Fox v. Good Samaritan presents two interesting variations on issues commonly raised in peer review cases. The case originated 10 years ago and arises out of the suspension of Dr. Fox after he refused to designate a coverage physician with clinical privileges equal to his own. When Good Samaritan Hospital suspended his clinical privileges, following medical staff proceedings, Dr. Fox sued the defendants in federal court alleging various causes of action and that the hospital’s real reasons for suspending his privileges were retaliatory based on his criticism of hospital patient care. After years of litigation and on the eve of trial, the defendants filed a motion for summary judgment seeking immunity pursuant to the Health Care Quality Improvement Act (HCQIA). The defendant’s motion for summary judgment was granted and the hospital then sought costs and attorney’s fees. The two interesting issues are the motion for costs and attorney’s fees and the due process standard of HCQIA.

As most peer review practitioners know, HCQIA provides immunity to hospitals that provide due process during peer review proceedings, but only recommends the standards for due process. There is a provision in Section 11112(b) stating that the failure to comply with the recommendations “shall not, in itself, constitute failure to meet the standards of subsection (a)” as long as “such other proceeds as are fair to the physician under the circumstances” are applied. The medical staff proceedings in the current case did not meet all of those standards, including the issue of whether Dr. Fox could call witnesses, but the court reasoned that the issue was simply whether Dr. Fox had provided alternate coverage and there was no factual or legal dispute regarding that issue. Therefore, the court concluded that the failure to meet the Safe Harbor standards of HCQIA was nevertheless fair to Dr. Fox under the circumstances. 

The other issue was the motion for costs and attorney’s fees, because Section 11113 provides that the court shall award to a substantially prevailing party defending against any such claim the cost of the suit attributable to such claim and reasonable attorney’s fees, if the claim or the claimant’s conducts during the litigation was frivolous, unreasonable, without foundation or in bad faith. 

The court concluded that this standard was not met in the current case primarily because the defendants did not move for summary judgment for approximately six years. The court stressed that its decision was based on the unique facts and circumstances of the case and concluded that the significant attorney’s fees and costs were at least partially the responsibility of the defendants and that they could have presumably avoided them by moving for summary judgment at a much earlier date.