The HCQIA [42 U.S.C.A. §§ 11101, et seq.] was passed by Congress in response to the consumer demands for better control of the quality of medical care and lobbying by hospital and medical organizations who said that the potential damages from peer review–related litigation were chilling their ability to conduct proper peer review. At the same time, Congress was concerned with abuses of the peer review process, which were in the news with the district court decision in the Patrick case. The law they passed provided immunity for damages, but did not provide immunity from lawsuits. Thus an aggrieved physician with sufficient money to pay an attorney without relying on a contingent fee can file a lawsuit against a hospital and the peer review committee members, litigate it to a jury verdict, then let the judge throw out any damages the jury awards. This can be little consolation to the defendants who may have to spend a lot of money defending the lawsuit. (They cannot just ignore it because they have to make sure that the judge finds that they did comply with the act.) In reality, however, eliminating any potential recovery has limited this litigation and has encouraged medical malpractice insurers to include peer review under their policies.

The more important provision of the act may be the National Practitioner Data Bank. This is meant to be a clearinghouse for information on peer review actions, payments in medical malpractice cases, and other information bearing on the competence of physicians. The intent of the databank is to facilitate peer review and to prevent physicians from escaping disciplinary actions by moving to a different state. This information is available to malpractice plaintiffs in only very limited circumstances.