Academic journal article Northwestern Journal of Law and Social Policy

Hospital Quality Improvement: Are Peer Review Immunity, Privilege, and Confidentiality in the Public Interest?

Academic journal article Northwestern Journal of Law and Social Policy

Hospital Quality Improvement: Are Peer Review Immunity, Privilege, and Confidentiality in the Public Interest?

Article excerpt

I. INTRODUCTION

Participants in the hospital peer review process enjoy enormous protections under federal and state law. The federal Health Care Quality Improvement Act of 1986 (HCQIA) provides qualified immunity to hospitals and members of peer review committees for "professional review action[s]" that may result in the loss of a doctor's clinical privileges.1 The great majority of states have statutes that likewise provide some degree of peer review immunity.2 The great majority of states also make peer review proceedings privileged-inadmissible in evidence and protected from discovery-and mandate that peer review proceedings be kept confidential.

In addition to providing immunity to participants in the peer review process, the HCQIA established a National Practitioner Data Bank (NPDB).3 Hospitals must report to the NPDB when they take certain actions against doctors, such as revoking their clinical privileges.4

In this article, we argue that the federal and state protections lavished on the peer review process are inimical to that process, impede full and effective disclosure to the NPDB, and impede quality improvement in health care. The quality assurance function of the peer review system is undermined by two kinds of errors: improper severity and improper leniency.5 Improper severity occurs when doctors are wrongly disciplined or wrongly denied clinical privileges for which they have applied.6 Further, when these improperly severe disciplinary measures are reported to the NPDB, such reports can seriously damage a physician's ability to practice medicine, as employers and health insurance companies may be reluctant to hire or utilize practitioners with such adverse reports.7

Improper leniency occurs in a number of ways.8 A peer review committee may wrongly exonerate a doctor. A credentialing committee may wrongly allow doctors to obtain or retain credentials. A peer review committee may fail to be convened, even in the face of apparent doctor misconduct and/or bad patient outcome. And hospitals may evade or violate the NPDB reporting requirements. Indeed, according to one study, the only measure that has affected the amount of adverse peer review action reporting in a state is the imposition of "a strong penalty for failing to report peer review actions."9

We contend that the current federal and state regulatory system increases the likelihood and frequency of all these errors, both the improperly severe and the improperly lenient. This multifaceted focus sets our article apart from previous work that is generally more concerned either with problems of improper severity10 or with problems of improper leniency.11 One major element of the current system that predisposes it to error is the use of internal, self-interested reviewers. The second element is the array of federal and state legal protections for peer review that throw a blanket of secrecy and immunity over the process, preventing scrutiny and thwarting legitimate challenges. Putting these elements together, we end up with legal incentives for both improper severity and improper leniency.

In Part I of this Essay, we give an overview of the hospital peer review process and the federal and state statutes that protect it. In Part II, we describe the problems of the current peer review system, explaining why it tends to produce both improper severity and improper leniency. Part II also examines the specific deficits of the current peer review process. In Part III, we propose to reform the system by eliminating all federal and state statutory protections for the peer review process. A public process that is open to review and open to challenge by all interested parties will better promote quality in health care.

II. REGULATORY BACKGROUND

Peer review in the hospital setting is the process by which doctors evaluate the professional competence and conduct of other doctors, both on an ongoing basis and in the context of poor patient outcome. …

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