December 05, 2019

What Is...Medical Staff Peer Review

By Dr. Mehrnaz Hadian, Los Angeles, CA, Robert S. Iwrey, Esq., The Health Law Partners, Farmington Hills, MI, Conrad Meyer, Esq., Chehardy Sherman Williams Murray, Metairie, LA and Patrick D. Souter, Esq., Gray Reed & McGraw, Dallas, TX

What Constitutes the Medical Staff?

1.1 What Is the Medical Staff Membership and Its Relationship to the Hospital?

The term medical staff in the context of a hospital refers to an organized body of licensed physicians (MD and DO), dentists (DDS and DDM), and other healthcare providers (including podiatrists and psychologists) who are authorized by state law and by a hospital through its medical staff Bylaws to provide medical care to patients within the hospital. Some hospitals include allied health professionals (e.g., nurse practitioners, physician assistants, surgical assistants, and doctors of pharmacy) and postgraduate trainees (e.g., residents and fellows) within the term medical staff, although hospitals are not legally required to include these nonphysician practitioners on their medical staff. Furthermore, although a significant portion of the hospital’s medical staff may be employees of the hospital, the majority are not employees.1 They are often independent healthcare providers who have been credentialed and granted privileges to render medical care at the hospital.

The medical staff may be deemed “open” if the hospital is continually accepting applications for new members or “closed” if the hospital has determined that only a finite number of providers will be allowed to become members and applications for membership will be accepted only when vacancies exist.

A healthcare provider’s membership at a hospital is governed by the hospital’s Bylaws, which are approved by the hospital’s governing body. Each hospital defines the purpose of the medical staff membership in its Bylaws that often includes one or more of the following definitions:

  • to provide quality medical care to patients admitted to or treated in the hospital consistent with the applicable standards of care;
  • to enhance and improve the quality of care, including patient safety, effectiveness, efficiency, and the equity of care for all patients admitted to or treated in the hospital;
  • to provide graduate, postgraduate and continuing education and maintain educational standards;
  • to support and promote medical research while maintaining and ensuring appropriate protection of human subjects;
  • to be accountable to the Board of Trustees for the appropriateness of the professional performance and ethical conduct of its members;
  • to promulgate and maintain such rules, regulations, and internal organization necessary to allow the medical staff to discharge its responsibility within the hospital in an organized and effective manner; and
  • to advise the Board of Trustees and Hospital Administration on medical and related matters, including assisting the hospital with its compliance plan.

Under a hospital’s Bylaws and the standards promulgated by The Joint Commission [f/k/a “Joint Commission on Accreditation of Healthcare Organizations (JCAHO)” and previous to that the “Joint Commission on Accreditation of Hospitals (JCAH)”], a healthcare provider’s membership at a hospital must be reviewed for reappointment at least every two years. Such review and reappointment is based on ongoing monitoring of specific information regarding the healthcare provider’s performance, medical judgment, clinical skills, and professional behavior and is described in more detail in the hospital’s Bylaws and/or credentialing manual. Reappointment is the process of reevaluating the healthcare provider’s competency to ensure that patients in the hospital are receiving quality care.

The information reviewed during the reappointment process is usually just an updated version of the information reviewed during the initial membership appointment. However, if concerns arose regarding the healthcare provider’s performance, medical judgment, clinical skills, or professional behavior during the last two years of membership, additional information may be sought and confidential consultations may be had with departmental heads/staff to further assess such concerns. The medical staff Bylaws and its fair hearing rights provisions contain the healthcare provider’s due process rights in such circumstances. If information regarding a healthcare provider’s activity at a hospital is sparse due to inactive use, the hospital may, with written authorization of the healthcare provider applying for reappointment, seek information from other hospitals where the healthcare provider was more active to help the hospital assess the healthcare provider’s competency.

1.2 What Is the Difference between Credentialing and Clinical Privileges?

Medical staff membership is not synonymous with clinical privileges in that a member of the medical staff is not entitled to perform procedures or treat patients simply by virtue of being a member of the medical staff. To perform procedures or treat patients at a hospital, a healthcare provider must first become a member of the hospital’s medical staff. To do so, a healthcare provider must obtain, complete, and submit an application for membership. Once the application is accepted (e.g., the hospital has open membership for the specialty and class of provider seeking membership), it must go through the credentialing process as discussed below. Once the healthcare provider has been vetted through the credentialing process, his/her request for clinical privileges must be reviewed and a determination made as to which clinical privileges will be granted. Such privileges will dictate which procedures and treatments the healthcare provider has the hospital’s authority to perform at the hospital.

The credentialing process is most often set forth in a document referred to as a credentialing manual that describes the procedures used by the hospital to review and verify the credentials of the healthcare provider applying for medical staff membership to ensure that he/she is competent and qualified to perform the areas and levels of patient care sought in the application. The credentialing manual sets forth what type of information will be used to assess and evaluate the healthcare provider in terms of his/her qualifications to become a medical staff member and to maintain his/her medical staff membership. The credentialing manual also typically describes the procedures used by the hospital to modify and/or renew privileges for existing medical staff members. As discussed in the following section, there are different categories or levels of medical staff membership such as Active, Affiliate, Temporary, and Honorary. Such categories or membership levels distinguish between what clinical privileges, if any, will be available to the healthcare provider.

Credentialing can be a very lengthy process. As such, over recent years, an increasing number of hospitals have relied upon outside, third-party centralized data collection and storage entities to gather and verify much of the information needed from the applicant/healthcare provider. The use of such entities not only benefits the hospitals by significantly reducing the administrative costs and time associated with gathering and verifying the large amount of information needed for credentialing but also benefits the healthcare provider because he/she need only submit the information once to the entity as opposed to every hospital to which he/she is applying for medical staff membership/privileges. The most well-known of these entities is the Council for Affordable Quality Healthcare (CAQH), which operates the Universal Provider Datasource (UPD). Launched in 2002, the CAQH’s UPD is supported by the American Medical Association, the American Academy of Family Physicians, the American College of Physicians, the Medical Group Management Association, America’s Health Insurance Plans, the American Health Information Management Association, and other healthcare provider organizations.

1.2.1 Credentialing Process

Credentialing for an initial appointment generally includes (1) verifying the initial application, including a broad release from liability and the application fee; (2) collecting a significant amount of information from the applicant such as photo identification, educational background, healthcare training, work history, curriculum vitae, board eligibility/certification, state licensure, Drug Enforcement Administration registration, and proof of malpractice insurance; (3) performing a thorough background check, including but not limited to verifying the accuracy and truthfulness of the aforementioned information collected from the applicant, conducting a criminal background check, querying the National Practitioner Data Bank (NPDB), checking the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) Exclusion Database, and verifying the status of staff privileges at other hospitals and healthcare facilities listed on the application; (4) following up with the applicant for an explanation on any gaps in education, training, and work history or other curious points that might have arisen during the credentialing process; and (5) obtaining from the applicant and verifying peer recommendations. Once these steps have been accomplished, the credentialing committee typically sends the application and all of its findings and recommendations to the Medical Executive Committee (MEC) that then formulates a recommendation for approval or disapproval to the hospital’s Board which is often the final decision maker. A disapproval by the MEC typically triggers the applicant’s fair hearing right, which means the applicant has a right to request a hearing to appeal the adverse recommendation as described in more detail in another chapter. However, the hospital’s Board usually remains the final decision maker. The medical staff privileges reappointment process often follows a similar but somewhat streamlined procedure, which may vary from hospital to hospital.

For healthcare providers seeking medical staff membership with privileges, the credentialing and recredentialing applications typically contain a section wherein the healthcare providers indicate the type of privileges they are seeking. In broad terms, there are two types of privileges at a hospital: admitting privileges and clinical privileges. Admitting privileges allow the healthcare provider to admit patients in the hospital and serve as attending physician during the hospitalization. Clinical privileges allow the healthcare provider to provide specific patient care services in the hospital to patients based on the healthcare provider’s own training, experience, and skills as long as such services are consistent with the hospital’s mission and needs. The types of clinical privileges available and granted to a healthcare provider depend on the provider’s specialty and departmental affiliation. For example, the privilege to perform a certain surgical procedure may be available to a surgeon but not to a psychiatrist applying for clinical privileges at a hospital.

Determining which clinical privileges to grant to a particular healthcare provider is a significant aspect of the credentialing process. Criteria for clinical privileges are based on numerous factors, including the complexity and levels of care needed by the patients, documentation of training, and demonstrated competency in the performance of the requested procedures. Criteria for new procedures and treatment modalities are continually being developed and revised as technology progresses, with the goal being a uniform application of such criteria across different fields of practice. To be deemed competent, healthcare providers requesting clinical privileges in new procedures and treatment modalities often must document sufficient hands-on training achieved through supervised programs. Provisional privileges may be granted allowing a healthcare provider to perform certain procedures under the supervision of a proctor until such time that the provider demonstrates a certain level of competency and is deemed capable of performing such procedures safely and without supervision. The decision whether to grant or deny the privileges requested by a healthcare provider typically follows the same path as the decision whether to grant or deny medical staff membership at a hospital. The input is received from the credentialing committee and the MEC before the Board makes the final decision. However, for granting clinical privileges, input from the director of the applicant’s affiliated department is also sought and considered.

1.3 Levels of Membership

As set forth above, there are often different categories of medical staff membership, including but not limited to Active, Affiliate, Temporary, and Honorary. Of these categories, Active staff membership represents the highest level of membership, which has the highest criteria standards and qualifications requirements. To maintain Active staff status, medical staff members typically must meet a certain minimum number of patient admissions per year (for the purpose of having a reasonably sufficient number of admissions that can be reviewed for quality of care control), actively participate in administrative meetings and quality of care measures, and actively participate in on-call and specialty coverage programs. Affiliate membership may be available to healthcare providers who do not meet the criteria standards and qualifications requirements for Active staff membership but do meet the applicable criteria standards and qualifications requirements for Affiliate membership category. Affiliate staff members typically do not enjoy the same voting rights as Active staff members. Temporary staff membership is typically offered under specific circumstances where unique patient care circumstances arise and warrant an expedited manner in which a healthcare provider can obtain limited membership and admitting and clinical privileges to meet the hospital’s needs on a temporary basis. Honorary or Emeritus medical staff membership is usually available to a select few healthcare providers who have demonstrated past distinguished service to the hospital and/or the medical community in which they serve and is often viewed as an award or formal recognition for a provider’s significant contribution to the hospital, patient care, and medical sciences. Honorary members do not have admitting or clinical privileges and do not typically have any voting rights. The actual levels of membership may vary from hospital to hospital; however, the rights and obligations of the healthcare providers for each membership category are described in detail in the hospital’s Bylaws.

2.1 Medical Staff Bylaws

A well-organized medical staff is critical for every hospital organization. Such an organization is memorialized in a document known as the hospital’s medical staff Bylaws. These Bylaws are a group of documents adopted by the voting members of the organized medical staff and approved by the governing body, the Board of the hospital, that defines the rights, responsibilities, and accountabilities of the medical staff and various officers, persons, and groups within the structure of the organized medical staff; the self-governance functions of the organized medical staff; and the working relationship with and accountability to the governing body of the organized medical staff. Bylaws should address specific issues directly related to the medical staff and should include a concise set of rules, policies, and procedures that address important issues a physician who is a member of the medical staff might encounter. The purpose of creating and adhering to hospital Bylaws may include the following:

To facilitate the provision of quality care to hospital patients regardless of race, gender, sexual orientation, creed, disability, or national origin;

To promote professional standards among members of the medical staff;

To provide a means whereby problems may be resolved by the medical staff with the collaboration of the Board; and

To create a system of self-governance and to initiate and maintain rules and regulations governing the conduct of the medical staff subject to the Board.

The medical staff is governed by not only Its Bylaws but also rules and regulations that often dictate specific standards of care (e.g., obtaining proper history and physical exam or placing a time limit on when to sign delinquent medical records). The Bylaws are separate and apart from rules and regulations. However, the medical staff must adhere to both. Various entities exist that provide accreditation services to hospitals and grade on compliance with various standards regarding hospital operations, including the medical staff. Such entities assist hospitals in their oversight to ensure that facilities are enacting Bylaws that provide for smooth running medical staff.

2.2 Regulation of and Compliance with Bylaws

Several different regulatory provisions as well as entities provide guidance on creating proper Bylaws. One well-known entity that provides guidance to hospitals in creating proper Bylaws is The Joint Commission. A hospital that wants to become Joint Commission–accredited must comply with special sets of guidelines that require facilities to create, adhere, and maintain certain policies and procedures that relate to the medical staff. Specifically, The Joint Commission creates elements and standards that hospitals must meet to be accredited by The Joint Commission. One of the standards that must be met is compliance with certain requirements for the Bylaws.

2.2.1 What Is The Joint Commission?

In 2011, The Joint Commission Task Force comprised of a hospital attorney and a medical staff attorney and representatives of hospital industry trade groups, medical and other health professional associations revised Joint Commission standard MS. 01.01.01, which addresses the Bylaws and the standards that address self-governance and accountability to the governing body. The January 1, 2018, version of The Joint Commission MS. 01.01.01 contains 37 elements for hospital compliance. Some examples of the 37 elements that need to be contained in the Bylaws include:

The medical staff structure

Qualifications and process for appointment/reappointment to the medical staff

Process for privileging and reprivileging licensed independent practitioners

Process for credentialing and recredentialing licensed independent practitioners

History and physical exam documentation requirements

Identification of which categories of members can vote

Identification of medical staff officers and the process for selecting/electing and removing medical staff officers

Duties and qualifications of the department chairs

The MEC’s:

Function

Size and composition, which must include physicians and may include other practitioners and other individuals, as well as the process for member election, selection, and removal

Authority and means by which the medical staff delegates such authority to and removes it from the MEC and acknowledgment that the MEC acts on behalf of the medical staff between its meetings and within the scope it defines

Indications and processes for automatic and summary suspension and termination or reduction of privileges and membership

Hearing and appeals process and the composition of the hearing committee

Process for amending and adopting medical staff bylaws, rules, regulations, and policies, which must include a means for the medical staff to propose amendments directly to the governing body, without requiring MEC action.

MS.01.01.01 and its elements provide the framework for constructing, writing, and implementing Bylaws. In particular, it creates a mechanism for adoption and amendment of the Bylaws that, according to the standard, must be voted on by the entire medical staff and approved by the governing body.

In addition to the Joint Commission accreditation, another important regulatory mechanism that relates to the Bylaws is found in the Health Care Quality Improvement Act of 1986, (HCQIA). The Bylaws must be HCQIA-compliant to afford immunity for medical staff peer review members charged with overseeing the peer review process contained in the Bylaws.

2.2.2 What Is the Health Care Quality Improvement Act of 1986?

Hospitals must work toward creating Bylaws that adhere to both federal and state civil immunity from liability for peer review decisions. The policies and procedures for adherence to the federal and state law immunity provisions should be detailed in the Bylaws, including the fair hearing process, which will be discussed in Chapter 3. It is important to note that HCQIA only protects participants from money damages, not from injunctive relief or from the lawsuit itself. As such, the peer review process and Bylaws should conform to state law peer review statutes that may offer additional immunity protection in addition to compliance with HCQIA.

HCQIA was enacted at the federal level to address the reporting of physicians who were peer-reviewed with adverse outcomes and provide for immunity to peer review panel members tasked with reviewing and ruling on physician issues within the medical staff to create both immunity and confidentiality for the peer review process. Congress, in its findings regarding the need for HCQIA, determined it was necessary because there was:

An increased occurrence of medical malpractice and a need to improve the quality of medical care nationwide that warrant greater efforts than those that can be undertaken by any individual state.

A national need to restrict the ability of incompetent physicians to move from state to state without disclosure or discovery of the physician’s previous damaging or incompetent performance.

A nationwide problem that can be remedied through effective professional peer review.

The threat of civil liability money damage under federal laws, including treble damage liability under federal antitrust law, that unreasonably discouraged physicians from participating in effective professional peer reviews.

An overriding national need to provide incentive and protection for physicians engaging in effective professional peer review.2

HCQIA, which is found at 42 U.S.C. §11111 et seq. provides for immunity from any law of the United States or any state or political subdivision, except certain civil rights statutes, for a defined group of participants who participate in peer review activities in accordance with the standards of HCQIA.

A review of HCQIA is critical to ensure immunity for peer review members. HCQIA identifies immunity for the following participants or classes of participants:

A professional review body that includes a healthcare entity (including a licensed hospital, an entity providing healthcare services and formal peer review, or a professional society utilizing formal peer review), the governing body and/or committee thereof conducting a professional review activity, and committee of the medical staff when assisting the governing body in performing “professional review activities.” A professional review activity is defined as “any activity relating to an individual physician denied privileges or medical staff membership.”

Any person acting as a member or staff to the professional review body;

Any person acting under a contract or other formal agreement with the professional review body; and

Any person who participates with or assists the professional review body.

Under HCQIA, professional review bodies and participants in a professional review activity will not be liable in “damages” under any law of the United States or any state. This immunity prohibits a damage award against peer review participants, but not the litigation action itself. For the HCQIA immunity to apply, all of the following standards must be met in a professional review action that is taken:

In the reasonable belief that the action was in the furtherance of quality healthcare;

After reasonable effort to obtain the facts of the matter;

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

In the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain the facts and after meeting the requirements of paragraph (c).

HCQIA is an objective standard that provides protection if there are reasonable grounds to support the decision regardless of the subjective issues in the case. In addition, 42 U.S.C. §11112(a) provides that a professional review action is presumed to be compliant with HCQIA. This creates a rebuttable presumption for any party challenging HCQIA immunity. The Bylaws should take into account procedures that incorporate the HCQIA provisions to ensure that the peer review members are afforded the HCQIA statutory immunity. It is clear that HCQIA provides federal protection for peer review actions as long as the Bylaws are compliant. However, Medicare’s Conditions of Participation, another regulatory body, ensures that hospitals participating in the Medicare program have their Bylaws up to HCQIA-required standards

2.2.3 Medicare Conditions of Participation

To receive Medicare and Medicaid payment, hospitals are required to be in compliance with the federal requirements set forth in the Medicare Conditions of Participation (CoPs). As such, the Centers for Medicare & Medicaid Services (CMS) conducts surveys of a hospital to ensure compliance. The goal of a hospital survey is to determine whether the hospital is in compliance with the Medicare CoPs.

Certification of hospital compliance with the Medicare CoPs is accomplished through observations, interviews, and document and record reviews. The survey process focuses on a hospital’s performance of patient-focused and organizational functions and processes. The hospital survey is the means used to assess compliance with federal health, safety, and quality standards that will ensure that the beneficiary receives safe, quality care and services.

According to CMS, the hospital must have an organized medical staff that operates under Bylaws approved by the governing body and is responsible for the quality of medical care provided to patients by the hospital.3 Medicare’s CoP rules require hospitals to adhere to basic requirements for staffing, credentialing, and privileges. If the hospital is a Medicare participant, the CMS provides that the Bylaws must comply with the medical staff provisions as outlined below:

The medical staff must include doctors of medicine or osteopathy. In accordance with state law, including scope-of-practice laws, the medical staff may also include other categories of nonphysician practitioners determined as eligible for appointment by the governing body. The standards provide that:

The medical staff must periodically conduct appraisals of its members;

The medical staff must examine the credentials of all eligible candidates for medical staff membership and make recommendations to the governing body on the appointment in accordance with state law; and

When telemedicine services are furnished to the hospital’s patients through an agreement with a distant-site hospital, the governing body of the hospital whose patients are receiving the telemedicine services must ensure that the distant-site hospital and distant-site physicians meet certain requirements ensuring that appropriate licensure and credentialing is in place.

The medical staff must be well organized and accountable to the governing body for the quality of the medical care provided to patients.

The medical staff must be organized in a manner approved by the governing body;

If the medical staff has an executive committee, a majority of the members of the committee must be doctors of medicine or osteopathy;

The responsibility for organization and conduct of the medical staff must be assigned to only one of the following:

An individual doctor of medicine or osteopathy;

A doctor of dental surgery or dental medicine, when permitted by state law of the state in which the hospital is located; and

A doctor of podiatric medicine, when permitted by state law of the state in which the hospital is located.

The medical staff must adopt and enforce Bylaws to carry out its responsibilities. The Bylaws must:

Be approved by the governing body;

Describe the organization of the medical staff and include a statement of the duties and privileges of each category of medical staff (e.g., active and courtesy);

Describe the qualifications to be met by a candidate in order for the medical staff to recommend that the candidate be appointed by the governing body;

Include requirements regarding examination of the patient and the documentation of same; and

Include criteria for determining the privileges to be granted and the procedures for applying the criteria to individuals regarding privileges.

There are many issues related to credentialing and privileges when dealing with medical staff, including the need for peer review. A successful peer review process can help make the hospital a better place for both patient and physician.

2.2.4 Exceptions to HCQIA

A significant exception to HCQIA immunity is civil rights claims. Recently, due to continued integration of physicians to employment with hospitals, employed physicians are more likely to bring a civil rights claim to avoid the immunity otherwise provided under HCQIA. Claims that can be brought by employed physicians include claims under Title VII of the Civil Rights Act of 1964 (discrimination based on gender), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).

The ADA4 provides protection from discrimination on the basis of a disability in the following categories:

Employment;

State and local government services;

Public accommodation;

Public transportation; and

Telecommunications.

In the medical staff context, many have questioned whether the ADA could be used as the basis to prohibit the denial and/or restriction of a medical staff applicant’s or an appointee’s appointment to the medical staff or grant of clinical privileges at a healthcare entity based on a health condition or perceived disability, physical or mental, to the extent a physician can exercise clinical privileges with reasonable accommodation. The reasonable accommodation provisions contained in the ADA go beyond the scope of this book.

With the employment of more physicians by hospitals and healthcare entities, it is clear that Title I of the ADA will apply to those employed physicians. As such, reappointment for privileges must be in compliance with the ADA. Because the ADA severely restricts the right of the employer (in this case, the hospital) to inquire into the physician’s health matters in general, including past drug and alcohol usage, the hospital should take great care in how it forms the reappointment application. Each entity must evaluate how much risk to take in its inquiry into the physical and psychological conditions of the employed physicians at the hospital.

Age discrimination claims are also not covered by HCQIA. These include claims for the medical staff against the hospital from older physicians who experience a significant decline in physical and cognitive skills. Hospitals should ensure that the Bylaws have no requirements to force physicians to relinquish privileges at a certain age. To avoid this issue, there’s been a focus for elderly physicians to obtain a focus professional practice evaluation (FPPE) along with a physical and mental evaluation in order to continue clinical privileges.

2.2.5 What Is the NPDB and a Reportable Adverse Action?

As discussed above, when Congress enacted HCQIA, it also created the NPDB, an electronic depository of all payments made on behalf of physicians in connection with medical liability settlements and judgments they have paid in medical malpractice lawsuits. The NPDB was designed to be a clearinghouse for hospitals to obtain historical information about physicians who apply for privileges and was designed to impair the ability of physicians with questionable credentials to move from state to state without detection of their backgrounds.

The question becomes how does NPDB define what is a reportable “adverse action.” According to the NPDB regulations, hospitals and other healthcare entities must report adverse clinical privileges actions to the NPDB that meet NPDB reporting criteria: any professional review action that adversely affects the clinical privileges of a physician or dentist for a period of more than 30 days or the acceptance of the surrender of clinical privileges, or any restriction of such privileges by a physician or dentist, (i) while the physician or dentist is under investigation by a healthcare entity relating to possible incompetence or improper professional conduct, or (ii) in return for not conducting such an investigation or proceeding. Clinical privileges include privileges, medical staff membership, and other circumstances (e.g., network participation and panel membership) in which a physician, dentist, or other healthcare practitioner is permitted to furnish medical care by a healthcare entity.5

Healthcare entities are then required to print a copy of the report submitted to the NPDB and mail it to the appropriate state licensing board. HCQIA grants immunity with respect to reports made to the NPDB by any person “without knowledge of the falsity of the information contained in the report.”

Physicians can be impacted greatly by reports made to the NPDB. This is especially true when an NPDB report is made available to hospitals, licensure boards, and professional societies when physicians request staff privileges, licensure, and other types of appointments. Unfortunately, whether the NPDB report is evidence of a physician’s qualifications or quality, the report immediately puts everyone on notice of potential competence or professional misconduct results.

Physicians have the ability to respond to a report filed with the NPDB. It is also important to know that reporting requirements to the NPDB can be avoided if the peer review actions, in particular, do not meet the criteria outlined in the NPDB regulations for reporting adverse actions that the medical staff might take against an aggrieved physician or practitioner.

Furthermore, most states have a state peer review statute that provides important confidentiality protections to peer review committees and their members. Some of these states have peer review statutes that provide even greater protections than what is provided under HCQIA, including privileges against discovery for peer review information and immunity from injunctive relief. Most state laws prohibit monetary damages against peer review committee members. However, should a state regulation or statute regarding the peer review process appear to allow for monetary damages to peer review committee members, then it is possible for HCQIA to preempt state law. Generally, HCQIA does not preempt state laws to the extent it provides greater protections for peer reviewers.

This article is adapted from the first two chapters of the ABA Health Law Section’s new book, What is…Medical Staff Peer Review. This book covers the different kinds of medical staff peer review, as well as the various outcomes they can have. It begins by defining what constitutes a "medical staff," and how they are governed. It then examines both the informal and formal peer review process, internal investigations, and disciplinary actions.  For more information, go to:   https://www.americanbar.org/products/inv/book/312603484/.

  1. Whether a member of a hospital’s medical staff is an employee or an independent contractor can have significant legal consequences (e.g., vicarious liability for the hospital if a member is an employee) and typically requires legal analysis of both state and federal law setting forth various relevant factors (e.g., the Internal Revenue Service has a number of publications that provide guidance on the topic) and is outside the scope of this publication.
  2. 42 U.S.C. §11101.
  3. See 42 CFR 482.22.
  4. 42 U.S.C. §12101 et seq.
  5. See https://www.npdb.hrsa.gov/guidebook/EClinicalPrivileges.jsp.

About the Authors

Dr. Mehrnaz Hadian is an internist board certified in Critical Care Medicine, Hospice and Palliative Care, and Neurocritical Care. She is also an attorney and a member of the State Bar of California. Her area of expertise in medicine are circulatory shock and resuscitation, hemodynamic monitoring in the critically ill, bioethics, end-of-life issues, and safety in performing the ICU procedures. Her legal areas of interest are healthcare law, patient advocacy, peer-review process, physicians' law and employment contracts for doctors and unfair treatment, and wrongful termination of physicians and medical trainees by hospitals and residency programs. She has been an expert reviewer for the Medical Board of California, Central Complaint Unit, and has served as a medical expert in medical malpractice cases. During her legal education, she has founded and served as the president of the Law and Medicine Society in Southwestern Law School in Los Angeles. She is an active member of the American Health Lawyers Association and a Fellow of the American College of Legal Medicine as well as the Society of Critical Care Medicine. She may be reached at mhadian@hadianlaw.com.

Robert S. Iwrey
is a founding shareholder of The Health Law Partners, P.C. He graduated with High Distinction from the University of Michigan in 1988. While at the University of Michigan, he was an Executive Member of the Psi Chi National Honor Society and was a member of the Golden Key National Honor Society. In 1993, Mr. Iwrey earned his JD at Wayne State University Law School, where he was awarded the American Jurisprudence Award in Advanced Legal Writing and was an award-winning member of Moot Court.  Mr. Iwrey has been a practicing litigator since 1993. In addition, he has been practicing healthcare transactional law since 1999. Mr. Iwrey provides counsel in all areas of healthcare law, including but not limited to licensure, staff privileges, contracts, physician practice issues, healthcare investigations, and audit defense. Mr. Iwrey has represented dozens of physicians in medical staff fair hearing matters over a period of more than fifteen years. He may be reached at , riwrey@thehlp.com.

Conrad Meyer
focuses his practice on advising healthcare providers on healthcare regulatory compliance matters. Conrad is responsible for handling specific regulatory/compliance/transactional matters for physician and facility clients, including Stark/Anti-Kickback analysis, TJC/JCAHO, HIPAA, EMTALA, physician employment agreements, physician practice formation, hospital/physician integration and bylaw revisions, physician reimbursement issues, telemedicine for physicians, physician ancillary services, and the creation/formation of concierge practices for physicians. In addition, he has handled issues relating to RACs, ZPICs, and Federal Fraud and Abuse investigations for healthcare clients. Mr. Meyer has experience in handling peer review issues for hospitals and physicians as well as acting as a hearing officer for peer review panels. He may be reached at cm@chehardy.com.

Patrick D. Souter
is Of Counsel with the law firm Gray Reed & McGraw, LLP in Dallas, Texas, where he is a member of the Healthcare, Corporate and Securities Practice Groups. Mr. Souter’s practice focuses on representation of business clients who are involved in both healthcare and nonhealthcare ventures. The vast majority of Mr. Souter’s practice focuses on transactional, administrative, regulatory, and antitrust matters for healthcare providers and suppliers. In particular, his representation includes organizational and operational issues with specific emphasis on the areas of fraud and abuse, licensure, reimbursement, and compliance. Mr. Souter has not only his JD but obtained an LLM in Health Care and MBA in Health Services Management and is an Adjunct Lecturer of Healthcare Studies at the Baylor University School of Law. He may be reached at psouter@grayreed.com.