This is a series describing the ten important pro-immunity peer review cases where court have granted immunity to peer reviewers under the Health Care Quality Improvement Act of 1986, 42 U.S.C. Sec. 11112 (“HCQIA”).
No. 4: Austin v. McNamera, 979 F.2d 728 (9th Cir., 1992)
Dr. George Austin was a neurosurgeon who received medical staff privileges at Santa Barbara Cottage Hospital. Dr. McNamera was the Chief of Staff at Cottage Hospital. Dr. Austin complained that he was attacked by other members of the medical staff in front of nurses and that other neurosurgeons at the hospital refused to cover for him. The medical staff commenced an investigation of his cases by members of the medical staff and two outside reviewers. The outside reviews were generally favorable to him despite some limited reservations. Three days after HCQIA became law, Dr. McNamera summarily suspended Dr. Austin for seven months. During his suspension he continued his practice at other local hospitals where his privileges remained intact.
Following his termination he obtained the right to a review by the hospital’s Judicial Review Committee that found that based on the facts presented that his suspension was “unreasonable.” They did however impose some “appropriate conditions” along with the lifting of his suspension. Dr. Austin filed suit claiming that he was a victim of vicious and anticompetitive behavior by the medical staff and that based on the JRC decision his suspension was unreasonable, thus thwarting immunity under HCQIA. The court quoted a legislative committee report that the “reasonableness” standard was an objective one rendering “bad faith” irrelevant.
Initially, the Committee considered a "good faith" standard for professional review actions. In 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, the Committee changed to a more objective "reasonable belief" standard. The Committee intends that this test will be satisfied if the reviewers, with the information available to them at the time of the professional review action, would reasonably have concluded that their actions would restrict incompetent behavior or would protect patients.
The Court, further, ruled that the JRC decision to include some limitation on his privileges justified a different type of “reasonableness” standard, under the objective rule.
Judge Pregerson dissented, primarily on the basis that the JRC finding of unreasonableness provided ample evidence that Dr. Austin’s suspension was “unreasonable” and not entitled to the HCQIA immunity. He also noted that all of the conduct, save for the actual suspension, occurred before the enactment of HCQIA and that he disagreed with the decision of the other panelists to retroactively apply it.