Peer-review panels have a solid legal shield

YAKIMA, Wash. -- If people are sent to prison for crimes they didn't commit, they can't sue jurors for issuing the wrong verdict.

In the health-care field, there's something similar. Physician peer-review bodies -- which examine doctors' practices when patients have an adverse outcome -- are shielded from liability for damages.

In essence, this means physicians have no legal recourse if a negative review results in their privileges being reduced or suspended -- even if their livelihoods are affected.

The only way to win in court is to prove that a peer-review panel -- comprised of physicians from several specialties -- colluded to act in bad faith, said Leo Greenawalt, an attorney who also serves as president and CEO of the Washington State Hospital Association.

"It's really difficult to prove there's conspiracy going on," he said. "The only evidence the court looks at is, 'Were they unbiased in the way they were doing it, and did they do as good a job as they could?' ... At that point, it doesn't matter if the decision was right or not, only if it was honest."

Denny Maher, associate director of legal affairs for the Washington State Medical Association, said the chances of a physician winning a lawsuit are rare. That's because most judges look only at whether there's a reasonable belief that patient safety was jeopardized and whether the hospital conducted an investigation and had a hearing.

Following hospital bylaws doesn't matter, nor do the motives for the peer review, he said.

"The bar is so low for the peer-review body to jump over," Maher said. "You'd almost have to have an action taken against somebody out of the blue with no investigation and no hearing. Even then, if the action looked like it was taken in the interest of quality patient care, you could still have a difficult time prevailing (in court)."

Charles Bond, a leading health law and appellate attorney based in Berkeley, Calif., has won these lawsuits. In one case, a hospital in Marin County, Calif., initiated a peer review against a doctor and refused to give her a hearing, he said.

Ultimately, Bond proved the physician was not involved in the matter for which she was disciplined, and he cleared her name.

"Physicians do win and can win. However, it's extremely difficult," said Bond, a physicians advocate who wrote the governing rules for the Washington State Medical Association. "The hospital industry is well united behind the maintenance of a system that essentially they control."

Most physicians have no problem with the peer-review process at their hospitals, Maher said. But what is of concern is the recent interpretation of Washington state law, which requires losing parties to pay their opponent's court costs.

Maher and Bond said the interpretation by Washington's appeals court on payment of attorney fees is "extremely uncommon."

"On one hand, you can argue it's designed to protect the peer-review process," Bond said. "On the other hand, if a doctor is not receiving due process through the actual internal procedures, what is the doctor's remedy? It effectively closes the court to the average doctor."

In the worst-case scenario, hospitals could use malicious peer reviews to not only fire physicians but destroy their careers, Bond said. For example, if a Washington doctor is suspended for 30 days or more, hospitals must submit a report to the National Practitioner Data Bank and the Washington state medical board.

Once in these data banks, which are routinely used for background checks by insurance companies and medical societies, the reports can permanently harm a physician's ability to practice, Bond said.

"Their career is based on having impeccable credentials," he said. "(A report) can ruin a doctor and render the doctor unemployable for the rest of the doctor's career. The stakes in these proceedings are truly, truly important."

But Greenawalt said the peer review's purpose is sound and is rarely manipulated.

If a hospital suspends someone, he said it's usually only after a series of cases have been reviewed, the physician's privileges have been reduced and the doctor has failed to take corrective actions.

"It's agonizing," Greenawalt said. "It's a very hard process to take another physician's practice away and it should be a hard process."

But Bond still asserts that doctors aren't sufficiently protected if the peer-review process is abused.

"(Hospitals) use the power of their superior economic advantage to engage in a war of attrition," he said. "In many institutes, physicians with just cases don't have the resources to fight."

* Erin Snelgrove can be reached at 509-577-7684 or esnelgrove@yakimaherald.com.