HCQIA IMMUNITY CAN APPLY TO PEER REVIEW OF PRIVATE PHYSICIAN CONDUCT.

In the recent case of Moore,, MD v. Williamsburg Regional Hospital et al., No. 07-1966 (4th Cir. 2009), a federal court of appeals addressed the issue of how far a hospital peer review can go in considering the private conduct of a physician in suspending his or her hospital privileges.  The physician, Dr. Moore is a general surgeon who performs surgery on both adults and children in his practice.  Dr. Moore’s private left spilled over into his professional life in a tragic and unresolved way. 

The South Carolina Department of Social Services took Dr. Moore’s three adopted children into protective custody following allegations that his wife had physically abused the children. The Moore’s adopted daughter made a complaint that she had been abused by both Dr. Moore and his wife. There were apparently at least three DSS investigations, two inconclusive and a third resulting in a formal complaint being filed in a family court. The DSS later filed a voluntary non-suit allegedly because of concerns about the trauma of the child in pursing the Moore’s and the fact that their parenting rights had been terminated pursuant to an agreement with the Moore’s in the physical abuse case in which there was apparently a stipulation of some kind of physical abuse and neglect..

Meanwhile, back at the ranch, the hospital learned of the sexual abuse allegations and summarily suspended Dr. Moore’s privileges after obtaining a copy of the DSS complaint which detailed the statements made by the child to DSS investigators and others.  Dr.Moore appealed the suspension through three levels of review.  He was placed in the largely impossible position of proving a negative without the ability to confront his adopted daughter.  He did provide a psychiatric profile that indicated that he did not present the diagnostic criteria of a pedophile. Dr. Moore lost his appeals and filed an action in federal court alleging federal and state court claims.  The district court dismissed his case on immunity under the Health Care Quality Improvement Act of 1986 and other grounds.

 The focus of his appeal was that his suspension was not a “professional review action” under HCQIA because it referred to matters outside of the jurisdiction of the hospital.
The hospital argued that the scope of its potential review of a physician’s private life was unlimited as it related to immunity. The court disagreed with the hospital that its jurisdiction for peer review was unlimited. 

A surgeon whose personal life might not bear close scrutiny may nonetheless save lives with his talents in the operating room.

 Giving peer review bodies the discretion to suspend staff privileges and report physicians for largely private defalcations is thus to arm those reviewers with a club that Congress did not provide.

The court, nevertheless, found that there was a “clear nexus between the alleged sexual misconduct and plaintiff’s medical practice.”

In no sense did Congress mean to encourage fishing expeditions into private behavior. A “professional review action” requires that the record reflect a clear nexus between the basis for an “action” or “recommendation” and a physician’s medical practice. 42 U.S. C. § 11151(9).

The court determined that there was a legitimate and reasonable concern at the hospital about the connection between Dr. Moore’s surgical practice with children and the allegations of sexual abuse of his adopted daughter. The allegations and concerns were thus within the penumbra of a professional review action and immunity applied, assuming the notice and other due process procedures complied with HCQIA requirements..

Any statutory standard inescapably involves some difficult exercises in judgment and to deny decisionmakers the right to exercise judgment in close cases is to defeat the purpose of immunity.