By Dennis Hursh, Esq.
Serving on a peer review committee is a thankless job, which all too often proves the old adage that “no good deed goes unpunished.” A physician called upon to judge the competency of another physician is placed in the unenviable position of attempting to balance the desire to protect patients from “bad medicine,” while still assuring that a colleague’s livelihood will not be endangered. The stakes are high on both sides of the equation. The purpose of this article is to provide a brief overview of applicable law, and to provide practical guidance to a physician involved in the process, to assure that all the protections of the law are available.
State and federal law each provide separate and overlapping protections. A brief overview of each follows.
Professional Review Actions. The Health Care Quality Improvement Act of 1986 (HCQIA) generally provides immunity from damages for participants in a “professional review action” if certain conditions are met. A “professional review action” means an action taken “which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients).” An action is not considered to be based on the competence or professional conduct of a physician if the action is primarily based upon “any other matter” that does not relate to the competence or the professional conduct of a physician.
This definition is critical, because a decision that adversely affects a physician’s clinical privileges for a period longer than 30 days based upon a “professional review action” generally must be reported to the State Board of Medicine, which, in turn is required to report this information to the National Practitioner Data Bank (NPDB).
Immunity from Damages. As noted above, HCQIA does not give blanket immunity to participants in a “professional review action.” Instead, this immunity is granted only if the professional review action was taken: (1) in the reasonable belief that the action was in furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).
A physician who was the subject of an adverse peer review action who wishes to attack the participants in a peer review process has the burden of proving the professional review action does not meet the above criteria. A discussion of each of the required four criteria needed to preserve immunity follows.
Reasonable Belief that the Action was in Furtherance of Quality Health Care. The courts apply an objective standard in determining if immunity should be granted, and will grant immunity if action taken could reasonably be construed as being in furtherance of quality health care. The court will find a reasonable belief present if the reviewers “based upon the information available to them at the time of the professional review action, would reasonably have concluded that their actions would restrict incompetent behavior or would protect patients.”
Reasonable Effort to Obtain the Facts. This criterion should be easily met. There should be evidence that the professional review action’s decision was based upon available facts (e.g., discernable actions or inactions by the physician in question that fall below the standard of care). If the professional review action was faced with apparently conflicting evidence, the record should reflect a diligent effort to “sort it out.”
Adequate Notice and Hearing Procedures. The criterion of an “adequate notice and hearing” is met if certain notice and hearing conditions are either present in the peer review (or are waived voluntarily by the physician). Most medical staff bylaws comply with the statutory notice and hearing requirements. It would be prudent to obtain assurances from the legal counsel to the medical staff that the bylaws in question comply with the law.
Reasonable Belief that the Action was Warranted by the Facts Known. For purposes of analyzing this prong of the immunity test, the “facts known” are deemed correct, unless the facts are so obviously mistaken or inadequate as to make reliance on them unreasonable.
The Pennsylvania Peer Review Protection Act defines “peer review” as “the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed . . .” A “review organization” is defined as “any committee engaging in peer review.”
The Act provides that no member of any “review organization” shall be held, “by reason of the performance by him of any duty, function or activity authorized or required of review organizations, to have violated any criminal law, or to be civilly liable under any law, provided he has exercised due care.” This immunity will not apply with respect to any action taken by any individual “if such individual, in taking such action, was motivated by malice towards any person affected by such action.”
In short, the statute will not provide immunity for individuals who have not exercised due care; nor will it provide immunity for individuals who have acted with malice. “Malice” has been defined in this context as “the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent.” The Pennsylvania Supreme Court has supplemented this definition often and said that “malice does not necessarily mean a particular ill-will toward another; it comprehends in certain cases recklessness of consequences and a mind regardless of social duty.” Interestingly, the court in the seminal case in this regard found a refusal to correct an allegation made, even after a face to face meeting and denial by the plaintiff, was one indication of malice on the part of the defendant. Accordingly, it is imperative that the record of the peer review action reflect that the assertions of the physician in question were considered, and evidence of some reasonable basis for the committee to disregard or discount these assertions.
To fully protect yourself when involved in a peer review action, it is important to keep the basic principles set forth above in mind at all times during the process. At all points in the process, you must be diligent in determining the facts that lead to the decision. The physician being reviewed should be given every opportunity to provide an adequate defense and to fully develop all facts and expert opinions which would support that physician’s activities.
You should assure yourself that any recommended actions are appropriate to the circumstances, and are structured to assure that quality care can be delivered. If the sanctions seem punitive to you, they most certainly will seem so to the affected physician, and could lead to a claim that your actions are not protected by applicable law.
Participating in peer review activities is rarely pleasant. However, to assure the availability of high quality health care someone has to perform this service. Physicians who undertake this important responsibility with the proper frame of mind and devote their full attention to the matter should be protected by applicable law.
Dennis Hursh, Esq., is a principal in Hursh & Hursh, P.C., a Middletown, Pennsylvania law firm concentrating on representation of physicians and physician group practices.