Singularity Health Law Blog

10 CRITICAL PRO IMMUNITY PEER REVIEW CASES: Number 10

 

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. 10: Reyes v. Wilson Memorial Hospital, 102 F Supp. 2d 798 (S.D. Ohio, 1998).

Dr. Reyes was a board certified internist who did not get along with his colleagues at the hospital. Having been summarily suspended in a peer review process, he sued the hospital for antitrust violations and and state law torts, to which the defendants raised the issue of immunity. According to an affidavit filed by Dr. Reyes in opposition to a motion for summary judgment,  he suffered the resentment of his fellow doctors because of the effect his method of practice had on the income of the Defendants. Plaintiff occasionally referred patients to hospitals other than Wilson Memorial and to doctors other than those named as Defendants. Dr. Reyes' practice of referring patients to other hospitals and to other doctors caused the Defendants to suffer a loss of income . 

 

THE PROBLEM WITH PEER REVIEW.

Peer review is the process of evaluation of individual professional performance, by qualified peers as part of a system to maintain standards and improve performance within the profession. If misused, peer review can be a powerful weapon to constrain competitors, to eviscerate political rivals and to energize personal egos through the diminishment of other professionals. In medicine, under the shelter of near absolute immunity provided by the Health Care Quality Improvement Act of 1980 (“HCQIA”) and state peer review counterparts, the system of review and accountability as enacted by the legislatures and reviewed by the courts assumes a level of good faith and fair treatment by professionals of one’s colleagues. Like any system with a concentration of unaccountable power to destroy the professional reputation and livelihood of one’s colleagues, there are bound to be abuses.

 

TOP 10 “NO IMMUNITY” SHAM PEER REVIEW CASES: Number 1.

This is a series describing the top ten “no immunity” sham peer review cases where defendants’ motions for summary judgment based upon the immunity provided under the Health Care Quality Improvement Act of 1986, 42 U.S.C. Sec. 11112 (“HCQIA”) were denied in state or federal courts. 

NUMBER 1: Brown v. Presbyterian Healthcare Services et al; 101 F.3d 1324 ( 10th Cir. 1996)

This case arose in the enchanted state of New Mexico. The Plaintiff,  Arlene M. Brown, M.D. was a family practice physician in Riodoso, New Mexico.  Also practicing in Riodoso was Dr. Vickie Willliams andOB/Gyn Physician and an economic competitor of Dr. Brown, who particip

TOP 10 “NO IMMUNITY” SHAM PEER REVIEW CASES: Number 2.

This is a series describing the top ten “no immunity” sham peer review cases where defendants’ motions for summary judgment based upon the immunity provided under the Health Care Quality Improvement Act of 1986, 42 U.S.C. Sec. 11112 (“HCQIA”) were denied in state or federal courts.

NUMBER 2:  Clark v. Columbia/HCA Information Services, Inc. , 25 P 3d 215 (Nev. 2001).

Dr. Clark was a child psychiatrist with privileges at West Hills Hospital in Reno owned by  Columbia/HCA.  The medical staff made him the subject of peer review for “disruptive conduct:” because he complained to outside third parties about the quality of psychiatric care provided to children in the hospital and had policies regarding pre-mature discharges of patients when their insurance money ran out. The hospital raised other quality of care issues, but the prosecution of the peer review issues centered on his so-called disruptive conduct or whistle-blowing. He first filed an antitrust claim in federal court where he was dismissed out because of a lack of evidence to support those claims. The federal judge indicated that his claims would probably be barred by HCQIA immunity anyway.  

TOP 10 “NO IMMUNITY” SHAM PEER REVIEW CASES: Number 5

This is a series describing the top ten “no immunity” sham peer review cases where defendants’ motions for summary judgment based upon the immunity provided under the Health Care Quality Improvement Act of 1986, 42 U.S.C. Sec. 11112 (“HCQIA”) were denied in state or federal courts.

NUMBER 5: Jeung v. McCrow, 264 F. Supp 2d 557 (E.D. Mich. 2003)

Dr. Jeung was a surgeon of Korean descent who practices at Hill and Dale Hospital in the Eastern District of Michigan, Norther Division. Denise McKrow was the hospital administrator.  More than half of the medical staff at the hospital was non-caucasian and Dr. Jeung accused Ms. McCrow of efforts to bring in more caucasian physicians including surgeons who would be retained as employees of the hospital.  The hospital received complaints that Dr. Jeung engaged in abusive treatment of nurses at the hospital and there were concerns about his management style and interpersonal relationship skills.  An independent physicians hired by the Board to evaluate the circumstances opined that he thought Ms. McCrow was “out to get” Dr. Jeung.

TOP 10 “NO IMMUNITY” SHAM PEER REVIEW CASES: Number 7

This is a series describing the top ten “no immunity” sham peer review cases where defendants’ motions for summary judgment based upon the immunity provided under the Health Care Quality Improvement Act of 1986, 42 U.S.C. Sec. 11112 (“HCQIA”) were denied in state or federal courts.

NUMBER 7:  In Re: Peer Review Action, 749 N.W. 2d 822 (Minn. Ct.  App 2008)

This was an action against an anonymous physician who appears to be a surgeon for imposition of a 120 suspension and 5 years probation for disruptive conduct. The hospital had a disruptive physician policy that provided for graduated sanctions with notice and the opportunity to develop conflict resolution skills.  The hospitals Vice-President of Medical Services commenced an investigation of the physician on the basis of claims of disruptive conduct with only one specific date mentioned where the physician was alleged to have been “uncompromising with an anesthesiologist”, where he or she lost his or her temper and let forth a stream of profanity. (We know this is a male don’t we?)  During the process of addressing this issue before a hearing committee the committee found ample evidence of disruptive behavior and did not address the physician’s concern about the lack of notice and opportunity to self correct.  

 

PHYSICIAN EMAIL RANT PROVIDES LIABILITY EVIDENCE.

 

In Allison Moon v. Michigan Reproductive and IVF Center, P.C. and Grand Rapids Fertility and IVF, P.C. LC No-004732 CZ (Mich. App. September 29, 2011), the Michigan Court of Appeals entered an unpublished, per curiam decision reversing a trial court dismissal of a state civil rights suit for discrimination based on marital status when the Defendant refused to treat the patient with in vitro fertilization because she was a single woman.

HARASSMENT CLAIM BY FEMALE NEUROSURGEON - AFFIRMED AT $2.9M

The first circuit court of appeals affirmed a harassment judgment brought by a female neurosurgeon against a Boston hospital affiliated with the Harvard health care system in the amount of $2.9 Million Dollars. In the case of Tuli v. Brigham & Woman’s Hospital, No 08-2006,(8/29/11), the First Circuit Court  of Appeals, affirmed the judgment of the trial court in favor of Dr. Tuli. The court affirmed that Dr. Arthur Day and Dr. Kim  Dong created a hostile work environment by making comments about Dr. Tuli that were blatantly sexist and humiliating. Dr. Tuli complained to the hospital’s chief medical officer, without receiving any remedy.

 

PHYSICIAN MUST ATTACK TOTALITY OF PEER REVIEW PROCESS TO OVERCOME HCQIA IMMUNITY.

The New Mexico Supreme Court recently reversed the denial of a motion for summary judgment by a hospital claiming immunity under the Health Care Quality Improvement Act of 1986. William K. Summers, M.D. brought an action for damages against Ardent Health Services, LLC and Lovelace Health System, Inc., claiming defamation, breach of contract, prima facie tort, and tortious interference with prospective contracts as a result of a hospital peer review action against him. He claimed that hospital investigations resulting int he suspension of his internal medicine and psychiatry privileges were retaliatory as the result of his reporting questionable practices of hospital administrators.

 

PHYSICIAN ANGER MANAGEMENT IN WYOMING

Dr. Chris Guier, M.D., who is apparently a competent and intense orthopedic surgeon has an anger management problem. On February 24, 2011, the Wyoming Supreme Court affirmed his termination as a member of the St. John's Medical Center hospital in Jackson, Wyoming because of disruptive behavior. Guier v. Teton Co. Hospital District, No. S-09-0259. In doing so the hospital skipped over the procedures in the hospital's disruptive physician policy and proceeded to directly terminate him under the hospital's medical staff by-laws. The hospital's bylaws required that the physician has the burden to prove the adverse recommendation by the medical staff was without merit by a preponderance of the evidence. Dr. Guier argued that that standard was unfair and conflicted with the provisions of Wyoming's administrative procedure act. The operating room staff at the hospital had refused on three occasions over some 14 years to work with Dr. Guier in the operating room. In 2006 in a reappointment agreement he agreed to a set of narrow limitations designed to control his explosive displays of anger. His conduct seems largely related to frustrations in the process of events in the operating room. "Level 10 yelling," tossing of scissors, demeaning comments and name calling. Dr. Guier perhaps could have used some anger management therapy. There is an interesting scene in the movie, Anger Management in which Adam Sandler as patient and Jack Nicholson as therapist suddenly block traffic on a New York bridge during rush hour when Nicholson grabs the hand break in response to Sandler's mounting anger and requires him to go to a different place with his anger by singing "I feel pretty, oh so pretty . . . ." Singing in the Operating Room may lead to other types of intervention but it is an innovative concept, much more conducive to waves of negative vibrations from explosive anger. The Wyoming Supreme Court in affirming the trial court and the Medical Staff determined that pure angry behavior was enough to terminate a competent physician's privileges, quoted the Oregon Supreme Court in Huffaker v. Bailey, 540 P 2d 1398 (Or. 1975). "Most other courts have found that the factor of a ability to work with others is reasonably related to the hospital's object of ensuring patient welfare. This conclusion seems justified for, in the modern hospital, staff embers are frequently required to work together or inseams, and a member who, because of personality or otherwise, is incapable of getting along, coulee diversely hinder the effective treatment of patients." A surgeon singing in the operating room may be disconcerting and probably annoying, but there has not yet been a single case reporting it to constitute disruptive conduct. Hopefully these kinds of interventions can develop earlier in the process.