A Federal District Court for the Middle District of Pennsylvania dismissed multiple claims against Pinnacle Health Hospitals, Inc. (“Pinnacle”) and a number of physicians which arose out of the peer review of Dr. Ayadeji O. Bakare, M.D., but permitted a defamation action against Dr. Barry B. Moore, M.D. and his employer, Pinnacle to proceed.
In Bakare, M.D. v. Pinnacle Health Hospitals, Inc. et al., Civil Action 1:03-cv-1098 (Aug. 24, 2006), Dr. Bakare, a board certified OB/Gyn physician, sought recovery of damages based upon claims of anti-trust violations, breach of contract, interference and defamation arising out of his precautionary suspension from the Pinnacle medical staff and an adverse recommendation from the Medical Executive Committee that his medical staff privileges be revoked. Pinnacle lifted Dr. Bakare’s suspension shortly after it was imposed following an agreement worked out between the parties to limit the scope of Dr. Bakare’s practice pending the investigation. The adverse recommendation as to his privileges was reinforced by an independent outside review by a physician recommended by the Academy of Obstetrics and Gynecology (“ACOG”).
Dr. Bakare requested and received a “fair hearing” before Pinnacle’s Fair Hearing Committee (“FHC”). The FHC met fifteen times over four months, listened to 30 hours of testimony and deliberated over four and one half hours.
The FHC concluded that the adverse action of the MEC was in error. The MEC received misinformation concerning the cases. The FHC found that the MEC acted “reasonably and responsibly” based on the information presented to it, but that the information was wrong. The MEC accepted the FHC findings and conclusions and reversed its adverse recommendation.
The Court determined that immunity under the Health Care Quality Improvement Act (“HCQIA”) applied and that Dr. Bakare couldn’t demonstrate by a preponderance of the evidence that the MEC action was not undertaken “in the reasonable belief that the action was in furtherance of quality health care,” (after a reasonable effort to obtain the facts), or that there was any defect in the nature and hearing procedures.
Dr. Bakare himself testified that had he heard the evidence presented to the MEC he would have agreed with the MEC’s conclusion.
The Court also dismissed Dr. Bakare’s antitrust claims because of lack of evidence and the failure of Dr. Bakare to establish anti-trust damages so as to provide him standing to bring his case (i.e., Dr. Bakare could not demonstrate that his loss advanced the anti-competitive agenda of the defendants.)
Then the Court addressed a discussion between Dr. Moore and a number of nurses in the operating room lounge shortly following Dr. Bakare’s precautionary suspension. Dr. Moore apparently advised the nurses that he was tired because he had been working on an investigating executive committee looking into the quality of care of Dr. Bakare. Dr. Moore allegedly told the nurses that Dr. Bakare was being investigated for the poor quality of his care for his OB/Gyn patients away from the operating room. Although there is a dispute as to what Dr. Moore actually said, the Court said that there was sufficient evidence for a reasonable jury to conclude that Dr. Moore told the nurses that Dr. Bakare provided bad care and that the statement was false. The Court denied the Motion to Dismiss the defamation claim against Dr. Moore. The Court also denied Pinnacle’s Motion to Dismiss on the defamation claim because Dr. Bakare’s claim against it was based on vicarious liability of Dr. Moore, who was an employee of Pinnacle, acting within the scope of his employment. Since Dr. Moore’s discussion with the nurses occurred outside of the peer review process, there is no immunity protection. This result is yet another reason why peer review proceedings should be isolated from hospital chit chat and confidentiality be strictly enforced. The immunity tent for peer review is large, but it only covers genuine peer review activity.
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