American Journal of Law & Medicine

If Roth were a doctor: physician reputation under the HCQIA.(Health Care Quality Improvement Act)

I. INTRODUCTION

Hospitals in the United States rely on peer review committees to make credentialing decisions and to conduct ongoing evaluations of all medical care, thereby ensuring the quality of the physicians they employ. (1) Physicians, however, may be reluctant to serve on peer review committees for fear of retaliatory litigation. (2) In response, and in an effort to improve the quality of healthcare in the United States, Congress passed the Health Care Quality Improvement Act of 1986 ("HCQIA"). (3)

Congress designed the HCQIA to improve the quality of healthcare in two ways. First, it increased the effectiveness of peer review by providing review committees (4) with immunity from lawsuits filed in response to professional review actions. (5) Second, it authorized the Secretary of Health and Human Services ("HHS") to create the National Practitioner's Data Bank ("NPDB"). (6) Any disciplinary action taken by a review committee must, as a condition to immunity, be reported for listing in the NPDB. (7)

"Listing" in the NPDB can, and is in fact designed to, stigmatize the practitioner against whom the review action is taken. The NPDB lists a physician's name, address, and social security number, as well as the physician's history of malpractice payouts, adverse licensure actions, and sanctions regarding his or her clinical privileges. (8) Hospitals are reluctant to hire a physician after he or she has been terminated or otherwise sanctioned by his or her prior employer. In extreme cases, practitioners may effectively be precluded from practicing at all. (9) This potential deprivation raises questions regarding the constitutional validity of the HCQIA.

The HCQIA establishes reasonableness (10) and notice and hearing requirements (11) with which review committees must comply before claiming immunity. Assuming the employer is a state actor for purposes of Fourteenth Amendment jurisprudence, compliance with these requirements will generally ensure that a physician receives constitutionally adequate procedural protections prior to sanction or termination. Thus, termination of employment in compliance with the procedural requirements of the HCQIA will rarely result in the unconstitutional deprivation of a practitioner's property right to employment. For reasons developed later, however, listing in the NPDB is likely to result in the deprivation of a practitioner's liberty interest in good reputation. Moreover, unlike termination of employment, which may be done by private healthcare providers, "listing" will always be a government action and thus subject to the strictures of the Due Process Clause, (12) since only HHS, a federal agency, may list practitioner specific information in the NPDB. (13)

This Note explores two issues. First, it explores the threshold question of whether the Constitution creates a liberty interest in good reputation. The Supreme Court has been careful to limit the protection of reputation as a liberty interest, (14) but has indicated that such an interest may be implicated "when there is harm to reputation if it is accompanied by a tangible detriment, such as the loss of employment." (15) Assuming that listing in the NPDB constitutes the deprivation of a recognized liberty interest, the second issue is whether the procedural protections already provided by sections 11112(b) and 11112(c) of the HCQIA satisfy the requirements of due process at the listing stage. This Note argues that they do not.

Part II of this Note discusses the relevant provisions of the HCQIA insofar as they relate to peer review and the NPDB. Part III explores whether and under what circumstances the Supreme Court should recognize a medical practitioner's liberty interest in reputation. Part IV assumes that such a liberty interest exists, and explores whether the Fifth Amendment requires that HHS provide additional procedural protection before listing potentially stigmatizing information on the NPDB. Finally, Part V explores the means by which HHS may meet its constitutional mandate under the Fifth Amendment without diminishing the effectiveness of the NPDB, or derailing the policy objectives behind the HCQIA.

II. THE HEALTH CARE QUALITY IMPROVEMENT ACT

A. THE NATIONAL PRACTITIONER'S DATA BANK

In 1986, Congress passed the HCQIA in an effort to "improve the quality of medical care by encouraging physicians to identify and discipline other physicians who are incompetent or who engage in unprofessional behavior." (16) Congress found that peer review, though vital for maintaining the quality of healthcare, was not as effective as it needed to be. (17) Physicians were generally reluctant to participate in peer review activities due to fear of subsequent lawsuits for discrimination, defamation, or anticompetitive behavior. (18) Moreover, even aggressive peer review was of little help in improving healthcare on a nationwide basis. Often, physicians who were disciplined or terminated in one part of the United States simply relocated and continued practicing medicine in another. (19)

In response, the HCQIA authorized the Secretary of HHS to create the NPDB. (20) The NPDB is a national clearinghouse that houses information on medical malpractice payouts and disciplinary actions taken by a licensing board, hospital, or medical society. (21) When a healthcare entity, such as a hospital, suspends or restricts the clinical privileges of a physician for more than thirty days, it must report the action to the Board of Medical Examiners. (22) The Board of Medical Examiners then reports this information to HHS, (23) which in turn causes the report to be published in the NPDB. (24) Proper reporting is vital to the maintenance of the NPDB, and the NPDB, as explained below, is vital to the furtherance of the policy objectives underlying the HCQIA. (25) To that end, the HCQIA sanctions healthcare entities that fail to comply with its reporting requirements by disqualifying non-compliant healthcare entities from the HCQIA's grant of immunity for three years. (26)

The general public cannot access the information contained in the NPDB. (27) This information, however, is available for review by state licensure boards, hospitals, and other healthcare entities. (28) The HCQIA requires that hospitals and other healthcare entities request information from the NPDB every time a physician applies for a medical staff position or clinical privileges, as well as every two years with respect to physicians already on the medical staff or with clinical privileges. (29) While HHS does not take any precautions sua sponte to ensure that the reported review action was merited, HHS does require that reporting healthcare entities report any revisions to the original action. (30) HHS also allows aggrieved physicians to dispute the accuracy of information contained in the NPDB, and sets out specific procedures for doing so. (31)

B. HCQIA IMMUNITY PROVISION

A physician's reluctance to serve on a peer review committee is often well founded. (32) In Patel v. Midland Memorial Hospital and Medical Center, (33) for example, a peer review committee at Midland Memorial Hospital ("Midland") found that Dr. Patel, a cardiologist, had an unusually high rate of catastrophic outcomes among his non-cardiac interventions. (34) Upon further investigation, an outside source confirmed that a sample of Dr. Patel's cardiac cases suggested the use of poor medical judgment. (35) As a result, Midland's Medical Executive Committee suspended Dr. Patel's clinical privileges. (36) Dr. Patel sued Midland and several of its doctors, alleging that his suspension was the result of racial discrimination and anticompetitive behavior. (37) Dr. Patel also alleged breach of contract, and sought damages for defamation and tortious interference with contractual relations. (38) All of Dr. Patel's claims were dismissed on summary judgment. In many cases, however, the potential for such litigation creates a disincentive for physicians to serve on peer review committees. (39)

In response, the HCQIA provides legal immunity from damage claims to physicians who serve on peer review committees. (40) In order to qualify for immunity, a committee's review actions must comply with several reasonableness and procedural requirements. A committee may only take a professional review action if it reasonably believes that the action will further the quality of healthcare after having made "a reasonable effort to obtain the facts of the matter." (41) Upon challenge, compliance with this requirement is determined at the summary judgment stage (42) and reviewed under an objective standard, thereby precluding a physician from alleging that the review action was taken in bad faith. (43)

A review committee must further comply with notice and hearing requirements in order to qualify for immunity under the HCQIA. (44) Section 11112(b) creates a list of requirements which, if followed, will establish a safe harbor for immunity. …

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