Peer review law at stake in Minnesota

Physicians fear Minnesota's powerful peer review statutes could erode if the state's Court of Appeals recognizes a medical liability plaintiff's negligent credentialing claim against a hospital.

The state's peer review system, which was first established more than 30 years ago, provides confidentiality protections for hospitals and doctors who participate in discussions involving discipline or credentialing. The laws carry criminal penalties for organizations or individuals who disclose details about discussions that the law protects.

But the system is being challenged in a medical liability lawsuit that targets a pair of surgeons and the hospital that granted privileges to the admitting physician. Some in the medical community say allowing claims against the hospital could raise the specter that facilities might have to disclose details of confidential discussions to defend themselves. If that happens, the chances of physicians having frank discussions about their peers would rapidly diminish, and quality of care could be affected as a result, they said.

"The purpose of peer review organizations is to guarantee confidentiality," said Megan Fogelson, policy counsel for the Minnesota Medical Assn. "By eroding that or having the possibility that anyone can find out what was said, physicians are simply not going to participate."

Plaintiff attorneys, meanwhile, argue that if a hospital deviates from accepted credentialing standards and grants admitting privileges to a physician who has questionable qualifications, that facility should be held accountable in a medical liability claim.

"Most states have said there is such a thing as common law cause of action for negligent credentialing," said William Maddix, a Minneapolis-based attorney who represents plaintiffs Mary and Michael Larson in the lawsuit. "We're asking the appellate court to basically say those types of claims exist here too."

A Wilkin County District Court judge ruled the state did recognize such a cause of action, and he ruled state laws did not grant immunity to hospitals or other review organizations in negligent credentialing claims. However, he certified both issues as questions for the Minnesota Court of Appeals. The court is expected to hear oral arguments in the case in spring 2006.

Complications from gastric bypass

The lawsuit stems from complications that Mary Larson experienced after undergoing gastric bypass surgery performed by James Preston Wasemiller, MD, in 2002. Larson underwent surgery at St. Francis Medical Center in Breckenridge, Minn., on the North Dakota border. Larson had two subsequent surgeries to address complications and was hospitalized for nearly three months, according to the complaint.

The lawsuit accuses Dr. Wasemiller and his brother, Paul Scot Wasemiller, MD, who assisted in the original surgery, of not properly diagnosing Larson's complications and not acting quickly enough to correct them. Both physicians deny the allegations.

But the Larsons then amended their lawsuit to include the negligent credentialing claim against St. Francis. While he was researching the case, Maddix said he uncovered details through court records about Dr. James Wasemiller, such as information about how he was not a board certified surgeon and he had past liability claims filed against him. That led to the plaintiffs' claims that the hospital should not have credentialed the physician, Maddix said.

"In Minnesota, with the peer review statute as it is, we understand anybody pursuing a negligent credentialing claim cannot rely on [information from peer review sessions]," Maddix said. "You have to get information from outside sources."

Tangential evidence

However, physicians and hospitals argue this type of lawsuit would expand the court's scope beyond the standard of care argument, which is what the justice system should focus on in a medical liability case.

Negligent credentialing claims would bring into play evidence such as prior lawsuits, which generally are not admissible in medical liability cases, stated a friend-of-the-court brief filed by the Litigation Center of the American Medical Association/State Medical Societies, the Minnesota Medical Assn. and the Minnesota Hospital Assn.

"If negligent credentialing claims were recognized, the focus of medical malpractice litigation would drastically shift away from the relevant issues (whether the care of this patient complied with the standard of care) to the tangential and irrelevant," the brief states.

Not only that, but a hospital that has been accused of negligent credentialing would not be able to defend itself, according to a brief filed by St. Francis. Information from a credentialing meeting would be vital to a hospital's defense, but the peer review statute "absolutely prohibits the hospital from disclosing the deliberative processes by which the credentialing decision was made and the outcome of the decision," according to the associations' brief.

Maddix said his clients' case would not force any sort of unlawful disclosure, and any evidence that would be presented about the physician's history would likely come as a result of cross-examination.

"I can't think of a medical malpractice case in which the doctor doesn't defend himself in part by saying he's competent or qualified to do a procedure," Maddix said.

"Once they kind of take that stand, it behooves the attorney to challenge that sort of testimony."

How a hospital might deal with the disclosure dilemma would be a concern for physicians, according to the brief the medical and hospital associations filed.

If the court recognized the negligent credentialing cause of action, "physicians would naturally fear that their candor may ultimately be punished in a later civil lawsuit alleging negligent credentialing," according to the brief.

The plaintiffs' brief for the appellate court had not been filed by press time.