Synergy - May/June 2014 - 30

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The Uncertain Future of HCQIA Immunity
continued from page 14

Preparation is Key
Peer review provides valuable protection for
patients. Most practitioners are competent
and behave professionally. Of the few who
have clinical, behavioral, or impairment
issues, most respond to progressive steps
starting with counseling and leading to
performance improvement plans. HCQIA
immunity has helped encourage leaders,
but it may increasingly be unavailable or of
limited value.
Medical staff have enjoyed a special status
unlike other employee groups. Courts
facing due process, antitrust, and now
discrimination arguments in individual
physician suits generally have not wanted
to substitute their judgment for that of peer
reviewers and hospital boards, which are
ultimately responsible for quality.
It is possible that some peer reviewers
impart gender and race bias in their reviews.
Counsel can help raise awareness of these
new types of potential discrimination claims
and guide peer reviewers to prepare a
comprehensive record of reasonableness.
30

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SYNERGY MAY/JUNE 2014

To establish a framework, counsel should
consider helping physician leaders
adopt a compact or statement of mutual
expectations that establishes not only
the essential functions but also a medical
staff culture, defining a commitment to
performance improvement.
Transparency, open internal communication
(within the confines of peer review
confidentiality), and the education of potential
medical staff leaders will be imperative. When
an adverse action takes place, counsel's goal
should be to support that action with a record
of reasonableness, showing that the action
occurred because the practitioner chose not to
follow leaders' guidance. ■
1

No. 105,468 (Kan. Ct. App. Oct. 5, 2012) (not
designated for publication).

2

867 F. Supp. 2d 344 (W.D.N.Y. 2012).

3

545 Fed. Appx. 484 (6th Cir. Nov. 15, 2013).

4

No. 3:2007-13, 2009 WL 840385 (W.D. Pa. Mar. 30,
2009).

5

154 F.3d 113 (3rd Cir. 1998).

6

A recent example is Nathan v. The Ohio State Univ.,
No. 2:10-cv-872, 2012 WL 5342666 (S.D. Ohio
Oct. 29, 2012).

7

No. 10-cv-55-SM, 2011 WL 1051036 (D. N.H.
Mar. 23, 2011).

8

No. ELH-10-02704, 2012 WL 27181 (D. Md. Jan. 4,
2012).

9

236 Fed. Appx. 764 (3d. Cir. 2007).

10

101 Wash. App. 750, 14 P.3d 773 (2000).

11

For example, Sandra G. Boodman, As Doctors Grow
Older, Hospitals Begin Requiring Them to Prove
They're Still Fit, Wash. Post, Dec. 10, 2012,
available at www.washingtonpost.com/national/
health-science/as-doctors-grow-older-hospitalsbegin-requiring-them-to-prove-theyre-stillfit/2012/12/10/42bb4d90-2d0e-11e2-a99d5c4203af7b7a_story.html.

12

627 F.3d 195 (6th Cir. 2010).

13

369 Fed. Appx. 472 (4th Cir. 2010).

Barbara Blackmond is a senior
partner at Horty Springer &
Mattern PC, which devotes its
practice exclusively to hospital
and healthcare law. She works
with physician leaders in
credentialing, peer review, bylaws, and policies, as
well as in educating leaders. Charles Chulack, an
associate at Horty Springer & Mattern PC, assisted
with this article.

http://www.buchanan-consulting.net http://www.cmobley.com http://www.cmobley.com http://www.washingtonpost.com/national/health-science/as-doctors-grow-older-hospitals-begin-requiring-them-to-prove-theyre-still-fit/2012/12/10/42bb4d90/2d0e-11e2-a99d-5c4203af7b7a_story.html http://www.washingtonpost.com/national/health-science/as-doctors-grow-older-hospitals-begin-requiring-them-to-prove-theyre-still-fit/2012/12/10/42bb4d90/2d0e-11e2-a99d-5c4203af7b7a_story.html http://www.washingtonpost.com/national/health-science/as-doctors-grow-older-hospitals-begin-requiring-them-to-prove-theyre-still-fit/2012/12/10/42bb4d90/2d0e-11e2-a99d-5c4203af7b7a_story.html

Synergy - May/June 2014

Table of Contents for the Digital Edition of Synergy - May/June 2014