Defamation lawsuits may chill reporting of docs

A closely watched case in Connecticut has some observers worried that health care providers will be discouraged from reporting information about physicians to state boards, other monitoring groups, and even a hospital’s internal peer review system. For risk managers, the case also may serve as a reminder of how easily you can be drawn into a major lawsuit when you were simply cooperating with a state investigation.

The case involves a physician who sued several fellow doctors and a hospital that he says defamed his reputation when they provided opinions about his emotional health to the state Department of Health. In a 2-1 ruling last year, the Connecticut Appellate Court gave the physician the go-ahead for the lawsuit, but the defendants are appealing the decision and say the lawsuit could jeopardize patient safety if health professionals are reluctant to give honest opinions about others.

Jeffrey R. Babbin, JD, an attorney with Wiggin & Dana in New Haven, is representing the physicians and Charlotte Hungerford Hospital in Torrington. He tells Healthcare Risk Management that the case could have implications reaching far beyond Connecticut. "There is a lot of risk that physicians will sue in this situation; and without absolute immunity, the liability could be very high," he says. "If this case is any indication of how courts will interpret statutes, health care entities could be in for a shock when a case like this is tested in other states."

Absolute immunity at issue

The question at the heart of the Connecticut case, whether physicians should have absolute immunity for comments made for investigations regarding competency, comes up often in tort reform debates across the country, Babbin says. "What happens in this issue could be ironed out in some ways by what happens with tort reform," he says. "The argument is that if you’re going to have meaningful tort reform, you have to give physicians a way to weed out the bad apples in their profession."

The plaintiff is psychiatrist Mohinder Chadha, MD. The case started with the hospital’s referral of Chadha to the Connecticut State Medical Society. The medical society is obligated to report any concerns about a physician’s competency to the state Department of Health, which it did with Chadha. The hospital also terminated Chadha’s privileges at the hospital and reported him to the National Practitioner Data Bank. He sued the hospital for both actions, but the lower court threw out those claims as unfounded. That left claims against the individual physicians for their involvement.

Hospital sued for reporting doctor

One of the physicians was employed by the hospital, so Chadha also sued the hospital as his employer. And he sued the state medical society and the licensing board. He failed on all those claims but the physicians remain in jeopardy.

"The physicians and hospital were participating in an investigation by the state Department of Public Health into the competency of a physician," Babbin says. "Those physicians should not have to worry that the disgruntled physician who is the subject of the investigation is going to sue them. If the rule is that they can be sued, with only qualified immunity, and if the plaintiff can make a case for malice or a false statement, he’ll be able to get to a trial."

Concerns over false reports

Physicians who participate in hospital peer review or state investigations into physician conduct usually are granted absolute immunity, but Chadha argued in his lawsuit that doctors who participate in "quasi-judicial" proceedings are not entitled to absolute immunity when they provide information about a colleague. Chadha said he believes that absolute immunity makes it too easy to falsely report a colleague.

But Babbin says anything short of absolute immunity will stifle honesty. "When you let the process work usually the physician under investigation comes out fine with his license intact, as happened in this case," he says. "That’s actually where you have the greatest risk of that physician suing someone for what they said during the investigation, and that’s when you need as much protection as you can get."

AMA supports defendants

The American Medical Association (AMA) and Connecticut State Medical Society (CSMS) insist that absolute immunity is absolutely necessary, and so does Michael D. Neubert, JD, an attorney with Neubert, Pepe & Monteith in New Haven. He wrote a brief that the AMA and CSMS filed urging the Connecticut Supreme Court to overturn the lower court ruling. Neubert says the groups are concerned that not providing absolute immunity could have a chilling effect on physicians’ willingness to independently report another physician.

And the AMA and CSMS argue that physicians will not be willing to cooperate with investigations if they worry that they could open themselves up to litigation and personal liability.

Even if the lawsuit ultimately was dropped or decided in favor of the physician who did the reporting or provided information, the doctor would have to retain a lawyer, would not be covered by traditional medical liability insurance, and would forfeit time that could be spent practicing medicine.

"The unlikely possibility that a health care professional might use the system to professionally harm a competing medical professional is far outweighed by the stifling impact of retaliatory lawsuits on the peer review process and mandatory reporting," says the brief filed by the groups. "While it is unlikely that a physician will attempt to abuse the system to affect competition, it is very likely that a physician who is the subject of an investigation will be angry with the individual, doctor(s) or committee that initiated the proceedings and, therefore, may file a retaliatory lawsuit."

The state’s highest court recently heard oral arguments and is expected to rule on whether Chadha’s suit will go forward by the end of the year.

Conflicting state laws

Babbin explains that the appellate court and a trial court in Connecticut each have determined that, although common law in Connecticut provides for absolute immunity, it does not trump another law in the state that provides only qualified immunity. Their rulings are based partly on language in the Connecticut statute stating that someone who is making a complaint or providing information to a hospital board, medical board, professional licensing board, medical review committee or the Department of Public Health "as part of an investigation . . . or disciplinary action . . . shall, without showing of malice, be personally liable for damage or injury to a practitioner arising out of any proceeding of such boards . . . or department."

Apparently, the courts concluded that the legislature wanted to ensure that the law protected health professionals who report colleagues even if the protection was not total, Babbin says. The Connecticut Appellate Court said in its ruling in Chadha v. Hungerford Hospital, et al. in May 2003 that, "We can presume that the Legislature provided only a qualified immunity to those covered by the statutes for a reason: It wanted to discourage individuals who otherwise would be protected by those statutes from acting out of improper motive."

Review physician comments first

The court added that other courts had recognized a potential for abuse, quoting from a 1992 New Mexico case in which the court said "the members of peer review committees are often in direct competition with those being reviewed and the system has potential for abuse of the person being reviewed. Possession of hospital privileges . . . is crucial to a physician’s success, and a negative decision could be tantamount to excluding a doctor from the profession as a whole."

The Appellate Court noted that the Legislature could have provided absolute immunity but chose not to. But Babbin says the physicians and hospital defendants disagree with that interpretation of the law.

So what’s a risk manager to do to if you want to stay out of a sticky situation like this? Babbin says exactly what is said when physicians comment on each other’s competence can be crucial to whether you get sued and how you defend yourself. For that reason, he suggests that it might be wise to have physicians consult with the risk manager before opening their mouths.

"You don’t want to censor them, but it’s all in how you say things. You may be able to soften some of their comments," he says. "And you want to make sure that their comments are not just the product of some internal or personal dispute between the physicians."

The risk manager’s goal, he says, should be to ensure that the physicians are providing the necessary information in an objective way with no hint of malicious intent. That will not help as much as having absolute immunity, but it will improve your defense if you’re dragged into a lawsuit like this, Babbin notes. "Having an internal procedure in place before the doctor goes running off to the state health department could be a useful thing," he says.