When approached to serve on a peer review committee, physicians and nurses often respond with concerns about facing legal liability for their honest assessments of their peers’ work. Most of those concerns can be dispelled by explaining there are multiple layers of protection from liability.
A hospital’s executive and officers (E&O) liability insurance usually will apply to peer review committee members, says Carol Michel, JD, partner with Weinberg Wheeler Hudgins Gunn & Dial in Atlanta. There also are protections under federal law providing immunity for participation in peer review activities, particularly the Healthcare Quality Improvement Act, which provides immunity to good-faith peer review of physicians and dentists while also creating the National Practitioner Data Bank.1
There are state-level statutes to provide immunity for peer review participants, although those laws vary widely.2,3 “They want to promote this type of peer review and allow candid discussions about the performance and quality of care provided by physicians, without the fear of subjecting themselves to liability,” Michel says.
Lawsuits can be filed against peer review committee members, but they are unlikely to succeed, says Michael B. Brohman, JD, shareholder with Roetzel & Andress in Chicago.
“Usually, that aspect of a lawsuit is dismissed, so long as the peer review committee followed the hospital bylaws and gave the practitioner the due process rights he or she is entitled to,” Brohman explains. “There usually are a number of procedures the hospital must follow as far as interviewing people, interviewing the subject of the peer review, and then other steps if you get to a formal hearing. The fact that you have immunity from liability is a big plus, as long as you are careful to follow the proper procedures.”
Michel notes protections against liability in the peer review process are founded on the assumption that the peer review participant is operating in good faith and is not participating for malicious reasons. Any evidence indicating the reviewer is intentionally trying to harm or discriminate against a peer could void those protections. “Provided they are coming into the process for the right reason, which is to improve the services provided to patients at the facility, I do believe the protections are there and they can do so without unreasonable fear for facing potential liability,” Michel says. “If you enter into this process for the wrong reasons, then that may not hold up.”
Federal law provides immunity under appropriate circumstances, but it does not recognize the peer review as a federal privilege.1 That means that in some federal claims, such as discrimination allegations, the federal privilege may not apply.
“In that situation, the peer review records may be discoverable in a case that, for instance, asserts a federal claim like discrimination or maybe even antitrust,” Michel says. “That has occurred in a few jurisdictions where the hospital requested that the privilege would apply, but the documents were still discoverable.”
It also is important to protect peer review information. Do not leave peer review records unsecured or in an area available to someone outside the peer review process. Members must not discuss the committee’s work with anyone else. Doing so could make committee members vulnerable to liability.
“It requires some diligence and attention to the process,” Michel says. “It requires that each person in the process know their responsibilities according to the facility’s bylaws, and also their state law as it pertains to that process. There are protections, but for all of those protections to apply there are obligations they have to follow.”
States Provide Protection
In many states, there is a “privilege of self-critical analysis” that applies to communications that are made in the context of peer review, says Daniel B. Frier, JD, founding partner of Frier Levitt in Pine Brook, NJ. That privilege protects information exchanged during the good faith exchange of a peer review process.
The extent of that protection can vary from state to state, but Frier says hospitals can add to it by providing indemnification by explicitly covering peer review under the E&O coverage or a pledge of indemnification for peer review participation.
“Even if they are sued unsuccessfully, a lawsuit can carry a great deal of expense. The hospital can agree to cover those costs, provided the peer review participant acted in good faith,” Frier says. “Peer review panels can incur liability when members have a conflict of interest with the subject being reviewed. If a member had a previous run-in or is a competitor with that person, had some sort of prior relationship that created a bias or conflict of interest, that needs to be disclosed and addressed.”
An additional layer of protection can be provided by the hospital having a provision in its bylaws that physicians and nurses submit to a peer review process in the event it becomes necessary and agree to hold harmless anyone who participates in that process in good faith. This provides an explicit consent to the peer review process that prohibits any legal action, again assuming the participants act in good faith.
Frier says in 25 years, he has never seen anyone sued for service on a peer review committee, and would expect any such suit to be dismissed quickly. “That would be a dangerous precedent to allow a medical professional to be sued and held liable for a good-faith participation in the peer review process,” Frier says. “That’s why it is no great risk for the hospital to provide indemnification for peer review participants.”
- National Association Medical Staff Services. The Healthcare Quality Improvement Act – 1986.
- Modak-Truran A. A fifty-state survey of the medical peer review privilege.
- Virmani v. Novant Health, Inc, 259 F3d 284, 290 (4th Cir 2001).
- Michael B. Brohman, JD, Shareholder, Roetzel & Andress, Chicago. Phone: (312) 582-1682. Email: firstname.lastname@example.org.
- Daniel B. Frier, JD, Founding Partner, Frier Levitt, Pine Brook, NJ. Phone: (973) 618-1660. Email: email@example.com.
- Carol Michel, JD, Partner, Weinberg Wheeler Hudgins Gunn & Dial, Atlanta. Phone: (404) 832-9510. Email: firstname.lastname@example.org.