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REQUIREMENTS OF THE ACT

The act's intent is clear from its subtitle: "Encouraging Good Faith Professional Review Activities." The act establishes the basic constraints on peer review. While its immunity and attorney's fees provisions will discourage some lawsuits, its limitations on reviewing improper delegation of authority will generate others. The creation of nationally available physician dossiers will improve the quality and reduce the cost of peer review. But it will generate additional litigation because it will destroy the practices of physicians who are stigmatized by an improper peer review action.

So far, the act has been subject to very little court review and no major appellate decisions. Physician and hospital objections to the procedures for maintaining the data bank delayed its initiation until September 1990. Since there are no provisions for retrospective reporting, it will be several years before the data bank is fully operational.

This review of the act is based on the statutory language, with annotations to improve the clarity. The act is divided into the following sections: Protection from Liability, Adequate Notice and Hearing, Reporting Malpractice Payments, Duty of Hospitals to Obtain Information, Definitions and Reports, and Attorney's Fees.

The need for this law was based on the following congressional findings:

(1)
The increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State.

(2)
There is a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance.

(3)
This nationwide problem can be remedied through effective professional peer review.

(4)
The threat of private money damage liability under Federal laws, including treble damage liability under Federal antitrust law, unreasonably discourages physicians from participating in effective professional peer review.

(5)
There is an overriding national need to provide incentive and protection for physicians engaging in effective professional peer review. (sec. 11101)

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