(ACO) would be considered a health care entity under current law. The defi- nition provided above, however, could arguably encompass an ACO if it is de- termined to be “an entity that provides or pays for medical care or health care services and follows a formal peer re- view process to further quality medical care or health care.” Another issue will be whether a Texas “collaborative” would have peer review protections. During the special session of the 82nd Legislative Session, the Texas Legislature passed Senate Bill 7, which authorizes a health care collaborative to provide or arrange for health care servic- es.8
orative receives the protections of peer review, SB 7 specifically amended the definition of a health care entity in sec- tion 151.002(a)(5), Occupations Code, to include “a health care collaborative certified under Chapter 848, Insurance Code.”9 Furthermore, SB 7 entitles a physi-
cian to basic due process before a com- plaint against the physician is resolved or before the physician’s association with the collaborative is terminated.10
Peer review privilege The purpose of the medical peer review privilege is to promote the improve- ment of health care and the treatment of patients through review, analysis, and evaluation of the work and procedures of various medical entities and their personnel.11 The peer review privilege generally
provides that each proceeding or record of a medical peer review committee is confidential, and any communication made to a medical peer review commit- tee is privileged.12 The Texas Supreme Court has held that “the medical peer review privilege will be strictly interpreted.”13
The court
explained that the medical privileges are important in promoting free discus- sion in the evaluation of health care professionals and health services, but the right to evidence is also important, and, therefore, privileges must be strictly construed.
The right to the privilege must there- fore be established. If a committee does
60 TEXAS MEDICINE October 2011
not fall within the definition of a medical peer review committee of a health care entity, or if the person invoking the privi- lege does not provide sufficient evidence that he or she is entitled to the privilege, then the privilege will not apply. A recent Texas court case, In re Hig- by, addresses such a situation.14
In that In an attempt to ensure that a collab-
case, a physician sued another doctor for defamation over statements made in a complaint to a physician specialist as- sociation’s grievance committee. The de- fendant physician asserted that his state- ments to the committee were privileged, but the trial court ordered him to answer deposition questions about his communi- cations to the grievance committee. An appellate court subsequently held
that the defendant physician was not en- titled to the privilege because he failed to offer any evidence that the physician specialist association was a health care entity authorized to evaluate the com- petency of physicians or that the associa- tion or its grievance committee followed a formal peer review process to further quality medical care. The court did not express an opinion on whether the grievance committee served as a “medical peer review com- mittee” for purposes of obtaining the protection, but because the appellate court did not have evidence to establish whether a privilege applied, it upheld the trial court’s ruling to produce the in- formation. (TMA filed an amicus curiae brief in support of the privilege asserted by the specialty society and defendant physician at the Texas Supreme Court, but the Texas Supreme Court declined to hear the case.)
Qualified immunity Statutory immunity provisions, applica- ble to medical peer review committees and health care entities for events dur- ing medical peer review, protect both ac- tions and statements in peer review and the impact or effect of those actions.15 Members of the committee have protec- tions, as do individuals who provide in- formation to the committee. It is important to note, however, that the actions to be protected must be per- formed without malice. Specifically, the Texas Occupations Code provides: “A
cause of action does not accrue against a member, agent, or employee of a medi- cal peer review committee or against a health care entity from any act, state- ment, determination or recommendation made, or act reported, without malice, in the course of medical peer review.”16
It
also provides: “A person, medical peer review committee, or health care entity that, without malice, participates in the medical peer review or furnishes records, information, or assistance to a medical peer review committee or the board is immune from any civil liability arising from that act.”17
A physician may be afforded limited immunity protections under the federal Health Care Quality Improvement Act (HCQIA).18
HCQIA says no person or en- tity is liable in any civil action over any required report unless they know the information is false. The immunity does not apply to civil rights suits or actions brought by the United States or a state’s attorney general.
Although the term “malice” is not used, HCQIA also requires the partici- pants to act in good faith. HCQIA pro- vides protection if the professional re- view action is taken in the reasonable be- lief that the action furthered the quality of health care; after a reasonable effort to obtain the facts of the matter; after due process procedures are afforded to the physician involved, including ad- equate notice of complaints, a fair hear- ing, and an availability of appeals; and in the reasonable belief that the action was warranted after a reasonable effort to obtain the facts and after meeting the requirements of due process.
Summary The purpose of the peer review process is an honorable one in keeping with a long tradition of self-policing to main- tain the integrity of the medical profes- sion and to protect patients. The law offers some protections which, although not absolute, should provide some com- fort to the physicians participating on such committees that they are largely protected if they act without malice and give the accused due process. An organization should formally out- line its peer review process and ensure
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68