A history of peer reviews

Medical malpractice lawsuits were growing rapidly across the country in the 1970s, and consumer groups began to complain that physicians with a history of litigation could easily move from state to state and continue their path of injury.

At the same time, physicians and hospitals were reluctant to report the wrongdoing of their peers. Aside from a general unwillingness to "rat" on their colleagues, physicians also feared retaliation in the form of defamation lawsuits from doctors they reported.

Consumer groups lobbied for the Health Care Quality Improvement Act, sponsored by Sen. Ron Wyden, D-Ore., and approved by Congress in 1986. It was incorporated into Washington state law the following year.

The law grants health care peer reviews immunity from legal liability on the theory that it would encourage the reporting of physicians' mistakes. The only way to pierce this shield of immunity is to prove a peer review was implemented because of hospital politics, retaliation, collusion or anti-competitive practices.

A long line of cases challenging peer-review decisions across the country have been dismissed on summary judgment, meaning judges -- looking at the record -- believe there's no case, said Leo Greenawalt, CEO of the Washington State Hospital Association.

"The plaintiff in a case has to show there's some degree of bad faith. If there's no evidence whatsoever, the judge drops it," Greenawalt said. "For lawyers, it means they never had a case."

And losing a case in the state of Washington is expensive for the plaintiff. Earlier this year, the Washington State Court of Appeals ruled that hospitals could seek to recover their legal fees from losing physicians -- a precedent that worries Tim Layton, director of legal affairs for the Washington State Medical Association.

"If the likelihood that you will lose on the merits of your case was not enough to deter you from bringing an action, the likelihood that you will have to pay hundreds of thousands of dollars in attorney fees if you lose most certainly will," he said.