The Health Care Quality Improvement Act
February 14, 2014 | Health System Risk Management
The opinions of federal and state appellate courts provide valuable insight and guidance for the conduct of professional review actions under HCQIA. HCQIA establishes a high legal hurdle for plaintiffs. When plaintiffs have prevailed, courts generally have concluded that the plaintiff successfully rebutted, by a preponderance of the evidence, a legal presumption that the adverse professional review action was the result of review activity conducted pursuant to HCQIA standards.
In enacting HCQIA, Congress sought to deter frivolous lawsuits against healthcare entities and individuals for adverse professional review actions. Thus, a defendant that “substantially prevails” in defending against litigation may be awarded attorney’s fees and defense costs if the court finds that the lawsuit, or the conduct of the plaintiff during litigation, is frivolous, unreasonable, without foundation, or brought in bad faith—provided that the defendant met HCQIA standards so as to be entitled to immunity.
But healthcare entities need not rely solely on HCQIA in order to obtain reimbursement of litigation costs and attorney’s fees. An interesting twist on a plaintiff’s potential liability for payment of defense attorney’s fees and costs is discussed in Sternberg v. Nanticoke Memorial Hospital, in which the Delaware Supreme Court upheld a hospital’s adverse professional action against a surgeon but concluded that under the factual circumstances of the case, HCQIA did not provide for an award of attorney’s fees and costs. Nevertheless, the court ordered the surgeon to pay the hospital’s legal fees and costs under a “fee shifting” provision in the bylaws, which the surgeon had agreed to abide by when he joined the medical staff.
Despite the high costs of litigation and the relatively slim chance of ultimately prevailing in the courts, individuals aggrieved by adverse peer-review action continue to sue. Consequently, physicians have not universally or enthusiastically embraced participating as peer reviewers, and peer review is conducted less vigorously than was envisioned by Congress. To address this shortcoming and in an effort to improve the quality of care, some hospitals have implemented innovative credentialing and peer-review programs more effectively linked with quality improvement and risk management activities than traditional “punitive” professional review activity. (Moore et al.) To learn more about such initiatives, see Nonpunitive Peer Review: Emphasizing Learning in the June 2010 issue of the *Risk Management Reporter. ...