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 physician’s competitors’
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 physician’s health care. It
also permits termination of the physician’s 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 hospital’s 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 HCQIA’s immunity
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
Review Must Be 100% Wrong?
In Brader v. Allegheny
General Hospital, 167 F.3d 832 (3rd Cir. 1999), it was
proven that the hospital’s 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
hospital’s 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
hospital’s 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 physician’s 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 physicians’ 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 physician’s Data Bank
entry may, if left unchallenged, have a deleterious effect on the
physician’s 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 Doctor’s
Suit Against Hospital Was SLAPP