Synergy - May/June 2014 - 10

industry feature

The Uncertain Future of
HCQIA Immunity
Guiding Physician Leaders in Changing Times
By Barbara Blackmond
Quiz on page 12; Worksheet on page 28

T

he Health Care Quality Improvement
Act (HCQIA) has worked well to
balance patient protection with
fairness to physicians. It created a national
safe harbor for professional review actions
while providing peer reviewers with a
rebuttable presumption and an objective
standard. The case law (overwhelmingly in
favor of peer reviewers, with most cases
resolved on summary judgment) has
diminished the chilling effect of litigation
that concerned Congress in 1986.

HCQIA protection also helped boost the
morale of medical staff leaders managing the
stress of antitrust claims in the 1980s. Keep
in mind that medical staff leaders receive
little training in hospital credentialing or
peer review in medical school and during
residency. They learn on the job as volunteers
with small or no stipends, performing their
tasks out of dedication to the profession and
a sense of responsibility to patients.
But the convergence of several recent
trends, including employment and the
growing role of nonphysicians, may mark
the decline in the usefulness of HCQIA
immunity, which does not apply to civil
rights claims or professional review actions
involving practitioners other than physicians
and dentists. Rigorous peer review may
once again be chilled not only by the threat
of damages, but also by the need to divert
leadership time and resources. Nevertheless,
there are ways that counsel for medical staff
leaders can minimize these risks.

An Objective Standard
Practitioners who challenge professional
review actions often allege improper
motives-for example, malice, bad faith,
a desire to eliminate competition, and
retaliation for whistleblowing. Under
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SYNERGY MAY/JUNE 2014

HCQIA case law, motive is irrelevant if
the record demonstrates that the objective
reasonableness standards have been met.
Objective reasonableness is measured against
this question: Would a reasonable hospital
have taken action to improve the quality or
culture of safety when faced with the record
of a physician's clinical or behavior pattern?
Hildyard v. Citizens Medical Center1, a
case involving a physician's inappropriate
behavior, illustrates the comparative benefits
of the HCQIA's objective standard. The
hospital was not entitled to immunity under
the Kansas peer review statute, which, like
most such statutes, provides immunity for
actions "in good faith and without malice."
This ruling (based in part on comments
made by the chief executive officer) did not
matter, because the court granted summary
judgment under the HCQIA.
Perhaps only lawyers can appreciate the
distinction between an objective and subjective
standard, but peer reviewers have benefitted
from the HCQIA's objective focus on the
record. If HCQIA immunity is not available for
many of the anticipated future claims, counsel
must help prepare and guide leaders.

Peer Review and Employment
Discrimination Claims
Even as the employment trend evolves, actual
"employment" may not be necessary for a
claim to be alleged. Two recent decisions
involving a physician not technically
employed had different outcomes. In
Salamon v. Our Lady of Victory Hospital,2 a
gastroenterologist alleged that the division
chief made inappropriate and unwelcome
sexual comments, creating a hostile work
environment, and that after she complained
to the CEO and chief of staff, her cases were
unfairly singled out for review. Dr. Salamon

filed suit against the hospital, the division chief,
chief of staff, CEO, and two other physician
leaders, claiming that the peer review of her
work, culminating in a "re-education" plan,
constituted employment discrimination.
The district court granted summary judgment
to the defendants because Salamon was not
an employee, but the court of appeals sent
the case back with instructions that it consider
13 factors for determining employment or
independent contractor status.
Control over Salamon's work was pivotal. The
court found that the hospital's peer review
process did not "simply review the quality of
her patient treatment outcomes, but mandated
performance of certain procedures, the timing
of others, directing which medications
she should prescribe, and recommending
changes to her practice based on their
financial impact to the department."
A different court granted summary judgment
to a hospital on employment discrimination
and other claims. In Brintley v. St. Mary
Mercy Hospital,3 Dr. Brintley, a female,
African American surgeon who had been
suspended at her prior hospital, assured
leaders that she had learned her lesson.
She was granted surgical privileges because
"everybody deserves a second chance."
But after a serious complication during an
emergency appendectomy, the chief of
surgery instructed Brintley to stop using the
equipment and techniques she used in this
case and take herself off the emergency call
list. Her complication rates were compared
to other surgeons' and were found to be
significantly higher.
The medical executive committee instituted
a proctorship, but later suspended her
privileges. Brintley took a leave of absence
and requested a hearing. The hearing
panel recommended that the suspension
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