J. Contemp. Health L. & Pol'y 239, *
(c) 2001 The Catholic University of America
of Contemporary Health Law & Policy
J. Contemp. Health L. & Pol'y 239
LENGTH: 17454 words
FOX GUARDING THE HENHOUSE: HOW THE HEALTH CARE QUALITY IMPROVEMENT ACT OF
1986 AND STATE PEER REVIEW PROTECTION STATUTES HAVE HELPED PROTECT BAD
FAITH PEER REVIEW IN THE MEDICAL COMMUNITY
H.H. van Geertruyden*
J.D. Candidate 2002, The Catholic University, Columbus School of Law; B.A.
1996, Kalamazoo College. The author
wishes to thank his wife, Brooke, and family for their contributions and
support in the preparation of this article. The author is most of all
grateful to his devoted father whose sacrifices and guidance have helped
him to understand a problem in the medical profession which is known by
many, but spoken of by few.
... It is hard to imagine that anyone today would consider being seen by
a physician who failed to wash his or her hands prior to performing an
examination. ... These states make an exception in their
"non-discoverability" statutes by permitting "a physician
to obtain access to peer review materials when challenging the
curtailment, suspension, termination or denial of staff privilege. ... In
addition, state and federal laws include immunity protection for health
care entities participating in the peer review process. ... '" Since
the passage of the HCQIA, physicians may only sue if they can demonstrate
that the hospital did not provide the physician adequate due process
during the peer review process, or if the physician can show bad faith
was involved. ... The court found that the facts showed a direct link
between the accusing physician who initiated the peer review action and
the ultimate influence on the peer review committee and governing board.
... Again, this case highlights the immense burden placed on the
disciplined physician to show that there is malice or bad faith involved
in the peer review process. ... The peer review process has been
criticized not only for its lack of attention to the possible infusion of
bad faith into the proceedings, but also for its inability to improve the
quality of health care provided in the United States. ...
is hard to imagine that anyone today would consider being seen by a
physician who failed to wash his or her hands prior to performing an
examination. Confronted with a thirty percent mortality rate of mothers
delivering babies in a hospital compared with a relatively low mortality
rate for women who gave birth in their home, Dr. Ignaz Semmelwies, a
nineteenth century Hungarian obstetrician, is credited with making one of
the most significant discoveries in medicine. 1 Dr. Semmelwies
found that medical students who failed to wash their hands prior to
examination had infected expectant mothers. 2 Today he is
regarded as the pioneer of antiseptic treatment. 3
Due to personality conflicts with his supervisors and peers, however, the
Viennese medical society rejected his findings, refused to promote him to
clinical professor and eventually ostracized him from the medical
profession. 4 Having been forced out of practicing medicine, Dr.
Semmelweis suffered a nervous breakdown, and subsequently was committed
to a mental hospital where he ultimately died. 5
is the cornerstone of how individuals in a community come to respect and
trust a profession. Physicians more so than any other profession, depend
on the integrity of its members to maintain an exceptionally high level
of care and mutual trust with their patients. Physicians must maintain
this level of respect so as not to compromise their patients' faith in
the quality of medical treatment they will obtain.
maintain the integrity of their practice, an elaborate system of
evaluation has evolved over time to provide for the review and critique
of physicians who may allegedly be perceived as damaging their
profession. Centuries ago, a peer review process was established to
review and monitor physicians to ensure a high quality of care. Today, as
a result of a hospital's responsibility to select and supervise its
medical staff, 6 the peer review process has evolved into a more formal
process to shield hospitals from the threat of corporate liability. 7 Hospitals
delegate the supervision of its physicians to peer review committees,
composed mostly of medical staff, which review physicians' credentials
and quality of care. 8 These committees review all applications of
physicians for admission to the medical staff; they also determine what
privileges a doctor may have at the hospital. 9 It is within this
peer review process that the opportunity for corrupt and ulterior motives
Laws at both the national 10 and state 11 levels have also
been established to foster and protect the peer review process. These
well-intentioned laws were passed in the 1970s and 1980s to address what
was seen as a decline in the quality of health care in this country, and
seek to ensure that physicians meet a certain standard of care. 12
hospitals and legislatures have generally been successful in implementing
procedures to review physicians and their practice of medicine, concern
has arisen in the medical community that the process is fatally flawed in
its treatment of the reviewed doctor. Many in the medical community argue
that the peer review process often has little to do with the actual
pursuit of quality of care; but rather it is used as a tool for economic
or political motives - in essence a review performed in bad faith, or
with malice. 13
Comment addresses the evolution and current status of bad faith peer
reviews of physicians, focusing on the unanticipated effect certain
federal and state laws have had in promoting bad faith peer review. Part
I provides an in-depth historical overview of the peer review process in
the medical community, focusing in particular on hospital procedures, as
well as federal and state laws that attempt to address the peer review
process. Part II examines the flaws in the current peer review process
that allow for a bad faith peer review to take place. Part III explores
the consequences a bad faith peer review can have on a physician's
career. Part IV presents a case history of bad faith peer review claims,
and probes the difficulties involved in ultimately prevailing on a claim
of malice in a peer review. Finally, this Comment concludes by presenting
possible solutions to the currently flawed physician peer review system
that would remove the opportunity for bad faith peer review. These
solutions instead would encourage a fair and judicious process that would
return the flawed [*242] peer review process to its
original goal, namely, to guarantee a high quality of health care for all
The Current Peer Review Process
form of a peer review process in the medical community has been present
in the United
States prior to its declaration of independence from England. 14 Beginning in the
mid-eighteenth century, "when American colonies created boards of
medical examiners to evaluate and license individuals they found
qualified to practice medicine, the States have regulated the practice of
medicine." 15 In addition, the medical profession saw the development of
professional societies that "developed professional standards that
the States adopted to monitor physicians." 16 In order to
practice medicine today, physicians not only need a license to practice,
but also must meet a number of other requirements, including hospital
privileges, to offer complete and quality care to their patients. 17
(clinical) privileges are defined by the Joint Commission on
Accreditation of Health Care Organizations (JCAHO) as the
"permission to provide medical or other patient care services in the
granting institution, within well-defined limits, based on the
individual's professional license and his experience, competence,
ability, and judgment." 18 It is nearly impossible for a physician
to practice without hospital privileges. 19 With the advent
of technology and support services that only hospitals are able to
afford, such as medically staffed operating rooms, patient wards, or
diagnostic equipment, it is vital to a physician's practice to acquire
these hospital privileges. 20 It is at this stage in a physician's
career that the peer review process plays such a critical role in
determining the fate of their ability to practice medicine. Any refusal
or curtailment of physicians' hospital privileges has a devastating
effect on [*243] their practice. However, to maintain
privileges at a hospital, physicians must be willing to be reviewed by a
committee (usually made up of their peers), which determines whether they
are qualified to practice medicine at the hospital. 21
The Peer Review Process in Hospitals
hospital or medical facility generally will have in its bylaws an
established procedure for conducting a peer review of a physician. 22 The peer review
committees conducting the reviews are composed of physicians at the
hospital or facility who already have privileges and are members of the
medical staff. 23 While the peer review process was originally established to
provide for a periodic review of the quality of care provided by a
physician, it has now "developed into the primary method of
evaluating the [general] quality of physician services at a
hospital." 24 The peer review process now provides a hospital with
continuous clinical evaluation and monitoring of physicians who are, or
would like to practice medicine at its facility. 25 Most hospitals
establish a "credentials committee" which is composed of
physicians from the hospital who typically practice in the field of the
reviewed physicians. 26 For an initial applicant, the credential committee
conducts a review of past performance and clinical experience. 27 For staff members
who already have privileges at the hospital, "the peer reviewers are
also able to review quality assurance data, diagnostic and laboratory
utilization reports and other information regarding each staff member's
actual practice at the hospital." 28
a peer review group has evaluated the physician, it forwards its findings
to the governing body of the hospital, typically the hospital board. 29 The board then
makes the ultimate decision regarding whether [*244]
or not to grant a physician privileges to practice medicine at the
hospital. 30 Depending on the state, a hospital board can be made up of
medical staff, administrators, physicians or other interested parties. 31 Boards can make a
number of decisions based on the findings of the peer review group:
"Based on the reports of the clinical departments, the credentials
committee and others that may have been involved, the executive committee
recommends either a denial, reduction, or revocation of privileges. The
board of trustees has the final decision-making authority for medical
staff appointments... ." 32 Typically, however, the governing board
will defer to the recommendations of the medical staff. 33
the governing board has determined whether or not to grant, deny, or
curtail a physician's privileges, the reviewed physician has few options
to challenge a decision with which he disagrees. The physician is left
with little if any appellate options. Since a hospital is considered
independent, and responsible for its own decisions, the health care
entity (usually the hospital) makes the final decision of whether to
grant, deny, restrict or revoke the staff privileges of a physician. 34 The hospital,
however, is required to adhere to certain guidelines for its own peer
review promulgated by JCAHO, federal and state law. 35
Independent Peer Review Guidelines
JCAHO, for example, requires that a health care facility provide limited
due process protections as well as peer review standards in their bylaws.
36 States have also
established due process procedures for peer review actions. The Illinois State Medical Society's
Due Process Guidelines, for example, sets out specific procedures that a
hospital must follow in a peer review or credentialing decision. 37 Specific
instructions [*245] are given regarding proper
notification requirements, a physician's right to a hearing, an unbiased
review as well as a right to be represented by counsel. 38 Nevertheless, the
problem remains that the sanctioned physician is unable to appeal beyond
the governing board of the hospital. 39 There is no independent body in
place to review a hospital's decision on peer review matters. 40 As a result, many
consider peer review as an overly autonomous and arbitrary process
providing a physician no readily available recourse short of filing a
lawsuit for a wrongful action. 41
Federal Legislation and Controlling Law of Peer Review
became greatly concerned in 1986 following the Supreme Court's landmark
decision in Patrick v. Burget, 42 which involved a physician who was found
to be a victim of a malicious peer review. 43 The Supreme Court
upheld the suit of a physician who alleged antitrust violations in the
termination of his privileges. 44 In response to this decision, the federal
government addressed the issue of encouraging peer review through
statutory protections by Congress' enactment of the Health Care Quality
Improvement Act of 1986 (HCQIA). 45 Additionally, each state and the District of
Columbia has passed its own peer review statutes that encourage
thorough and quality control of physicians practicing in its
jurisdiction. 46 The primary function of these statutes is to provide the
hospital, the peer review board and the accusing physician immunity from
a libel suit brought by the accused physician. 47
HCQIA addresses two issues in its attempt to improve the quality of care
in medicine. First, the act establishes federal protections, already
[*246] found at the state level, that grant immunity
to peer review committees. 48 Second, it establishes the National
Practitioner Data Bank 49 to monitor the credentialing of
physicians by hospitals and states. 50
Federal protections of immunity to peer review committees
HCQIA, like comparable state statutes, provides immunity from liability
for peer review participants. 51 Congress intended to establish
protections for health care professionals who engage in the good faith
evaluation of their peers by limiting the participant's liability. 52 Congress believed
that the overriding "threat of private money damage liability under
federal laws, including treble damage liability under Federal antitrust
law, unreasonably discourages physicians from participating in effective
peer review," 53 thus the establishment of federal immunity protection
for peer reviewers. The Act establishes four standards that peer review
actions must meet in order to be eligible for the protections under the
Act. 54 The HCQIA requires a peer review to be taken:
in the reasonable belief that the action was in furtherance of quality of
care (2) after a reasonable effort to obtain the facts of the matter (3)
after adequate notice and hearing procedures are afforded to the
physician involved or after such other procedures as are fair to the
physician under the circumstances, and (4) in the reasonable belief that
the action was warranted by the facts known after such reasonable effort
to obtain facts... . 55
Act establishes a presumption that the peer review action meets the above
criteria, "unless the presumption is rebutted by a preponderance of
the evidence." 56 Since the peer review committee need only show the
subjective requirement that a "reasonable belief that the [*247]
action was warranted", the accused physician has a heavy burden to
The National Practitioner Data Bank
goal of the HCQIA was to establish a "clearinghouse of
information", which would permit hospitals and other health care
entities access to physicians' records who have had adverse actions taken
against them by other hospitals and health care organizations. 58 Congress titled
this new information repository the National Practitioner Data Bank
(NPDB). 59 Information reportable to the NPDB includes: medical
malpractice payments 60; any sanctions by a Board of Medical Examiners 61; and any review
actions taken by health care entities such as hospitals, Health
Maintenance Organizations, and professional societies. 62 The goal of the
NPDB is to prevent physicians who have had their privileges revoked by a
hospital from simply going to another hospital to gain privileges and
continue their practice of medicine. 63 Because of the unique and
sensitive nature of the information in the NPDB, the intent of the
legislation was to keep the information strictly confidential. Data would
be made available only for use by hospitals and select health care
entities so that they may be alerted to physicians who had adverse
actions taken against them, that resulted in a loss of their licenses or
information contained in the Data Bank, however, has become easily obtainable
by numerous health care entities with an interest in the information. 65 Those eligible to
request information from the NPDB must be one of the following: a Board
of Medical Examiners or other State licensing board; a hospital; a health
care entity that provides health care services through a formal peer
review process; a professional society that [*248]
engages in professional review activity through a formal peer review
process; or a plaintiff's attorney in certain cases. 66 Peer review
actions have always enjoyed confidentiality under the law. 67 However,
"public reports [as with the NPDB] negate that confidentiality,
making assessments available to attorneys, to managed care organizations
interested in credentialing physicians, and to members of the media
interested in publicizing certain events." 68 These public
reports add misguided speculation, which confuses the circumstances
regarding a reported physician.
late 1999, yet another data bank was established by Congress under the
Health Insurance Portability Act of 1996, 69 directing the
Secretary of Health and Human Services (HHS) to create the Health Care
Integrity and Protection Data Bank (HIPDB) "to combat fraud and
abuse in health insurance and health care delivery." 70 "The new
data bank ... requires that state and federal law enforcement
organizations, licensing and certifying boards, and private health plans
report a range of adverse actions taken against licensed health care
practitioners, providers and suppliers." 71 "The
reportable offenses include licensing actions, exclusions from the
Medicare and Medicaid programs and criminal convictions and civil
judgments." 72 While the American Medical Association (AMA)
originally supported the concept of a national data bank for physicians,
it withdrew its support after the data bank was expanded so far as to
include medical malpractice information. 73 AMA president Dr.
Thomas R. Reardon argues, "malpractice information has a relation to
competency. Even the very best physicians are subject to lawsuits, and
most malpractice insurers allow for the settlement of a lawsuit even
without the [*249] approval of the physician." 74 Inaccurate or
incomplete information can be devastating to a physician's career if it
introduction of a second data bank to monitor physicians has raised
concern among physicians that the information will be used incorrectly,
or in bad faith, against them when their privileges would come up for
review at a hospital. 75 While some protections still exist regarding who may
query the information in the data banks, recent efforts in Congress are
focused on expanding accessibility to information in the data banks to
the general public. In the 106[su'th'] Congress, Representative Thomas
Bliley (R-VA) introduced legislation that would allow for complete public
access to any of the reported information on the NPDB. 76 The Patient
Protection Act of 2000 includes a provision that would allow the general
public access to the raw data found in the data bank on hundreds of
thousands of physicians without including an explanation of what the data
contains. 77 Consumers would be given access to data that is meant for
experts, creating the possibility for uninformed decisions by lay
individuals who have no expertise in the field. A misinformed public
compounds the problem of false or inaccurate reporting as they will most
likely reconsider being examined by a reviewed doctor. This only
exacerbates the harm to a physician who is a recipient of bad faith peer
review and has limited options to correct his record.
State Laws and Peer Review Immunities
protections are not solely provided for peer reviewers at the federal
level. Each individual state as well as the District of
Columbia offers its own immunity protections for peer reviewers. Not
only do states offer immunity protections from libel suits, as is found
at the federal level, but immunities are also granted to the actual
proceedings and records of the peer review committees. 78 The state laws
offer broad protections for [*250] documents produced
by peer review committees and other similarly situated health care
entities, such as health care providers and professional medical
societies. 79 A typical example of a statute protecting peer review
proceedings and documents is Alabama Code section 6-5-333(d):
information, interviews, reports, statements or memoranda furnished to
any committee, as defined in this section, and any findings, conclusions
or recommendations resulting from the proceedings of such committee are
privileged. The records and proceedings of any such committee are
confidential and may only be used by the committee and its members in the
exercise of the committee's proper functions and will not be public
records, available for court subpoena or for discovery proceedings. 80
statutes like the Alabama section, force physicians to confront the immense
challenge of overcoming a bad faith peer review, a significant flaw in
the peer review process. Physicians who are accused of wrongdoing are
solely at the mercy of the accusing physician(s) and the peer review
committee hearing their case. At this stage in the process, however, few
appellate options are available. Because the records of the peer review
proceeding are confidential and non-discoverable, should an accused
physician choose to contest the decision of a peer review committee in a
civil trial, the plaintiff must overcome a heavy burden to prove bad
faith. A total of seventeen states 81 have sought to address this [*251]
problem by qualifying confidentiality and non-discoverability statutes.
These states make an exception in their "non-discoverability"
statutes by permitting "a physician to obtain access to peer review
materials when challenging the curtailment, suspension, termination or
denial of staff privilege." 82 In those states, contesting a revocation
or curtailment of staff privileges by the accused physician places a much
heavier burden on the peer review committee to perform a fair and honest
review of a physician's medical records.
addition, state and federal laws 83 include immunity protection for health
care entities participating in the peer review process. 84 "These
statutes provide varying degrees of immunity, ranging from absolute
immunity in all civil suits to qualified immunity in some civil
suits." 85 Each state includes in its immunity statute a provision
that addresses the need for good faith in the review process. A typical
state statute reads as follows,
is no liability on the part of and no action for damages will arise
against the individuals or organizations outlined in 65-4909(a) supra,
for good faith investigation or communication of information regarding
the quality of care of a patient... if such association or committee or
such individual member thereof acted in good faith and without malice. (Kansas) 86
statute illustrates the immense challenge physicians face in overcoming a
bad faith peer review. As discussed later in this Comment, the burden to
show malice or bad faith depends to a large degree on the information
produced in the peer review proceeding. 87 It is difficult to determine
whether a fair and non-partial review of the physicians records actually
took place, because the confidentiality and non-discoverability statutes
as presently found in most states make it nearly impossible for an
attorney to gather the evidence necessary to challenge the good faith
Bad Faith Peer Review
Flaws in the Peer Review Process
current process of peer review as a tool for assessing the quality of
health care is the subject of much debate. 88 In 1992, a survey
was conducted of "all published studies from 1966 to 1990 that
evaluated the effectiveness of peer review". 89 The survey came
to the conclusion that: "Overall, physician agreement regarding
quality of care is only slightly better than the level expected by
chance. This finding casts considerable doubt on the standard of practice
of peer assessment." 90
it is inaccurate to assume that all peer review committees are
predisposed to targeting a certain type of physician, it is nonetheless
accurate to suggest that the peer review process, as currently
structured, offers peer review participants the ability to practice
arbitrary peer review with little fear of repercussion. 91 The victims of
bad faith peer reviews share many of the same traits that usually make
them an easy target for those seeking to disqualify them from practicing
in a hospital. 92
practitioners lacking political support are frequently victims of
arbitrary peer review actions. Physicians in large groups, who have
politically connected mentors and colleagues, can often deflect
disciplinary actions. A solo physician doesn't have the same resources.
Similarly, doctors who are new on staff and haven't developed strong
relationships are on the hot seat. So are physicians who do procedures
that are new or different. 93
faith peer review can involve both the presence of ulterior motives in
the accusations of wrongdoing by peers as well as a failure to invoke the
peer review process to avoid reporting incidents. This results in
arbitrary underreporting. The review process, often seen as a highly
political, can be easily manipulated to achieve economic or power-driven
Flaws in the current peer review process have focused on three main
areas. The primary concern is the strong immunity protections afforded to
both accusatory physicians and hospital committees participating in the
review process. 95 A second concern with the peer review process is the lack
of consistent and substantive due process procedures available to an
accused physician. A third concern with the peer review process is the
opportunity for underreporting or false reporting. 96 The lack of
sanctions for non-reporting has lead some to argue that hospitals should
avoid taking action against physicians through peer review actions. 97
an effort to remedy these concerns and reassert the integrity seemingly
lost in the current process, many in the medical community are calling
for the revision, expansion or elimination of the process altogether. 98 A serious and
thorough review of the current peer review process is critical, on both
the state and federal levels to safeguard a quality and respected health
care system in the future. 99
Non-discoverability of peer review hearings
poses special problems for accused physicians who find themselves at the
receiving end of a bad faith peer review action. Due to the strong
language found in a majority of state statutes that prevents discovery of
proceedings involved in a peer review, 100 physicians are
required to overcome an immense burden in showing a court that there was
in fact malice or bad faith involved in the peer review process.
Accusatory physicians who are involved in the peer review process are
easily able to manipulate the process to achieve ulterior motives, such
as eliminating the economic competition in a particular practice field. 101 The exemptions
provided for in both the HCQIA and state statutes allow for a broad
immunity on materials produced at a peer review hearing, as well as
immunity for physicians and peer review committees from libel suits
brought by the accused physician. 102 In addition, a number of recent court
[*254] decisions both at the state and federal level
have questioned and subsequently failed to find immunity privileges in
peer review challenges. 103
Lack of Due Process
accused physician, who finds himself or herself the recipient of a
negative peer review recommendation, is regrettably left with few due
process options to appeal a final decision by a governing board. In a
majority of states, the JCAHO, and to a large extent the HCQIA, has
established guidelines that a hospital must follow in order to grant a
physician the opportunity to have a hearing on the accusations raised
against them. 104 These procedures might include "[a] written statement
of the charges, timely notice of the hearing, [a] fair hearing, the right
to produce evidence, the right to counsel..., [and a]n appeal
process." 105 Once the governing board makes its final determination,
however, the accused physician is left with no option to appeal the
decision of the board, save attempting to take the hospital, and the
accusing physicians, through a lengthy and costly trial. 106 These guidelines,
however, offer limited appellate procedures for the accused physician. On
account of the severe consequences of losing or having one's license
restricted, adequate appellate procedures would provide the accused
physician a neutral forum in which to have his review conducted.
Underreporting of peer review actions
of peer review actions by hospitals and health care entities has also
recently become a problem. In 1995, the Office of Inspector General (OIG)
published a report 107 that "raised concern that there may be
underreporting by hospitals of physicians with performance
problems." 108 Under HCQIA, hospitals are required to report to the NPDB
any actions against a physician to include: medical malpractice [*255]
payments 109, licensure actions taken by the Board of Medical Examiners 110, and adverse
actions on clinical privileges. 111 The NPDB requires the reporting of two
types of actions, those that adversely affect clinical privileges for a
period of more than thirty days, and in those cases where there is a
surrendering or restriction of privileges while the physician is under
the strict reporting requirements and the possible imposition of fines
for non-reporting, the 1995 OIG report found that over a three-year
period, nearly three-quarters of all hospitals had failed to report a
single action to the NPDB. 113 Most hospitals have developed strategies
to avoid reporting to the NPDB. Hospitals can either impose a suspension
that is less than the thirty day reporting requirement imposed by the Act
or utilize "alternative disciplinary mechanisms that don't require
data bank reporting, such as written reprimands and different types of
counseling or warning systems." 114 A leading reason
why hospitals may decide to pursue actions to avoid reporting is to
protect a physician from possible scrutiny, but also "public reports
negate ... confidentiality, making assessments available to attorneys, to
managed care organizations interested in credentialing physicians, and to
members of the media interested in publicizing certain events." 115 Publicity is
something both physicians and hospitals want to avoid, so hospitals
utilize alternative ways of reporting claims. 116
Consequences of Bad Faith Peer Review
consequences that accused physicians must face when confronted with a bad
faith peer review decision can be devastating. Areas that will be
impacted by an adverse action on behalf of a peer review committee [*256]
include: reporting to the NPDB, loss or suspension of privileges,
notification to insurance/HMO/Medicare and damaged reputation in the
medical community all resulting in an overall inferior quality of care.
Loss of Hospital Privileges
discussed previously, in the modern medical profession, hospital
privileges are critical for a physician to practice medicine. 117 A physician must
have access to hospital resources in order to provide quality care and
effective medicine to his patients. Hospitals offer operating facilities,
rehabilitation services, expensive life support equipment and critical
nursing staff without which most doctors would be unable to practice
competent and responsible medicine. 118
a physician peer review occurs, a recommendation is made to the governing
board of the hospital as to what type action, if any, should be taken. 119 Essentially, any
action taken that refuses, terminates, suspends or restricts a
physician's privileges at the hospital is an impediment to a physician's
ability to practice. In addition, when an adverse board decision occurs,
a physician will also receive a devastating blow to his or her reputation
both in the medical and patient communities. 120 The damage to a
physician's reputation will have a longstanding effect on the physician's
marketability, regardless of whether the disciplinary action is
overturned. Other physicians may hesitate to refer patients, and patients
themselves may feel uncomfortable with a physician who has a questionable
record. 121 Once all appeal procedures are exhausted at the hospital
level, the only alternatives left for a physician are to pursue a costly
legal remedy through a claim under antitrust law or to file a libel suit
alleging bad faith peer review under HCQIA or similar state statute. 122 Faced with the
legal burden of proving bad faith, combined with the confidentiality and
immunity protections provided at both the state and federal level, the
chances of an unemployed, or negatively [*257]
affected physician pursuing a court battle are slim. 123
National Practitioner Data Bank Report
only must a physician who is a victim of a bad faith peer review overcome
the exclusion or suspension from practicing medicine at the accusing
hospital, but he or she must also confront the hospital's duty to report
the adverse action to the NPDB. 124 Under the NPDB, reporting of
credentialing actions, malpractice payments and licensure actions is
mandatory. 125 Once the action is reported to the NPDB, the consequences
reach far beyond the community in which the adverse action was taken.
NPDB has become a primary tool for determining privilege and
credentialing of physicians. 126 Under the HCQIA, hospitals have an
affirmative duty to query the NPDB when a physician applies for medical
staff privileges or requests clinical privileges. 127 Joseph A. Berry,
National Medical Director of United HealthCare Corporation, states that
the NPDB is "the primary source of information about sanctions and
malpractice information" regarding a physician's practice history. 128 Thus, great care
must be taken in managing the information reported on the NPDB.
a report has been submitted to the NPDB, whether legitimate or not, any
hospital at which the reprimanded physician attempts to obtain privileges
will be notified of the adverse action. Due to the reporting requirements
of the NPDB, the reviewed physician is essentially "blacklisted"
129 in both the
community where he or she practices, as well as other communities in
which the physician may wish to practice. 130 In addition,
other health care entities, such as HMOs, insurance companies and
government agencies (e.g. Veteran's Administration and the Health Care
Financing Administration) all have access to the data in the NPDB.
A process exists to appeal a report made to the NPDB. 131 "The
regulations establish a procedure whereby a physician can dispute the
accuracy of the information in the Data Bank concerning himself." 132 The physician
must contact the Secretary of Health and Human Services (HHS), who is in
charge of maintaining the database, and inform the Secretary of the
disagreement. 133 The Secretary will then review the information and
determine whether the information is correct or whether a rescission is
necessary. 134 Again, this is not an appellate procedure of the actual
peer review action; it is simply an appeal of the reported information.
a process exists for doctors who have had adverse actions reported
against them to dispute the NPDB report, "the damage it does may be
too difficult to overcome." 135 By the time a doctor even receives a
hearing on the matter, "in the case of a summary suspension, the
damage may already be done." 136 The mere perception that a doctor may
have had an adverse action taken against her is enough to prevent the
doctor from gaining privileges at another hospital. 137 To compound the
problem, physicians who have undergone the peer review process,
regardless of being found innocent of the allegations made against them,
may still be victims of disparate treatment. 138 Although the NPDB
was originally intended to monitor problem physicians, many in the
medical community are concerned that it has accomplished the complete
opposite, leading to the unintended consequence of destroying the careers
of many qualified physicians. 139
Case History in Bad Faith Peer Review
Immunity of Peer Review Actions
large part due to the immunity and confidentiality protections [*259]
afforded peer reviewers and the proceedings, it is extremely unlikely
that a suit alleging bad faith will result in a trial proceeding. 140 Prior to 1986 and
the passage of the HCQIA, physicians had a number of bases available to
challenge arbitrary peer review, such as defamation and breach of
contract. 141 The seminal case in the law concerning medical peer review
is Patrick v. Burget. 142 In Patrick, a physician was subjected to peer review
involving malice after he elected not to join a town's only medical
practice. The Supreme Court upheld a jury's decision to award the
physician 2.2 million dollars in damages for the exercise of bad faith
peer review. In addition, the Court's decision addressed the notion that
hospitals were immune from antitrust suits.
a result of the lower court's decision in Patrick to award damages, and
before the Supreme Court's final decision on the matter, Congress passed
the HCQIA that federalized the peer review immunity statutes that were
already found in some states. The Court in Patrick, notes that by
enacting HCQIA, "Congress clearly noted and responded to the concern
that the possibility of antitrust liability will discourage effective
peer review." 143 The Court went on to recognize that "the Act
essentially immunizes peer-review action from liability if the action was
taken "in the reasonable belief that [it] was in furtherance of
quality health care.'" 144 Since the passage of the HCQIA,
physicians may only sue if they can demonstrate that the hospital did not
provide the physician adequate due process during the peer review
process, or if the physician can show bad faith was involved. 145 Since hospitals
have the ability to keep peer review proceedings strictly confidential,
challenging a peer review on the basis of bad faith is very difficult. 146 Since Patrick and
the passage of the HCQIA, few courts have been willing to allow a
physician to overcome the immunity and confidentiality protections
afforded peer review proceedings. 147 Disciplined physicians must overcome the
difficult burden of proving bad faith to challenge a peer review
Some rare cases, however, have been upheld where a showing of blatant and
extreme bad faith existed. In Brown v. Presbyterian HealthCare Services, 149 a jury found that
there had in fact been an element of bad faith involved in the peer
review of the disciplined physician and awarded damages accordingly. The
district court judge presiding over the case, however, set aside the
award concluding that the plaintiff had failed to present adequate proof
of actual damages. 150 The Tenth Circuit Court of Appeals affirmed the
jury's decision that the defendants were not immune under the HCQIA from
antitrust and defamation claims and granted the compensatory damages to
the plaintiff. 151 The court found that the facts showed a direct link between
the accusing physician who initiated the peer review action and the
ultimate influence on the peer review committee and governing board. 152 The Court placed
particular attention on the fact that the accusing physician herself was
on the governing board which made the ultimate decision to revoke the
plaintiff's privileges. 153
proof needed to show a link between malice and the peer review action is
not always as blatant. In Zamanian v. Christian Health Ministry a
physician's license was suspended following a peer review action. 154 In 1998, the
doctor's case overcame claims of immunity brought by the defendant under Louisiana law and was
finally allowed to go to trial. The Louisiana Fourth Circuit Court of
Appeals reversed the district court's summary judgment after finding that
"members of the peer review committee "may have acted with
malice or a lack of good faith' during the peer review process." 155 The judges had
found that there "was evidence that Mercy Hospital had financial
reasons to want to discipline Dr. Zamanian because he kept patients in
the hospital for more days than Medicare authorized, resulting in the
hospital's losing money." 156 Finally, [*261] two
years after going to trial, in September 2000, a jury awarded Dr.
Zamanian six million in damages finding the peer review process had been
conducted in bad faith. 157
two weeks later, however, a civil district judge reversed the jury
decision and set aside the award by the jury finding that the peer review
process, which Mercy conducted, was "subject to immunity under state
and federal laws." 158 The case is currently on appeal. Again,
this case highlights the immense burden placed on the disciplined
physician to show that there is malice or bad faith involved in the peer
review process. Even if a doctor can make a showing that bad faith is
involved, he must still be willing and able to expend the cost of
pursuing a lengthy legal battle. 159 Few cases persevere this far into the
process. 160 In fact, this was the first case of its kind to reach a
jury trial in Louisiana. 161
The Hurdle of Non-Discoverability Peer Review Statutes
the immunity protections provided at both the state and federal level is
not the only challenge facing a disciplined physician. Often, overcoming
the burden of proving bad faith depends on revealing information
disclosed during the actual peer review proceedings. As discussed
previously, some states have made an exception to their non-discoverable
peer review statutes, allowing discovery when a physician is challenging
the adverse decision of a peer review committee. 162 A recent state
Supreme Court decision in Pennsylvania may provide
precedent that a state need not have legislated such an exception for one
to be found. Hayes v. Mercy Health Corp. 163 involved a
physician who had been suspended by the defendant for his involvement in
a malpractice claim. 164 After a hearing on the suspension, a peer review
committee determined [*262] that "the facts do
not support suspension". 165 Later, however, the hospital's Medical
Board altered the peer review committee's findings to state, "the
facts do not support continued suspension", implying the suspension
had been warranted at some point, resulting in a permanent mark on the
physicians record in the NPDB. 166 It came to the attention of the plaintiff
that there was bad faith involved when the Medical Board made their
finding and the plaintiff sought a copy of an audio tape made of the
Board's meeting to determine if in fact bad faith had played a role in
the decision. 167 The hospital refused and the physician sued to acquire a copy
of the tape.
its decision, the court focused on the intent of the Pennsylvania statute which
sought to keep peer review proceedings confidential. 168 The statute
states that peer review proceedings are to remain confidential "in
any civil action ... arising out of the matters which are the subject of
evaluation and review by such committee." 169 The court
interpreted the language of the statute to mean that it was intended
"to prevent the disclosure of peer review information to outside
parties seeking to hold professional health care providers liable for
negligence, while at the same time ensuring ... confidentiality did not
operate to shield from discovery those rare instances in which the peer
review process was misused." 170 The court held that the plaintiff should
receive a copy of the tape with the restriction that it be only used to
determine if the proceedings had been misused. 171
v. Mercy is important for a number of reasons. The Hayes court
acknowledges that there should be exceptions made to the confidentiality
provision in states where it is not expressly worded in statute. The
court recognized that the issues at stake were the fairness and integrity
of the peer review proceedings and whether the plaintiff-physician was
the victim of bad faith. 172 One attorney in the case concluded that,
"peer- [*263] review organizations have been used
to weed out competitors rather than investigate health care concerns.
This decision prevents peer-review organizations from being
misused." 173 Hayes also highlights the difficulty facing a physician who
attempts to clear his name. The cost to overcome a confidentiality
statute and to show bad faith is something that most physicians are
simply unable to afford.
Unfortunately, Pennsylvania has been the only
state to make such a finding.
174 Most recently, in June 2000, the Appeals
Court of [*264] Massachusetts considered in
Grande v. Lahey Clinic, 175 whether the reviewed physician could
depose an expert used in a peer review action in a subsequent defamation
suit. 176 The plaintiff, Dr. Grande, who was cleared in the peer
review action, sought to depose the expert to determine if she was aware
of any bad faith being involved in the peer review action. 177 The appeals court
held that the non-discoverable peer review protection applied to the
expert's testimony. 178 Thus, the plaintiff was prevented from discovering
potentially damaging testimony that would support his defamation suit.
Possible Solutions to a Flawed Peer Review Process
Current Remedies Available
discussed earlier, options for a disciplined physician are currently
somewhat limited. The HCQIA, 179 JCAHO, 180 as well as the
statutes of most states, 181 set out guidelines for hospitals to
follow when conducting a peer review. These guidelines are incorporated
into the bylaws of a hospital and must be followed in order for a court
to conclude that a doctor was given "due process." 182 Such bylaws,
however, are often drafted in favor of protecting the hospital, and can
be very difficult for a physician to discern. 183 These bylaws can
impose limited administrative [*265] procedures and
even restrict a physician's ability to utilize an attorney in the
proceedings. 184 The primary problem remains, however, that the appeals
process ends with a decision by the governing body of the hospital. 185 Once the
governing body makes its decision, it is very difficult to obtain any
additional review of the adverse action. Most courts are unwilling to
hear a suit on the merits brought by the disciplined physician
challenging the decision of a peer review board. 186 A disciplined
physician has no other recourse against a bad faith peer review decision
other that to file a suit for libel.
following an adverse decision made by the peer review committee and
approved by the board, the finding is forwarded to the National
Practitioner Data Bank. At this point, the disciplined physician acquires
some appellate options, but only with regard to the report posted on the
NPDB. 187 The physician has the ability to petition the Secretary of
HHS to review the report, and if the Secretary determines there is no
basis for the report, the record will be cleared. 188 This procedure is
limited to having the adverse report expunged from the physician's
record. Further, it does nothing to affect the hospital board's decision,
not to mention clear the physician's name in the community.
a physician find that bad faith or malice was involved in the
proceedings, she can take the matter to court under a defamation or
antitrust claim. 189 To overcome the immunity and confidentiality
protections afforded to peer review proceedings under state and federal
laws, a showing of bad faith must be made. 190 Antitrust is one
theory of [*266] law under which courts may be more
willing to hear cases involving bad faith. 191 Even though
courts are more reluctant to find antitrust violations in the area of
health care, 192 the Supreme Court has held in several key decisions that an
antitrust claim against a health care provider, like a hospital, is
subject to federal jurisdiction 193 and that health care providers may not
necessarily use traditional defenses against those suits. 194
the passage of the HCQIA, however, alleging an antitrust violation has
proven to be much more difficult because the Act requires merely that a
peer review action be taken "in the reasonable belief that the
action was in the furtherance of quality health care." 195 The broad
standards afforded to health care entities in the HCQIA afford hospitals
a great number of options to protect themselves from an antitrust
allegation, including having the "bylaws expressly provide that the
committee's recommendations to the Hospital Board in no way preclude the
Board from exercising its own judgment; or a hospital could rely on
pro-competitive justifications." 196 These techniques
allow hospitals to avoid litigation by claiming they are doing everything
they can to remain objective.
Comment is by no means intended to suggest that the medical profession is
free of substandard physicians. Nor is it meant to suggest that
appropriate evaluations of physicians should be eliminated. On the
contrary, it is intended to highlight a problem in the medical community
that is not often discussed. The peer review process as it exists today,
is flawed. The following are suggested changes to both the peer review
system, as well as the medical evaluation system in general, which seek
to achieve the goals of fairness in the evaluation process and achieve a
higher quality of care. 197 When compromises are made in the
evaluation [*267] process, the end result is that the
integrity of the medical community - and especially the quality of care
that patients receive - suffers.
Expansion of the current peer review appeals process
of the problem that plagues the current peer review system stems from the
lack of any meaningful appellate procedure available to the accused
physician. Once the governing board has made a determination, the
disciplined physician has no alternative but to accept the decision. 198 Creating a method
of allowing a sanctioned physician to appeal a decision to an independent
review board outside of the hospital would alleviate much of the
ambiguity tainting the current system. 199 An independent
analysis of all the facts offered by independent reviewers would likely
neutralize much of the pressure facing both peer reviewers in addition to
those being peer reviewed. Physicians who perform the initial peer review
of their colleague's work would surely welcome an independent analysis to
ensure consistent application of generally accepted medical standards.
If, however, they are confident of their review, these reviewing
physicians could assert at a libel trial that an independent review board
agreed with their findings. 200
similar alternative would be to allow a state agency oversight over the
activities of hospitals within their jurisdiction. 201 State medical
boards are already responsible for the licensing of physicians within the
state 202, although the boards are not responsible for oversight of
granting staff privileges in a hospital. As the importance of acquiring
such privileges in a hospital has become so critical to practicing
medicine within the state, it follows that states should play a role in
overseeing which physicians are afforded privileges. As a result of the
"decrease in the amount of reimbursement and more hospitals closing,
there is more competition to be placed in the hospital staff. Peer review
organizations have been used [*268] to weed out
competitors rather than investigate health-care concerns." 203 State oversight
would consist merely of a review panel of doctors from around the state
who would review the peer review committee's findings. It could even
relieve the hospital of any supervisory activity by simply allowing all
peer review actions to be controlled by the state.
the state is not willing to accept the responsibility of overseeing the
peer review process, the state should then provide physicians the ability
to immediately appeal the hospital board's decision to the state courts.
As was discussed in Patrick, the United States Supreme Court
acknowledged the unwillingness of the state court system to review
hospital privilege matters. 204 Physicians should have some recourse
available for a quick and fair review of their discipline.
provisions, and expansion of state exceptions to non-discoverability
seventeen states have adopted exceptions to their non-discoverability
peer review provisions. 205 These statutes permit physicians to
obtain access to peer review materials when challenging the curtailment,
suspension, termination or denial of staff privileges. 206 The HCQIA
presently does not carry any such protection for disciplined physicians.
Thus, the burden to obtain evidence showing that malice was present at a
peer review proceeding makes it difficult for the disciplined physician
to bring a case alleging bad faith to trial. 207 While it is
important to keep the peer review proceeding confidential in civil trials
involving malpractice claims, physicians should have the right to inspect
and offer evidence of bad faith discovered at the peer review
the immunity provisions found under state and federal laws afforded to
physicians who participate in the peer review process must be relaxed. It
is vital to remove the immunity veil that physicians are able to hide
behind, which allows them to manipulate the peer review process in order
to achieve politically or economically motivated goals. 208 By taking away
the immunity shields, physicians will be forced to rely more on [*269]
sound medical principles and less on personally driven agendas.
Continuous Improvement as a health care solution 209
peer review process has been criticized not only for its lack of
attention to the possible infusion of bad faith into the proceedings, but
also for its inability to improve the quality of health care provided in
the United States. The peer review process is often viewed in the
profession as aggressive and adversarial. 210 Most physicians
are put on the defensive to protect themselves against inquiries that may
lead to a complete revocation of their licenses to practice medicine. An
alternative approach to the peer review process that has been advocated
by many in the medical profession views quality of care not from an
adversarial, aggressive standpoint, but rather from a theory of
continuous improvement. 211 In states, like "Massachusetts, for example, a
physician merely talking with a hospital administrator about the
physicians involvement in a mishap may commit a hospital administrator by
law to report that physician to the Board of Registration in
Medicine." 212 Instead of seeking the highest quality of care for their
patients, the existing peer review process conditions physicians to be
cognizant of potential sanctions and adversarial actions, requiring a
physician to be constantly on the defensive.
competing approach has been advocated, that focuses on "the Theory
of Continuous Improvement, 213 which is the continuous search for
opportunities for all processes to get better." 214 By working with
colleagues towards self-development and improvement, rather than against
them, quality of medical care will be the ultimate beneficiary. We must
allow physicians to "free themselves from the fear, accusation,
defensiveness and na<um i>vete of an empty search for improvement
through inspection and discipline." 215 By staying on the
defensive, health care will never improve. 216
Critics of the NPDB argue that the national data bank is a good example
of why physicians and hospitals may not seek improvement in the quality
of care. 217 The NPDB imposes strict reporting requirements with
consequences that encourage hospitals not to report actions taken. 218 Rather than
attract public exposure to potential problems at the hospital, health care
entities will often seek out alternative corrective measures to avoid
reporting. 219 The alternatives used by health care entities should be the
goal of the NPDB; further education and training should be the rule,
rather than permitting a simple submission of a name to a data bank that
would effectively end the career of a physician. 220
quality and integrity of health care in the United States is critical to
the sustainment of prosperity. People expect competent and highly skilled
medical professionals when they utilize the health care system. Existing
quality control measures imposed by state and federal laws seek to
provide a continuous monitoring system that utilizes peers in the medical
profession to evaluate their colleagues. Today's system relies heavily on
immunity and confidentiality protections to shield a peer reviewer from
liability for his participation.
current immunity and confidentiality protections have the effect of
providing a safe-harbor for physicians who have ulterior motives, whether
economic or political. These physicians abuse the peer review system and
the safe-harbor provisions to eliminate the competition in their
community. In addition, the state and federal laws place an undue burden
on the disciplined physicians to show the presence of malice or bad faith
in the peer review process.
a minimum, the safe-harbor provisions that protect accusing physicians
from liability for claims made in bad faith, combined with the incredible
burden accused physicians must overcome to show bad faith, must be
removed. Further, an effort should be made to expand a reviewed
physician's appellate options at the state level to ensure an unbiased
and truly independent review of his work. Should the arbitrary peer
review process continue without any changes to the protections [*271]
currently afforded to peer review committees - or the review process
itself - many outstanding physicians who become the target of an adverse
peer review and are unable to afford costly litigation to clear their
name, will simply be eliminated as they will have no alternative but to
quit the medical profession.
"Semmelweis, Ignaz Phillip," Microsoft (R) Encarta. Copyright
1993 Microsoft Corporations. Copyright 1993 Funk & Wagnall's
Corporation), available at http://www.semmelweisociety.org (last visited Mar. 12, 2001).
Sendfelder, Leopold, Ignaz Phillip Semmelweis(1996)), at http://newadvent.org/cathen/13712a.htm) available at http://www.semmelweisociety.org (last visited Mar. 12, 2001).
Biography, Ignaz Phillip Semmelweis (1999)), available at http://artemis.austinc.edu/acad/cml/tcates/1997-98/ci11d/semmelweis/biography.html (last visited Feb. 4, 2000).
Susan L. Horner, The Health Care Quality Improvement Act of 1986: Its
History, Provisions, Applications and Implications, 16 Am. J. L. and
Med. 455, 458 (1990).
v. Charleston Memorial Community Hospital, 211 N.E.2d 253
(Ill. App. Ct. 1965).
See Horner, supra note 6, at 461.
Barbara Harty-Golder, M.D., Peer Review and Sour Grapes: Follow These
Steps to Protect Yourself from a Disgruntled Colleague, Physician's Prac.
Dig., July 1998, available at http://www.helix.com/resc/ppd/july98/peerrvw.htm.
See Health Care Quality Improvement Act of 1986, 42 U.S.C. 11101-11152 (1994).
Every state, including the District of Columbia, has passed its
own version of a Peer Review Immunity Law to address peer review of
physicians licensed in their state. See Lee J. Stillwell, Am. Med. Ass'n,
A Compendium of State Peer Review Immunity Laws, (1994).
See Ron A. Virmani, M.D., Medical Errors, Peer-Review & The National
Practitioner Data-Bank, LSUMC Bytes (2001), at http://www.lsumcbytes.com/bios/errors.html.
See, e.g., Josephine M. Hammack, The Antitrust Laws and the Medical Peer
Review Process, 9 J. Contemp. Health L. & Pol'y 419, 421 (1993).
Jonathan P. Tomes, Medical Staff Privileges and Peer Review 10 (1994).
n17. Id. at 13.
supra note 12.
See Tomes, supra note 14, at 10.
Susan O. Scheutzow, State Medical Peer Review: High Cost But No Benefit -
Is it time for a Change?, 25 Am. J.L. & Med. 7, 12 (1999).
Id. at 12-13.
Id. at 12. See also Tomes,
supra note 14, at 9.
See Tomes, supra note 14, at 23.
See Scheutzow, supra note 23, at 13.
n28. Id. at 14.
n29. Id. at 12.
See Tomes, supra note 14, at 22.
n32. Id. at 23-24.
See id. at 24.
See id. at 48. See also Laura-Mae Baldwin, M.D. et al., Hospital Peer
Review and the National Practitioner Data Bank: Clinical Privileges
Action Reports, 282 JAMA 349, 354 (1999) (stating that the
"governing board of the facility has the final authority with
respect to the award, denial, reduction, or revocation of medical staff
See id. at 42.
See id. at 42.
See id. at 42-44.
See Illinois State Med. Soc'y,
Due Process Guidelines for Physicians (1988); see Tomes, supra note 14,
See David W. Townsend, Hospital Peer Review is a Kangaroo Court, 3 Med.
Econ. 133 (2000), available at http://me.pdr.net/me...rnals/m/data/2000/0207/thcqia.html.
See Charles Silver, M.D., Letter to the Editor: Peer Review, 23 Surgical
Rounds 432 (2000).
486 U.S. 94 (1986).
Horner, supra note 6, at 461.
U.S.C. 11101(4)(1994). See Susan O. Scheutzow, supra note 23 at 9.
See Stillwell, supra note 11.
See Tomes, supra note 14.
See Troyen A. Brennan, M.D., Hospital Peer Review and Clinical Privileges
Actions: To Report or Not Report, 282 JAMA 381 (1999).
See 45 C.F.R. 60.1-14 (2000).
See 45 C.F.R. 60.1-4 (2000).
See Scheutzow, supra note 14 at 7, 9.
See Tomes, supra note 14, at 64; see also 42 U.S.C. 11101(4)-(5), 11111(a)
U.S.C. 11101(4) (1994).
See id. 11112(a)(1)-(4); see also 11111(a) (listing immunity
n55. Id. 11112(a)(1)-(4)
n56. Id. 11112(a).
Tanya Albert, LA Verdict Against Peer Review is Reversed, Am. Med. News,
Oct. 9, 2000, available at http://www.ama-assn.org/sci-pubs/amnews/pick 00/rsb1009.htm.
See 45 C.F.R. 60.2 (2001).
n59. Id. 60.1-14.
U.S.C. 11131 (1994).
n61. Id. 11132 (1994).
U.S.C. 11133 (1994).
See Scheutzow, supra note 23 at 7, 10.
U.S.C. 11137(b)(1) (1994).
See Bernard M. Jaffe, M.D., And Then There Were Two, 23 Surgical Rounds 9
See U.S. Dept. of Health and Human Services, National Practitioner Data
Bank: Fact Sheet Querying (2000); see also 45 C.F.R. 60.11(a) (2000).
n67. See id.
n68. Brennan, supra note 48 at 381.
n69. Health Insurance Portability and Accountability Act
of 1996, Pub.L. No. 104-191, 221(a), 110 Stat. 1996.
n70. U.S. Dept. of Health and Human Services, Healthcare
Integrity and Protection Data Bank: Fact Sheet on Entity Eligibility (2000).
n71. Susan J. Landers, New Data Bank Focuses on Fraud,
Am. Med. News, Nov. 22-29, 1999, at 5.
n73. Id. at 6.
n75. See Silver, supra note 41, at 432.
n76. Patient Protection Act of 2000, H.R. 5122,
106[su'th'] Cong., (2000).
n77. See Landers, supra note 71, at 5.
n78. See Tomes, supra note 14, at 66. See also, e.g.,
Del. Code Ann. tit. 24, 1768 (2000) Members of hospital ... medical society
committees ... whose function is the review of ... medical care and physicians
work ... shall not be subject to, and shall be immune from, claim, suit,
liability, damages, or any other resource, civil or criminal, arising from any
act or proceeding. The records and proceedings of ... members of hospital
medical society committees, or of a professional standards review organization
... whose function is the review of ... physicians' work ... shall be
confidential and shall be used by such committees or organizations, and shall
not be available for court subpoena or subject to discovery. (Emphasis added).
n79. See Tomes, supra note 14, at 66.
n80. Stillwell, supra note 11, see also Ala. Code
n81. Id. at vi. [including: Alaska (Alaska Stat.
18.23.030 (Michie 2000)), Arizona (Ariz. Rev. Stat. 32-1451 (2000)),
California (Cal. Bus. & Prof. Code 809.2 (2001)), Colorado (Colo. Rev. Stat.
12-36.5-104(10)(b)(I-IV) (2001)), Connecticut (Conn, Gen, Stat. 19a-17b(b)
(2001)), Hawaii (Haw. Rev. Stat. 663-1.7 (2000)), Illinois (225 Ill. Comp.
Stat. 6015 (2001)), Kansas (Kan. Stat. Ann. 65-4915(4)(c) (2001)), Kentucky
(Ky. Rev. Stat. Ann. 311.377 (Michie 2001)), Louisiana (La. Rev. Stat. Ann.
13:3715.3 (West 2001)), Mississippi (Miss. Code. Ann. 41-63-9 (2001)),
Missouri (Mo. Rev. Stat. 537.035 (2000)), New Hampshire (N.H. Rev. Stat. Ann.
317-A:17 (2000)), Oregon (Or. Rev. Stat. 441.055 (1999)), Rhode Island (R.I.
Code 5 37.3 7 (2001)), South Dakota (S.D. Codified Laws 36-4-26.1
(Michie2001)), and Washington (Wash. Rev. Code 70.41.200 (2001))].
n82. Stillwell, supra note 11, at vi.
n83. 42 U.S.C. 11101-11151
n84. See Tomes, supra note 14, at 66.
n86. Kan. Stat. Ann. 65-4915(b) (1994).
n87. See infra pp. 261-264.
n88. See Scheutzow, supra note 23, at 7,12.
n89. Id. at 16.
n91. See Townend, supra note 40, at 133.
n92. See Virmani, supra
n93. Townend, supra note 40, at 133.
n94. Silver, supra note 41, at 432.
n95. Tomes, supra note 41, at 64.
n96. See Scheutzow, supra note 23, at 7, 9.
n97. Id. at 54.
n98. Brennan, supra note 48, at 381.
n99. Id. at 382.
n100. Stillwell, supra note 11.
n101. See Silver, supra note 41, at 432.
n102. See 42 U.S.C. 11101(4)-(5).
See also Mich. Stat. Ann. 14.57(21) (1994), Va. Code Ann. 8.01-581.13, 581.17
n103. Brennan, supra note 48, at 382.
n104. Tomes, supra note 14, at 41-48.
n105. Id. at 42.
n106. See id. at 22-23. See also Silver, supra note 41,
n107. Office of Inspector General, U.S. Dept of Health
Human Services, Pub. No. OE-01-94-00050, Hospital Reporting to the National
Practioner Data Bank (1995).
n108. Baldwin et al., supra note 34, at 350.
n109. 42 U.S.C. 11131(a)
n110. Id. 11132 (a)(1).
n111. Id. 11133 (a)(1).
n112. Id. 11133(a)(1)(A)-(B).
n113. See Baldwin, et al., supra note 34.
n114. Phyllis Maguire, New Data Bank Casts Wider Net:
How the Fraud Busters Threaten to Turn up the Heat on Physicians, ACP-ASIM
Observer, Jan. 1999, available at http://www.acponline.org/journals/news/jan99/databank.htm.
n115. See 42 U.S.C. 11101(4)-(5).
See also Mich. Stat. Ann. 14.57(21) (1994), Va. Code Ann. 8.01-581.13, 581.17
n117. See supra Part I.A.
n118. See John E. Graf, Comment, Patrick v. Burget: Has
the Death Knell Sounded for State Action Immunity in Peer Review Antitrust
Suits?, 51 U. Pitt. L. Rev. 463, 463 (1989).
n119. See Scheutzow, supra note 23, at 13.
n120. See Tomes, supra note 14, at 58.
n121. See id.
n122. See Hammack, supra note 13, at 421.
n123. See Silver, supra note 41, at 432.
n124. 42 U.S.C. 11131-11133
(1994). See also Baldwin et al., supra note 113.
n125. 45 C.F.R. 60.5 (2000).
n126. See Maguire, supra note 114.
n127. 42 U.S.C. 11135(a)(1)
(1994). A hospital is also required to query the NPDB every two years
concerning a physician who is on their medical staff or has clinical
privileges at the hospital. 42 U.S.C. 11135(a)(2)
n128. See Maguire, supra note 114.
n129. See Virmani, supra note 12.
n130. See id.
n131. 45 C.F.R. 60.14 (2000).
n132. Tomes, supra note 14, at 10.
n133. 45 C.F.R. 60.14(b) (2000). See also infra note
n134. 45 C.F.R. 60.14(c) (2000).
n135. Townsend, supra note 40, at 133.
n137. See id. at 1-2.
n138. 42 U.S.C. 11134(b)
(1994). See also, 45 C.F.R. 60.1 (2000).
n139. See Silver, supra note 41, at 432.
n140. Albert, supra note 57.
n141. See Townend, supra note 40.
n142. Patrick v. Burget,
800 F.2d 1498 (9[su'th'] Cir. 1986), rev'd 486 U.S. 94 (1988).
n143. Patrick, 486 U.S. at
n144. Patrick, 486 U.S. at
n145. See Townend, supra note 40.
n147. See Albert, supra note 57.
n148. See Mathews v.
Lancaster General Hospital, 87 F.3d 624 (Tenn. 1996) (reaffirming
the immense burden placed on a physician to show that bad faith was involved
in a peer review and maintaining that there is a strong presumption that the
peer review is performed in good faith).
n149. Brown v. Presbyterian
Health Care Services, 101 F.3d 1324 (1996).
n151. Id. at 1334.
n152. Id. at 1333-35.
n153. Id. at 1335.
n154. Zamanian, 715 So.2d
57 (La. App.4th Cir. 1998).
n155. See Albert, supra note 57.
n158. Id. at 14.
n159. See Virmani, supra note 12.
n160. Albert, supra note 57.
n161. See id.
n162. See Stillwell, supra note 11, at viii.
n163. Hayes , 559 Pa. 21,
739 A.2d 114 (1999).
n164. Id. See also Renee H. Martin, New Peer Review
Confidentiality Issues, Physician's News, Dec. 1999, available at http://www.physiciansnews.com/law/
n167. See id.
n168. See id. See also Peer Review Protection Act, 63
Pa. Cons. Stat. 425.1-.4 (1996).
n169. Id. See also 63 Pa. Cons. Stat. 425.4 (1996).
n170. Martin, supra note 164; see also Hayes, 559 Pa. 21 (1999).
n172. See Danielle Rodier, Justices: Doctor Can Use Tape
of Peer Review to Clear Name; Allegations of Misuse Outweigh Concerns of
Confidentiality, Legal Intelligencer, Oct. 6, 1999, at http://lawnewsnetwork.com/stories/A7061-1999Oct5.html.
n174. It is important to note that the federal courts do
not necessarily follow the decisions of state courts. Two recent landmark
federal court decisions have refused to recognize state privilege protections
to peer review material. These cases signal an important trend in the
treatment of peer review material that will hopefully lead state courts to
follow their findings. In Virmani v. Novant
Health Inc., 259 F.3d 284 (7[su'th'] Cir. 2001), the Seventh
Circuit Court of Appeals refused to allow a hospital to assert a North
Carolina peer review statute to protect material disclosed during a peer
review hearing involving one of its physicians. The plaintiff, Dr. Ashutosh
Virmani, had filed suit against the hospital for unlawfully terminating his
medical staff privileges, alleging discrimination based on race and national
origin. Dr. Virmani sought to compel the records of the peer review to support
his claim. The hospital refused to disclose the material, claiming the records
were privileged from discovery under the North Carolina peer review protection
statute. The Seventh Circuit, noting that it is thus far the only Circuit
Court to squarely address the issue, rejected the hospitals assertion, holding
that "the interest in obtaining probative evidence in an action for
discrimination outweighs the interest that would be furthered by recognition
of a privilege for medical peer review materials. Therefore, [the court]
refuses to recognize such a privilege." Virmani,
259 F.3d 284, 293 (7[su'th'] Cir. 2001). Following the Seventh
Circuit's decision in Virmani, the U.S. District Court for the Northern
District of Indiana, upheld the Virmani decision in a similar case involving
an alleged claim if disability discrimination. In Mattice v. Memorial Hospital of South Bend, 2001
U.S. Dist. LEXIS 15076 (Sept. 21, 2001), the plaintiff, Dr. Thomas
Mattice, had sought to compel disclosure of documents relating to a medical
peer review of Dr. Mattice. The Hospital sought to prevent discovery of the
documents, asserting the documents were privileged under an Indiana peer
review statute. The District Court, citing the decision in Virmani, determined
that when "the state-law medical peer review privilege [is weighed] against
the interests advanced by the federal anti-discrimination laws, the privilege
does not preclude discovery of peer review materials." Mattice, 2001 U.S. Dist. LEXIS 15076, 8
(Sept. 21, 2001). The District Court agreed with the Seventh Circuit that in
the case of a federal discrimination claim, "peer review documents are not
privileged and are subject to discovery." Mattice,
2001 U.S. Dist. LEXIS 15076, 12 (Sept. 21, 2001). Of course, these
cases involve claims that arise in federal court. Unfortunately, as mentioned
in the Comment, state courts have been reluctant to come to the same
conclusion as their federal counterparts.
n175. Grande, 49 Mass. App.
Ct. 77, 725 N.E.2d. 1083 (2000).
n176. Legal Report: Court Bolsters Peer Review, RMF,
June 2000, at http://www.rmf.harvard.edu/publications/resource/legal-reports/jun2000/.
n177. See Id.
n179. 42 U.S.C. 11112(a)-(b)
n180. See Joint Commission on Accreditation of Health
Care Organizations, Accreditation Manual for Hospitals (1990). See also Tomes,
supra note 14, at 42.
n181. See Tomes, supra note 14, at 42.
n182. Id. at 42-45.
n183. See Townsend, supra note 40, at 133.
n184. See id.
n185. See Tomes, supra note 14, at 22.
n186. Moreover, the Oregon courts have indicated that
even if they were to provide judicial review of hospital peer-review
proceedings, the review would be of a very limited nature. The Oregon Supreme
Court, in its most recent decision addressing this matter, stated that a court
"should [not] decide the merits of plaintiff's dismissal' and that "it would
be unwise for a court to do more than to make sure that some sort of
reasonable procedure was afforded and that there was evidence from which it
could be found that plaintiff's conduct posed a threat to patient care.' Patrick v. Burget, 486 U.S. 94, 104-05 (1988)(citation
n187. 45 C.F.R. 60.14(a) (2000).
n188. 45 C.F.R. 60.14(c)(2)(ii) (2000).
n189. See Horner, supra note 6, at 461.
n190. 42 U.S.C 11102(a),
11137(b)(1) (1994). See Tomes, supra note 14, at 64.
n191. See Tomes, supra note 14, at 51. See also Hammack,
supra note 13, at 429.
n192. See Tomes, supra note 14, at 51.
n193. See Summit Health
Ltd. v. Pinhas, 111 S. Ct. 1842, 1850 (1991). See also Hammack,
supra note 13, at 421.
n194. Patrick, 486 U.S. at
n195. 42 U.S.C. 11112(a)(1)
n196. Hammack, supra note 13, at 449.
n197. See id. at 450.
n198. See Tomes, supra note 14, at 22.
n199. See Virmani, supra note 12.
n200. A caution put forward by physicians against
removing the confidentiality protections is the risk of a libel suit. In light
of the accepted tort concept that the medical profession is no longer limited
to local customs, physicians would be able to assert that an independent
review board agreed with their findings, releasing themselves from the
liability of slander.
n201. See Townsend, supra note 40, at 133.
n202. See Tomes, supra note 14, at 11.
n203. Rodier, supra note 172.
n204. Patrick, 486 U.S. at
n205. See Stillwell, supra note 11, at viii. See also,
supra note 81.
n206. See id.
n207. See Townsend, supra note 40.
n208. See Silver, supra note 41, at 432.
n209. Donald M. Berwick, M.D., Continuous Improvement As
An Ideal In Health Care, 320 New Eng. J. Med. 53 (1989).
n210. See id. at 53; see Jaffe, supra note 65.
n211. See Berwick, supra note 209, at 53.
n212. Id. at 53.
n213. Id. at 54.
n215. Id. at 56.
n216. See id.
n217. See Brennan, supra note 48, at 381.
n218. 45 C.F.R. 60.5-.9 (2000).
n219. Baldwin, supra note 34, at 354.
n220. See Jaffe, supra note 65, at 9.