McCord v. HCA Health Servs. of Tenn., Inc. – April 2015 (Summary)

HCQIA IMMUNITY – PROFESSIONAL REVIEW ACTION

McCord v. HCA Health Servs. of Tenn., Inc., No. M2014-00142-COA-R3-CV (Tenn. Ct. App. Apr. 27, 2015)

The Court of Appeals of Tennessee affirmed in part and reversed in part a lower court’s dismissal of a surgeon’s claims against a hospital, following revocation of his surgical privileges, for breach of contract, defamation, common law and statutory disparagement, and intentional interference with existing and prospective business relationships. In addition, he sought a declaration that the hospital unjustifiably revoked his privileges, as well as an order from the court to reinstate his privileges and to require the hospital to report this reinstatement to the National Practitioner Data Bank (“NPDB”).

According to the hospital, the surgeon first came under scrutiny during June 2011, when an evaluation raised concerns over how many of his patients were returning for removal of spinal hardware within one year of implantation. The surgeon’s one-year hardware removal rate was approximately 7.5%, which was favorable in comparison to the national average of 10%. However, it was high compared to his colleagues at the hospital, where the next-highest surgeon had a hardware removal rate of only 1.5%. This issue ultimately led the hospital’s Medical Executive Committee to recommend permanent revocation of his privileges.

Under the bylaws, the surgeon was entitled to request a hearing, but on the day the hearing was scheduled, the surgeon’s attorney informed the hospital that he would not be present at the hearing because he did not believe it would be fair. The hearing proceeded without him, resulting in the permanent revocation of his privileges.

After reviewing the record, the trial court determined that the surgeon had voluntarily waived his breach of contract claims by failing to appear at the hearing. It also granted the hospital’s motion to dismiss the remaining claims for lack of subject matter jurisdiction, ruling that the surgeon could only sue after challenging these claims in accordance with the procedures outlined by the Health Care Quality Improvement Act (“HCQIA”).

The Court of Appeals upheld the trial court’s dismissal of the breach of contract claim. However, it disagreed with the trial court’s handling of the surviving non-contract claims. It concluded that under the HCQIA regulations practitioners have the option to dispute the accuracy of reports filed to the NPDB, but are not required to do so.

Instead, the Court of Appeals explained that the hospital was properly entitled to summary judgment against the surviving claims. It emphasized that the surgeon could only prevail on these claims by providing some evidence that the hospital had made a false statement or representation in its report to the NPDB. The court held that the surgeon had failed to meet his burden of producing evidence sufficient to support these claims.