The lead report in BNA’s Health Law Reporter on May 31, 2012 noted an increase in lawsuits by doctors claiming that hospital peer review proceedings are being used as retaliation for whistleblower activities, i.e. reports pointing out improper practices and patient safety issues. The report cites two primary reasons for this growing trend:
· The ever increasing regulatory environment in health care, including increased whistleblower protection; and
· The change in attitude by doctors towards their relationships with hospitals which track the increasing number of employed physicians.
The article states that “Younger doctors and employed physicians who hold privileges at a single hospital may feel a greater need to insure that hospital’s practices do not fall below acceptable standards, since that is the only hospital which they can treat patients.”
It is certainly true that doctors have increasing whistleblower protection:
· EMTALA has offered whistleblower protections as far back as 1986 for hospital personal who take action to prevent or report EMTALA violations. The protection actually applied to hospital employees, but Zawislak vs. Memorial Hermann Hospital System held in November 2011 that physicians with medical privileges will be included as employees for purposes of the EMTALA Whistleblower Protection Provisions.
· The Pennsylvania M-Care Act also provides whistleblower protections for health care personnel who report medical violations, and specifically incorporates the protections of the Pennsylvania Whistleblower Act (43 P.S. 1423), which also protects retaliation against health care workers and provides both civil and injunctive relief. However, less physicians believe this is a panacea for certain peer review protection situations. They should be cautious and recognize these protections are contingent upon actual whistleblower activities that precede the adverse peer review actions.