Abstract
Patrick v. Burget, the landmark peer review case holding physicians liable under federal antitrust law for substantial damages caused by bad faith peer review, gave rise to the Health Care Quality Improvement Act. As shown in the recent decision in Austin v. McNamara, the Act's conditional immunities may promote peer review. However, the Act also created the National Practitioner Data Bank, which may have a chilling effect on peer review. The quality assurance implications of each of these federal legal developments is analyzed.
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References
1.Patrick v. Burget , 800 F.2d 1498 (1986) (9th Cir.)
2.Patrick v. Burget , 108 S. Ct. 1658 (1988)
3.
317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315 (1943)
4.See California Retail Liquor Dealers Assn v. Midcal Aluminum, Inc. , 445 U.S. 97, 100 S. Ct. 937, 63 L. Ed. 2d 233 (1980)
5.
Now Joint Commission on Accreditation of Health Care Organizations (JCAHO)
6.
108 S. Ct. at 1664
7.
108 S. Ct. at 1665
8.Miller v. Indiana Hospital , 843 F.2d 139 (3rd Cir. 1988), cert. denied , 109 S. Ct. 178 (1988), 1990–1 Trade Cas. (CCH) ¶ 69,075 (W.D. Pa. 1990)
9.Miller v. Indiana Hospital , No. 90-333-1, (3d Cir. Apr. 19, 1991)
10.
See Impact of Patrick v. Burget. JCAH Perspectives 1986; July/August: 7-9. Curran WJ. Medical peer review of physician competence and performance: legal immunity antitrust laws; N Engl J Med 1987;316:597-598
11.
HCQIA § 11101
12.
HCQIA § 1112(a)
13.
HCQIA § 11112(b)
14.Curran, supra , n. 9
15.
108 S. Ct. at 1665, n. 8
16.
HCQIA § 11115, as amended
17.
“The term ”professional review action“ means an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of apartment or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician. Such term includes a final decision of a professional review body not to take an action or make a recommendation described in the previous section and also includes professional review activities relating to a professional review action. In this title, an action is not considered to be based on the competence or professional conduct of a physician if the action is primarily based on:
18.
(A) the physician's association, or lack of association, with a professional society or association,
19.
(B) the physician's fees or the physician's advertising or engaging in other competitive acts intended to solicit or retain business;
20.
(C) the physician's participation in prepaid group health plans, salaried employment, or any other manner of delivering health services whether on a fee-for-service or other basis,
21.
(D) a physician's association with, supervision of, delegation of, authority to, support for, training of, or participation in a private group practice with, a member or members of a particular class of health care practitioner or professional, or
22.
(E) any other matter that does not relate to the competence or professional conduct of a physician.“ HCQIA § 1395X(9)
23.Austin v. McNamara , 731 F. Supp. 934 (C.D.C. Cal. 1990) (currently on appeal to the 9th Cir. Ct. App.)
24.
HCQIA § 11112(c) (2)
25.
HCQIA § 11101
26.
California Business and Professions Code § 805
27.
54 Fed. Reg. 42722 (1989) (to be codified at 45 D.F.R. § 60)
28.
As part of the Medicaid Patient and Program Protection Act of 1987 (Pub. L. 100-93, August 18, 1987), the Social Security Act was amended to require that state licensure actions against other licensed practitioners be reported to the Data Bank. However, regulations implementing this amendment have been held up by action of the federal Office of Management and the Budget. (1991) 639 MEDICAL-MEDICAID GDE(CCH).5
29.
45 C.F.R. § 60.3
30.
H.R. Rep. No. 99–903, at 641
31.
45 C.F.R. § 60.3
32.
Joint Commission on the Accreditation of Health Care Organizations. Accreditation Manual for Hospitals 1990; M.S. 4.2.9.1
33.
45 C.F.R. § 60.10(b)
34.
45 C.F.R. § 60.6