Cases and Comments on Contracts

Raising the Bar

by Robert V. West, MD JD FAAEM

Medical peer review aspires to do many things depending on the particular context in which it is invoked. In general, the aspirational goals of peer review are to improve the quality of patient care by examining the practice of an individual physician. Accordingly, state laws create a privilege of confidentiality that attaches to the proceedings and even grants immunity from civil liability to the examiners in an effort to protect the integrity of the peer review process. However, when the target physician is vying for a position in a hospital department which is closed and staffed exclusively under a contract arrangement, there is substantial danger of factors other than quality of care influencing the results of the inquiry and the doctor's viability as a department member. Such criteria such as economics, prejudice, malice, age, religion, sex, national origin, etc., may be operational yet protected behind the barrier of peer review protection.

It is in this context, where a physician is alleging federal discrimination or antitrust violations that this "privilege" which normally shrouds these proceedings is lifted and the barrier of secrecy is being lifted. There have been several federal court rulings, which have refused to recognize the confidentiality of the peer review process in this context. The federal courts, including the U.S. Supreme Court, have found that peer review materials are discoverable where the alleged discrimination arose out of the peer review proceedings themselves. See, University of Pennsylvania v. E.E.O.C., 493 U.S. 182 (1990), Virmani v. Novant Health Inc., No. 00-2423 Fourth Circuit (2001). Hence, the materials considered in peer review and the decisions of the examiners should be available to a physician who alleges discrimination, wrongful termination, and/or antitrust violations against the hospital and its medical staff.

Editor's Note: Below is a link to the Virmani v. Novant case referenced above that allowed a physician who was removed from a medical staff to acquire his peer review records. This case is from the U.S. Court of Appeals for the 4th Circuit. It is a ruling that should be of interest to those who feel as though they have been adversely affected by the peer review. Please visit the link http://pacer.ca4.uscourts.gov/opinion.pdf/002423.P.pdf