Cowett v. TCH Pediatrics Inc. seems to endorse bad faith peer review, but a closer examination of the opinion should reveal a significant distinction between bad faith peer review and peer review involving legitimate peer review concerns in situations which also include bad faith motivations among the peer review entities.

After following the fair hearing procedures provided by the By-Laws of the parties (which included TCH Pediatrics Inc, Forum Health, Western Reserve Care System, and Tod’s Children’s Hospital), Dr. Cowett was terminated from the medical staff and then sued the parties, asserting numerous claims which were not specified in the appellate opinion addressing only the issue of HCQIA immunity at the summary judgment level. The Appellate Court granted summary judgment on behalf of the Defendants based upon the immunity provided by the federal Health Care Quality Improvement Act (HCQIA). Dr. Cowett asserted that immunity should not be available because the peer review process was conducted in bad faith, and the Opinion implies that evidence regarding the existence of bad faith was at least potentially present. However, the Court concluded that:

“Dr. Cowett believes Forum should not be immune from suit pursuant to HCQIA because it acted in bad faith when determining that his privileges should be revoked. However, the only relevant issues under HCQIA are with regard to the objective reasonableness of the hospital’s actions, not whether those actions were taken in good faith. No reasonable fact finder could conclude that Dr. Cowett could overcome the presumption that Forum’s actions were reasonable. Accordingly, the judgment of the trial court is affirmed.”

Therefore, the Court concluded that, since there was evidence upon which a reasonable conclusion could be founded justifying the peer review actions taken by the hospital as having been based upon the reasonable belief that they were in the furtherance of quality health care, evidence that the hospital had potentially bad faith motives was irrelevant.

This case appears to miss the focus of the Health Care Quality Improvement Act. In HCQIA, there are four standards for immunity. The Cowett case focuses on the first, i.e., whether there was a reasonable belief that the action was in furtherance of quality health care. Using this standard, any bad faith peer review can be justified so long the peer review entity is able to identify events which can be objectively classified as legitimate patient care concerns. However, there is another standard in HCQIA which requires a “reasonable belief that the action was warranted by the facts.” This can only be a relative standard, a subjective standard, because there cannot be a reasonable belief that one physician should be subjected to peer review for causing a certain event if other physicians are causing the same events and are not subject to peer review, assuming, of course, that the peer review entities are equally aware of both circumstances and choose to act in one but not in the other.