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.

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