AMA Policies Regarding Due Process
REPORT OF THE BOARD OF TRUSTEES
Subject: Peer Review Immunity
Presented by: Timothy T. Flaherty, MD, Chair

At the 2001 Interim Meeting, Board of Trustees Report, Peer Review Immunity, adopted as amended by the House of Delegates ask our AMA 1) to monitor legal and regulatory challenges to peer review immunity and non-discoverability of peer review records/proceedings and continue to advocate for adherence to AMA policy, and 2) to produce an additional report with recommendations that will protect patients and physicians in the event of misdirected or negligent peer review at the local level while retaining peer review immunity for the process.

This report recommends that 1) medical staffs adopt bylaws that provide for a peer review process that is consistent with Health Care Quality Improvement Act criteria and AMA policy, 2) medical staffs consider bylaw provisions that include an option or alternative for external peer review when there is a reasonable allegation by the reviewed physician, and 3) if states believe that negligent or misdirected peer review is a problem, they consider legislative action establishing an administrative review panel to review physicians claims of unfair peer review prior to judicial involvement.

AMA Policy

Current AMA policy supports peer review activities by physicians and discourages involvement in a peer review process by physicians who are economic competitors of the involved physician. AMA policy also supports confidentiality protection of peer review documents and proceedings (Policies H 375.972, H 375.983, H 375.987, H 375.989, H375.990. H 375.992, H 375.993, H 375.997.

Background

Board Report 8-I-01, Peer Review Absolute Immunity for Lawsuits, adopted as amended as Peer Review Immunity, discussed the history and purpose of the Health Care Quality Improvement Act (HCQIA) and described in detail, the requirements that must be met in order to invoke immunity under the act. The limited immunity provided by HCQIA does not preclude all claims for damages against a peer review committee. The report specified those situations in which immunity would not apply, namely, 1) civil rights violations; 2) peer review which does not meet HCQIA criteria for fair process and notice and 3) suits for injunctive relief.

The report also acknowledged the potential for abuse as well as the occasional personal agendas that may motivate peer review actions. It recommends that, among other things, medical staffs adopt/implement medical staff bylaws that are consistent with HCQIA and AMA policy.

Discussion

Physicians sanctioned by a peer review panel face a daunting process if they challenge a peer review action and seek money damages. The time and expense involved in judicial proceedings is significant. Moreover, HCQIA generally enables a defendant to prevail in damage actions so long as the peer review committee has provided due process and notice to the physician under review.

HCQIA immunity provides protection for good faith peer reviewers but was not intended to protect illegitimate actions taken under the guise of furthering quality care. Congress did not want to see patient care undermined when privileges are unfairly terminated. Congress specifically recognized the potential abuse in the peer review process and limited immunity to actions that met the criteria articulated in the Act. Further, Congress did not place any barriers or impediments in the way of physicians who chose to file a complaint with federal antitrust agencies, bring matters to the attention of the state boards or licensing authorities, or file an action to enjoin the actions of a peer review committee or hospital. Physicians who feel that they have been the victim of unfair peer review have always had the opportunity to seek injunctive relief, for instance suits alleging violation of due process or suits alleging antitrust, so long as the claimant is not seeking money damages. HCQIA immunizes peer review participants from money damages; it does not insulate peer reviewers from suits. Physicians can also raise their concerns to the attention of the Department of Justice (DOJ) or the Federal Trade Commission (FTC) or the state board of medical examiners at no cost.

Current AMA policy recommends that hearing panels consist of members who are not in economic competition with the involved physician. Furthermore, When an objective fair peer review process is at risk due to participation of competitors, persons motivated by retaliation, discrimination, cronyism or other personal agendas, a mechanism for external review would provide physicians with some assurance of fairness. Medical staffs have discretion to establish procedures that provide for external peer review either as a standard bylaw provision or whenever there is a reasonable allegation that the peer review panel is biased. While one process may not necessarily be workable for all medical staffs, a variety of approaches can be established in bylaws which involve external peer reviewers. It should be noted, however, that even when HCQIA and state immunity is assured, it may be difficult for medical staffs to recruit physicians for external peer review. Some communities may have only one hospital and some physicians may still be reluctant to participate in professional matters of other medical staffs.

Private peer review organizations also exist to provide external peer review for medical staffs. These organizations provide independent physician evaluation to assist medical staff and committees and can provide board certified physicians in all specialties. Physicians who believe that peer review is the responsibility of medical staff members may meet utilization of these professional consultants with some resistance. The cost of using private peer review organizations is an issue which needs to be addressed and requires creative solutions on the part of both hospital and medical staff

State medical societies or specialty societies may also be a resource in peer review by recommending physicians they know are willing to assist in peer review when requested by a party to peer review.

Because local external peer review may be unworkable in some communities, because local external peer review may not guarantee an objective and fair process, and because some medical staffs may be resistant to establishment of external review panels, a state remedy may be required.

Some states have legislated a process for judicial review of negative credentialing actions. Washington D.C., Arizona, and Virginia, for example, have enacted laws establishing a process for judicial review of negative credentialing decisions. These laws give the courts parameters by which to determine whether a credentialing decision should be upheld.

Other states have created administrative review boards to hear the merits of physicians claims prior to court proceedings. In New York, an impartial panel of 14 persons appointed by the governor reviews the adverse decision. The panel may revise or uphold the decision of the hospital or it may make its own finding. After the panels review, the physician may then file suit, although the panels findings become evidence in any judicial proceeding. AMA staff has reviewed these programs and notes that some physicians are critical of a state-mandated review mechanism. Some physicians believe that state intervention encroaches on the medical professions' responsibility to monitor itself. Other physicians caution that more punitive recommendations than those of the original peer review committee may result .

Colorado established a committee to review claims of unreasonable anticompetitive conduct in connection with privilege or staff membership decisions. The committee may reverse, remand, or modify the action or dismiss the physicians complaint. Any allegation other than anticompetitive conduct may be filed directly with the court.

Conclusion

The potential for discriminating or anticompetitive peer review exists despite the integrity of the medical profession. However, immunity for peer reviewers must not be compromised. Peer review is essential for ensuring and improving quality patient care and immunity is essential to those physicians who participate in peer review.

In order to assure a fair process and avoid time-consuming and costly litigation by physicians who challenge the objectivity of the hearing panel, an opportunity for external review should exist at the local level. However, because of the assortment of bylaws in place in hospitals and possible resistance to incorporate alternatives for external review panels, state legislative action should be considered to offer redress to physicians when states believe that the peer review process is being undermined.

Recommendations

The Board of Trustees recommends that the following recommendations be adopted and the remainder of the report to be filed:

1. That the AMA recommend medical staffs adopt bylaws that provide for a peer review process that is consistent with HCQIA criteria and AMA policy (Directive to Take Action.)

2. That the AMA recommends medical staffs consider bylaw provisions that include an option or alternative for external review when there is a reasonable allegation by a reviewed physician. (Directive to Take Action)

3. That the AMA recommends that if states believe that negligent or misdirected peer review is a problem, legislative action be considered. (Directive to Take Action)