Physicians initiating peer review litigation should be careful of two issues involving attorney’s fees. First, Section 42 USC 11113 of the Health Care Quality Improvement Act provides that hospitals may recover attorney’s fees from physicians who file frivolous or bad faith claims.
Second, sometimes the application for medical staff privileges contains clauses providing the immunity to the peer review participants and/or providing that the physician applicant will reimburse attorneys fees in the event of an unsuccessful credentialing dispute. In Adeduntan vs. Hospital Authority of Clark County the United States District Court for the Middle of District of Georgia found that a physician who was unsuccessful in prosecuting a peer review action against the Hospital Authority, Athens Regional Medical Center, and several physicians involved in the peer review process was required to reimburse the hospital and those physicians for their attorneys fees.
This presents a dilemma for medical staff members. The application should be a four man process approved by the medical staff as part of the medical staff by-laws that will require individual medical staff members to reimburse the hospital for the attorney’s fees in the event of a dispute? Should there be some condition so that only frivolous lawsuits would generate reimbursement obligations? If the medical staff by-laws require individual physicians to reimburse attorneys fees when they lose a credentialing, should they be able to recover attorney’s fees when they win a credentialing case? The opinion in the Adeduntan case is attached in the link below.