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Louisiana Health Law

Court Sets Standards for Contesting Peer Review - Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730 (La. 1994)

Who is the plaintiff, who is he suing, and what are his state claims?

What lead to these claims?

Plaintiff also filed a federal RICO lawsuit, which was ultimately dismissed, and he narrowly avoided Rule 11 sanctions for filing a frivolous claim.

The date of this action - 1986 - is important because shortly after this a federal law went into effect providing good faith immunity from damages for peer review actions. The court cites decisions under that law in this case.

What is the impact of limiting or denying privileges for a hospital based physician?

Why do we want hospitals to review privileges and make these determinations?

Why is it left to the hospitals instead of state agencies?

What are the conflicts for the hospitals?

What are the conflicts for the medical staff members doing the review?

Would you like to see the review of pilots done by airlines?

What changes in the nature of medical practice allow physicians to escape this review?

The peer review committee limited his privileges based on what two types of problems?

Did they give him a chance to change his behavior?

Which outside group did the hospital get to review his surgical performance?

Why use an outside group instead of the other surgeons on the medical staff?

What is the business relationship of the other surgeons to plaintiff?

Why could this be an antitrust issue?

What did the outside reviewers decide?

What was plaintiff's defense?

Who is his associate?

Have you seen that name before?

Does it improve your opinion of plaintiff?

Was plaintiff given a chance to present his side of the story to the outside reviewers?

Was plaintiff also allowed to present his side of the case to the internal review committee?

What did the Ad Hoc Hearing Committee recommend?

What did the Executive Committee decide to do?

What did the Board of Trustees do?

What did the district court do with plaintiff's action?

Why is this critical to protecting peer review actions?

How can you use legal process to intimidate even if you do not think you can ultimately win?

Have you heard about SLAPP suits in environmental actions?

Why did the court of appeals reverse?

What is the standard for immunity in the Health Care Quality Improvement Act?

Why does the court analogize the peer review privilege to the privilege in defamation in suits arising out of the employer-employee relationship?

What are the elements of this privilege?

How do peer review proceedings satisfy this?

What public policy underlies both of these privileges?

This privilege does not apply to employee references - what has this done to the process of checking references?

What is the two step process for deciding if the privilege exists?

Does the judge or jury usually decide the second step?

What is the exception?

Why didn't the statute protect the hospital and the physician's PC?

What does it say now?

Did the defendants' actions arise as part of the peer review process?

Who has the burden of establishing malice or lack of good faith?

The hard question becomes, "What is adequate proof of malice or bad faith?"

What if the defendants do not like the plaintiff?

Is that alone malice?

What if they are competitors of the plaintiff?

Is that alone enough to defeat good faith?

What if the peer review action also benefits the defendants - perhaps by removing a competitor?

Is that alone enough to get plaintiff to the jury?

What does the court put such strictures on plaintiff's ability to survive summary judgment?

How can the defendants defend against charges that the peer review decision had other motives and was thus not in good faith? [para 90]

Did the court think that plaintiff's affidavits rebutted the presumption that the peer review was done in good faith?

Does it matter that the defendants did not comply with all the provisions of the bylaws?

What is the standard for compliance?

Why not require perfect compliance?

What was the final holding?

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