United States Distrcit Court in Pennsylvania Concludes HCQIA Does Not Immunize Defamatory Statements
A health law news service recently reported a United States District Court holding that a physician whose privileges were summarily suspended and ultimately terminated by a Pennsylvania hospital could not prevail on antitrust or breach of contract claims asserted against the hospital based upon the federal and state peer review immunity statutes. Although it is accurate to state that Bakare v. Pinnale Health Hospitals, Inc. dismissed the antitrust and breach of contract claims, the article overlooked what I believe to be the most significant aspect of the decision, which was that neither the federal Health Care Quality Improvement Act (HCQIA) nor the Pennsylvania Peer Review Protection Act immunized defamatory statements which, although made by physicians involved in the peer review process, were not made as part of the peer review process.
It is also important to realize that this decision was made based upon a motion for summary judgment. The Court did not conclude that defamatory statements had been made nor that the defendants were liable for the defamatory statements; the Court only dismissed the defendants’ motion for summary judgment of certain defamation claims. The impact of the dismissal is that the Court concluded there was sufficient evidence to allow the issues to be presented to a jury with respect to the defamation occurring outside the peer review process, stating as follows:
“Finally, claims relating to Dr. Moore’s statements in the operating room lounge and Dr. Bakare’s moonlighting contract does not arise out of the peer review process and, therefore, are not covered under HCQIA immunity.”
In the Michigan Supreme Court, Feyz v. Mercy Memorial Hospital ruling, also emphasized limits on peer review immunity. Michigan trial courts have operated under case law that for over 20 years have granted Michigan hospitals freedom from judicial review of medical staffing decisions even when bad faith or malice was clear.
In Feyz v. Mercy Memorial, the Michigan Supreme Court found that there was no basis for judicial non-review of medical staffing decisions and repudiated this doctrine. The Court went further and determined that peer review immunity was limited exclusively to the peer review entity and communications related to its activities. It ruled that the hospital making use of the peer review committee reports or activities was not protected by the immunity statute and could be held accountable, and consequently liable for decisions it makes based on a peer review entity's activities.