Health Law

Colorado Denies Immunity from Physician Peer Review

By Greg Piche'

In Peper v. St. Mary?s Hospital and Medical Center, No. 07CA2491, the Colorado Court of Appeals held that a Colorado hospital and medical stafff physicians who revoked the plaintiff?s hospital privileges without notice or a hearing failed to establish grounds for immunity under the Health Care Quality Improvement Act of 1986.  Dr. Peper is a cardiothoracic surgeon who was appointed and reappointed to the ?provisional actual medical staff of St. Mary?s Hospital.?  At about the time of his reappointment, the hospital began a secret review of 19 of Dr. Peper?s cases.  An external reviewer asserted the presence of provisions that suggested the possibility of problems with surgical techniques and/or judgment.

On February 15, 2003, without prior notice St. Mary summarily revoked Dr. Peper?s privileges asserting ?in-depth analysis demonstrated a pattern of consistently excessive cross-clamp times as well as several cases of care failing below-generally accepted standards of practice.?

The hospital notified Dr. Peper that the medical bylaws did  not provide for a hearing or appeal for provisional physicians.  In an earlier appeal, the Colorado Court of Appeals held that there was no immunity because of the hospitals? inadequate nature and hearing provisions under HCQIA and remanded the matter to the trial court for the determination of whether Dr. Peper waived his rights to a hearing when he agreed to accept provisional privileges under the bylaws.  The trial court granted summary judgment in favor of the hospital and other defendants on remand because of a waiver of rights.  The Court of Appeals again reversed.

On the merits, we hold defendants are not entitled to HCQIA immunity because any agreement to be bound by hospital bylaws was legally insufficient to wave statutory due process rights under the third HCQIA standard.

In the absence of an express and knowing waiver of rights by a physician, the court ruled that regardless of its bylaws, the hospital and its peer reivew participants must comply with HCQIA?s conditions for immunity beforethey t can obtain immunity.

They provided Dr. Peper no opportunity to be heard before revoking his privileges and reporting him to the state medical board and the national data bank nor have defendants ever claimed there was some health emergency requiring immediate suspension of Dr. Peper?s privileges under 42 U.S.C. § 11112(c).

The bylaws may impose contractual obligations on both sides, but do not inferentially trump statutory rights.

4418576_1.DOC

Full post as published by Healthcare Law Blog on January 07, 2009 (boomark / email).