HCQIA IMMUNITY

Wilkey v. McCullough-Hyde Mem'l Hosp., No. 1:04CV768 (S.D. Ohio, Oct. 18, 2007)

The federal District Court for the Southern District of Ohio held that several physicians who participated in peer review proceedings which resulted in the suspension of a surgeon were not entitled to summary judgment based on Health Care Quality Improvement Act ("HCQIA") immunity.

During the peer review proceedings, the surgeon challenged the qualifications of the first external reviewer. Consequently, a second external reviewer assessed the relevant files and found that the surgeon did not violate the standard of care. However, the report of the second external reviewer was not mentioned by any of the peer review bodies and was not provided to the surgeon. The court found that there were clear questions of fact as to whether the report was purposefully not disclosed to the reviewing bodies and the surgeon and whether this failure to consider and disclose the report was "a reasonable effort to obtain the facts of the matter," as required for HCQIA immunity. The court also observed that immediate suspensions such as the one imposed on the surgeon are permitted under HCQIA, but only if there is a risk of imminent danger to the health of any individual and subsequent notice and hearing are provided to the physician. Based on this, the court concluded that there was a genuine issue of fact as to whether the review process was in the furtherance of quality health care or a method to remove a physician who did not get along with some of the other physicians at the hospital. (However, the physicians who were unaware of the existence of the second external review report were given HCQIA immunity, as was the first external reviewer, considering he acted only in that capacity.)

The court made two additional and significant determinations related to the case. First, staff bylaws can form a binding contract between doctors and a hospital, but only where an intent by both parties to be bound is found in the bylaws. Second, a violation of the due process rights of a physician can only occur if the hospital or individuals were acting under color of state law.