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, 03:04, December 12, 2006
HCQIA is the "Health Care Quality Improvement Act." It 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.
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.
Sec. 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.
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 -
Sec. 11113. If the physician does not prevail in the action, the
physician can be liable for defendants' legal fees.
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.