process, but rather
to encourage more aggressive peer review to eliminate incompetent
medical practice.”[56] In fact, it was foreseen by those
implementing the Act that the national data bank reporting system
would actually increase litigation, thus it was imperative that peer
review committees be granted immunity to ensure the vital and honest
participation of physicians on those peer review committees.[57] It
is important to note that HCQIA does not provide the hospital or
physicians with immunity from suit or from civil rights actions, but
instead limits their immunity to protection from money damages.[58]
Additionally, the Act does not create a cause of action for those
physicians who argue that a hospital has violated the Act, and the
penalty of a hospital’s failure to satisfy the peer review standards
set forth in Act is that the peer reviewers lose the immunity from
money damages.[59]
a. HCQIA’s Peer Review Immunity
Under Section 11111(a)(1) of the Act, the scope of the immunity that
the Act provides extends to those individuals participating in the
peer review, including the hospital, its governing body, the
committee conducting the review, any staff member to the review
body, and any person under contract or agreement with the review
body, as well as anyone who assists or participates in the
action.[60]
In addition, any witnesses or others, providing information to the
review body are also protected, unless the information that was
provided is false and individual providing the information knew it
was false.[61] Furthermore, there are certain “reasonableness”
standards the must be met for HCQIA immunity to apply. In order to
qualify for immunity from damages, Section 11112(a) provides that
the peer review action must have been taken (1) in the reasonable
belief that the action was in furtherance of quality of 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 the facts and after fair procedures were
afforded to the physician.[62]
HCQIA also establishes a presumption that the peer review action
meets the above criteria, “unless the presumption is rebutted by a
preponderance of the evidence.”[63] Critics of HCQIA contend that
since the peer review committee only has to demonstrate the
subjective requirement that a “reasonable belief that the action was
warranted,” the accused physician has a large hurdle to jump.[64]
b. HCQIA’s National Practitioner Data Bank
In addition to providing immunity from damages for hospital members
in the peer review process, HCQIA was also enacted to prevent the
ability of incompetent physicians from moving from state to state
without revelation or discovery of the physician’s prior incompetent
or damaging actions.[65] Thus the National Practitioner Data Bank (NPDB)
was created, and under HCQIA, hospitals and other health care
entities that take professional review action against a physician
are mandated to report their actions to the state board of medical
examiners, and are subject to sanctions if they fail to do so.[66]
The various types of information that is required to be reported to
the state board of medical examiners, who subsequently report to the
NPDB, include: (1) any professional review that adversely affects
the clinical privileges of the physician for longer than thirty
days; (2) the surrender of clinical privileges by a physician while
an investigation related to possible incompetence or improper
professional conduct is underway; (3) the surrender of clinical
privileges by a physician in return for the entity’s not conducting
an investigation; or (4) in the case of a professional society, a
professional review action that adversely affects the membership of
a physician in the society.[67]
A physician does have the ability to request from the NPDB the
reported information concerning his or her conduct, and may also
dispute the information reported by informing the Secretary of
Health and Human Services and the reporting hospital, and the
physician must also state the reasons for the dispute.[68] If the
reporting hospital declines to revise the challenged information,
then the Secretary is tasked with the responsibility of either
noting the data as “disputed” and offer a statement as to the nature
of the dispute, or in the alternative, correct the information and
forward the new report to those entities that have previously made
inquiries concerning the disciplined physician.[69]
As will be discussed later, many critics argue that this method of
challenging a peer review provides little in the way of correcting
the harm done to a physician’s reputation in the community. It
should also be noted that there are a variety of court cases that
extend HCQIA immunity to the actions of a health care entity that
complies with the reporting requirements of the Act.[70] For
example, in Bearden v. Humana Health Plans, where a physician was
terminated for not meeting the employer’s standard of care, sued for
damage to his reputation following the employer’s reporting of the
incident as required by HCQIA, the court observed that the immunity
provisions of the Act extended to the reporting of such conduct.[71]
However, the need for an effective physician peer review and a data
bank of incompetent physicians is not disputed. Indeed, there are
too many cases of incompetent and disruptive physicians in the
medical community to eliminate either the database or the medical
peer review system. For example, take the situation that occurred at
Trinity Hospital; a middle-aged man arrived at Trinity Hospital
complaining of chest pains, he was worried about his health, and
expected the hospital to do its best to treat him and ease his
worry.[72] Tests were run, and a coronary angiogram indicated the
patient had partial blockage in several coronary blood vessels and
that he was suffering a heart attack.[73] The man’s doctor, looking
out for his patient’s best interests, requested a consultation with
Dr. Magrinat, a cardiologist, who subsequently arrived at the
hospital a few hours later.[74] At this time, both doctors agreed
coronary bypass heart surgery was ultimately the best treatment for
the patient, but that conducting an immediate balloon angioplasty
procedure to relieve the patient's symptoms was also warranted.[75]
To ensure patient safety, hospital policy requires a surgical backup
team for balloon angioplasty, unless it is performed as an emergency
procedure.[76] Complicating the situation was the fact that there
was no backup team was available, yet Dr. Magrinat, who is qualified
to perform the procedure, determined an emergency angioplasty was
still needed.[77] However, the patient’s family signed the
appropriate consent forms requiring a backup surgery team for the
angioplasty procedure.[78]
Thus, when Dr. Magrinat attempted to obtain the necessary equipment
to perform the procedure, a hospital lab technician would not unlock
the cabinet which contained the necessary supplies, because the
consent documents did not authorize the emergency angioplasty
without the surgical backup team.[79] Dr. Magrinat then became, as
he said, “very upset.”[80] Hospital staff members stated that Dr.
Magrinat, in anger, grabbed a telephone receiver from a technician,
“striking her in the eye or the face,” and bruising her face in the
process.[81] Dr. Magrinat then allegedly told the patient, referring
to the hospital staff, that “they are going to kill you,” and “they
are going to let you die.”[82] The patient, understandably,
responded angrily by telling Dr. Magrinat that he was fired and
asked for another cardiologist to perform the procedure.[83]
Of course one would hope that such cases were isolated incidences,
however even just one doctor like Dr. Magrinat dramatically explains
why an aggressive peer review process for physicians is required to
help remove incompetent physicians and protect the public’s health
and safety, and why it is important have the National Practitioner
Data Bank in order to monitor the movements of incompetent doctors.
Indeed, HCQIA has been described as creating a “national net in
which to catch incompetent doctors.”[84] However, many argue that
this “national net” may catch more that it was designed to; for
instance, those physician’s similar to the hypothetical Dr. Adams,
who are denied hospital privileges not because they are bad doctors,
but for reasons that are not connected to quality of care issues,
such as personal vendettas, and political and economic motives.[85]
Undeniably, it is disturbing to note that even if a physician was
able to show that the peer review reached an incorrect conclusion,
that error does not itself meet the burden of contradicting the
existence of the reasonable belief that the committee was furthering
the quality of health care, which is would be required to defeat the
qualified immunity under HCQIA.[86] Therefore, despite the best
intentions of the Health Care Quality Improvement Act, there are a
number of critical flaws in the system that foster an environment of
bad faith peer review, which ultimately could harm the reputation of
competent physicians.
III. Defects in the Peer Review Process
It is reasonably safe to assume that the majority of peer review
committees are honest evaluations of a physician’s performance and
are not predisposed to the negative targeting and disciplining of a
certain type of physician.[87] However, some critics contend that
due to state immunity laws and federal law, it is accurate to
suggest that the current peer review process allows peer review
members the ability to practice arbitrary peer review with little
fear of repercussion.[88] As noted earlier, the consequences of a
bad faith peer review can be very harsh for the accused physician.
Therefore, it is essential to ensure that peer reviews are fair and
impartial. Some of the potential consequences include the loss of
hospital privileges, which has already been mentioned as very likely
to be disastrous to the success of the physician’s practice; the
reporting of the physician’s name and infraction to the National
Practitioners Data Base; the notification to insurance/HMO/Medicare
entities; and perhaps most destructive of all, the harm to the
physician’s reputation in the community.[89]
Indeed, it can be argued that whether or not the disciplinary action
of the peer review is overturned, it is wholly foreseeable that the
damage to a physician's reputation will have a longstanding effect
on the physician's marketability.[90] For example, fellow physicians
in the community may hesitate to refer patients to the falsely
accused physician, and patients themselves may not feel comfortable
with a physician who has an unjustly tarnished or questionable
record.[91] Interestingly, it appears that many of the sufferers of
bad faith peer reviews share many of the same qualities that can
make them an easy target for those seeking to unjustly or
maliciously disqualify them.[92] For instance, solo practitioners,
typically not having much political support, are frequently the
victims of bad faith peer reviews, as are physicians who are new to
a staff and have not yet made the necessary political contacts
needed for protection from bad faith peer reviews; and also included
in the vulnerable group are physicians who practice procedures that
are new or out of the mainstream.[93]
While it is arguable that the peer review process can be efficient
and effective only if the individuals involved can participate in an
open and honest discussion without fear of retaliatory lawsuits,[94]
critics maintain that the current peer review process is highly
political and can be easily manipulated to achieve economic or
power-driven gains by those on the peer review committees, or by
physicians with a personal or professional vendetta against a
colleague.[95] In addition, there are few options that an accused
physician has regarding a peer review. The Health Care Quality
Improvement Act, as well as some state statutes, establishes the
procedures that a peer review must follow, and these procedures are
incorporated into a hospital’s bylaws.[96] Adding to the distortion
of the peer review process is the tendency of some hospitals to
draft the bylaws for their benefit and protection; including the
drafting of provisions that limit a physician’s ability to have an
attorney at the proceeding.[97]
Such provisions, and others, make it extremely difficult for the
disciplined physician to prevail in challenging a peer review
decision. In addition, HCQIA itself tends to make it difficult for a
disciplined physician to prevail, especially due to its broad
“reasonableness” requirements. For example, Section 11112(a)(1) of
the Act merely requires that the peer review be taken “in reasonable
belief that the action was in furtherance of quality health
care.”[98] This broad standard enables hospitals to create options
to protect themselves from an antitrust lawsuit, including the
drafting of a provision in the hospital’s bylaws stating that “the
committee’s recommendation’s to the Hospital Board in no way
precludes the Board from exercising its own judgment; or a hospital
could rely on pro-competitive justifications.”[99]
As a result, such drafting permits a hospital to avoid litigation by
“claiming they are doing everything they can to remain
objective.”[100] Primarily, there are at least two areas that
concern critics of the current peer review process: the barrier to
the discovery of the deliberations of the peer review committee for
use in a civil trial, and the perceived lack of due process
available to the reviewed physician.[101]
While a “bad faith” peer review is not protected by HCQIA,[102] in
many cases, overcoming the large burden of proving a malicious or
bad faith peer review depends upon the physician’s ability to obtain
the information that was disclosed in the peer review hearing.[103]
This issue of the discoverability of peer review hearing documents
is one of the primary problems of the HCQIA. There is a split of
authority regarding whether Section 11137(b)(1) of the Health Care
Quality Improvement Act specifically, or if the Act generally,
“creates a federal peer review privilege that will protect
documents, statements, or information used in physician peer review
from discovery in a civil action.”[104]
Furthermore, while this report is focused on the discovery limits of
HCQIA, it is important to note that a majority of the states,
including South Dakota,[105] have statutes that prevent discovery of
peer review proceedings. In a case where the peer review privilege
was not found, the court in LeMasters v. Christ Hospital rejected
the defendant hospital’s claim that the peer review information
desired by the plaintiff physician was protected by a peer review
privilege under HCQIA.[106] The court’s decision was based on state
law, which states that the information was discoverable under its
laws, and thus, pursuant to Section 11137(b)(1) that the information
from the peer review hearing is to remain confidential unless its
disclosure is allowed under state law.[107] Therefore, the court
held that since the information was discoverable under state law,
then HCQIA did not apply and thus the hospital’s argument of a
federal peer review privilege had failed.[108]
There exists other cases that also hold that HCQIA does not provide
a federal discovery privilege that protects peer review information
from discovery in a civil lawsuit.[109] However, there are also a
variety of cases that do support the existence of a federal
statutory privilege under HCQIA.[110] In Cohn v. Wilkes General
Hospital, a chiropractor brought a federal antitrust claim against
the hospital as a result of the denial of hospital privileges.[111]
Here, the court held that the plaintiff could not receive the
requested information from the defendant hospital’s peer review
process due to the immunity provisions of HCQIA.[112] Also, in Wei
v. Bonner, the court there held that the principles behind HCQIA,
referring specifically to the Congressional Findings in the Act, as
well as the public policy behind the protection of the peer review
process as privileged, supported the conclusion that the protection,
the court said “in addition to state privilege, there is a federal
statutory peer review privilege. 42 U.S.C. § 11137(b)(1). The Act
provides that, with some exceptions, information reported under…the
Health Care Quality Improvement Act of 1986 is confidential and
cannot be disclosed.”[113] However, it is important to note that the
court went on to state that while it did find a federal privilege,
it would not be applicable in a federal antitrust suit; the court
stated that “the legislative history of the statute makes it clear
that the statute does not cover a federal antitrust suit. The
legislative history indicates that the privilege is qualified rather
than absolute.”[114]
As mentioned previously, in addition to the federal privilege from
discovery of peer review information, there also exists the barriers
of state law that the reviewed physician must overcome in order to
obtain the information used in the physician’s peer review hearing.
While some states have made exceptions to the discoverability of
peer review information, not all states have done so.[115] In fact,
in Grande v. Lahey Clinic, the Appeals Court of Massachusetts
considered whether the reviewed physician could depose an expert
used in a peer review action in a defamation suit.[116] The
plaintiff in the case, Dr. Grande, was cleared in the peer review
action and subsequently sought to depose the expert who testified at
the peer review action to determine if she was aware of any bad
faith activity at the hearing.[117]
The court held that the state’s non-discoverable peer review
protection applied to the expert's testimony, and therefore, Dr.
Grande was denied the discovery of any potentially damaging
testimony that would have supported his defamation suit.[118] Thus,
regardless of whether it is federal law or state law that limits
discovery, the result is that the reviewed physician has a large
hurdle to jump in proving to a court that there was a malicious or
bad faith peer review. It is maintained by some that due to the
discovery privileges, an accusatory physician involved in the peer
review process is able to manipulate the process to achieve ulterior
motives, for example by eliminating the economic competition in a
particular practice field.[119]
Following the United States Supreme Court’s ruling in Patrick v.
Burget, and the enactment of the Health Care Quality Improvement Act
of 1986, there have been very few courts that have permitted a
physician to overcome the immunity and confidentiality protections
afforded peer review hearings.[120] Nevertheless, there are a few
cases where the court has upheld a verdict where proof of deliberate
and extreme bad faith was present.[121] For example, in Brown v.
Presbyterian Health Care Services, in which a jury determined there
had been an element of bad faith involved in the peer review of the
disciplined physician, the court of appeals affirmed the jury's
decision, and held that the hospital was not entitled to the
immunity provisions under HCQIA.[122] However, this was a case where
there was an obvious element of bad faith involved in the peer
review process, since, as the court found, there was a direct link
between the accusing physician who initiated the peer review action
and the ultimate influence on the peer review committee and
governing board – especially since the accusing physician was on the
same governing board which made the decision to terminate the
accused physician’s privileges.[123]
In the case of Zamanian v. Christian Health Ministry, the evidence
of a direct link between malice and the peer review action was not
as obvious, yet the accused physician was able to overcome the
defendant’s claims of immunity.[124] In that case, the court of
appeals reversed the district court's summary judgment after ruling
found that there existed evidence that the hospital had financial
and economic reasons to discipline Dr. Zamanian, primarily because
he allowed patients to remain in the hospital for a longer period of
time than Medicare authorized, which resulted in a financial loss
for the hospital.[125]
However, after the jury found that a bad faith peer review was
conducted by the defendant hospital and awarded Dr. Zamanian $6
million in damages, emphasizing how great the barriers are for an
accused physician to prevail in a bad faith peer review case, a
civil district judge reversed the jury decision and set aside the
award, finding that the peer review process was indeed entitled to
immunity under state and federal laws.[126] It seems very apparent
that even if a physician is able to prove that bad faith or malice
is involved, the physician must still be prepared expend a great
deal of time and money for the cost of a lengthy legal process.
Indeed, few cases even manage to persist this far into the legal
process; in fact, this was the first case of its kind to reach a
jury trial in the state of Louisiana.[127]
Besides the issue of the discovery protection of peer review under
HCQIA, there is also the problem of a lack of due process for the
reviewed physician. The accused physician that finds themselves at
the wrong end of a peer review recommendation is has very few due
process options to appeal the final decision of the governing
board.[128] While the Act does require that the peer review hearing
be held before a mutually acceptable arbitrator, the hospital is not
required to provide appellate review of the decision following every
hearing.[129] Section 11112(b) of HCQIA provides a “safe harbor” to
those health care entities that correctly adhere to the statutory
notice and hearing provisions of the Act.[130] That section provides
that a “health care entity must give the physician involved notice
of any adverse professional review action proposed to be taken, a
statement for the reasons of the proposed action, and the time
within which the physician or dentist may request a hearing (which
may not be less than thirty days).”[131]
In addition, the notice is required to provide a summary of the
rights involved in the hearing, including the right to legal
representation; the right to cross-examine witnesses; the right to
present relevant evidence; to submit a written statement at the
conclusion of the hearing; the right to have a record of the
hearing; and to receive a written recommendation and the decision,
and the reasons for each.[132] Critics argue however, that once the
governing board makes its final determination, the accused physician
is left with virtually no option to appeal the decision of the
board, except perhaps attempting to take the hospital, and the
accusing physicians, through an expensive and time-consuming costly
trial.[133]
Unquestionably, the probability of an unemployed or negatively
affected physician, faced with the legal burden of proving bad faith
and having to contend with the confidentiality and immunity
protections provided by HCQIA and state laws, pursuing a civil claim
in court is very unlikely.[134] Therefore, since it is also argued
that the hearing and notice guidelines of HCQIA offer the accused
physician only a limited appellate procedure, a necessary reform in
these appellate procedures is drastically needed and would provide
the physician a neutral forum in which to have his peer review
properly evaluated for fairness and impartiality.[135]
IV. Defects in the National Practitioner Data Bank
More difficulties, in addition to the hardships of defeating a bad
faith peer review’s presumption of validity, await the accused
physician. The physician is also confronted with the hospital’s
mandatory duty to report the negative action to the National
Practitioner Data Bank. As stated previously, under HCQIA, a
hospital has the mandatory duty of reporting of credentialing
actions, malpractice payments and licensure actions.[136] Again, as
stated in the “Findings” of the Act, one of the primary purposes of
the NPDB is to prevent those physicians that have had their hospital
privileges terminated from merely moving to another state or another
hospital and continuing to practice without disclosure of their
incompetence.[137] The information submitted to the NPDP is meant to
be strictly confidential, and is meant to be only accessible by
hospitals and other health care entities to alert them to physicians
who have had adverse actions taken against them that has resulted in
the loss of their privileges or licenses.[138]
However, many contend that the information has become easily
accessible to attorneys, and members of the media, thereby
diminishing the confidentiality of the information that the NPDB was
meant to provide.[139] In addition, following the submission of a
report, valid or not, to the NPDB, any hospital to which the
disciplined physician attempts to gain privileges will be made aware
of the adverse action, and thus, in effect, the reviewed physician
is essentially “blacklisted.”[140] While an appeals process does
exist for the reviewed physician to dispute the accuracy of the
report, by contacting the Secretary of Health and Human Services, it
is important to note that this is not “an appellate procedure of the
actual peer review action; it is simply an appeal of the reported
information.”[141]
Moreover, at times this review of the information submitted to the
NPDB may be too damaging, and extremely difficult for the physician
to overcome; for instance, in cases involving a summary suspension,
by the time a doctor even receives a hearing on the matter, the
damage has already been done.[142] Therefore, at times the mere
perception or allegations that a physician may have had a negative
peer review action against them is enough stop the physician from
obtaining privileges at another hospital, thereby ruining their
economic and professional opportunities.[143] Additionally, to make
the situation even worse, some who have undergone the peer review
process, whether or not found innocent of the allegations made
against them, may still be victims of unequal treatment by
hospitals. Thus, “although the NPDB was originally intended to
monitor problem physicians, many in the medical community are
concerned that it has accomplished the complete opposite, leading to
the unintended consequence of destroying the careers of many
qualified physicians.”[144]
V. Suggested Remedies
There are a variety of remedies that are available that can
alleviate many of the flaws currently found in the medical peer
review process. Such possible remedies include the expansion of the
peer review appeals process; individual state action by increasing
the exceptions to the non-discoverability statutes; the early and
watchful intervention by hospital administrators in identifying
malice driven peer reviews; and the implementation and emphasis on a
more open dialogue between physicians and hospitals.
Many argue that a large amount of the problems of the current peer
review process is due to a deficient appeals process for the accused
physician.[145] Thus, it would be beneficial to the goal of
eliminating the current environment that fosters bad faith peer
review by establishing a procedure of permitting the sanctioned
physician to appeal the decision to an independent review board
outside of the hospital; such a process would improve much of the
uncertainty and ambiguity that is tainting the current peer review
system.[146] It is very likely that an independent analysis of the
facts by independent review board would defuse much of the pressure
regarding the peer reviewers as well as those physicians being
reviewed.[147] The establishment of an independent review board
would both ensure the dependable application of generally accepted
medical standards, as well as provide the reviewing physicians with
the added protection of an extra layer of review, thus strengthening
the validity of the original peer review committee’s findings if the
independent board confirms the original findings justifying the
revocation of privileges or sanctions.[148]
Additionally, since hospital privileges have become such an
invaluable advantage for today’s physicians, it is reasonable to
suggest that state government should have an increasing role in the
oversight of hospital privileges.[149] Such a state oversight could
possibly consist of a review panel of doctors from around the state
who would review the peer review committee's findings, and “could
even relieve the hospital of any supervisory activity by simply
allowing all peer review actions to be controlled by the
state.”[150] Furthermore, if a state is disinclined to accept such
responsibility, then, in the alternative, the state should then
allow the sanctioned physician to have immediate access to the state
courts to appeal the governing board’s decision.[151] It certainly
does not offend one’s sense of justice to allow a sanctioned
physician the opportunity to present his case to an independent and
impartial court of law.
In addition to the expansion of the appeals process, another
possible solution to the flaws in the current peer review process is
to call for an additional number of states to expand their
non-discoverability statutes. As of 2001, seventeen states have
adopted exceptions to their non-discoverability peer review
statutes.[152] In these states, the statutes allow physicians to
obtain access to peer review materials when challenging the
curtailment, suspension, termination or denial of staff
privileges.[153] At this time, the Health Care Quality Improvement
Act does not carry any such protection for disciplined physicians,
and as a result, there is a great burden on the disciplined
physician in obtaining any evidence that could prove that there was
malice present at the peer review hearing, and thus making it
exceedingly difficult for the physician to make a case for bad faith
peer review and survive a motion for summary judgment in favor of
the hospital.[154]
Indeed, “it is vital to remove the immunity veil that physicians are
able to hide behind, which allows them to manipulate the peer review
process in order to achieve politically or economically motivated
goals.”[155] Consequently, with the expansion of the accused
physician’s ability to obtain discovery of the peer review hearings,
and by removing the immunity shields, peer review committees will be
required to rely more on medical doctrine and principles and less on
“personally driven agendas.”[156]
There is also a role that hospital administrators can play in
helping to prevent the continuation of bad faith peer reviews.
Hospital administrators that oversee peer review actions can, early
on in the process, be aware of factors that can have the tendency to
appear “malicious,” and thus prevent a bad faith peer review from
being initiated or continuing, and thus spare a physician an unjust
attack on his or her reputation and livelihood.[157] For instance,
one hint that a peer review was initiated in bad faith or with
malice is if the complaint originated outside of the normal course
of peer review quality assurance functions.[158] If the hospital’s
quality assurance system is operating properly, any pattern of
questionable judgment or malpractice will be identified, thus any
complaint that originates from outside the normal quality assurance
system should be viewed with skepticism, and scrutinized for any
improper motivations and indications of malice.[159]
Additionally, situations where the hospital’s initial action is the
expulsion of the physician from the hospital should also be viewed
with skepticism.[160] Normally, the initial procedure of the
hospital to any complaint of a physician’s competency should be to
investigate the matter, and following the investigation if there are
concerns about the physician’s abilities, the hospital would be wise
to correct the problem via training and education, consultation with
other physicians, or limitations on the physician’s procedures,
before any sanctions are considered.[161] By following such
procedures, hospital administrators can prevent any unjust and
malicious peer review hearings, and ultimately prevent any
subsequent litigation against the hospital. Indeed, critics of the
NPDB argue that continued education and training is a better
alternative than merely submitting the physician’s name to the
national data bank.[162]
These critics maintain that the NPDB imposes strict reporting
requirements with consequences that encourage hospitals not to
report actions taken, and thus instead of attracting public exposure
to potential problems at the hospital, hospitals will “instead seek
out alternative corrective measures to avoid reporting.”[163] “An
alternative approach to the peer review process that has been
advocated by many in the medical profession views quality of care
not from an adversarial, aggressive standpoint, but rather from a
theory of continuous improvement used by health care entities should
be the goal of the NPDB; further education and training should be
the rule, rather than permitting a simple submission of a name to a
data bank that would effectively end the career of a
physician.”[164]
Hospital administrators should also be aware of alert to any sign of
unequal or disparate treatment of a physician in comparison with one
of his or her colleagues, and any such indication of unequal conduct
should alert hospital administrators that malice might be
involved.[165] A physician should not be subjected to a peer review
action merely because of the physician, like the hypothetical Dr.
Adams, chooses to follow a different school of thought than their
seniors or committee members.[166] Physicians are allowed to follow
a variety of medical schools of thought, and “any time a physician
is singled out for disciplinary action based not on the quality of
care he or she provides but rather on what is, in effect, the
discriminatory preferences of peer review participants, the actions
should be suspect.”[167] As all these factors indicate, there is a
large role that hospital administrators can play in reducing or
eliminating malicious or bad faith peer reviews.
VI. Conclusion
Most Americans expect the best quality health care available for
themselves and their families, and they expect their physician’s to
be competent and skilled. The Health Care Quality Improvement Act of
1986 is, ostensibly, meant to protect the public from incompetent
physicians by allowing those physicians on peer review committees to
communicate in an open and honest environment and thus weed out
incompetent physicians, without the specter of a retaliatory lawsuit
by the reviewed physician. However, the consequences of the Act have
instead helped promote an environment that protects those physicians
on a peer review committee when they distort the review process for
their own gain, by maliciously disciplining those physicians that
may be in political or economic competition.
What is to become of the hypothetical Dr. Adams when there is no
avenue for just and equitable relief from a malicious peer review?
Indeed, after years of schooling and incurring huge student loan
debt, is Dr. Adams to merely give up and quit her profession, or in
the alternative engage in the costly and uphill legal battle of
proving that the peer review was held maliciously or in bad faith?
Perhaps one or all of the remedies that are available, such as the
expansion of the peer review appeals process, or the state action of
increasing the exceptions to the non-discoverability statutes, or
the intervention by hospital administrators in identifying malice
driven peer reviews; or the implementation and emphasis on a more
open dialogue between physicians and hospitals can begin to help Dr.
Adams and repair the problems that exist in the current system.
Whichever remedy is used, it is imperative to the success of the
primary goal of HCQIA, the improvement of the quality of health care
in America, that some relief be available to those physicians who
have been unjustly maligned through the bad faith peer review
process. The failure to change and improve the current system will
continue to result in the loss of qualified and skilled physicians
from their profession due to others who maliciously pervert the
current peer review process for their own selfish motives.
--------------------------------------------------------------------------------
[1] Pauline M. Rosen, Medical Staff Peer Review: Qualifying the
Qualified Privilege Provision, 27 Loy. L.A. L. Rev. 357 (1993).
According to Rosen, Dr. Adams is a fictional plaintiff and her
situation was taken from a combination of cases and stories
expressed during congressional hearings in 1986.
[2] Id. at 358.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Rosen, supra note 1, at 358.
[8] Id. at 360.
[9] Id.
[10] Id.
[11] Clark v. Columbia/HCA Information Services, Inc., 25 P.3d 215,
218 (NV 2001).
[12] Id.
[13] Id.
[14] Id. at 219.
[15] Id. at 221.
[16] Id. at 222.
[17] Clark v. Columbia/HCA Information Services, Inc. at 222.
[18] Scott M. Smith, J.D., Construction and Application of Health
Care Quality Improvement Act of 1986, 121 A.L.R. Fed. 255 (1994).
[19] Yann H.H. van Geertruyden, The Fox Guarding the Henhouse: How
the Health Care Quality Improvement Act of 1986 and State Peer
Review Protection Statutes Have Helped Protect Bad Faith Peer Review
in the Medical Community, 18 J. Contemp. Health L. & Pol’y 239, 240
(2001).
[20] American Bar Association, Section of Antitrust Law, Practical
Applications of the Health Care Quality Improvement Act, (Roxane C.
Busey, ed., ABA, 1994), p. 5.
[21] van Geertruyden at 242.
[22] Practical Applications of the Health Care Quality Improvement
Act, p. 5.
[23] van Geertruyden at 243.
[24] Smith, supra note 18, at 15.
[25] Id.
[26] Josephine M. Hammack, The Antitrust Laws and the Medical Peer
Review Process, 9 J. Contemp. Health L. & Pol’y 419, 437 (1993).
[27] Id. at 419.
[28] van Geertruyden, supra note 19, at 242.
[29] Id.
[30] Id. at 241.
[31] Id.
[32] Smith, supra note 18, at 15.
[33] Lawrance A. Manson, Maintaining the Peer Review Privilege,
Anti-Trust Developments in Evolving Health Care Markets, (Howard
Feller, ed. Section of Antitrust Law, American Bar Association), p.
189, citing 15 U.S.C. § 1.
[34] Id.
[35] Smith at 15.
[36] Hammack, supra note 26, at 420.
[37] Id. at 422.
[38] Smith, supra note 18, at 15.
[39] Practical Implications of the Health Care Quality Improvement
Act, p. 17. Note: HCQIA has been amended by the Public Health
Services Amendment of 1987, and the Omnibus Budget Reconciliation
Act of 1989, see Pub. L. No. 100-177 (Dec. 1, 1987) and Pub. L. No.
101-239 § 6103(e)(6) (Dec. 19, 1989) respectively.
[40] 42 U.S.C. § 11101.
[41] Hammack, supra note 26, at 433.
[42] Patrick v. Burget, 486 U.S. 94, 96 (Ore. 1988).
[43] Id.
[44] Id.
[45] Id.
[46] Practical Implications of the Quality Health Care Improvement
Act, p. 15.
[47] Id.
[48] Id.
[49] van Geertruyden, supra note 19, at 245.
[50] Practical Implications of the Quality Health Care Act of 1986,
p. 15. Note: The remainder of the $2.2 million jury award was on the
state law claims.
[51] van Geertruyden at 245.
[52] Practical Implications of the Quality Health Care Act of 1986,
p. 17.
[53] van Geertruyden at 245.
[54] Practical Implications of the Quality Health Care Act of 1986,
p. 17.
[55] Mark A. Colantonio, The Health Care Quality Improvement Act of
1986 and its Impact on Hospital Law, 91 W. Va. L. Rev. 91, 92
(1988).
[56] M. Elizabeth Gee, Health Care Quality Improvement Act Immunity:
An Antitrust Help or Hindrance?, Antitrust Problems and Solutions in
a Changing Health Care System, (H. Suzanne Smith, ed., Section of
Antitrust Law American Bar Association, p. 105, 1994).
[57] Practical Implications of the Quality Health Care Improvement
Act , p. 17.
[58] 40A Am. Jur. 2d § 26, p. 444, referencing 42 U.S.C. §
11111(a)(1).
[59] Id.
[60] Colantonio, supra note 55, at 94.
[61] Id.
[62] Id.
[63] van Geertruyden, supra note 19, at 247, quoting 42 U.S.C. §
11112(a).
[64] Id.
[65] 40 Am. Jur. 2d § 26, p. 443 referencing 42 U.S.C. § 11101.
[66] Id.
[67] Practical Implications of the Health Care Quality Improvement
Act of 1986, p. 62, referencing 42 U.S.C. § 11133(a)(1).
[68] Colantonio, supra note 55, at 98.
[69] Id. at 99.
[70] Smith, supra note 18, at 33.
[71] Id. referencing Bearden v. Humana Health Plans, 1992 WL 245604,
N.D. Ill. (1992).
[72] Magrinat v. Trinity Hospital, 540 N.W.2d 625, 626 (N.D. 1995).
[73] Id. at 627.
[74] Id.
[75] Id.
[76] Id.
[77] Id.
[78] Magrinat v. Trinity Hospital. at 627.
[79] Id.
[80].Id.
[81] Id.
[82] Id.
[83] Id.
[84] Rosen, supra note 1, at 361.
[85] Id.
[86] Smith, supra note 18, at 23 citing Brader v. Allegheny General
Hospital, 167 F.3d 832 (3rd Cir. 1999).
[87] van Geertruyden, supra note 19, at 252.
[88] Id.
[89] Id.
[90] Id.
[91] Id.
[92] Id.
[93] van Geertruyden, supra note 19 at. 252.
[94] Smith, supra note 18, at 1.
[95] van Geertruyden at 252.
[96] Id. at 264.
[97] Id. at 264.
[98] van Geertruyden,, supra note 19, at 265, quoting 42 U.S.C.
11112(a)(1).
[99] Hammack, supra note 26, at 449.
[100] van Geertruyden at 266.
[101] Id. at 253.
[102] Daniel M. Warner, Understanding and Defending Against Medical
Professional Peer Review Antitrust Claims, 22 U. Balt. L. Rev. 269,
282 (1993).
[103] van Geertruyden, p. 260.
[104] Smith, supra note 18, at 18.
[105] See South Dakota Codified Law § 36-4
[106] Smith, supra note 18, at 18, citing LeMasters v. Christ
Hospital, 791 F. Supp. 188 (SD, Ohio 1991).
[107] Id.
[108] Id.
[109] Id. at 19. See Also Teasdale v. Marin General Hospital, 138
F.R.D. 6691, (N.D. Cal, 1991), and Pagano v. Oroville Hospital, 145
F.R.D. 683 (E.D. Cal, 1993).
[110] Id. at 20.
[111] Id. at 21 referencing Cohn v. Wilkes General Hospital, 127
F.R.D. 117, (W.D. NC, 1988).
[112] Manson, supra note 33, at 197.
[113] Id. Quoting Wei v. Bodner, 127 F.R.D. 91, 97 (D.N.J. 1989).
[114] Smith, supra note 18, at 19, quoting Wei v. Bodner, 127 F.R.D.
91, 91, (D.N.J. 1989).
[115] van Geertruyden, supra note 19, at 264.
[116] Id.
[117] Id.
[118] Id.
[119] Id.
[120] Id.
[121] van Geertruyden, supra note 19, at 259.
[122] Id.
[123] van Geertruyden, supra note 19, at 260, citing Brown v.
Presbyterian Health Care Services, 101 F.3d 1324 (1996).
[124] Id.
[125] Id. Citing Zamanian v. Christian Health Ministry, 715 So.2d 57
(La. App. 4th Cir. 1998).
[126] Id. at 261.
[127] Id. at 262.
[128] Id. at 254.
[129] Colantonio, supra note 55, at 95.
[130] Practical Implications of the Health Care Quality Improvement
Act of 1986, p. 38
[131] Id.
[132] Id.
[133] van Geertruyden, supra note 19, at 253.
[134] Id. at 256.
[135] Id.
[136] Id. at 257.
[137] Practical Implications of the Health Care Quality Improvement
Act, p. 17.
[138] van Geertruyden, supra note 19, at 247.
[139] Id.
[140] Id. at 257.
[141] Id. at 258.
[142] Id.
[143] Id.
[144] van Geertruyden, supra note 19, at 258.
[145] Id. at 267.
[146] Id.
[147] Id.
[148] Id.
[149] Id.
[150] van Geertruyden, supra note 19, at 268.
[151] Id.
[152] Id.
[153] Id.
[154] Id.
[155] Id.
[156] van Geertruyden, supra note 19, at 268.
[157] Rosen, supra note 1, at 381.
[158] Id.
[159] Id.
[160] Id.
[161] Id.
[162] van Geertruyden, supra note 19, at 269.
[163] Id.
[164] Id.
[165] Rosen, supra note 1, at 389.
[166] Id. at 391.
[167] Id.
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