Singularity Health Law Blog

SCOTUS REELS IN “STATE ACTION” ANTITRUST IMMUNITY DEFENSE

The United States Supreme Court, in a unanimous opinion written Justice Sotomayor, overturned an Eleventh Circuit Court of Appeals and Georgia District Court finding “state action” antitrust immunity in the case of FTC v. Phoebe Putney Health System, Inc. et al, No. 11-1160. Had they ruled otherwise there would have opened a huge whole in the FTC’s ability to regulate anticompetitive conduct by state sub-entities under a general grant of state authority. Georgia like many states has a hospital authorities law that permits counties and or municipalities to create quasi governmental entities with broad grants of powers to operate health care facilities.

INDIAN CARDIOLOGISTS CAN PURSUE DISCRIMINATION CLAIM

 On November 30, 2012, Judge Greg Costa of the U.S. District Court for the Southern District of Texas, on remand from the 5th Circuit Court of Appeals, allowed three Indian cardiologists to move forward with their discrimination claim against David P. Brown, the administrator of Citizen’s Medical Center, finding that under the McDonnell Douglas shifting burden framework, the plaintiff’s had met their burden of showing a prima facie case of discrimination through circumstantial evidence  on 4 out of 8 adverse employment actions alleged by the plaintiffs and that the justifications offered by the defendant were pre-textual.

 

SCOTUS HEARS GEORGIA “STATE ACTION” ANTITRUST CASE

On November 26, 2012 the Supreme Court of the United States will hear an important antitrust case where an admittedly anticompetitive merger between two hospitals in Georgia was immunized against FTC action by  the application of the “state action” defense first promulgated under the precedent of Parker v. Brown, 317 U.S. 341 (1943)(the Sherman Act does not subject states to liability for anticompetitive conduct within their jurisdiction). Political subdivisions of the a state are not automatically protected by the Parker doctrine, but may under some circumstances be granted immunity if the state generally authorizes the challenged action and the state has a “clearly articulated policy authorizing anticompetitive conduct.

 

SHAM PEER REVIEW BOOK INTERVIEW: Greg Piche´

Those that are interested can find an interview of the author of Sham Peer Review by the Denver Press Club at the following link.

http://denver.granicus.com/MediaPlayer.php?view_id=96&clip_id=5585

PEER REVIEW DAMAGES CLAIM WEARS THIN.

“Yo-yo litigation” bouncing back and forth between trial courts and appellate courts is wearing and expensive. Dr. Richard Chudacoff, M.D. should be able to attest to that.  Prior to moving to Las Vegas, Nevada in 2008, he was a renowned minimally invasive gynecological surgeon at Baylor University in Texas. In May of 2008, the University Medical Center of Southern Nevada, where he was an assistant professor, abruptly suspended his clinical privileges without notice or hearing. The action was described as a “routine administrative action” and not a 30 day emergency action based on immanent harm to patients. His university employment terminated because of the loss of his privileges.  The university hospital  forwarded a report of the suspension to the National Practitioner Data Bank in Washington asserting that the suspension resulted from “substandard or inadequate care.” Subsequently the “fair hearing” panel hearing his case disagreed with the grounds for the suspension and sent a recommendation to the Medical Executive Committee that his suspension be lifted and it was, in October, 2008.

PRO-SE DOCTOR WINS SUMMARY JUDGMENT OVERCOMING HCQIA IMMUNITY .

An Albuquerque Obstetrician/Gynecologist, filed a pro-se lawsuit in Federal District Court in New Mexico claiming that a hospital which permanently suspended his privileges deprived him of his civil rights overcame the hospital’s defense of immunity under the Health Care Quality Improvement Act of 1986 (“HCQIA”). In Chinonyerem Osuagwu v. Gila Regional Medical Center, (No. 1:11 -cv-1 3/27/12), Dr. Osuagwu presented evidence that Gila Regional failed to follow its own bylaws and failed to provide him due process in permanently suspending his privileges without meeting the requirements of HCQIA for immunity.  One of the defendants, Dr. Romillard, a non -practicing gynecologist advised the hospital’s peer review committee as to why Dr. O’s privileges should be suspended.

 

Comment on "Eight Reforms To Medical Peer Review Post."

Until my retirement three years ago I was Associate Director for Research and Disputes for HRSA's National Practitioner Data Bank.  For over 10 years I read every Secretarial Review request, assigned every case to staff reviewers, and approved every decision before forwarding it for final approval and signature by the Director.  In other words, I have great familiarity with this matter. 

Before turning to the eight suggestions, I must take issue with the implication that a report to the NPDB can destroy a career.  It is the underlying actions that hurt careers, not reports to the Data Bank.  Applications for licensure, privileges, etc., require physicians to disclose more than is required to be reported to the Data Bank.  For example, the Data Bank does not require reporting of pending cases; applications do.  Honest physicians have nothing to fear from Data Bank reports; they have to disclose the same information regardless of the Data Bank.

It also should be noted that there are thousands of physicians with multiple reports in the Data Bank who continue to practice and, often, to have even more actions taken against them and reported.  If the Data Bank ended careers, physicians would not continue to have action after action taken against them.

EIGHT REFORMS TO MEDICAL PEER REVIEW

The fundamental problem with medical peer review today is that there are large segments of medical practice that are more art than science and that all professionals are human beings and occasionally make mistakes. The system of peer review provided under the Health Care Quality Improvement Act of 1986 (“HCQIA”) sets up an intensely adversarial system in which those privileged to review their peers are not accountable for bias, bad faith or malice if there is any colorable justification for complaint about the judgment or quality of care provided by the reviewed physician. Further, the results can destroy a peer reviewed physician who may up with a “record” in the National Practitioner Data Bank.

 

10 CRITICAL PRO IMMUNITY PEER REVIEW CASES: No 1.

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. 1: Poliner v. Texas Health Systems, 537 F 3d 368 (5th Cir., 2008)

The Fifth Circuit Court of Appeals reversed the $33 Million Dollar Judgment awarded the plaintiff in Poliner. The Poliner case raised a lot of eyebrows both because of the amount of the original damages award of $360 Million Dollars and its success in overcoming immunity claims under the Health Care Quality Improvement Act of 1986 ("HCQIA"). The trial court reduced the award to $33 Million Dollars prior to the appeal.   Dr. Poliner, an interventional cardiologist, claimed that he was forced to agree to an abeyance of his privileges in lieu of a summary suspension and was prevented from performing procedures in the the defendant's catherization laboratory while an investigation was pending, only posted about $10,000 dollars in actual damages. His case went to a jury solely on defamation grounds.

10 CRITICAL PRO IMMUNITY PEER REVIEW CASES: Number 2.

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. 2: Singh v. Blue Cross and Blue Shield, Inc. of Massachusetts, 308 F. 3d 25 ( 1st Cir., 2002) 

Dr. Singh, an internist, filed suit against the Blues of Massachusetts and an independent consultant over a recommendation for his exclusion from insurance plans based on concerns over the allegedly excessive use of pain medication for chronic problems and usually lengthy regimens of antibiotics for his patients. He sued for breach of contract, tortious interference with business relationships with patients, defamation and violation of state consumer protection statutes. After a “fair hearing” his exclusion was reversed and he was reinstated as a provider in the insurer’s system.