Holland & Hart Healthcare Law Blog

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. 

Getting Out of the National Practitioner Data Bank - Part II

Getting out of the NPDB is perhaps equivalent to escaping from Alcatraz – a near impossible feat. Yet there are those who have accomplished it. The easiest way of course is to convince the hospital or other reporting entity that the report was improvidently submitted and that it should be retracted and withdrawn as they are able to do. The other option is to convince the Secretary of HHS that based on the administrative record, the submission was in error and not reportable under the criteria for reporting set out in the NPDB Guidebook. If the Secretary persists in affirming the appropriateness of the report, the only remaining recourse is the filing of a judicial review action in a federal court under the federal Administrative Procedure Act, 5 U.S.C. §701 et seq., where you must establish that the decision by the Secretary was "arbitrary and capricious." One of the most contentions areas of data bank reporting is the obligation to report a physician who resigns or withdraws an application for privileges in order to avoid a peer review "investigation" or discipline. Two successful judicial review cases in which doctors have "escaped" from the NPDB are instructive.

Getting Out of the National Practitioner Data Bank, Part I

Once a physician or other health care provider is reported to the National Practitioner Data Bank, he or she is normally there for life. It is extremely difficult to get out. Some physicians have remarked that it is like having a "record," which like in the criminal context can result in the denial of hospital privileges, denial of jobs and potentially the destruction of careers. All hospitals are required to access the data bank reports on physicians every two years during hospital privieges re-certifications. State disciplinary actions are required to be reported as well as malpractrice insurance payments (no matter the amount). Peer review discipline is also reportable, although their are some limited exceptions.

Colorado Denies Immunity from Physician Peer Review

In Peper v. St. Mary’s Hospital and Medical Center, No. 07CA2491, the Colorado Court of Appeals held that a Colorado hospital and medical stafff physicians who revoked the plaintiff’s hospital privileges without notice or a hearing failed to establish grounds for immunity under the Health Care Quality Improvement Act of 1986.  Dr. Peper is a cardiothoracic surgeon who was appointed and reappointed to the “provisional actual medical staff of St. Mary’s Hospital.”  At about the time of his reappointment, the hospital began a secret review of 19 of Dr. Peper’s cases.  An external reviewer asserted the presence of provisions that suggested the possibility of problems with surgical techniques and/or judgment.

Appeals Court Reverses Poliner Judgment

The Fifth Circuit Court of Appeals has reversed the $33 Million Dollar Judgment awarded the plaintiff in Poliner v. Texas Health Systems. The Poliner case raised a lot of eyebrows both because of the amount of the original damages award of $360 Million Dollars and its success in overcoming immunity claims under the Health Care Quality Improvement Act of 1986 ("HCQIA"). The trial court reduced the award to $33 Million Dollars prior to the appeal.   Dr. Poliner, an interventional cardiologist, claimed that he was forced to agree to an abeyance of his privileges in lieu of a summary suspension and was prevented from performing procedures in the the defendant's catherization laboratory while an investigation was pending, only posted about $10,000 dollars in actual damages. His case went to a jury solely on defamation grounds.

No Hearing, No Immunity in Peer Review Rules Iowa Federal Court.

There is a curious set of facts in the case of Estate of Horst G. Blume and Headache & Pain Control Center, P.C., v. Marion Health Center and its successor in interest, Mercy Medical Center-Sioux City, Case No. 03 CV 4117 filed in the United States District Court For the Northern District of Iowa, Western Division on March 14, 2007.  The case arose out of the summary suspension of Dr. Blume from practice on December 2, 1998 apparently based upon some incident reports.  The federal district court held that the hospital failed to provide Dr. Blume with a hearing on his suspension and therefor failed to qualify for the statutory requirements for immunity under the Health Care Quality Improvement Act of 1986 ("HCQIA").  The circumstances surrounding the failure to provide a hearing are unusual.

LOOSE LIPS IN OR: PENNSYLVANIA FEDERAL DISTRICT COURT PERMITS DEFAMATION SUIT AGAINST TELLAR SURGEON TO PROCEED.

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”).

Michigan Supreme Court Jetisons Judicial Non-Intervention Doctrine in Review of Private Hospital Staffing Decisions.

Judges have long been reluctant to intervene in private hospital staffing decisions.  They are frequently uncomfortable in second guessing hospital decisions regarding the qualifications and competency of physicians.  In the case of public hospitals they have had little choice.  Public facilities are public actors and staffing decisions raise constitutional and civil rights issues.  In June of this year the Michigan Supreme Court specifically rejected the judicial non-intervention doctrine in private hospital disputes previously adopted by the Michigan Court of Appeals in a line of cases.  In Feyz, M.D. v. Mercy Memorial Hospital et al., 719 N.W.2d 1 (Mich. 2006), the court determined that the judicially created “doctrine of non-intervention” was at odds with the Michigan peer review immunity statute.

Florida Appeals Court Finds No Immunity For Peer Review of Malpractice Expert Witness

Dr. John Fullerton is a physician and medical malpractice expert witness. He is licensed to practice in Florida and California, but he lives and practices primarily in California. He is not a member of the Florida Medical Association ("FMA") He testified in Florida in a medical Malpractice case brought against Drs. Jonathan B. Wrach, Pravinchandra Zala and Joseph O. Krebs.  After a judgment in their favor, the doctors filed a complaint with the FMA asserting that Dr. Fullerton's opinion testimony fell below reasonable professional standards. and was made for the sole purpose of propagating a frivolous lawsuit for financial gain. Dr. Fullerton then filed suit against the three doctors and the FMA. He alleged the statements in their complaint were false and were submitted for processing by the FMA's Expert Witness Committee of its Council on Ethical and Judicial Affairs, which he alleged was organized for the purpose of "intimidating, hindering , and deterring persons, including Plaintiff Fullerton , from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice." He claimed to have suffered damages and irreparable harm to his reputation. The trial court granted the defendants' motion for summary judgment on the basis that the Florida peer review statute and the Health Care Quality Improvement Act of 1986 ("HCQIA") barred Fullerton's claims in the absence of proof of intentional fraud.

Federal Court in Texas Holds Discriminatory Peer Review Relevant In Antitrust Case.

On May 1, 2006, a federal district court in Houston, Texas held that disparate treatment of a physician in peer review was relevant to the physician’s antitrust case. In Royal Benson, M.D. v. St. Joseph Regional Medical Center, ( C.A. H-04-04323), Judge Keith P. Ellison ruled that Dr. Benson was entitled to pursue discovery of discriminatory treatment of him in peer review by sustaining his request that St. Joseph Regional Medical Center produce peer review cases of physician’s other than himself who went through peer review proceedings at St. Joseph. Judge Ellison, acknowledged the validity of St. Joseph’s argument that the relevant issue in the peer review proceedings was whether a physician’s peer reviews could reasonably have concluded that Dr. Benson provided substandard care. See Willman v. Hartland Hospital East, 34 F.3d 605, 610-11 (8th Cir. 1994).