Health care organization any hospital, hospital medical staff, clinic,
long-term or extended care facility, ambulatory surgery center, emergency medical
services unit, physician, group of physicians operating a clinic or outpatient care
facility, combination of these entities, or federally designated state peer review
organization.
Health care provider a physician or other person licensed, certified, or
otherwise authorized by the law of this state to provide health care services.
Patrick v. Burgett Dr. Patrick was a general and vascular surgeon who joined the
staff at Columbia Memorial Hospital, the only hospital in Astoria,
Oregon, in 1972. The majority of the staff members at this hospital
were either employees or partners of theAstoria Clinic. Dr. Patrick
had declined an invitation to become a partner of the clinic, instead
choosing to establish a private practice of his own. As a result,
Clinic physicians consistently refused to have professional
dealings with Dr. Patrick, referring patients to surgeons as far
away as 50 miles rather than sending them to Dr. Patrick. Clinic
physicians were also reluctant to assist Dr. Patrick in surgeries,
declined to provide consultations, and refused to provide backup
coverage. Meanwhile, these same physicians criticized Dr.
Patrick for failing to obtain outside consultations or to provide
adequate backup coverage.
In 1981, one of the Astoria Clinic surgeons requested the
Executive Committee of the hospital to initiate a review of Dr.
Patrick’s hospital privileges. It was a sham peer review, and the
committee recommended that Dr. Patrick’s privileges be terminated.
Pursuant to the medical staff bylaws, Dr. Patrick demanded
a hearing. A five-member ad hoc committee was appointed,
chaired by the same Clinic surgeon who had initiated the sham
peer review. Other members of the ad hoc committee refused to
testify about their own personal bias against Dr. Patrick. As is
typical with most sham peer reviews, the hospital made sure that
the cards were stacked heavily in their favor. Recognizing that
fact, and with no hope of a fair and unbiased hearing in the hospital
setting, Dr. Patrick resigned rather than risk termination of his
privileges and the myriad of adverse consequences that would
surely follow. He subsequently filed suit under the Sherman
Antitrust Act, contending that the partners of theAstoriaClinic had
initiated peer review proceedings against him to reduce competition
rather than to improve patient care. He was awarded a
substantial award via jury verdict, which was subsequently
overturned by the Ninth Circuit Court of Appeals. The Court
described the peer review action undertaken by the hospital as “shabby, unprincipled, and unprofessional.” Nonetheless,
immunity was granted the accusers on the basis of the “State
Action” doctrine. In effect, the court apparently believed that some
State agency was actually responsible for supervising the medical
peer review process and, therefore, the federal government was
prohibited from interfering with this “State Action.” As we all
know, however, sham peer review is strictly a local process and is
not supervised in any fashion by any state agency.
Patrick v. Burgett
was subsequently appealed to the U.S.
Supreme Court. The Semmelweis Society joined with AAPS in
filing an amicus brief in support of Dr. Patrick. Filing briefs
opposing Dr. Patrick were the American Medical Association
(AMA), the American Hospital Association, and many others. The
AMA brief stated “peer review recommendations… can provoke
anger and have a significant adverse economic impact on the
affected physician. Consequently, physicians…often vigorously
challenge that action through litigation.” The AMA and others
argued that effective peer review is essential to quality medical care
and that any threat of antitrust liability would inhibit physicians
from participation in peer review proceedings.
In a landmark decision, the Supreme Court overturned the
decision of the Court of Appeals, stating that the state action did not
insulate the anti-competitive conduct of private individuals from
antitrust liability unless that conduct was “fairly attributable to the
state.” That meant that the state had to actively supervise the
conduct and actually have the power to review and overturn peer
review decisions. Accountability and court access were assured, at
least temporarily.
Following the Patrick case, the federal government passed the
Health Care Quality Improvement Act (HCQIA) in 1986 under
pressure from the medical industry, including the AMA, to give
both hospitals and peer-review panels legal immunity from
lawsuits. This same law created the National Practitioner Database
(NPDB).HCQIAwent into effect in 1990.
Peer review committee any committee of a health care organization,
composed of health care providers, employees, administrators, consultants, agents,
or members of the health care organization's governing body, which conducts professional peer review.
Peer review records all data, information, reports, documents, findings,
compilations and summaries, testimony, and any other records generated by,
acquired by, or given to a peer review committee as a part of any professional peer
review, regardless of when the record is created. The term does not include original
patient source documents. Peer review records also include all communications
relating to a professional peer review, whether written or oral, between peer review
committee members, peer review committee members and the peer review
committee's staff, or peer review committee members and other persons
participating in a professional peer review, including the person who is the subject of
the professional peer review.
Professional peer review all procedures a peer review committee uses or
functions it performs to monitor, evaluate, and take action to review the medical care
provided to patients by health care organizations or health care providers to improve
patient care and treatment or to provide quality assurance.
Peer review records - Confidentiality.
Peer review records are confidential
and may be used by a peer review committee and the committee members only for conducting a
professional peer review.
Peer review records - Privileged - Exceptions.Peer review records are
privileged and are not subject to subpoena or discovery or introduction into evidence in any civil
or administrative action, except:
1. Records gathered from an original source that is not a peer review committee;
2. Testimony from any person as to matters within that person's knowledge, provided
the information was not obtained by the person as a result of the person's
participation in a professional peer review; or
3. Peer review records subpoenaed in an investigation conducted by an investigative
panel of the board of medical examiners pursuant to chapter 43-17.1 or subpoenaed
in a disciplinary action before the board of medical examiners pursuant to section
43-17-30.1. Any peer review records provided to an investigative panel of the board
of medical examiners or introduced as evidence in any disciplinary action before the
board are confidential and are not subject to subpoena, discovery, or admissibility
into evidence in any civil or administrative action, and are not public records subject
to section 44-04-18 and section 6 of article XI of the Constitution of North Dakota.
Peer review committee - Mandatory reports - Penalty.
A peer review
committee shall report to an investigative panel of the board of medical examiners any
information that indicates a probable violation of subsection 4, 5, 16, or 17 of section 43-17-31. A
health care organization is guilty of a class B misdemeanor if its peer review committee fails to
make any report required by this section.
Liability of health care provider to patient.
This chapter does not relieve
any health care provider of any liability that the provider has incurred or may incur to a patient as
a result of furnishing health care services to the patient.
Limitation of liability.
1. A person furnishing peer review records to a peer review committee with respect to
any patient examined or treated by a health care provider is not, by reason of
furnishing the records, liable in damages to any person or for willful violation of a
privileged communication.
2. A health care organization, health care provider, or member of a peer review
committee is not liable in damages to any person for any action taken or
recommendation made regarding a professional peer review, if the organization,
provider, or committee member acts without malice and in the reasonable belief that
the action or recommendation is warranted by the facts known to the organization,
provider, or committee member.
Joint Commission on Accreditation of Health Care Organizations (JCAHO) defines hospital (clinical) privileges.
The JCAHO, for example, requires that a health care facility provide limited due process protections as well as peer review standards in their bylaws.
medical peer
HCQIA & Due Process: The Act establishes four standards that peer review actions must meet in order to be eligible for the protections under the Act. 54 The HCQIA requires a peer review to be taken:
(1) in the reasonable belief that the action was in furtherance of quality of 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, and
(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts.
If it can be shown that Due Process is maintained in Peer Review procedures, all peer reviewers are absolutely immune from any recourse stemming from their testimony.
NPDB Established by the Health Care Quality Improvement Act of 1986 as a place for reporting disciplinary actions involving physicians. The intent was that it would provide hospitals, health care insurers and other official agencies a way to research applicants for hospital access priveleges. Information reportable to the NPDB includes: medical malpractice payments 60; any sanctions by a Board of Medical Examiners 61; and any review actions taken by health care entities such as hospitals, Health Maintenance Organizations, and professional societies.
Health Care Integrity and Protection Data Bank (HIPDB), created by the Secretary of Health and Human Services through the Health Insurance Portability Act of 1996 "to combat fraud and abuse in health insurance and health care delivery." "The new data bank ... requires that state and federal law enforcement organizations, licensing and certifying boards, and private health plans report a range of adverse actions taken against licensed health care practitioners, providers and suppliers." "The reportable offenses include licensing actions, exclusions from the Medicare and Medicaid programs and criminal convictions and civil judgments."
Peer Review Organizations (PROs) were established through
the Peer Review Improvement Act of 1982 (a part of the Tax Equity and Fiscal
Responsibility Act of 1982),2 replacing Professional Standards Review Organizations
(PSROs) that had been established in 1972. In FY2002, they were renamed Quality
Improvement Organizations (QIOs). Federal Regulatory Costs. DHHS budget figures show that federal outlays for
PROs were $535 million in FFY2002.
Quality
Improvement Organizations (QIOs).
QIOs are statewide physician-sponsored or physician-access
organizations paid through federal contracts to review Medicare-reimbursed medical
services and are the principal mechanism for ensuring quality for Medicare patients. To
participate in Medicare, a hospital must enter into agreements with the QIO serving its
area, giving the QIO authority to review the quality and appropriateness of care provided. QIOs are designed to improve the quality of care for beneficiaries by ensuring
that professionally recognized standards of care are met; enhance program integrity by
ensuring that Medicare only pays for items that are reasonable and medically necessary;
and, protect beneficiaries by addressing individual beneficiary’s complaints, hospital issued notices of non-coverage, and Emergency Medical Treatment and Labor Act
(EMTALA) “dumping” violations. State QIOs carry out these responsibilities through
federally funded contracts.
Patient Protection Act of 2000 includes a provision that would allow the general public access to the raw data found in the data bank on hundreds of thousands of physicians without including an explanation of what the data contains.
Office of Inspector General (OIG) in 1995 published a report that "raised concern that there may be underreporting by hospitals of physicians with performance problems." Under HCQIA, hospitals are required to report to the NPDB any actions against a physician to include: medical malpractice payments, licensure actions taken by the Board of Medical Examiners, and adverse actions on clinical privileges. The NPDB requires the reporting of two types of actions, those that adversely affect clinical privileges for a period of more than thirty days, and in those cases where there is a surrendering or restriction of privileges while the physician is under investigation.
Silver v New York Stock Exchange Justice Goldberg in Silver v New York Stock Exchange, stated that by affording procedural and substantive due process, underlying facts would be illuminated and therefore prevents erroneous decisions on the merits from occurring.
Hayes v. Mercy The Hayes court acknowledges that there should be exceptions made to the confidentiality provision in states where it is not expressly worded in statute. The court recognized that the issues at stake were the fairness and integrity of the peer review proceedings and whether the plaintiff-physician was the victim of bad faith.
Professional Standards Review Organization (PSRO)
Department of Health and Human Services (DHHS)