Kelly on Malpractice

In Eluhu v. HCA Health Services Of Tennessee, Inc., 2009 WL 3460370 (Tenn.Ct.App.), the Court of Appeals explained the immunity provisions of the peer review process. Dr. Eluhu was a cardiologist who was first granted provisional privileges at Centennial Medical Center (“CMC”) in 1989 and soon became a member of the attending medical staff. Dr. Eluhu was alleged to have ignored a patient who went into cardiogenic shock. In another case, Dr. Eluhu was alleged to have offered inappropriate surgery which caused the patient’s death. Another cardiologist on staff at CMC spoke with the medical director to discuss his concerns about Dr. Eluhu’s two cases. CMC charged Dr. Eluhu with lack of availability and direction for staff caring for patients having complications of procedures performed by Dr. Eluhu and failure of to provide appropriate physician-to-physician communication in requesting consultation to assist in managing major complications. An ad hoc committee (“AHC”) investigated the two cases referred to it by the MEC. The Committee recommended that Dr. Eluhu’s medical staff membership be revoked. A “fair hearing” took place. The FHC concluded that the preponderance of the evidence did not indicate that the MEC’s recommendations lacked any substantial basis or were arbitrary, unreasonable, or capricious.

The CMC board of trustees terminated Dr. Eluhu’s privileges. This was reported to the National Practitioner Data Bank. Dr. Eluhu filed an action against HCA alleging breach of contract/CMC’s bylaws, breach of implied duty of good faith and fair dealing, defamation, common law disparagement, statutory disparagement under the Tennessee Consumer Protection Act, and intentional interference with existing and prospective business relationships. The complaint sought monetary damages as well as declaratory and injunctive relief. CMC filed a motion for summary judgment asserting its immunity from actions for monetary damages pursuant to the Health Care Quality Improvement Act and the Tennessee Peer Review Law. The court granted the motion for summary judgment with respect to all claims for damages. The court stated that “any material factual disputes in this case are about medical judgment” and that “medical judgment differences do not remove the immunity provided by the legislature.”

Congress enacted the Health Care Quality Improvement Act, 42 U.S.C. §§ 11101 through 11152, in 1986 “to encourage self-policing by healthcare professionals in response to what it determined to be a crisis.” Congress found that “[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State.” 42. U.S.C. § 11101(1). The threat of litigation often deterred effective hospital peer review. 42 U.S.C. § 11101(4). In order to encourage the type of peer review that would expose incompetent physicians, the HCQIA shields health care entities and individual physicians from liability for damages for actions performed in the course of monitoring the competence of health care personnel.

Under the HCQIA, if a “professional review action” meets certain requirements, those participating in the review process are entitled to immunity from monetary damages under any state or federal law. 42 U.S.C. § 11111(a)(1). A “professional review action” is defined as follows:

[A]n action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician.

42 U.S.C. § 11151(9). “Professional review activity” is defined as:
[A]n activity of a health care entity with respect to an individual physician-

(A) to determine whether the physician may have clinical privileges with respect to, or membership in, the entity,

(B) to determine the scope or conditions of such privileges or membership, or

(C) to change or modify such privileges or membership.

42 U.S.C. § 11151(10). A hospital’s peer review committee qualifies as a professional review body.

The Health Care Quality Improvement Act (“HCQIA”) and the Tennessee Peer Review Law (“TPRL”) establish a presumption that the participants in peer review actions are entitled to immunity from monetary damages. 42 U.S.C. § 11112(a); Tenn.Code Ann. § 63-6-219(d)(3); Peyton v. Johnson City Med. Ctr., 101 S.W.3d 76, 78 (Tenn.Ct.App.2002). The plaintiff can rebut this presumption by a preponderance of the evidence. 42 U.S.C. § 11112(a); Peyton, 101 S.W.3d at 78. The effect of this presumption of immunity is to shift the burden of production to the plaintiff to show that the hospital failed to meet the standards for HCQIA or TPRL immunity. See Curtsinger v. HCA, Inc., 2007 WL 1241294, at *5 (Tenn.Ct.App.).

For immunity to apply, the HCQIA requires that the professional review action be taken as follows:

(1) in the reasonable belief that the action was in furtherance of quality health care,

(2) after a reasonable effort to obtain the facts of the matter,

(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and

(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

42 U.S.C.A. § 11112(a). The reasonableness required under § 11112(a) is evaluated under an objective standard. Curtsinger, 2007 WL 1241294, at *6. The good faith or bad faith of the reviewers is irrelevant. Peyton, 101 S.W.3d at 84. The HCQIA creates a presumption that these standards have been met unless the presumption is rebutted by a preponderance of the evidence. 42 U.S.C. § 11112(a). Thus, “a plaintiff has the burden of demonstrating, by preponderance of the evidence, that the requirements of § 11112(a) have not been met in his peer review.” With respect to all other claims, including monetary damages and injunctive relief for breach of contract, the Court of Appeals affirmed the trial court’s decision. Eluhu means is that the Court’s have a broad immunity interpretation.