Peer review: The case for absolute immunity

Courts need to know that unqualified immunity is the only thing that makes the practice possible.

Posted March 15, 2004.

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There are few processes in medicine as central to patient safety and the profession's ability to police itself as peer review.

Yet one of the principles on which this most important process rests has been eroded over the past several months by two important state court decisions. Each case, with its limited jurisdictional reach, might seem minor. But other courts certainly could be influenced by them. Taken together, these cases pose a growing threat to immunity guaranteed to physicians who participate in peer review.

Without the promise of immunity from civil lawsuits, physicians are likely to think twice about reporting colleagues who might be jeopardizing patient care.

That's why the AMA has joined the Connecticut State Medical Society in urging the Connecticut Supreme Court to overturn a decision made by a trial court, and upheld by the state's appellate court, that throws the absolute immunity protection for physicians in Connecticut into doubt.

The ruling, in Chada v. Hungerford Hospital et al., allows a psychiatrist to proceed with his civil lawsuit against several physicians and a hospital. He alleges that they defamed his reputation when giving their opinions about his emotional health to the state Dept. of Health.

It comes around the same time as a California Supreme Court ruling that a California law amended in 1990 provides that a privilege protecting a physician or entity from a lawsuit is not absolute, but instead is a qualified immunity.

In that case, Allen Hassan v. Mercy American River Hospital, Dr. Hassan sued the hospital for defamation, intentional interference with prospective business advantage and negligent interference with an economic relationship. At issue was information shared during a credentialing process -- also traditionally immune from lawsuits.

The court found that Dr. Hassan did not have grounds to go forward with his lawsuit, but experts argue that the court's ruling leaves the door open for other doctors in the state to successfully challenge absolute immunity.

Both the California and Connecticut courts expressed concern that absolute immunity gives those who participate in peer review or credentialing the opportunity to abuse the system to affect competition or to knowingly pass along false or misleading information.

But it is generally unlikely that physicians will use the system in that way.

It is not only that physicians are expected to personally embrace the professional and ethical standards that would make such an action untenable. Discovery of such a dishonest act would seriously jeopardize their standing among colleagues and in the institutions where they practice.

What seems far and away more likely is that the subject of an investigation will be angry enough at those who participated in the investigation to file a retaliatory lawsuit. It is that second scenario that can't help but undermine the peer review process.

The intimidating thought of exposure to protracted and difficult litigation would put a damper on any consideration of the ethical and legal obligations physicians undertake when agreeing to participate in peer review.

As the AMA and the CSMS pointed out in their brief, even the seeming compromise of qualified immunity virtually ensures professional silence. "Without absolute immunity, the reporting or consulting physician must endure the unquantifiable personal and professional impact of litigation where his professional judgment and integrity are being challenged," they argue.

On balance, it is in the interest of patient safety for the Connecticut Supreme Court to rule that absolute immunity, and nothing less, will be granted to those participating in peer review.

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