TUCSON, Ariz., Dec. 01, 2015 (GLOBE NEWSWIRE) -- In 1986, Congress passed the Health Care Quality Improvement Act (HCQIA), which gives hospitals and other organizations that perform peer review virtually absolute immunity for actions taken against physicians under cover of protecting patients, even with malice or in bad faith, writes Dr. Lawrence Huntoon in the winter issue of the Journal of American Physicians and Surgeons.
The rationale, he explains, was the false perception that malpractice was increasing and that bad physicians could easily relocate and continue to harm patients. Also, the American Medical Association claimed that physicians would be unwilling to perform peer review if they could be held liable, as in an antitrust action.
“Nearly 30 years later, the immunity provided by HCQIA has resulted in rampant and widespread abuse of the peer review process for purposes having nothing to do with professional competence or conduct.”
HCQIA supposedly requires due process of law, but it contains a provision that states that if due process is not provided, it doesn’t matter, as attorney Victor M. Glasberg pointed out in testimony before the Civil and Constitutional Rights Subcommittee of the House Judiciary Committee: It “makes a mockery of the pretense of due process suggested by the language of the bill.”
Rep. Henry Waxman (D-Calif.), the floor manager of the bill, provided reassurance at the time: “I want to make it clear, however, that we fully agree that we cannot tolerate abuses of the peer review system,” as for anti-competitive activities, or “actions based on race, or any other prejudicial or discriminatory factors.”
However, HCQIA created a presumption that peer reviewers would meet its “reasonableness” standard and shifted the burden to the physician to prove otherwise. It is very difficult for a physician to prevail in court, and even more difficult to collect damages, Huntoon writes.
In today’s highly competitive and politicized climate, physicians who disagree with hospital policy or who bring attention to a patient care problem can face termination of their career in a “sham peer review” proceeding. “Physicians seeking redress and justice in the courts for sham peer review face almost insurmountable immunity provided to hospitals and peer reviewers,” Huntoon concludes.
The Journal of American Physicians and Surgeons is published by the Association of American Physicians and Surgeons (AAPS), a national organization representing physicians in all specialties since 1943.