More Tales of Peer Review!

Note these are not all CPRJ cases, but used as examples of the pervasiveness of  sham peer review...  many of our clients have requested privacy
They are used for case precedents

Ching v Methodist Children's Hosp
Tex. Ct. App.

A surgeon had his privileges suspended at two hospitals. he sued under various state claims.  the court ruled that the suspensions had fair hearings and under HCQIA, there could be no damages.  He lost not so much under the HCQIA but equally under the specific Texas statutes.

Freilich v Upper Chesapeake Health
4th Circuit

Freilich has unrestricted at Harford Hospital for 18 years.  When she applied for reappointment the hospital Board refused to reappoint her citing the ethics and behavior language in the medical staff bylaws.  The doctor had been critical in the past of hospital quality of care. Plaintiff sued 14 individuals and the hospital for denying her reappointment due to her patient rights advocacy.  She stated that HCQIA was unconstitutional.  All claims were dismissed by the district court and she appealed.  The 4th Circuit ruled that this was a straight physician hospital dispute and that her due process and equal protection challenges to HCQIA were not valid.  She stated that since HCQIA allows hearsay during the hearing procedure and the denial of privileges without a finding of incompetent behavior would require the court to rewrite a statute that passes the rational review phase.  She attempted to state the reasonableness standard of the HCQIA were vague and this was also tossed since it is the peer review panel and not the physician that must meet the reasonableness standard.  The claims against the hospital were thrown out for lack of standing of the physician to advocate for her dialysis patients.  

This case basically throws out any further attacks on HCQIA and its ability to utilize the reasonableness approach.  It also allows, at least in Maryland, the ability of the hospital to not allow physicians who criticize the methods or patient care to be on the staff.  I believe the most important thing this shows is that the medical staff must review their bylaws and change those which are written by the hospital paid attorney to ones that are done by neutral attorneys.  Remember, "If not for the grace of God, go I".        

From: lawrence huntoon
To: Center Peer Review Justice Inc
Sent: Thursday, June 26, 2003 10:08 AM

A truly outrageous miscarriage of justice.

Patients are the real losers when hospitals have the ability to purge physicians who stand up and speak out in favor of improving quality of care.

Publicity of what these hospitals are doing is the key.

Larry 

Goad v Virginia Bd. of Medicine
Va. Ct. App.

The Board placed Goad's license in indefinite suspension due to potentially sexually inappropriate behavior.  Goad sued and the lower court agreed with the Board.  The Appellate court overturned the decision since the Board used the statute stating the AMA and APA standards of Ethics were to be used as the standard.  In fact these are merely guidelines and may not be used as a standard.  The Board had no other standard to compare the action and therefore the Board was compelled to dismiss.       

Ghanem v Pres. Intercommunity Hosp.
CA Ct. App.

The physician was conditionally reappointed to the private hospital.  The conditions were to attend CME courses and not engage in specific disruptive behaviors.  The physician did not comply and was removed from the staff following a full hearing.  He sued and lost in both the lower and the appeals court.  He claimed that he did not get a fair hearing and that hearsay was used against him.  The court stated the hearing was fair and the evidence was allowed under both the hospital bylaws and government code.   

Chadha v Charlotte Hungerford Hosp.
Conn. Ct. App.

Chadha had his license revoked.  He sued four members of the medical staff for filing false reports to the department of public health.  The case was tossed in both the lower and court of appeals due to absolute immunity under the state's common law.  Here there was an overlap between common law absolute immunity and statute partial immunity.  The upper court ruled  absolute immunity applied in this case.    

Smith v Ashland
Ky. Ct. App.

A medical Center was in its rights to forcibly remove a Honorary member of the medical staff from a MEC meeting and then remove his staff membership.  No fair hearing was offered.  The court stated that there were no violations of the bylaws.  It sounds like this radiologist needed the well being committee. 

Jeung v McKrow  
ED Mich.

The doctor was removed from the staff and sued under racial discrimination.  He lost like most of these since the hospital was able to show legitimate cause for termination of privileges.  In this case there were patient complaints and  malpractice suits.  The hospital would not allow the physician to call witnesses at the hearing.  what happened was the patient's expert refused to leave the hearing when asked by the hearing officer.  This cost the hospital the potential for attorney's fees and costs. 

Patton had his privileges revoked by the MEC after a full peer review hearing. He sued for damages and injunctive relief. The hospital was granted summary judgment under HCQIA. Patton appealed and lost. The Court stated there was immunity under both the federal and state laws. The Court used the four prongs of the HCQIA and stated that a death made the act in furtherance of health care, they had a year long peer review which showed a reasonable effort to obtain the facts, the notice and hearing procedures were adequate and that Patton did not show enough evidence to overcome the presumption that the hospital believed its actions were reasonable. This last one is an impossible burden.

Conner v Salina Health Ctr.
10th Circ.

Conner was denied reappointment to Salina following a peer review panel recommended against the reappointment. Conner filed suit that he was due federal due process even though the hospital was private. The district court said it was private and there were no federal grounds and the hospital was not a state officer. The 10th Circuit agreed that the plaintiff was deprived of no federal rights. The court also found that traditionally peer review was not regulated by the state.