SHAM PEER REVIEW AND THE EVOLUTION OF IMMUNITY (PT.2)
THE HEALTH CARE QUALITY IMPROVEMENT ACT OF 1986, 42 U.S.C. 11101-11152 (“HCQIA”)
While the Patrick v. Burget case was winding its way toward the U.S. Supreme Court (See pt 1) Congress was concerned about the rise in medical malpractice cases and the apparent ineffectiveness of peer review which allowed incompetent physicians to move from state to state impunity when they were professionally “outed.” It was also concerned about the impact the Patrick case would have on the willingness of physicians to sit on peer review panels because of the potential liability. In the decade before 1987 there were more medical malpractice cases filed than in the entire prior history of tort law. The AMA lobbied very hard for both confidentiality in peer review and immunity for the participants. Congressman Ron Wyden of Oregon introduced HCQIA legislation (Patrick was an Oregon case).
HCQIA (1) established the National Practitioner Data Bank (the NPDB) as a national repository for reports of adverse professional peer review actions and for malpractice payments; (2) provided for mandatory reporting by hospitals, state medical boards and insurance companies of adverse actions with regards to licensing, hospital privileges and malpractice settlements to the NPDB; (3) required all hospitals credentialing physicians to query the NPDB at least biennially and (4) provided for qualified immunity for peer review participants who meet the standards of Section 11112 of HCQIA.
The initial HCQIA bill, H.R. 5110, contained a provision that provided immunity from suit. Qualified immunity is generally perceived as immunity from damages absent some showing of bad faith or malice. Some legislators were concerned that complete immunity from suit would raise the specter of large scale abuse of the process for ulterior poses. H.R. 5540 was introduced in stead with the qualified immunity provisions, but the standards for immunity were intended to be objective rather than subjective in their application.
In order for immunity to attach to a professional review action it 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 forward to the physician involved or after such other procedures as a 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 requirements of (3) above.
HCQIA at Section 11112(a) provided that the HCQIA standards “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 action would restrict incompetent behavior or would protect patients” and that “a] professional review action shall be presumed to have met the [4 HCQIA] standards . . . unless the presumption is rebutted by a preponderance of the evidence.”
Section 11112(b) of HCQIA provides a list of procedures that if undertaken by the reviewing body would meet the “adequate notice and hearing requirements” of condition (3) in the immunity requirements. However, there is a catch in the same section.
A professional review body’s failure to meet the conditions described in this subjection shall not, in itself, constitute a failure to meet the standards of subsection (a)(3).
The vast majority of cases for damages brought against hospital peer review members are dismissed by courts on motions for summary judgment. The irony is that a panel of incompetent doctors with long histories of malpractice can sit in judgment of a physician who is unable to show that he or she is being discriminated against in bad faith by accusers who are substantially less competent because their own capabilities and malpractice experience cannot be considered as it would be irrelevant if there is any colorable basis for the complaint against the physician scrutinized. See Floyd T. Bryan v. James E. Holmes Regional Medical Center, 33 F. 3d 1318 (11th Cir. 1994)(“The test is an objective one, so bad faith is immaterial. The real issue is the sufficiency of the basis for the [Hospital’s] actions.”)
HCQIA immunity as written an widely interpreted presents a long uphill slog in any attempt to recover damages for sham peer review and the opportunity for some to take manipulation in workplace politics to unconscionable levels of impunity.
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