GUEST POST: Tom McMahon on a Physician’s Right to Sue over Faulty Peer Review Process

One frustration many physicians have with their hospitals is the failure to follow peer review procedures as adopted in the medical staff bylaws. One such situation led to a lawsuit handled by Miller | Kabler senior litigator Tom McMahon against Penrose hospital. In that case, the Colorado Supreme Court ruled in 2007 that a physician may file suit for damages against a hospital arising out of a faulty peer review process as soon as that administrative proceeding is complete.

Consequently, once the physician in question completed the peer review process at Penrose, he filed a breach of contract action against the hospital for damages. Penrose immediately moved to dismiss, arguing that – despite what the Colorado Supreme Court had just said – completing the administrative proceeding wasn’t enough after all. According to Penrose, a physician must also first file a separate suit seeking judicial review of the peer review process and obtain a reversal there of the administrative result before filing a damages suit against the hospital. The trial court agreed with Penrose and dismissed the suit.

On appeal, in 2010 the Colorado Court of Appeals reversed the lower court and upheld the physician’s right to sue the hospital over a flawed peer review process as soon as the administrative proceeding is completed. Penrose then sought review by the Colorado Supreme Court in an attempt to have the trial court ruling reinstated, but that was denied, thereby preserving the two appellate court rulings.

Taken together, these appellate decisions ensure that physicians subject to peer review have recourse against hospitals that fail to play by the rules which they themselves have adopted. For more information contact Tom McMahon at tmcmahon@joneskeller.com or visit his website, www.coloradoantitrustlaw.com, or the Miller | Kabler website, www.joneskeller.com.

The Medical Board Confidentiality and Transparency Balancing Act

One complaint many patients have when they file a medical board complaints is the lack of feedback the Medical Board provides and how little information is shared. Colorado has for years taken the position that medical board investigations, files and complaints are confidential. Colorado’s Medical Transparency Act provides patients with a centralized database of information concerning health care providers, but does not “open the books” on Board of Medical Examiners’ investigations and relies on physician self-reports. . The Colorado Medical Board has, for years, relied upon a statute that exempted investigations and other information from open records laws, however, the statute didn’t expressly make the records confidential. In 2009, the Colorado Supreme Court in DeSantis v. Simon, found that the Medical Board’s investigations were not confidential and could be obtained through discovery in a civil suit.

To combat this, the Colorado General Assembly amended the Medical Practice Act, section 12-36-118(10) to provide that “records related to a complaint” filed with the Medical Board would receive the same protection as peer review materials. This means that now, Medical Board investigations are not subject to subpoena or discovery in any civil suit brought against a physician. The revised statute essentially overrules the Supreme Court’s ruling in DeSantis, and makes BME investigations confidential.

The General Assembly’s attempt to extend the same protection from discovery to other professional licensing boards, including pharmacy, podiatry, chiropractic, dental, nursing, psychologists and nursing home administrators died on March 22, 2011, when HB 1128 was killed by the house judiciary committee. Based on this, it would appear that complaints against health care providers other than physicians and physician assistants are discoverable in malpractice cases. Under the circumstances, health care providers should consider carefully their responses to licensing board inquiries.

Colorado’s trend towards non-disclosure seems to be bucking a trend towards transparency. Washington’s push for transparency may be an early push, according to this Seattle Times article from March: “Legislative Measure Seeks Medical-Board Transparency“. According to a recent American Medical News article “States Eye Public Access to More Doctor Disciplinary Records,” “at least five states have recently passed or are considering legislation that would create more transparency, particularly regarding physician disciplinary records and procedures. The measures would release more physician information, make that information easier for consumers to get, and provide quicker responses on requests to investigate physicians.”

Another Federal Judge Weighs in on Obamacare

A Federal Judge in Washington D.C. tossed another challenge to the Patient Protection and Affordable Care Act. As with the other suits, the challenge in D.C. centered on the requirement that all Americans purchase health insurance. In this challenge, a religious group lead by Pat Robertson argued that the law violates the plaintiff’s religious freedom by forcing them to purchase insurance for medical care they refuse to receive on religious grounds. The judge, like the two others who have upheld the law is a Clinton appointee. The New York Times reports that more than 20 challenges have been filed to different aspects of the Act. None of the cases have been heard by appellate courts yet. The first appellate review is scheduled for May.

Here are a few links:

MSNBC: First Read – Obama agenda: The score is now 3-2.

A Third Judge Validates Health Care Overhaul Law – NYTimes.com.

Federal Judge Dismisses Obamacare Challenge – Top Stories – Talk Radio News Service: News, Politics, Media.

Copyright Miller | Kabler, P.C., Attorneys-at-Law