Questions You Should Ask and Know Answers
1. Question: When considering legal action in response
to adverse action of a hospital credentialing body or a state
medical board, what are the pluses and minuses of filing suit in
STATE versus FEDERAL court? Or should you file in both?
2. Question: How soon in a credentialing or
administrative process do you break and run to court? Do you HAVE TO
wait until the entire process unravels, or is there a point you can
go to court before that (e.g. for injunctive relief, etc)?
3. Question: Do we know for certain, nationwide, that
your own peer review and credentialing materials are discoverable BY
4. Question: When we sue the board of medicine or the
hospital committees, do we sue in their individual capacities, too?
Or just official?
5. Question: Anyone ever file a writ of mandamus to
make the medical board do the job it is assigned by law to do? In
other words, rather than rubber stamp the findings of its
investigator or the complaints before it, can't you MAKE THE BOARD
do the proper investigations as required by statute? Or is there no
case law to support that idea?
6. Question: Is anyone aware of any medical
societies/associations that do peer review that is covered under the
Health Care Quality Improvement Act?
7. Question: I am also interested in knowing if there
are associations that have explored the possibility of performing
peer review and decided not to do so.
7. Answer: I believe that the California Medical
Association is looking into this service - I'd contact their VP and
General Counsel Catherine Hanson at 415-882-5135. Kim
8. Question: Who pays for peer review? Who pays to
assure it is impartial?
9. Question: How can one overcome the alleged
immunity of the peer review perpetrators?
9. Answer: Immunity may be challenged if the entity is
not a "health care entity" as defined in HCQIA; if there was no
adequate investigation prior to taking the action; if there is
evidence that the action was not taken in good faith for the
improvement of quality health care (antitrust or similar intent); or
if there is evidence that the action was taken for malicious
motives. "Malice" has been held to include the reckless disregard
for the falsity of the accusations- another good avenue is if there
is evidence that witnesses deliberately lied when they testified
against the physician. If all the evidence is contained in the
transcript of the peer review hearing, there is a huge hurdle to
getting admissible proof that gets you past summary judgment for the
hospital. Chris Sharp JD,
10. Question: How much of the peer review
proceedings may be revealed in private or made public? Does the
alleged privilege refer to proceedings or only to identifying
10. Answer: In Texas, the privilege can only be waived
by formal action of the peer review committee; there may be some
penalty for divulging peer review privileged materials; it attaches
to the entire proceeding; but information that is otherwise
discoverable outside the peer review process does not become
privileged merely because it was furnished to the peer review
committee. Chris Sharp JD,
11. Question: Has any one been successful for
defamation on the basis of the NPDB report?
11. Answer: I have not personally tried to sue them.
Interesting cases have arisen where the hospital mischaracterizes
the basis for the adverse action by selecting a severe sounding
"adverse action code" for their report which doesn't fairly report
the case. We don't see it until after it is reported, necessitating
a dispute. Chris Sharp JD, firstname.lastname@example.org
<email@example.com> 06/19/01 12:50PM >>>
I have a couple of questions related to NPDB and HIPDB reporting.
These questions are from the perspective of a health plan.
13. Question: If a health plan denies credentialing
for a provider based on action taken by a hospital, licensing board,
Medicare, or some other "reporting" body, is the health plan also
required to report to the data bank, or can the health plan rely on
the fact that the other body, e.g., state licensing board, has a
duty to report the provider?
14. Question: If a health plan denies an initial
application for credentialing based on past malpractice claims or
action by a licensing body, is that initial denial reportable, or
are only re-credentialing denials reportable?
15. Question: Has anyone come across helpful resources
related to reporting requirements for health plans?
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