The Health Care Quality Improvement Act ( HCQIA) Federalized Clinical Peer Review Actions

BY RICHARD B. WILLNER
Executive Director
The Center for Peer Review Justice


The Health Care Quality Improvement Act of 1986 ( HCQIA) federalized "clinical review actions" (Peer Review) by a "reporting entity" (corporation, enterprise) in 1986. Before that, there was simply no federal law describing a 'reporting entity", which is in every instance a corporation with its own agenda for using and manipulating medical care doing a "clinical review action subject to "section 11112(2).

So the use of corporate peer review is simply as logically accurate as saying "reporting entity peer review" or more accurately "corporate clinical review action" a precise description of a new species of governance superior to the natural rights of person called physicians with statutory "standards" which was birthed in 1986.

If a corporation wants a doctor off the hospital staff they should simply part ways amicably or not. This is actually the right answer. Like losing your job at McDonald's or as a Microsoft executive you then go to work at Burger King or Oracle because you have objective value outside of the corporation and the corporation has no ability to destroy that objective value through some kind of contest over patient ( customer) loyalty.
Surprising that no one gets this.

Good or bad faith peer review is really a non sequitur to precisely what the statute describes, and that is what the courts have said repeatedly. In fact, if we test every other term for peer review against the "statutory standards" of HCQIA section 11112(a) there is no argument that can penetrate immunity except fraud and that would be on the basis of a court voiding a corporate clinical review action so infected as void on the basis of public policy.

But that argument would have to be made ultra-very clear to the court to survive. "Very clear" to the extent that a five year old would understand it. No statutory construction can legitimately be construed to authorize fraud. And if this one is what we need to notify every potential medical student because the AMA is not going to do it.

I tend to not argue for the other side. So I try not to use their terms but terms that favor my side.
"Sham peer review" does not accurately describe HCQIA.

A fairly accurate taxonomy is 1) corporate peer review or 2) non-corporate peer review with adjectives like "sham" or "manipulated" or "bad faith" attached to it.

Corporate Peer Review, that peer review formula described in HCQIA as described by HCQIA is a big tent and big bias non-objective enterprise heavily laden with the struggle to bring the corporation as the patient advocate and a lot of quality nonsense.

In fact, HCQIA really does not even require physicians at all to gain corporate immunity per the statute. The Medical Executive Committee, the MEC, an executive body, is the decision maker in most every case. And, pragmatically, in most committees, there is one leader who has even taken the time to read the charges. The rest of the committee are physically present and often preoccupied. MEC's are not directly mentioned in the statute which is worded to make everyone think doctors are doing it when it is really lawyers.

I fail to see how the physicians even matter in corporate or maybe "enterprise peer review" as it used over whole hospital systems and insurance companies.

Corporate medicine and corporate peer review are certainly not platform concepts on most people's radar they prefer to think of doctors which a Hippocratic oath and public heath. I have been using the term and find that it most people do not feel that it is as value laden as sham or fraud peer review but people understand that there is a presumption of corporate bias. As many know know, corporations are not generally imbued with altruistic qualities and are certainly not candid or objective when it comes to their bottom line.

At the end of the day all that matters when one is sitting their with your life on the line is what are your "rights". Everything else is "BS". And, the only right is procedural due process, which is a right to a Hearing before the same hospital which serves as the prosecutor.

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