No absolute immunity for peer reviewers

Connecticut physicians who participate in peer review or initiate investigations into a colleague's conduct, even if a report is made in good faith, could be forced to defend themselves against defamation lawsuits as the result of a February ruling from the state's highest court.

The state Supreme Court's unanimous decision to not guarantee absolute immunity to physicians could discourage some doctors from coming forward because of the threat of legal retribution and the potential cost of defending themselves in court, said the Connecticut State Medical Society.

With only qualified immunity granted to peer review participants, "all the reported physician needs to do is claim they were malicious and it wasn't a good-faith report, and they have to defend it," said New Haven, Conn., attorney Cam Staples, outside counsel for the CSMS. "The reality of this is it's already a substantial burden for physicians to come forward and report a colleague," Staples said. "Just the threat that they may have to defend a claim is not in the interest of public health."

But the doctor who filed the lawsuit said the ruling would help prevent abuses in peer review and investigations.

The Supreme Court ruling, which upholds an appellate court decision, allows psychiatrist Mohinder P. Chadha, MD to pursue a civil lawsuit against several physicians and a hospital. He claims that they defamed his reputation by giving their opinions of his emotional health to the state Dept. of Health.

For Dr. Chadha, the argument over immunity has been a long preamble to his defamation case. A state investigation into his conduct started in 1997.

Dr. Chadha argued that physicians who participate in "quasi-judicial" proceedings are only entitled to qualified immunity. He said absolute immunity promotes "a malicious abuse of the process," because it allows some physicians to make false accusations without having to publicly stand behind them.

"I have no trouble with genuine grievances, but for anybody, there should be a constitutional right to be protected from false accusations and arrests," said Dr. Chadha, who currently holds an active medical license in Connecticut.

Legislative changes not ruled out

Because the question of immunity is a state issue, the legal process on it ends with the state Supreme Court ruling. But Staples said the medical society might consider lobbying for a legislative change to the state statute.

Connecticut's highest court interpreted the law as providing only qualified immunity to physicians who report colleagues to the state, rather than absolute immunity.

While common law allows absolute immunity in judicial and quasi-judicial proceedings, a separate Connecticut law grants qualified immunity to those who give information to a medical board, professional licensing board, hospital board, medical review committee or the Connecticut Dept. of Public Health.

According to the law, no one who provides information to a board "shall, without showing of malice, be personally liable for damage or injury to a practitioner arising out of any proceeding of such boards and commissions or department."

Attorneys for the hospital and physicians argued that the statute did not intend to narrow immunity granted under the common law addressing judicial and quasi-judicial proceedings. The American Medical Association-State Medical Societies Litigation Center and CSMS supported that position in a brief filed with the court.

But the court interpreted the state statute as trumping common law.

"We agree with the Appellate Court that the only reasonable interpretation of [state statutes] is that they abrogate the common law," the decision reads.

The move by the Legislature to protect some groups by granting qualified immunity "had unintended consequences," said New Haven, Conn., attorney Jeffrey R. Babbin, who represented the physicians and hospital in the case.

"The court was not willing to fight the language," Babbin said.

The court agreed that absolute immunity "furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings," but it said that the Legislature showed its awareness of the potential to abuse that privilege when people could make false accusations.

The Legislature "had reason to qualify the immunity available to persons making statements in connection with the proceedings of the board, namely, to minimize the possibility of abuse of that system," the court said in its ruling in Chadha v. Charlotte Hungerford Hospital et al.

Staples said advocating for a change to the statute could be risky, because there's always the chance that once you reopen discussion on an issue, you could end up with a weaker law. The medical society also sponsors a program that encourages physicians to come forward and make good-faith reports, but Staples said it would have to alert doctors of the potential repercussions.

"We have to let doctors know that there is a risk, if they make a report, that they can be sued and have to spend money defending themselves," Staples said.