The Fifth Circuit reversed the dictrict court holding in the Poliner case, and concluding that the hospital had conducted an appropriate investigation and was therefore entltled to HCQIA immunity.
As with most of these cases, the law is fairly clear and the facts are the issue. In Poliner, the physician was asked or coerced into accepting an "abeyance". The court see this as an issue – it saw the action as an adverse peer review action regardless. The issue thebn was whether the hospital had conducted enough of an investigation as of that point to take the action it took. The court concluded that it had.
I’ll post the entire case in the "links" section of the Medlaw Blog on Monday morning, when there is somebody here that knows how to do that.
A critical lesson from this case, and one thart is a common thread in most peer review cases, is that proctection is not provided by the ability to sue afterwards. Protection is provided by insuring a fair peer review process. IMHO, one way to assure fairness is to allow the investigated physician to appoint a member of the investigating committee and a member of the hearing panel, if necessary. this certainly would not change tjhe balance of power in the process, but it would go a long way to assuring fairness and transparency in the process. It would seem difficult for a reasonable hospital administration to refuse to include this in the bylaws. I suggest medical staffs use the bylaw review process sure to follow the Joint Commission developments on MS.1.20 as a means to develop discussion on this issue.
