Use of shared peer review findings is questioned

A column analyzing the impact of recent court decisions on physicians

By Amy Lynn Sorrelcovered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted Nov. 10, 2008.

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Should hospitals share peer review records with each other, and, if so, what should peer review bodies do with that information?

Hospitals are asking the California Supreme Court to decide to what extent peer review bodies can use the results of proceedings at another facility in their decision-making. The question stems from a 5th Appellate District Court ruling earlier this year that found a hospital could not take disciplinary action against a physician based solely on peer review findings from another hospital.

The court emphasized that its decision "does not stand for the proposition that an acute care hospital may never rely solely on the results of peer review proceedings at another hospital when reaching a decision about terminating a physician's privileges and staff membership." In this case, however, the results of the peer review proceedings at another hospital were not enough, judges said.

In 2004, the medical executive committee at Selma Community Hospital summarily suspended the privileges of emergency physician Brenton R. Smith, MD, based only on his suspensions at two other hospitals in Hanford, Calif., according to court records. All three hospitals are owned by the same corporation, and Dr. Smith ran several competing clinics.

In March 2005, a peer review committee rejected the recommendation for suspension by Selma's medical executive committee, finding it unreasonable, unwarranted and potentially financially motivated. Selma "must do [its] own investigation of Dr. Smith ... then the experiences at the Hanford hospitals may be used as additional evidence," the panel concluded.

A month later, Selma's medical executive committee appealed the decision to the hospital governing board, which overturned the peer panel's finding. The board reasoned that the panel was "obligated to accept as true the findings of the [Hanford hospitals] and to determine only whether it believed those findings reasonably supported the Selma medical executive committee's recommendation of termination" of Dr. Smith's privileges.

In a July 21 opinion, the appeals court disagreed. The peer review committee did not have to consider the Hanford hospitals' findings, in part because Dr. Smith, who denied any wrongdoing, was challenging the suspensions in a separate legal action, judges said. Selma's board and the medical executive committee ignored other relevant factors, such as the lack of proof of substandard care by Dr. Smith at Selma, and potential conflicts of interest between the physician and the three hospitals' owner.

"The most significant controversy between the parties concerns the legal effect of the findings of the Hanford hospitals," the court said. "Neither the [medical staff] bylaws nor California statute addresses the role that the disciplinary findings of one hospital play in the peer review process of another hospital."

That controversy could prompt the state Supreme Court to take up the case. Selma Community Hospital appealed the 5th Appellate District Court ruling in September. At press time in late October, the high court had not decided whether to accept the case.

Barriers to sharing

Physicians generally agree that sharing information among hospital peer review bodies can help inform parties involved in the process and promote patient safety by alerting facilities to potentially unqualified doctors. But they also agree that such sharing is not happening regularly for a number of reasons.

Most peer review statutes across the country are silent on the issue, according to legal experts. While these laws do not mandate sharing, they also do not prohibit it.

But hospitals and peer review bodies generally are reluctant to release internal records because of a lack of explicit immunity and confidentiality protections for shared communications, said Astrid Meghrigian, legal counsel to the California Medical Assn. That is why the CMA is seeking legislative changes to allow hospitals to share peer review information with appropriate safeguards.

The Health Insurance Portability and Accountability Act also poses a hurdle, said Shirley P. Morrigan, a Los Angeles attorney who handles medical staff issues. The federal privacy statute contains no exception for sharing peer review records, which can include protected patient information. Hospitals are averse to seek patient authorization, again, for fear of disclosing privileged peer review communications.

Often by the time hospitals get done redacting patient-identifying information from peer review records, "there is so little there it's really hard to evaluate it," said Morrigan, a partner at Foley & Lardner LLP.

HIPAA and state confidentiality laws generally permit physicians to transport their own peer review records to another facility, she said, although some doctors worry that the prior proceedings will not be thoroughly analyzed in a secondary investigation. Hospitals also are often reluctant to hand over records, even to the doctor involved, due to confidentiality concerns.

Meghrigian said mandated sharing could help make the peer review process fairer and prevent the kind of disputes that often lead to litigation.

For example, she pointed to a separate case before the California Supreme Court in which a hospital hearing officer, an attorney, terminated a peer review proceeding because the physician had failed to turn over records from another facility where he had lost his privileges. The hospital declined to produce the records for the physician or the second hospital, according to court records.

The termination of the hearing led to the automatic revocation of the doctor's privileges -- a decision that required input from the peer review panel, which never was sought, states a friend-of-the-court brief the CMA and the Litigation Center of the American Medical Association and State Medical Societies filed in the case. Oral arguments in Mileikowsky v. West Hills Medical Center have not been scheduled.

Few courts have mandated such sharing.

While peer review bodies are not obligated to provide information, "they can be held liable for providing poor information," said Michael A. Cassidy, chair of the American Health Lawyers Assn.'s Medical Staff, Credentialing and Peer Review Practice Group.

He cited a May decision in the 5th U.S. Circuit Court of Appeals in which a hospital in Washington sued a hospital and physician group in Louisiana for failing to disclose a physician's impairment in a reference requested from the credentialing committee.

Judges ruled that, absent certain circumstances, such as a contractual relationship, the entities did not have a duty to reveal such information. But they had a responsibility not to provide any misleading reports. The hospital and physician group had fired the doctor for an alleged narcotics addiction, according to court records.

The court found the physician group negligent for sending a letter praising the doctor in question. But judges did not hold the Louisiana hospital liable for sending a neutral letter stating only the physician's employment dates, even though it withheld information about the impairment. Nevertheless, the court in Kadlec v. Lakeview stated the hospital might have had an ethical obligation to disclose the doctor's condition; however, the court did not address the issue.

AMA policy states that physicians have an ethical duty to share truthful quality-care information about colleagues when requested by an authorized credentialing body, as long as the shared information is protected as confidential peer review information.

Using outside peer review findings

Once peer review bodies have outside disciplinary findings in hand, they must treat them carefully, some experts cautioned. While such information can be helpful in peer review deliberations, it may not always be relevant or even conclusive, the CMA's Meghrigian said.

For example, the appeals court decision involving Selma Community Hospital demonstrated that "it can be unreliable if motives other than patient care are concerned," she said. The CMA is not involved in the case.

There is nothing wrong with using another hospital's findings to initiate a query into a physician's performance, said Cassidy, a partner at Tucker Arensberg PC in Pittsburgh, Pa. "But the whole purpose of peer review is to do an investigation, and blindly accepting someone else's investigation isn't enough."

In egregious circumstances, however, peer review bodies may be able to rely exclusively on another hospital's action to deny medical staff privileges, Morrigan said.

Meanwhile, California hospitals fear that the appeals court decision in Smith v. Selma, if upheld, could take away medical staffs' ability to make a fully informed decision about a physician's qualifications as peer review information from another facility would not be available for use in deliberations. The California Hospital Assn. in October filed a letter urging the state high court to take the case.

Whether hospitals and medical staffs follow prior decisions or have firsthand adverse experience with the doctor in question, "in every case they should be able to consider investigatory findings from other hospitals," said Lois Richardson, CHA vice president and legal counsel. "What's important is patients and hospitals must be able to use all available information to protect patients."

Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.

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