Medical peer review is an essential component of quality patient care. The Federal Health Care Quality Improvement Act (HCQIA) of 1986 was promulgated by Congress to grant confidentiality and immunity from liability to those who conduct reviews in good faith.
All States, recognize a privilege that generally protects information generated during the review process from discovery during unrelated litigation, such as medical liability cases.
Congress was trying to encourage full and open participation in peer review process. But the biggest problem with peer review is that it is open to manipulation and can be used as a blunt instrument to get rid of the competition.
This Texas case is perhaps most illustrative of the chief problem with peer review. A Texas jury in 2004 awarded damages to a Dallas cardiologist who alleged his privileges had been suspended improperly during a hospital review of his cases by a group of cardiologists. The court affirmed that Presbyterian Hospital of Dallas did not qualify for immunity because it unfairly restricted the hospital privileges of the doctor, without enough information to determine if he posed a danger to patients.
The 5th Circuit Court of Appeals in July reversed the trial court ruling, by concluding that peer reviewers remain protected as long as their decisions are made in the reasonable belief that the action was in the furtherance of quality health care, as required under HCQIA.
To determine reasonableness, the Court analyzed whether the review panel acted appropriately based on available data and followed due process requirements. Courts must analyze such decisions based on objective facts, not on bad-faith intentions such as malice. Federal protections allow doctors to seek injunctive relief in state court to stop alleged abusive actions. Review committees risk losing immunity under state laws for failure to follow hospital staff bylaws.
Peer review committees should limit their actions to the perceived health care problem at hand rather than a summary suspension — key in determining if a review panel acted reasonably.
In June 2007, the 11th U.S. Circuit Court of Appeals in Adkins v. Christie ruled that a state peer review privilege did not apply in federal discrimination cases. The court ordered a hospital to turn over seven years of peer review records to a black surgeon. The Court concluded that efforts to combat discrimination outweighed any patient safety benefits of the confidential process.
Legal Analysis: The peer review process can be used a both a sword and a shield. As a shield when unscrupulous doctors want to hid behind this process and they act with malice to get rid of a competitor.
As a sword when the affected doctor is being disciplined for being unsafe or negligent, and the reviewers face the prospect of the short end of a lawsuit. Obviously this casts a chill over the administrative process.
The reviewing doctors have to be able to police and weed out bad doctors but this has to be balanced so that this powerful tool and power cannot be held in the hands of a few. As one person has said; “Absolute power corrupts absolutely.” (Lord Acton).