Academic journal article Journal of Law and Health

Physician Peer Review Immunity: Time to Euthanize a Fatally Flawed Policy

Academic journal article Journal of Law and Health

Physician Peer Review Immunity: Time to Euthanize a Fatally Flawed Policy

Article excerpt

I.   INTRODUCTION
     A. A Hypothetical Case
     B. Thesis and Organization

II.  PHYSICIAN PEER REVIEW: AN OVERVIEW
     A. Physician Credentialing, Hospital Privileges
        and the Peer Review Process
     B. Rationale for Physician Peer Review Immunity
     C Physician Peer Review Protections

III. PHYSICIAN PEER REVIEW AS A TOOL TO IMPROVE
     HEALTH CARE QUALITY

IV.  EFFECTIVENESS OF CURRENT POLICIES AND
     LEGISLATION

V.   THE NEGATIVE IMPLICATIONS AND COSTS OF
     IMMUNITY
     A. Bad Faith Peer Review

VI.  SUGGESTIONS FOR EFFECTIVE PHYSICIAN PEER
     REVIEW WITHOUT IMMUNITY

VII. CONCLUSION

I. INTRODUCTION

A. A Hypothetical Case

"... Absolute power corrupts absolutely." (2)

Dr. X is a young, charismatic, board-certified surgeon at the local hospital. (3) While popular among her patients and non-surgical colleagues, to the established surgical "Old Guard," she appears somewhat of a threat. Her training in new, advanced techniques, coupled with splendid bedside manner, has caused her practice to become quite busy. However, disruption in some well-established referral patterns has occurred, and business has been siphoned away from her older colleagues.

Dr. Y is an endocrinologist at the same hospital. (4) As Vice President of Medical Affairs (VPMA), he is also a paid administrative agent of the hospital. Dr. Y is close, both personally and professionally, to several of the "Old Guard" surgeons. They express concerns about the negative impact Dr. X is having on their practices. Not so subtly, they let Dr. Y know that if something is not done, they will probably start moving their elective cases across the street to the local hospital's competitor. Dr. Y, in his VPMA capacity, is very concerned about the impact this would have on his hospital's bottom line.

When an untimely, perioperative complication lands Dr. X in front of a surgical morbidity and mortality (5) peer review, Dr. Y seizes his opportunity. Besides this particular event, it also appears that Dr. X has had a few bad outcomes related to some of her "new" surgical techniques, has been occasionally tardy in starting her cases, and is significantly delinquent in completion of her medical records. The physician peer review committee, composed of administrative-friendly and "Old Guard"-sympathetic peers, votes to recommend suspension of Dr. X to the local hospital's governing board. As they do in nearly every instance, the Board adopts the peer review committee's recommendation. Dr. X is suspended.

Dr. X's response to the suspension of her hospital privileges is to retain an attorney and sue the hospital and the peer review board. Unfortunately for Dr. X, the trial court's ruling for summary judgment for the defense is affirmed on appeal; the peer review committee and hospital are immune from civil liability under the federal Health Care Quality Improvement Act of 1986 (HCQIA), as well as applicable, similar state provisions.

In the meantime, Dr. X's suspension has been reported to the National Practitioner Data Bank, (6) and she has been unable to acquire privileges at any other hospitals. Thus stigmatized, she is considering giving up medicine altogether. The tremendous time, effort and resources expended in the making of a physician will be lost. (7) Also left in the lurch are Dr. X's patients, practically all of whom thought she was an outstanding surgeon.

This hypothetical--but not uncommonly recurring--fact pattern demonstrates the destruction of a promising medical career, elimination of competition, promotion of status quo cronyism, and protection of bad faith peer review, without a scintilla of evidence that quality healthcare has been advanced in the process. Certainly, such perverse consequences were not what Representative Ron Wyden of Oregon had in mind when he introduced the HCQIA in 1986. (8) Unfortunately, when policy decisions supported by the weight of the law create both unfair and inequitable results that trample physician property and due process rights, permit conflicts of interest and abuse of process, and fundamentally harm the public interest, then the question must be asked: is physician peer review immunity justified? …

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