Category Archives: Credentialing and Peer Review

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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

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

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

Credentialing Injunction Settled for $4,000,000

On January 21, 2009 I posted an article describing the preliminary injunction obtained by Jesse Cole, M.D. against St. James Healthcare in Montana, pursuant to which Dr. Cole’s clinical privileges were reinstated.  For more information, see the website describing the final settlement in that case in which St. James Healthcare paid $4,000,000 to settle the litigation.… Continue Reading

Physician’s Clinical Privileges Suspended for Long History of Disruptive Conduct

The memorable lesson of Sternberg v. Nanticoke Memorial Hospital is that the Delaware Supreme Court upheld a grant of summary judgment to the hospital on the basis of immunity under the Health Care Quality Improvement Act (HCQIA), despite: ·         The physician was admittedly a competent orthopaedic surgeon; and ·         There had been no evidence of … Continue Reading

Wyoming Supreme Court Permits Termination of Disruptive Surgeon

Defining and disciplining disruptive physicians has been a difficult problem for hospital administration and the medical staff for quite some time now, long enough for the Joint Commission to actually require leadership standard LD.3.10 beginning in 2009. Medical staffs have frequently been torn between protecting their members, who are frequently high performing physicians, while maintaining appropriate … Continue Reading

Medical Staff and Employment Issues Collide Again

The Mississippi State Appeals Court affirmed a summary judgment decision by a Mississippi State Court in the case of C. Jake Lambert, Jr. M.D. v. Baptist Memorial Hospital-North Mississippi, Inc. and Baptist Memorial Health Services, Inc.   Dr. Lambert was a medical staff member of Baptist Memorial Hospital (Hospital) and an employee of Baptist Memorial Health … Continue Reading

U.S. District Court Holds that State Peer Review Confidentiality is Trumped by Federal Discovery Rights

In Sabharwal v. Mount Sinai Medical Center, Queens Hospital Center, and Won Chee, the plaintiff alleged employment discrimination in that she was subjected to a hostile work environment and unlawful discrimination by not being reappointed as the Assistant Director of Anesthesia on account of age, sex and disability. The plaintiff requested production of certain records maintained … Continue Reading

Removal of Independent Contractor Did not Violate Due Process

Schueller v. Goddard is a fairly typical hospital staffing scenario. Dr. Schueller was an independent contractor with an emergency services group, which in turn had an exclusive service contract with Drew Memorial Hospital in Arkansas. The 8th Circuit Court of Appeals affirmed a grant of summary judgment by the District Court in favor of the hospital and … Continue Reading
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