The presumption of immunity granted by the Health Care Quality Improvement Act (HCQIA) in peer review disputes is always a significant hurdle for physicians. In Zawislak v. Memorial Hermann Hospital System (which some readers may recognize from the excess benefit and physician recruitment IRS issues involving the hospital in the late 1990s), the hospital suspended Dr. Zawislak’s medical staff privileges and a related entity, Team Health, terminated Dr. Zawislak’s employment. The peer review action was allegedly taken for substandard care. 

Dr. Zawislak alleged that the prior peer review action was taken in retaliation for Dr. Zawislak reporting EMTALA violations.

The opinion does not discuss the prior peer review proceedings, but this case was presumably filed after the exhaustion of the due process protections provided by the Medical Staff Bylaws. The hospital moved to dismiss the action alleging that:

·       It was entitled to a presumption of immunity pursuant to HCQIA, and

·       Dr. Zawislak was not protected by the whistleblower provisions of EMTALA; and

·       Dr. Zawislak had failed to exhaust his administrative remedies because he had not disputed the National Practitioner Data Bank Adverse Action Report. 

The court concluded that Dr. Zawislak’s case should survive a motion to dismiss because, based on the pleadings, he had stated an appropriate cause of action if his suspension was in fact in retaliation for reporting the EMTALA violations. If true, then the action was not taken in furtherance of quality health care and was not supported by reasonable investigation.

With respect to the EMTALA violation, the EMTALA statute provides protection to physicians who refuse to authorize transfers in violation of EMTALA and employees who report EMTALA violations. The hospital alleged that Dr. Zawislak was not a physician who refused to authorize a transfer and, as a private practice medical staff member, was not a hospital employee protected by the whistleblower provisions of EMTALA. The court concluded that the intent of EMTALA was to encourage whistleblower protections and it would be inconceivable that the statute would protect employees who reported EMTALA violations, but not physicians who reported EMTALA violations.

Finally, on almost an incidental note, the court also concluded that disputing the content of a National Practitioners Data Bank Report is not an action that must be taken to satisfy that doctrine of administrative remedies.