Hospital Peer Review Issues
What Every Physician
Needs to Know About Medical Staff and Other Types of Disciplinary
- Should Due Process be part of Hospital Peer Review?
AMA Policies on Due Process
AVOIDING MONEY DAMAGES
Federal legislation provides credentialing organizations a
golden opportunity to gain immunity for their decisions - the act
provides near complete immunity to claims for monetary damages arising
from peer review actions
Northeast George Medical Center Inc. v. Davenport; GA.,
No. S99G1082\ The Georgia
state Supreme Court ruled that the Health Care Quality Improvement Act (HCQIA)
does not require that doctors receive "formal and precise" reasons
before revocation of staff privileges, nor does it limit the number and
scope of reasons given by a hospital
http://www.ebglaw.com/../../article_533.htm No HCQIA Immunity for
Peer Reviewers of Disruptive Physician!
Under most hospital bylaws, by the time the physician
gets to the fair hearing panel, the burden has shifted
against the physician with the requirement that the
physician prove by clear and convincing evidence that
all prior decisions were arbitrary and capricious or
factually baseless. Practical experience demonstrates
this is a virtually impossible burden to sustain and
standard to satisfy.
Manzetti v. Mercy Hospital of Pittsburgh -
Pennsylvania Supreme Court held on July 18, 2001, that the hospital and
reviewers were entitled to immunity under HCQIA.
The Supreme Court also held that the "reasonable
effort" prong of the four-part HCQIA immunity test is
satisfied if the review activities are "sensible," but
they do not have to be "flawless." Thus, the Supreme
Court has countenanced due process violations and errors
in the peer review process.
- Donnell v. HCA Health
Services of Kansas, Inc.,
physician peer reviewers are immune from liability under HCQIA even if
their investigations are sloppy, negligent, and wrong. Physicians must
prove bad faith and malice to have a peer review decision overturned
Gordon v. Lewistown Hospital, 714 A.2d 539
Court found that there is a presumption of validity of the hospital's
disciplinary procedures. An outside consultant was retained. The Hearing
Officer was an attorney, who was determined not to be in economic
competition with the physician, but was a neutral party. Even though
some of the physician's direct economic competitors were involved in the
decision, and there was evidence of a history of hostility toward him,
none of those individuals participated in drafting the outside report.
The Court then looked to the totality of the process leading to the
professional review action. Under that broad test, even though some
parts of the process were critically flawed and biased, the Court said,
in totality, the physician got all the process he was due.
Swinging Pendulum of Peer Review Immunity
Early Intervention Strategy
A physician subjected to peer review may have little chance of
surviving unless early and aggressive measures are taken. Understanding
the case law and limitation on judicial remedies, it is prudent for the
physician and counsel to quickly retain the best conceivable expert in
the subject area to address the outside reviewer report. In many cases,
it becomes very clear that the outside reviewer's report significantly
overstates quality of care infractions, is based on no published peer
reviewed medical journal articles or positions, and is academically
pedantic without taking into consideration reasonable and acceptable
standards of care.
Successful resolution using this strategy can be achieved with minimal
disruption to the physician, including perhaps CME and monitoring,
without causing a damaging Data Bank entry
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