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 YOU?

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 Davenport-Ware, kim@kdwlaw.com

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,  cgspc@prodigy.net

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 patient information?

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,  cgspc@prodigy.net

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,  cgspc@prodigy.net

<stevegl@sierrahealth.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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