My previous blog, What Medical Professionals Need To Know When Facing Peer Review, outlined the internal peer review process for medical professionals facing peer review. This blog focuses on what rights are available in a “worst-case” scenario, when the internal peer review process is over and the decision to terminate or otherwise restrict privileges has been upheld. In these situations, the hospital is required to make reports to the state board and to the NPDB, which can affect licensure and/or severely restrict the affected physician’s ability to find other work. This is truly a career-threatening situation, so it is imperative that any physician facing this situation secure experienced legal counsel.
Is the Peer Review Process Itself Subject to Challenge?
If the peer review process has been infected by “malice,” it may be subject to an effective challenge in court under both state and federal law. Both the Health Care Quality Immunity Act — HCQIA and state the Minnesota Peer Review Statute only allow immunity from claims if the underlying peer review process is not malicious. This is a very high standard, and the physician needs to prove that either repeated procedural protections weren’t followed in the process (usually as defined by the bylaws or peer review policies), or that there were knowing misrepresentations of fact in the process which could satisfy the actual malice standard under state and federal law. Consult with counsel experienced in this area to determine if this is a productive avenues for challenge. If malice is present, there can be both a claim for injunctive relief (to stop or reverse the required reporting), as well as for damages, if claims like defamation are actionable.
Furthermore, failure to follow the bylaws could also give rise to breach of contract, to the extent these bylaws are referred to and incorporated into the affected physician’s employment agreement or contract (which is not uncommon and which we insist on in advising our clients in contract negotiations.
Peer Review Immunity and Confidentiality Often Do Not Apply to Discrimination, Antitrust or most Retaliation Claims
Experienced employment lawyers for medical professionals in this field will know that claims arising under discrimination laws (which include protection against retaliation) or “whistleblower” laws, which can cover a vast array of situations, can be successfully alleged even if a peer review process has resulted in termination of privileges. This type of claim, if truly viable, can also serve as significant “leverage” in settlement discussion post-termination. While it can be extremely difficult in these negotiations to prevent the mandatory state and federal reporting from occurring, it can sometimes be possible to do so, negotiate a “voiding” of the report in exchange for some other lesser, or agree to language in the report that lessens the impact.
Experienced litigators are also aware that the confidentiality normally associated with peer review cannot prohibit the extensive discovery usually attendant to discrimination, retaliation or antitrust claims. Therefore, even when immunity may ultimately apply, the discovery (and transactional cost) of this litigation cannot be avoided, which can allow the development of persuasive evidence to oppose immunity and provides significant incentive to negotiate reasonable terms for the affected physician before the risk, expense and public exposure of litigation. This can often mean the difference between the end of a career and the chance at another employment opportunity elsewhere for our clients.
Schaefer Halleen peer review lawyers have experience in every aspect of the peer review process, including developing a successful strategy in the worst-case scenario when the internal process has resulted in termination of privileges. We can often develop a strategy to assure no adverse state or federal reporting, or limited reporting, occurs for our clients, and can successfully prosecute available legal claims, which can have a dramatic effect on the chances for a favorable resolution. Don’t hesitate to contact our employment discrimination attorney Minneapolis for a free consultation if you are a medical professional subject to peer review.