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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.


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