No lawsuits until peer review is complete, Colorado Supreme Court rules

Physicians say a Colorado Supreme Court ruling recognizes the importance of protecting ongoing peer review from the threat of lawsuits. But they say the decision likely will make it difficult for doctors to get relief from the courts when they believe abuses are taking place during the proceedings.

A unanimous high court ruled that physicians subject to peer review have to wait until the process runs its course before seeking relief in court over any alleged wrongful treatment.

That means Colorado Springs, Colo., surgical oncologist Jimmie R. Crow, MD -- who has gone three years without an initial hearing with Penrose-St. Francis Health Services peer review committee after it suspended his privileges -- will have to wait longer still to bring his lawsuit. He sued the hospital in 2006 for allegedly failing to follow hospital bylaws that require a fair and timely review, as well as other claims.

Allowing lawsuits to interrupt a peer review investigation would jeopardize the process, justices said.

Peer review immunity statutes are intended "to safeguard the peer review process by protecting participants who act in good faith," the opinion states. "A reviewing court cannot capably make that determination until the administrative remedies have been exhausted and a complete record has been developed" to accomplish a "meaningful" review.

Limited exceptions exist if it is "clear beyond a reasonable doubt that further administrative review by the agency would be futile," the court said.

Physician organizations want balance

Organized medicine agrees that lawsuits can hurt peer review participation. But the courts in other ways can help preserve doctors' due process rights while balancing the overall quality improvement goals of the system, physicians argued in a friend-of-the-court brief filed by the Colorado Medical Society, the American Medical Association/State Medical Societies Litigation Center and the American College of Surgeons. The brief did not support either party.

"From a policy standpoint, it's important to do it, and it's important to do it right," said CMS' Counsel Richard J. Murray Jr.

He said the ruling reinforces the value of keeping peer review free from judicial intervention. Doctors still can sue over wrongful peer review once the committee delivers a final decision, Murray said. Under the ruling, however, the courts will not step in automatically to address alleged procedural violations in the midst of the proceedings, he noted.

Although the court said that in egregious circumstances doctors will be able to request help -- for example, asking a judge to compel a hearing date or discovery of medical records, or block a disciplinary action if the process is unfair -- that is difficult to prove, Murray said. He said doctors should follow hospital bylaws first.

Dr. Crow agrees that litigation can stymie peer review. But in his case, he insists that Penrose is not playing by the rules.

"The ultimate goal [of peer review] is to be able to have a process that works and to be able to have a fair hearing -- emphasis on the fair," said Dr. Crow, who has served on several peer review panels and helped draft medical staff bylaws. "The court said it doesn't make a difference if [hospitals] follow their own procedures."

Exhausting internal mechanisms

Dr. Crow's dispute began in 2004, when a Penrose peer review committee suspended his privileges for allegedly delaying treatment to an emergency patient who died two weeks later. Dr. Crow denies any negligence. The hospital panel reported the incident to the state medical board, which issued a warning to Dr. Crow.

At press time in late October, the peer review committee still had not scheduled a hearing allowing both sides to address the matter, both parties said. Typically the process takes a couple of months to resolve, court records show.

Dr. Crow claims that the hospital repeatedly denied him access to relevant medical records and documentation he needs to defend himself.

Penrose disputes the claim, however, and says it has made 11 attempts to schedule a hearing with Dr. Crow, who canceled four times.

The court found that Dr. Crow did not use internal appeal mechanisms to challenge potential problems with his review and finish the process before suing -- a standard recognized in several other states, including California, Alaska, New Jersey and the District of Columbia, justices noted.

"Requiring exhaustion also enables the peer review committee to develop a factual record," the court said. "A record of the expert participants' findings is vital to a reviewing court called upon to determine the reasonableness of the steps taken by the hospital and to evaluate whether the peer review participants acted in good faith."

The requirement also gives hospitals a chance to correct any internal errors without court interference, said Mark L. Sabey, Penrose's attorney. He agrees that doctors have the right to bring complaints forward. But the decision affirms that "[doctors] have to be trying to complete the process rather than trying to stop it," Sabey said.

Richard Haugh, spokesman for the Colorado Hospital Assn., which filed a neutral brief in the case advocating against premature lawsuits, also said the ruling "maintains the integrity of the peer review process."

Dr. Crow said he is willing to go through with the review, but plans to pursue his lawsuit in the future. Meanwhile, in June, he petitioned Penrose's hospital board to address his concerns.

"I'm not trying to forestall a hearing; I'm trying to have a fair hearing," he said.