HCQIA Immunity: Perfect Investigations and Furthering Self-Quality Health Care
The case of Cowell v. Good Samaritan Community Health Care, a state court case in Washington, provides guidance on two of the four elements of HCQIA immunity, i.e. that the action was reasonably taken in the furtherance of quality health care and the necessary substance to establish a reasonable investigation.
Dr. Cowell raised an unusual argument to defeat HCQIA immunity. She alleged that the conduct which was the subject of the peer review investigation caused no harm to patients, therefore, an adverse peer review action designed to eliminate that conduct obviously did not serve to further quality health care.
As noted in the BNA Health Care Reporter, “The court found these arguments “misdirected” because they focused on whether Cowell actually harmed patients and whether the defendants’ actions actually improved health care at the hospital. The court said that HCQIA is not dependent upon those facts; the professional review need not result in actual improvement in health care – it need only be directed to actions reasonably believed to further quality.”
Dr. Cowell also complained about three instances which she believed established the lack of a reasonable investigation. The court responded by quoting the famous excerpt from Singh vs. Blue Cross/Blue Shield of Massachusetts, which states that physicians are entitled to “a reasonable investigation under the Act, not a perfect investigation.”
The washington court of appeals completely misrepresented plaintiff's argument, and, moreover, actually fabricated facts. Yes. There is a petition pending. I shall be only too pleased to provide you with proof of the facts the court invented.
This case involved misuse of peer reviewof the peer and the filtering of infomation from an investigating committee, the medical executive committee and the Board of Trustees by the lawyers. Two members of the MEC and member of the board testified that if they knew that information had been withheld from them, they would not have voted for termination.
Plaintiff was investigated and her privileges were suspended for one reason - determined to be factually baseless - and then terminated for a completely different reasons concocted during the investigation by lawyers and administration - that she exceeded the scope of her privileges.
The court's characterization that she performed the LAVHs "in the presence of Michaelson" is flatly contradicted by his affidavit stating that he served as mentor and supervised the procedures. The statements attributed to the IC were fabricated. The claim that there was long-standing concerns about Cowell exceeding the scope of her privileges was concocted by the court. E.g. the Chairman of the Investigating Committee conceded that he had not come across any documents, peer review letters of "anything form anybody" to suggest that anyone thought that Cowell had exceeded the scope of her privileges, and the Chairman of Ob-Gyn expressly fourn that she had practiced within the scope of her privileges.
I don't know if this is the explanation for the outright fabrications but the spouse of the hospital's attorney who manipulated the process and withheld information from peer reviewers is the Chief Judge on the Appellate Court.
Anyway, this is good news for people who believe that this Statute is serves no other purpose but to shield peer review abuses because once a court start fabricating facts - yes fabricatin, not slanting facts or putting its spin on facts, but making facts up that have no existence in the record and that no even Defendants claimed - then lawmakers are likely to prich their ears up and take note.
Nicholas Kadar, M.D., J.D., LL.M.