Category Archives: Credentialing and Peer Review

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Pennsylvania Superior Court Rejects Peer Review Confidential for “Business Records”

In Kates v. Doylestown Hospital, the Pennsylvania Superior Court, in a non-precedential decision, held back the Pennsylvania Peer Review Protection Act does not provide confidentiality protection for certain records, stating: Peer review necessarily involves evaluating the quality of care provided by medical professionals or evaluating the qualifications of medical care providers. 0045cept for those portions … Continue Reading

Ohio Court Reiterates Peer Review Privilege Applies Only to Formal Peer Review Actions

A Hospital in Ohio tried to prevent access to a patient incident report on the basis of Peer Review Privilege.  The Hospital claimed that, since the incident report was reviewed by the Hospital Peer Review Committee, the report was then privileged.  In Ridenour v. Glenbeigh Hospital, the Ohio Appellate Court stated that the Ohio Peer … Continue Reading

New CMS Rules Reduce Role of Medical Staff

The American Health Lawyers Association Regulatory Accreditation and Payment Practice Group (RAPPG) has issued an email alert regarding the issuance of a final rule by CMS intending to streamline Medicare regulatory requirements.  Two aspects of that rule which are a great concern to physicians are: Allowing hospital systems with more than one hospital to use … Continue Reading

Medical Staff Application Release Bars Physician Credentialing Claim

In Copeland v. MidMichigan Regional Medical Center, a Michigan State Appellate Court affirmed a trial court’s grant of summary judgment in favor of the Hospital, based upon both HCQIA immunity and a general release signed by the physician as part of the initial medical staff application process.  These releases are almost universally included in the … Continue Reading

Medical Staff Bylaws Are Not Contracts in Delaware

One of the fundamental issues in credentialing disputes is whether the Medical Staff Bylaws constitute contracts between the Hospital and the individual physicians.  If the Medical Staff Bylaws do constitute a contract, then the due process provisions contained in the Bylaws are guaranteed to the physician, regardless of the Health Care Quality Immunity Act (HCQIA). … Continue Reading

Physician Obtains Injunction Preserving Clinical Privileges Despite Attempted Exclusive Contract

Despite the many cases acknowledging the right of hospitals to enter into exclusive contracts, there is always the issue of what happens with the existing clinical privileges and medical staff memberships of the physicians who are being replaced, assuming they are not the physicians receiving the exclusive contract.  Defenders of physician rights have typically argued … Continue Reading

California Decision Allows Physician to Challenge Sham Peer Review as Whistleblower Retaliation

In Fahlen v. Sutter Central Valley Hospitals, the California Supreme Court found: A physician is not required to first exhaust his administrative remedies through the medical staff appeals process in order to challenge sham peer review as whistleblower retaliation; and Dr. Fahlen qualified as a whistleblower for purposes of the California Whistleblower Act. The California … Continue Reading

Physician Employment Termination Without Cause Reported to NPDB

A strange result in Langenberg v. Warren General Hospital, suggests you should pay close attention to the termination language in hospital-physician employment contracts. Warren General Hospital terminated Dr. Langenberg without cause specifically pursuant to the without cause provisions of his employment contract. Warren General Hospital nonetheless reported the termination as an adverse event to the … Continue Reading

Louisiana Becomes Medical Staff Bylaws Equal Contract State

In Granger v. Christus Health Central Louisiana d/b/a Christus St. Francis Cabrini, the Louisiana Supreme Court ruled that medical staff bylaws are a contract between the hospital and a the medical staff member.  The court ruled: “In promulgating the Bylaws and in accepting the applications of the physicians who sought medical staff membership in their … Continue Reading

Peer Review “Interference” Alleged as Tortious Interference with Contract

  Peer Review “Interference” Alleged as Tortious Interference with Contract Many sham peer review cases are based upon breach of contract in states in which the medical staff bylaws are treated as contracts between the hospital and/or medical staff and the individual physicians. Typically, the cause of actions is based upon some failure to provide the … Continue Reading

Court Allows Complaint Alleging Wrongful Data Bank Report as Intentional Infliction of Distress

Sheikh v. Grant Regional Health Center is another case in a growing body of evidence that courts are granting less leeway and protection to hospitals which abuse the HCQIA immunity and reporting protections. This is not a final decision awarding damages! It is only a decision by a Wisconsin federal district court rejecting the hospital’s motion … Continue Reading

Geisinger Clinic and Penn State Geisinger Health System Lose HCQIA Immunity Claim

In Babb v. Centre Community Hospital Geisinger Clinic, and Penn State Geisinger Health System, the Superior Court of Pennsylvania refused to grant the Defendant’s immunity pursuant to the Health Care Quality Improvement Act (HCQIA).  The standard HCQIA analysis was applied by the Court. Dr. Babb alleged the defendants were biased and motivated by something other than … Continue Reading

Whistleblower Protection: The Peer Review Immunity

The lead report in BNA’s Health Law Reporter on May 31, 2012 noted an increase in lawsuits by doctors claiming that hospital peer review proceedings are being used as retaliation for whistleblower activities, i.e. reports pointing out improper practices and patient safety issues. The report cites two primary reasons for this growing trend: ·         The ever … Continue Reading

Physician Obtains TRO Based Upon State Constitutional Due Process Arguments

Pacific Radiation Oncology LLC v. Queen’s Medical Center is a “retro” case in which the plaintiff physicians have obtained a temporary restraining order barring Queen’s Medical Center from adopting a closed department policy for its radiology oncology department. Although this case is just in its early stages, it is interesting to note that federal court … Continue Reading

Ninth Circuit Court Denies Hospital Attorneys’ Fees, but Allows Ad Hoc Due Process

A Federal Court denied prevailing party attorneys’ fees to a hospital in a Health Care Quality Improvement Act (HCQIA) proceeding and allowed the hospital to design its own due process in Fox v. Good Samaritan Hospital. The denial of the attorneys’ fees is basically based upon laches and estoppel theory, because the hospital waited six … Continue Reading

Washington Court Denies HCQIA Immunity for Inadequate Investigation

The cases where hospitals are denied HCQIA immunity are few and far between, especially when that denial is predicated upon the due process requirement of HCQIA, because of the due process exception condoning procedures that are fair under the circumstances. In Smigaj v. Yakima Valley Memorial Hospital Association, the Washington Court of Appeals reversed a … Continue Reading

In what is becoming well settled law, the U.S. District Court for the District of Massachusetts ruled that a medical resident is entitled to seek production of the evaluations and records of other residents as part of a federal discrimination claim, regardless of the confidentiality rules of state peer review statutes.  In Gargiulo v. Baystate … Continue Reading

Physician Avoids HCQIA Presumption of Immunity

The presumption of immunity granted by the Health Care Quality Improvement Act (HCQIA) in peer review disputes is always a significant hurdle for physicians. In Zawislak v. Memorial Hermann Hospital System (which some readers may recognize from the excess benefit and physician recruitment IRS issues involving the hospital in the late 1990s), the hospital suspended Dr. … Continue Reading

Attorneys’ Fees Awarded in Failed Peer Review Dispute Pursuant to State Law

In Crow v. Penrose-St. Francis Healthcare System, a Colorado Appeals Court awarded attorneys’ fees to a hospital that successfully defended the claim by a physician seeking damages for breach of contract and torte claims.  The Colorado Rules of Civil Procedures authorized an award of attorneys’ fees when a trial court dismissed an action under Section … Continue Reading

US DC of Massachusetts Orders Production of Performance Evaluations to Medical Resident

In Gargiulo v. Baystate Health, Inc., Dr. Debra Gargiulo alleged that she was discriminated against on the basis of her age and disability by Baystate Health in violation of both federal and state law. As part of her claim, the plaintiff sought production of numerous documents relating to her records, evaluations and reports, as well as … Continue Reading

Lack of Adverse Final Outcome Not Necessarily a Valid Peer Review Defense

In Georgopoulos v. Humility of Mary Health Partners Inc., Dr. Georgopoulos was placed upon a six month surgical proctoring requirement because of extended operating times and excessive use of blood products.  In addition to many procedural defenses, Dr. Georgopoulos’s primary substantive defense is that his patient survival and freedom from major cardiac events were within … Continue Reading

Physician Cannot Revoke Settlement Agreement

Bissada v. Arkansas Children’s Hospital (the “Hospital”) presents an atypical peer review case. The Eighth Circuit Court of Appeals affirmed summary judgment entered on behalf of the Hospital by the District Court on the basis of the existence of a Settlement Agreement, instead of relying upon the usual HCQIA peer review immunity protections.  Dr. Bissada practiced … Continue Reading
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