THE PROBLEM OF GOOD FAITH
The crux of the immunity provisions of the act is the determination of whether
a peer review action is made in "the reasonable belief that the action was in
the furtherance of quality health care" and does not violate the list of
forbidden criteria for peer review. This will rule out immunity for cases such
as Patrick v. Burget in which the plaintiff's case was based on the
allegation that the peer review action was based on anticompetitive rather than
quality-of-care grounds. (See Chaapter 18.) More generally, good-faith
quality-of-care decisions have always been a defense to actions contesting peer
review. If the defendants can establish that the action was intended to protect
patients, they will win the case. Moreover, since the determination of
reasonableness is a jury matter, the act will not allow the judge to dismiss
the plaintiff's complaint before trial if there is a factual question about the
reasonableness of the committee's actions. The most meaningful effect of the
immunity provisions may be the allowance of attorney's fees in frivolous cases.
This should be a useful deterrent to cases that are filed merely to delay
proceedings or to intimidate the members of the peer review committee.
The act's immunity is important if the jury finds that the peer review action
was taken in the reasonable belief that it would further the quality of medical
care but nonetheless violated a federal law. This might help when physicians on
the peer review committee violate other laws but conduct the peer review
properly. For example, assume that the physicians on the committee were engaged
in anticompetitive activities that do not concern the practice of the physician
they are reviewing. If they conduct a proper peer review activity, the act
might prevent an aggrieved physician from alleging that the peer review action
was tainted by the racketeering activities.
A more interesting question is whether the act would allow peer review
activities designed to improve medical care by reducing competition. For
example, specialty surgeons must get several cases of each unusual condition to
keep their skills keen. If competition between two surgeons denies both the
necessary level of cases to maintain their skills, this will adversely affect
the quality of medical care in the community. It might be appropriate for a
peer review committee to consider the adequacy of the patient base when
granting or renewing a specialist's hospital privileges. The act, however,
defines these considerations as per se improper:
- Action is not considered to be based on the competence or professional
conduct of a physician if the action is primarily based on-- ... [any] matter
that does not relate to the competence or professional conduct of a physician.
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.