Potential Adverse Impacts
One adverse impact of the act is that it is now very difficult to contest an improper peer review action. Unless the physician can assert grounds that are not covered by the act, such as sexual or racial discrimination, or can rebut the presumption that the review was proper if it the committee followed the proper procedures, there is little hope of winning damages in a peer review contest. Physicians are cautioned to keep medical staff privileges at more than one hospital so that they can continue practicing if one facility takes an improper peer review action against them. (Even this may not help—the report to the National Practitioner Data Bank can make it impossible to get privileges anywhere.)
Although physicians see the act as protecting them from lawsuits by the disgruntled victims of peer review, this may not be the act’s major effect. The act shows the disparate agendas of its drafters. The central intent of Congress was to mandate a national clearinghouse for peer review actions and medical malpractice payments. This was the quid pro quo for granting the physicians’ request that they get immunity for engaging in peer review. Unfortunately, many nonphysician groups, including nonscientific providers such as chiropractors, were successful in excluding from immunity the review of physicians who improperly delegate authority to nonphysician providers.
The act will make it more difficult to curb the inappropriate delegation of authority to nonphysician personnel as MCOs and hospitals attempt to use nonprofessional staff to care for patients. [Adelman SH. Ways that hospitals control their physicians. Am Med News. 1991;34:26.] This is an understandable, though not necessarily correct, response to cost containment. This will be harder to attack because the act defines as improper any peer review activities based on “a physician’s association with, supervision of, delegation of authority to … a member or members of a particular class of medical care practitioner or professional.” This provision will make it more difficult to discipline physicians who allow nurses, nonphysician practitioners, or others to practice medicine on their licenses. This practice can have a devastating effect on the quality of patient care, yet the act seems to preclude it as a ground for peer review if that peer review is to get federal immunity. This is aggravated in states that have uncritically incorporated the federal provisions into their own peer review laws.