State Law Violations
Many lawsuits contesting peer review decisions include state law claims, but these are usually secondary to federal actions. Most states have made it difficult for aggrieved physicians to contest peer review decisions under state law, due, in part, to state statutes immunizing peer review activities. In larger part, it is due to state discovery rules that block access to hospital records related to peer review. Plaintiffs cannot present their cases in court if they are denied access to the records that document their claims.
Defamation is harming a person’s reputation through lies. Defamation may be slander—speaking the lies—or libel—writing them down. In either case, the statements must be not true. If the story is horrible but true, spreading it may invade the person’s privacy, but it is not libel or slander. A physician may maintain that the fact that his or her medical staff privileges were terminated constitutes slander. More commonly, slander claims are based on specific comments about the physician. For example, if the chairperson of the peer review committee characterizes a surgeon as a butcher, this could result in a slander claim.
Most state laws prevent a physician from suing a member of a peer review committee for libel or slander for actions arising out of the peer review process. Unfortunately, many physicians forget that this protection does not extend beyond the formal peer review proceedings. Calling a colleague a ham-handed idiot may be protected in a peer review committee meeting; repeating the remark on the golf course is not protected. Physicians must restrict critical remarks to formal peer review proceedings.
A second state law action is tortious interference with the physician’s business relationships. This is a special type of anticompetitive action but one that arises under the common law rather than the antitrust laws. The basis of this action is that legitimate competition is encouraged, but it is wrong to destroy a competitor’s business with lies or improper interference. For example, assume that there are two surgeons on the medical staff of a hospital. Assume further that this is a small town with only one hospital. If surgeon Y starts a rumor that surgeon X is a drunk and is dangerous to his patients, this is slander. If surgeon Y starts this rumor to improve his or her practice by destroying surgeon X’s practice, this is also tortious interference with surgeon X’s business relationships.
Another form of tortious interference is to entice business associates not to honor their contractual obligations. For example, a physician group that tries to persuade a hospital to break its exclusive contract with a radiology group could be liable for tortious interference with a contractual relationship. In many states, tortious interference resembles invasion of privacy more than it does defamation. The truth of the accusation used to inflame the physician’s business associates is not a defense. Even if the physician does cheat patients, it is improper to use this information to persuade the physician’s business associates to change their allegiance. The proper course is to initiate appropriate disciplinary proceedings.