Health Care Quality Improvement Act

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HCQIA is the Health Care Quality Improvement Act of 1986, which authorized the federal government to establish a National Practitioner Data Bank for the blacklisting of physicians by hospitals.

Specifically, the law requires reporting by "[e]ach health care entity which--

  • (A) takes a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days;
  • (B) accepts the surrender of clinical privileges of a physician--
    • (i) while the physician is under an investigation by the entity relating to possible incompetence or improper professional conduct, or
    • (ii) in return for not conducting such an investigation or proceeding; or
  • (C) in the case of such an entity which is a professional society, takes a professional review action which adversely affects the membership of a physician in the society, shall report to the Board of Medical Examiners ..." 42 U.S.C. § 11133(a).

The state medical board then reports the information to the National Practitioner Data Bank.

Contents

Qualified Immunity

HCQIA confers qualified immunity from litigation for peer review organizations if they satisfy the following "reasonableness standards" under 42 U.S. C. Sec. 11112(a):

...the professional review action was taken

1. in a reasonable belief that the action was in the 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

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 requirements of 3. above.

In practice, the "qualified immunity" of HCQIA is converted into nearly absolute immunity for peer reviewers due to a judicial doctrine known as the doctrine of non review or non-intervention. Courts are very reluctant to "second guess" decisions made in hospitals with respect to peer review. They frequently defer to the hospital's judgment. This places physicians who have been wrongfully terminated by a sham peer review at severe disadvantage.

Professional Review Action

HCQIA defines the term "professional review action" to mean:

an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, 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), and which affects (or may affect) adversely the clinical privileges ... of the physician.

42 U.S.C. § 11151(9). Under the HCQIA, a professional review body is cloaked with immunity from suits for damages:

If a professional review action (as defined in section 11151(9) of this title) of a professional review body meets all the standards specified in section 11112(a) of this title, except as provided in subsection (b) of this section--
(A) the professional review body,
(B) any person acting as a member or staff to the body,
(C) any person under a contract or other formal agreement with the body, and
(D) any person who participates with or assists the body with respect to the action, shall not be liable in damages under any law of the United States or of any State (or political subdivision thereof) with respect to the action.

42 U.S.C. § 11111(a)(1).

Presumptions

HCQIA law contains a number of provisions which unfairly favor hospitals and which place physician victims of bad faith peer review (sham peer review) at extreme disadvantage.

Section 11111(a)(4), for instance, presumes that the hospital has met due process standards as outlined in Sec. 11111(a). This presumption shifts the burden of proof to the accused physician to prove that the hospital did not meet due process standards.

And, although due process standards are well delineated in HCQIA, Sec. 11111(b)(3)(D)(ii) basically nullifies these standards. If the peer review entity (hospital etc.) does not meet the standards delineated in Sec. 11111(a)(3) regarding hearing notice and conduct, this in itself does not constitute a violation according to 11111(b)(3)(D)(ii). This basically allows hospitals to do pretty much as they please, and not worry about following due process standards.

Attorneys Fees

And, last but not least, so as to strongly discourage physicians who are victims of an unjust sham peer review, from pursuing justice in the courts, there is a loser pays provision of HCQIA - Section 11113. If the physician does not prevail in the action, the physician can be liable for defendants' legal fees.

Conclusion

Physicians who are strong, outspoken advocates for quality care and patient safety in hospitals frequently face retaliation by hospitals via sham peer review. The result of a "successful" bad faith peer review conducted by a hospital is typically the end of the physician's medical career.

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