Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Thus, if the specialty surgeons were still competent (before competition reduced their
skills), the act seems to forbid peer review actions necessary to maintain that
competence. Once the competition had reduced the surgeons’ competence, the
committee might be able to act to reduce competition. At this point, however, it might
be impossible to justify penalizing one surgeon to the benefit of the other. This also
may affect the general issue of the hospital’s using medical staff privilege decisions to
shape the package of services it offers.
1. Potential Adverse Impacts
One adverse impact of the act is that it is now very difficult to contest an improper
peer review action. Unless the physician can assert grounds that are not covered by
the act, such as sexual or racial discrimination, or can rebut the presumption that the
review was proper if it the committee followed the proper procedures, there is little
hope of winning damages in a peer review contest. Physicians are cautioned to keep
medical staff privileges at more than one hospital so that they can continue practicing
if one facility takes an improper peer review action against them. (Even this may not
help—the report to the National Practitioner Data Bank can make it impossible to get
privileges anywhere.)
Although physicians see the act as protecting them from lawsuits by the disgruntled
victims of peer review, this may not be the act’s major effect. The act shows the
disparate agendas of its drafters. The central intent of Congress was to mandate a
national clearinghouse for peer review actions and medical malpractice payments.
This was the quid pro quo for granting the physicians’ request that they get immunity
for engaging in peer review. Unfortunately, many nonphysician groups, including
nonscientific providers such as chiropractors, were successful in excluding from
immunity the review of physicians who improperly delegate authority to
nonphysician providers.
The act will make it more difficult to curb the inappropriate delegation of authority
to nonphysician personnel as MCOs and hospitals attempt to use nonprofessional
staff to care for patients. [Adelman SH. Ways that hospitals control their physicians.
Am Med News. 1991;34:26.] This is an understandable, though not necessarily
correct, response to cost containment. This will be harder to attack because the act
defines as improper any peer review activities based on “a physician’s association
with, supervision of, delegation of authority to … a member or members of a
particular class of medical care practitioner or professional.” This provision will make
it more difficult to discipline physicians who allow nurses, nonphysician
practitioners, or others to practice medicine on their licenses. This practice can have
a devastating effect on the quality of patient care, yet the act seems to preclude it as a
ground for peer review if that peer review is to get federal immunity. This is
aggravated in states that have uncritically incorporated the federal provisions into
their own peer review laws.
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