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| | The state medical board then reports the information to the National Practitioners Data Bank. | | The state medical board then reports the information to the National Practitioners Data Bank. |
| | + | |
| | + | == 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): | | 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): |
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| | 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. | | 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 | | HCQIA law contains a number of provisions which unfairly favor hospitals |
| | and which place physician victims of bad faith peer review (sham peer review) | | and which place physician victims of bad faith peer review (sham peer review) |
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| | 11111(a)(3) regarding hearing notice and conduct, this in itself does not | | 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. | | 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 | | And, last but not least, so as to strongly discourage physicians who |
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| | 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. | | 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. | | 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. |
| | | | |
| | [[category:United States law]] | | [[category:United States law]] |
| | + | [[category:peer review]] |