The author is Nicholas Kadar, MD, JD, LLM, a gynecologic oncologist and member of the New Jersey Bar who practices health law. He holds that courts misinterpret the Health Care Quality Improvement Act, which was enacted in 1986 and is designed to protect hospitals and peer reviewers from liability, assuming their decisions about physicians meet certain fairness standards.
Dr. Kadar says courts have protected unjustified peer review actions by hospitals in the following ways:
1. Summary judgment. “Courts protect peer review abuses because they almost always hold that the physician failed to rebut the presumption of immunity, and dismiss lawsuits against hospitals on summary judgment without a trial,” Dr. Kadar says. He says courts have not followed the rules for evaluating evidence required by summary judgment.
2. Disregard of HCQIA’s legislative history. Dr. Kadar claims courts have disregarded HCQIA’s legislative history, particularly amendments that sought to balance protecting effective peer review and protecting physicians against improper peer review.
3. Deference to peer reviewers. “Nothing in the language or legislative history of HCQIA authorizes courts to defer to the peer reviewers whose actions are at issue as to what is reasonable,” Dr. Kadar says. However, courts have deferred to peer reviewers to find hospitals immune, he says.
4. Non-review doctrine. “Courts have historically been very unwilling to intervene in equity to reverse staffing decisions of hospitals for a variety of reasons, one of which was that they felt less qualified than medical professionals to make judgments about the operation of hospitals. This unwillingness to reverse hospital decisions on equitable grounds is what is referred to as the ‘non-review doctrine,'” Dr. Kadar says.
5. HCQIA as a question of law. “The final way in which most federal courts have rewritten HCQIA to protect peer review abuses is by declaring that whether the physician has rebutted the presumption of immunity is a question of law for the court to decide, not a question of fact for the jury to decide. However, it is elementary that questions of law do not depend on evidence. Since a hospital’s immunity depends on the sufficiency of the physician’s rebuttal evidence, immunity cannot be a question of law,” Dr. Kadar says.
Related Articles on Peer Review:
Kaiser, Sutter Physicians Sue Hospitals for “Unlawful” Peer Review Process
Building a Proactive External Peer Review Program & Estimating ROI: How to Get Started
Formal Peer Review Committee Necessary for Confidentiality, Tennessee Supreme Court Rules
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