In an unusual case illustrating the potential legal exposure associated with the process, a hospital fired a physician reviewer for “verbally attacking” a colleague at a peer review meeting. The fired doctor sued.

The case of Yedidag v. Roswell Clinic Corp (2015 BL 42307 [Supreme Court of New Mexico, Feb. 19, 2015]) offers lessons for hospitals, says Katharine Van Tassel, JD, visiting professor at The Law-Medicine Center in the School of Law at Case Western Reserve University in Cleveland.

A hospital fired a doctor for “verbally attacking” a colleague during a peer review meeting. The alleged attack included sharp questions about a colleague’s removal of one malignant tumor from a patient’s colon, instead of two.

The hospital considered these questions as “unprofessional conduct” that justified the termination. However, the Supreme Court of New Mexico strongly disagreed. In this case, the judges held that a physician, under a state’s peer review confidentiality statute, may sue a hospital that fired him or her based on his or her actions as a reviewer during a peer review proceeding against a colleague, she explains.

The court decided that the questions were privileged. Further, the judges ruled the hospital did not have the right to use those questions or any other confidential peer review information as a reason for termination. The court affirmed the jury’s verdict, obligating the hospital to pay the plaintiff compensatory and punitive damages.

“This decision makes sense,” Van Tassel offers. “The confidentiality provisions contained in peer review laws are intended to encourage physicians to take part in the process. Without the confidentiality provisions, doctors would be reluctant to participate or wouldn’t be entirely forthcoming in their testimony for fear that they would be shunned by their peers, or even sued, for testifying or making adverse recommendations against other doctors.”

Aggressive questioning is appropriate, especially in cases involving patient deaths or doctors who appear to be withholding information, Van Tassel says. “The take-home message is that a hospital should not take an employment action against a physician based on what happened in peer review,” she says.

RESOURCE

  • Van Tassel K. Hospital peer review standards and due process: Moving from tort doctrine toward contract principles based on clinical practice guidelines. Seton Hall Law Rev 2006;36:1179-1256.

SOURCE

  • Katharine Van Tassel, JD, Visiting Professor, The Law-Medicine Center, School of Law, Case Western Reserve University, Cleveland. Phone: (216) 368-1673. Email: katharine.vantassel@case.edu.