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The Law implemented 1986

Definitions used in HCQIA

Landmark Cases 

These cases are the latest in a series of decisions nationwide leaving physicians who are subjected to peer review without any legal remedies, and without any right to secure a fair hearing and a fair outcome.

(1988) PATRICK v BURGETT  -  (protects physicians in the State of Oregon from federal antitrust liability for their activities on hospital peer-review committees)
Bias and Conflicts of Interest Immaterial

In Manzetti v. Mercy Hospital of Pittsburgh, the Pennsylvania Supreme Court held on July 18, 2001 that the hospital and reviewers were entitled to immunity under HCQIA. The Supreme Court disregarded all evidence relating to the reviewed physicianís competitorsí involvement in the case and attacks against him. The Court stated that any self-interest, bias or conflicts of interests by the reviewers were immaterial. According to the Court, the only time HCQIA precludes an economic competitor from involvement in the internal peer review process is at the hearing panel phase of the case; however, HCQIA does not preclude economic competitors from perpetrating due process violations and inculcating bias throughout the early phases of the review process. Under most hospital bylaws, by the time the physician gets to the fair hearing panel, the burden has shifted against the physician with the requirement that the physician prove by clear and convincing evidence that all prior decisions were arbitrary and capricious or factually baseless. Practical experience demonstrates this is a virtually impossible burden to sustain and standard to satisfy.

The Supreme Court also held that the "reasonable effort" prong of the four-part HCQIA immunity test is satisfied if the review activities are "sensible," but they do not have to be "flawless." Thus, the Supreme Court has countenanced due process violations and errors in the peer review process.

Sloppy, Negligent and Wrong Peer Review Warrants Immunity

In Donnell v. HCA Health Services of Kansas, Inc., the Kansas Court of Appeals held on July 6, 2001 that physician peer reviewers are immune from liability under HCQIA even if their investigations are sloppy, negligent, and wrong. Physicians must prove bad faith and malice to have a peer review decision overturned.

This decision, like Manzetti above, allows a hospital to make serious mistakes about the quality of a physicianís health care. It also permits termination of the physicianís staff privileges, and the detrimental effect of a Data Bank entry, all with immunity from liability and practical impunity.

One Mistake and Done: Free Ride for Abuse

In Meyer v. Sunrise Hospital, the Nevada Supreme Court held on May 15, 2001 that a hospitalís decision to terminate a physician based upon a single incident, regardless of the high quality of care the physician provided throughout the remainder of his career, was sufficient to protect the hospital under HCQIAís immunity provisions.

One Justice on the Supreme Court recognized the unfairness of the statute, but was compelled to uphold the decision. The Justice noted that HCQIA can sometimes be used, "not to improve the quality of medical care, but to leave a doctor who was unfairly treated without any viable remedy." That Justice also stated: "basically as long as the hospitals provide procedural due process and state some minimal basis related to quality health care, whether legitimate or not, they are immune from liability, which leaves the hospitals free to abuse the process for their own purposes."

No Constitutional Infractions

In Freilich v. Board of Directors of Upper Chesapeake Health, Inc., a federal court in Maryland held on May 14, 2001 that the HCQIA immunity provisions do not violate due process or equal protection under the U.S. Constitution.

Review Must Be 100% Wrong?

In Brader v. Allegheny General Hospital, 167 F.3d 832 (3rd Cir. 1999), it was proven that the hospitalís outside expert report had several incorrect conclusions. The Court of Appeals, however, ignored these mistakes because it found the report to be "otherwise thorough." The Court implied that the expert report must be entirely mistaken, and that the mistakes must be obvious. Because they were not, the hospitalís decision was not unreasonable, and the first and fourth prongs of the HCQIA immunity test were satisfied.

Bias and Mistakes Early and Often Mean Nothing

In Gordon v. Lewistown Hospital, 714 A.2d 539 (Pa. Cmwlth. 1998), Commonwealth Court found that there is a presumption of validity of the hospitalís disciplinary procedures. An outside consultant was retained. The Hearing Officer was an attorney, who was determined not to be in economic competition with the physician, but was a neutral party. Even though some of the physicianís direct economic competitors were involved in the decision, and there was evidence of a history of hostility toward him, none of those individuals participated in drafting the outside report. The Court then looked to the totality of the process leading to the professional review action. Under that broad test, even though some parts of the process were critically flawed and biased, the Court said, in totality, the physician got all the process he was due.

The Dreaded Data Bank

An "adverse action" following peer review results in the hospital reporting (through the Medical Board) the physician to the National Practitioner Data Bank, commonly referred to as the "Data Bank." Many reports conclude physiciansí care was "incompetent," "unprofessional" or other professionally disastrous terms. Economic experts have opined that such a negative statement in the Data Bank directly results in substantial economic loss to a physician. The Pennsylvania Supreme Court in Hayes v. Mercy Health Corp., 559 Pa. 21, 739 A.2d 114 (1999) stated that a physicianís Data Bank entry may, if left unchallenged, have a deleterious effect on the physicianís medical career.

SLAPP's in California

California has a statute that specifically protects people from SLAPPs. Code of Civil Procedure section 425.16, which took effect in 1993, allows a judge to decide at the outset of the suit whether the SLAPP has a "probability" of winning. If the judge finds that it does not, the SLAPP must be dismissed, and the SLAPP target wins his or her legal defense costs and attorneys' fees.

Generally, a "SLAPP" is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.

Ultimately, most SLAPPs are not legally successful. Nevertheless, while most SLAPPs do not succeed in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect "chills" public participation in, and open debate on, important public issues. This chilling effect is not limited to the SLAPP defendants -- other people refrain from speaking out on issues of public concern because they fear being sued for what they say.

The filing of a SLAPP also impedes resolution of the public matter at issue, by removing the parties from the public decision-making forum, where both the cause and resolution of the dispute can be determined, and placing them before a court, where only the alleged "effects" of the public controversy may be determined. For example, imagine a company asks for a zoning variance to place an incinerator in a residential area. When local residents object to the city council, the company sues them for "interference with contract." The judge hearing the suit cannot decide the real issues -- the location of the incinerator -- but will have to spend considerable judicial resources to decide the side issues of the alleged "damages" or other consequences of the public debate on the real issues.

State High Court Holds Doctorís Suit Against Hospital Was SLAPP

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