Hospital peer review process destroys reputation

He also has privileges for performing liposuction and dermatologic surgery at a local community hospital. His success, unfortunately, has led to enormous jealousy among his plastic surgery and general surgery peers. Recently a series of unrelated complications have occurred among Dr. Jonas' patients. Although no malpractice claims have been filed against him, these problems have led to a review of his activities by the peer review process of his local hospital.

After a review of his activities, he is thrown off the hospital staff. His dismissal is reported to the National Practitioners Data Bank (NPDB). Dr. Jonas contends that the hospital's decision was corrupt because the physicians who provided evidence against him had maliciously presented false and defamatory evidence. He wants to see copies of the "peer reviews" that led to his hospital dismissal and NPDB filing. Must the hospital provide these?

A recent Connecticut case looked at this very issue. In the case of Chadha v. Charlotte Hungerford Hosp., plaintiff Dr. Mohinder P. Chadha challenged the outcome of a hospital-based peer review procedure undertaken by four of his local hospital's staff physicians. Dr. Chadha brought a defamation action against both the hospital and its associated physicians. The hospital filed a motion for summary judgment based on the common law notion that statements made in connection with the judicial or quasi-judicial proceedings of a hospital proceeding are absolutely privileged. They contended that Dr. Chadha had no right to see these proceedings.

The Connecticut court, in evaluating the facts of this case, contended that the long-honored rule of absolute immunity had been modified by state statute such that peer review participants are only entitled to qualified immunity. The court noted that communications uttered or published in the course of judicial proceedings were historically absolutely privileged so long as they were in some way pertinent to the subject of the controversy. This absolute privilege extended to any relevant statements made during administrative proceedings that were quasi-judicial in nature. Because proceedings before various review boards can have a profound impact on a physician's license, such proceedings would be considered quasi-judicial in nature. Therefore, under common law historical rules, a hospital peer review process would be considered quasi-judicial in nature, and the hospital and its associated physicians would be entitled to absolute immunity.

Qualified immunity

Connecticut, like many states, has now qualified this common law immunity. The Connecticut statute states that no member of a medical hearing panel, or anyone providing information to any such boards or commissions, shall, without a showing of malice, be personally liable for damage or injury to a practitioner arising out of any proceeding of such boards. The court noted that there was no question that the statutory immunity was qualified, rather than absolute, because the provisions expressly excepted from their purview any conduct and/or statements that were motivated by malice.

Of note, the court also recognized that members of peer review committees are often in direct competition with those being reviewed, and the system has the potential for abuse of the person being reviewed. Furthermore, the court stated that possession of hospital privileges is crucial to a physician's success. A negative decision could be tantamount to excluding a physician from the profession as a whole.

Dr. Jonas contended that the hospital's decision was corrupt because the physicians who provided evidence against him had maliciously presented false and defamatory evidence. If a court can be made to believe that a malicious peer review process led to Dr. Jonas' hospital dismissal, the hospital and its associated physicians might not be immune from scrutiny. Dr. Jonas may be allowed to see copies of the proceedings and may be able to bring suit against the involved doctors and hospital.

David J. Goldberg is the director of Skin Laser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mt. Sinai School of Medicine; and adjunct professor of law, Fordham Law School.