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The act states that its notice and hearing requirements are not the only way to provide adequate due process for peer review. The courts, however, will tend to regard these statutory requirements as minimums. These requirements were developed in court cases against governmental health care institutions. The effect of the act is to require private institutions seeking immunity to comply with the same due process requirements as public institutions. Since most private hospitals already meet this standard, this should not require substantial changes in hospital procedures. It will require other health care entities, such as private clinics, to use formal, hospital-style proceedings rather than the informal procedures that are the norm in these environments.

The act only covers peer review activities carried out in a reasonable belief that they will improve the quality of medical care. The best evidence of a good-faith peer review decision is a written set of standards that explain what is expected of a physician practicing in the entity. These should be detailed and straightforward. They must be intelligible to jurors and physicians, as well as to attorneys. For hospitals, most of the relevant standards are already in force as part of the JCAHO requirements. The problem is that few physicians are familiar with these requirements. These standards must be made available to members, and prospective members, of the medical staff. Adherence to these standards must be an explicit condition of medical staff privileges.

It is critical that the health care entity enforce all standards uniformly. There cannot be a double standard based on economic performance or personality. If, for example, delinquent chart completion is used as a ground for the termination of staff privileges, then the hospital must ensure that other members of the medical staff complete their charts on time. Disparate enforcement of standards is less defensible than having no standards.

The only way to provide even-handed enforcement of standards is to shift from exception-oriented review to review based on statistical and population analysis. In some areas such as completion of medical records, the hospital keeps data on every physician. The data can be compiled into profiles to establish the norm and standard deviations for chart completion. Physicians exceeding a set deviation would be flagged and counseled. If their performance did not improve, they would be terminated. In other areas, such as surgical complications, indirect measures are much less effective. These require that a random sample of charts from every physician be reviewed for problems.

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