Arkansas Peer Review Statute

This information was last updated by Horty, Springer & Mattern on March 29, 2019.

ARKANSAS

PEER REVIEW

Ark. Stat. Ann. §16-46-105. Records of, and testimony before, committees reviewing and evaluating quality of medical or hospital care.

(a)(1)(A) The proceedings, minutes, records, or reports of organized committees of hospital medical staffs, medical review committees of local medical societies, or a committee organized by and operating pursuant to a written plan or policy under the auspices of a professional corporation or a professional limited liability company whose members are licensed to practice medicine in this state, having the responsibility for reviewing and evaluating the quality of medical or hospital care, and any records, other than those records described in subsection (c) of this section, compiled or accumulated by the administrative staff of such hospitals or a physician group peer review committee as defined under §20-9-501 in connection with such review or evaluation, together with all communications or reports originating in such committees, shall not be subject to discovery pursuant to the Arkansas Rules of Civil Procedure or the Freedom of Information Act of 1967, §§25-19-101 et seq., or admissible in any legal proceeding and shall be absolutely privileged communications.

(B) The submission of such proceedings, minutes, records, reports, and communications to a hospital governing board or a physician group peer review committee as defined under §20-9-501 shall not operate as a waiver of the privilege.

(2) Neither shall testimony as to events occurring during the activities of such committees be subject to discovery pursuant to the Arkansas Rules of Civil Procedure or the Freedom of Information Act of 1967, §§ 25-19-101 et seq., or admissible.

(b)(1) Nothing in this section shall be construed to prevent disclosure of the data mentioned in subsection (a) of this section to appropriate state or federal regulatory agencies which by statute or regulation are entitled to access to such data, nor to:

(A) An organized committee of hospital medical staffs or governing boards where the medical practitioner seeks membership or clinical privileges; or

(B) A committee organized by and operating pursuant to a written plan or policy under the auspices of a professional corporation or a professional limited liability company whose members are licensed to practice medicine in this state.

(2) Further, nothing in this section shall be construed to prevent discovery and admissibility if the legal action in which such data is sought is brought by a medical practitioner who has been subjected to censure or disciplinary action by such agency or committee or by a hospital medical staff or governing board.

(c) Nothing in this section or §§ 20-9-308 shall be construed to apply to original hospital medical records, incident reports, or other records with respect to the care or treatment of any patient or to affect the discoverability or admissibility of such records.

§17-1-102. Committee, organization, etc.–Members–Liability.

(a) There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, members of the following organizations for any act or proceeding undertaken or performed within the scope of the functions of any such committee which is formed to maintain the professional standards of the society established by its bylaws, if the committee member acts without malice, has made a reasonable effort to obtain the facts of the matter as to which he acts, and acts in reasonable belief that the action taken by him is warranted by the facts known to him after a reasonable effort to obtain facts:

(1) A duly appointed committee of a state or local professional society;

(2) A professional services review organization appointed pursuant to state or federal statute; or

(3) A duly appointed committee of a medical staff of a licensed hospital, provided that the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital.

(b) “Professional society” includes societies of the healing arts, legal, accounting, architectural, and engineering professions having as members at least a majority of the eligible licentiates in the profession served by the particular body.

§20-9-304. Confidentiality of information generally–Exceptions.

(a) All information, interviews, reports, statements, memoranda, or other data of the State Board of Health, Arkansas Medical Society, allied medical societies, or in-hospital staff committees of licensed hospitals, but not the original medical records pertaining to the patients, used in the course of medical studies for the purpose of reducing morbidity or mortality, as provided in this section, shall be strictly confidential and shall be used only for medical research.

(b) Any authorized person, hospital, sanatorium, nursing home, rest home, or other organization may provide information, interviews, reports, statements, memoranda, or other data relating to the condition and treatment of any person to any of the following for use in the course of studies for the purpose of reducing morbidity or mortality:

(1) The board;

(2) The Arkansas Medical Society or any committee or allied society thereof;

(3) Any other national medical organization approved by the board or any committee or allied medical society therein; or

(4) Any in-house staff committee of licensed hospitals.

(c) No liability for damages or other relief shall arise or be enforced against any authorized person, institution, or organization for:

(1) Providing the information or material;

(2) Releasing or publishing the findings and conclusions of the groups to advance medical research and medical education; or

(3) Releasing or publishing generally a summary of the studies.

(d)(1) The identity of the person whose condition or treatment has been studied shall be confidential and shall not be revealed under any circumstances.

(2) Any information furnished shall not contain the name of the person upon whom information is furnished and shall not violate the confidential relationship of patient and doctor.

(e) (1) Except for the original medical records pertaining to the patient, all information, interviews, reports, statements, memoranda, or other data furnished under this section and any findings or conclusions resulting from the studies are declared to be privileged communications that may not be used or offered or received in evidence in any legal proceedings of any kind.

(2) Except for the original medical records pertaining to the patient, any attempt to use or offer the information, interviews, reports, statements, memoranda or other data, findings, or conclusions, or any part thereof, shall constitute prejudicial error in any proceeding unless waived by the interested parties.

(f)(1)  Physicians and others appointed to hospital utilization review committees for the purpose of determining the optimum use of hospital services shall be immune from liability with respect to decisions made as to utilization and actions thereunder so long as the physicians or others act in good faith.

(2) However, nothing in this section shall be construed to relieve any patient’s personal physician of any liability which he may have in connection with the treatment of the patient

(g) Nothing in this section shall be construed to prevent any court from subpoenaing the medical records of any patient.

§20-9-501. Definitions.

A used in this subchapter, the term “peer review committee” or “committee” means a committee of a hospital medical staff or a committee of a state or local professional association or a committee organized by and operating pursuant to a written plan or policy under the auspices of a professional corporation or a professional limited liability company whose members are licensed to practice medicine in this state that is formed to:

(1) Evaluate and improve the quality of health care rendered by providers of health services; or

(2) Determine that:

(A) Health services rendered were professionally indicated or were performed in compliance with the applicable standard of care; or

(B) The cost of health care rendered was considered reasonable by the providers of professional health services in the area.

§20-9-502. Members–Liability–Construction of provisions.

(a) There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a peer review committee for any act or proceeding undertaken or performed with the scope of the functions of the committee if the committee member acts without malice or fraud.

(b) This subchapter shall not be construed to confer immunity from liability on any professional association or upon any health professional while performing services other than as a member of a peer review committee.

§20-9-503. Proceeding and records confidential–Exception.

(a)(1) The proceedings and records of a peer review committee shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are subject to evaluation and review by the committee.

(2) No person who was in attendance at a meeting of the committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of the committee or as to any findings, recommendations, evaluations, opinions, or other actions of the committee or any members thereof.

(b)(1) However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such action merely because they were presented during the proceedings of the committee.

(2) Nor shall any person who testifies before the committee or who is a member of the committee be prevented from testifying as to matters within his or her knowledge, but the witness shall not be asked about his or her testimony before the committee or about opinions formed by him or her as a result of the committee hearings.

(c) The submission of such peer review proceedings, minutes, records, reports, and communications to a hospital governing board or physician group peer review committee as defined in §20-9-501 shall not operate as a waiver of the privilege.

Arkansas Peer Review Fairness Act

§20-9-1301. Title

This subchapter shall be known and may be cited as the “Arkansas Peer Review Fairness Act”.

§20-9-1302. Findings and intent

(a) The General Assembly finds that:

(1) The peer review process is well established as an acceptable means of monitoring quality and improving care within an institution;

(2)(A) The peer review process faces unique challenges in the hospital setting compared to other healthcare settings due to the interdependent relationship between the hospital and medical staff, which can impact professional review activities.

(B) Peer review that is not conducted fairly results in harm to both patients and physicians by limiting access to care and patient choice; and

(3) It is necessary to balance carefully the rights of patients who benefit by properly conducted peer review with the rights of those who may be harmed by improper peer review.

(b) The General Assembly intends that peer review be conducted fairly for the benefit of the citizens of the State of Arkansas.

§20-9-1303. Definitions

As used in this subchapter:

(1) “Adversely affect”, when used in reference to clinical privileges or medical staff membership, means deny, reduce, restrict, suspend, revoke, or fail to renew;

(2) “Conflict of interest” means a personal or financial interest that would lead an objective person to conclude that it would be difficult for the person in those circumstances to make a fair and impartial decision in a professional review activity with regard to a particular physician;

(3) “Hospital” means a healthcare facility licensed as a hospital by the Division of Health Facilities Services under § 20-9-213;

(4)(A) “Investigation” means a process conducted by a professional review body to:

(i) Obtain and make a detailed examination of the facts related to an identified concern about a specific physician; and

(ii) Determine whether a professional review action should be requested or recommended.

(B) “Investigation” does not include the following:

(i) A preliminary review to obtain basic information related to a concern or complaint about a physician in order to determine whether an investigation should commence;

(ii) Routine quality assurance, case review, utilization review, and performance improvement activities that take place within a hospital; or

(iii) Collegial interventions, ongoing physician practice evaluations and focused physician practice evaluations, and other peer-to-peer performance improvement interventions that are not intended to, and do not, impact a physician’s clinical privileges or hospital medical staff membership;

(5) “Medical staff” means the physicians who are approved and given privileges to provide health care to patients in the hospital;

(6) “Professional review action” means an action or recommendation of a professional review body that is taken or made in the conduct of professional review activity and that:

(A) Is based on an individual physician’s competence or professional conduct that adversely affects or could adversely affect the health or welfare of a patient or patients; and

(B) Adversely affects or may adversely affect the medical staff membership or clinical privileges of the physician;

(7)(A) “Professional review activity” means an activity with respect to an individual physician:

(i) To determine whether the physician may have clinical privileges at a hospital or membership on the hospital’s medical staff;

(ii) To determine the scope or conditions of clinical privileges or medical staff membership; or

(iii) To change or modify such clinical privileges or medical staff membership.

(B) “Professional review activity” includes an investigation, as defined in this section; and

(8) “Professional review body” means a hospital, its governing body, or its medical staff when any of these bodies are conducting a professional review activity.

§20-9-1304. Standards for professional review actions and professional review activities

(a) Professional review activity shall be conducted and professional review actions shall be taken in compliance with the requirements of the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq., and the additional requirements of this subchapter.

(b)(1) If at any meeting or hearing held in the course of a professional review activity, an attorney is participating on behalf of a professional review body and the physician under review is present, then the physician under review shall be permitted to have the attorney of the physician present.

(2) Subdivision (b)(1) of this section does not:

(A) Entitle the attorney of the physician to appear at any meeting or hearing where an attorney participating on behalf of the peer review body is not present, except as provided in § 20-9-1310;

(B) Prohibit confidential attorney-client communications by any party; or

(C) Prohibit a professional review body from meeting in private with its attorney.

(c) The General Assembly encourages:

(1) Professional review bodies to use separate legal counsel from the legal counsel used by the hospital; and

(2) Medical staff to obtain independent legal counsel to review medical staff bylaws to ensure that the bylaws contain provisions that comply with this subchapter.

(d)(1) A physician engaged in professional review activities shall exercise unbiased, independent, and professional judgment when evaluating another physician.

(2) A hospital shall not take action against or otherwise retaliate against a physician for exercising unbiased, independent, and professional judgment when evaluating another physician during the course of a professional review activity.

§20-9-1305  Repealed by Acts of 2017, Act 975, § 2, eff. Aug. 1, 2017

§20-9-1306 Suspensions

(a) If failure to take a professional review action may result in an imminent danger to the health of any individual, the hospital may immediately suspend or restrict the medical staff membership or clinical privileges of a physician.

(b) If an action is taken under subsection (a) of this section, then the hospital shall follow all the other provisions of this subchapter as soon as practicable following the suspension or restriction.

(c) In the case of a suspension or restriction of clinical privileges, for a period of not longer than fourteen (14) days, during which an investigation is being conducted to determine the need for a professional review action:

(1) No hearing is required to be held regarding the suspension;

(2) The parties shall comply with § 20-9-1309 and all other applicable provisions of this subchapter; and

(3) The physician shall be given the opportunity to discuss the case with the individual or individuals conducting the investigation during the fourteen (14) days before any recommendation or decision is made about continuing the suspension or restriction.

§20-9-1307  Repealed by Acts of 2017, Act 975, § 4, eff. Aug. 1, 2017

§20-9-1308. Relationship to other laws and regulations

(a)(1) Except as provided in subsection (b) of this section, professional review activities are within the categories of records and proceedings that are exempt from discovery and disclosure under state law, including without limitation § 16-46-105(a)(1) and § 20-9-503.

(2) This subchapter does not affect the admissibility in evidence in any action or proceeding of the medical records of any patient.

(b) This subchapter does not:

(1) Abrogate the immunity provisions of the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq., or the confidentiality or immunity provisions of § 16-46-105, § 17-1-102, or § 20-9-501 et seq.; or

(2) Prevent discovery and admissibility of evidence from the professional review activities if the legal action is brought by a physician who has been subjected to the professional review activity or action.

§20-9-1309. Standards for investigations

(a) A physician shall be informed in writing within five (5) business days of the date that the physician becomes a subject of an investigation.

(b) Before a professional review body makes a recommendation as a result of an investigation, the physician under review shall be given an opportunity to have a meeting with the professional review body to discuss the matter without the presence of attorneys.

(c)(1)(A) If the professional review body decides to use an external review during the investigation, physicians serving on the professional review body that is conducting the investigation are responsible for selecting any external reviewers and the method of selecting cases for review.

(B) However, the physicians serving on the professional review body may seek input regarding the selection described under subdivision (c)(1)(A) of this section from the physician under review or other individuals.

(2) The physician under review shall be included on any substantive communications by any party with the external reviewers selected under subdivision (c)(1)(A) of this section.

(d) At the conclusion of the investigation, the physician under review shall be informed of the determination of the professional review body.

§20-9-1310. Standards for hearings and related matters

(a)(1) A physician who is the subject of a proposed professional review action shall be given notice of the proposed professional review action, the basis for the proposed professional review action, and the right to a hearing.

(2) Subdivision (a)(1) of this section does not entitle a physician to a hearing if the proposed professional review action will not adversely affect the physician’s clinical privileges or medical staff membership.

(b)(1) A hearing shall be held before a hearing officer, arbitrator, hearing panel, or combination of hearing officer, arbitrator, or hearing panel.

(2) A hearing officer or arbitrator shall:

(A) Be independent of all parties involved;

(B) Have no conflict of interest; and

(C) Not:

(i) Have served as an attorney for the hospital or the physician under review at any time within two (2) years prior to the hearing date; or

(ii) Be affiliated with a law firm that has represented the hospital or the physician under review at any time within two (2) years prior to the hearing date.

(3)(A) The medical staff bylaws shall govern the appointment of members of a hearing panel subject to the requirements of this subsection.

(B) The members of a hearing panel may be members of the medical staff of the hospital.

(C) The members of the hearing panel shall:

(i) Disclose any potential conflicts of interest before the hearing; and

(ii) Agree to exercise unbiased, independent, and professional judgment when evaluating the competence or professional conduct of the physician under review.

(4)(A) A physician under review shall have a reasonable opportunity to raise the issue of a potential conflict of interest or other concern related to a hearing officer, arbitrator, or member of a hearing panel.

(B) The medical staff bylaws shall establish a process for considering and resolving any potential conflicts of interest.

(c)(1) Before the hearing, the professional review body and the physician under review shall provide the opposing party with a list of any witnesses expected to testify and copies of any documents expected to be introduced at the hearing.

(2) In advance of the hearing, the hospital administration, professional review body, and the physician under review shall disclose all relevant information to each other.

(d) At the hearing, the physician under review shall have the right to:

(1) Be present and present evidence on his or her own behalf;

(2) Be represented by an attorney or another individual of the physician’s choice at the hearing;

(3) Call, examine, and cross-examine witnesses; and

(4) Submit a written statement.

(e) Upon completion of the hearing, the physician under review has a right to receive:

(1) The written recommendation of the hearing officer, arbitrator, or hearing panel, including a statement of the basis of the recommendation; and

(2) A copy of the record of the hearing upon request and payment of any reasonable charges for the preparation of the record.

(f) After the hospital takes final action on the recommendation from the hearing, the physician under review is entitled to receive a written decision, including a statement of the basis for the decision.

(g) Any dispute over the relevancy or method of discovery or any other dispute that arises during the hearing process shall be resolved by the hearing officer, arbitrator, or hearing panel.

§20-9-1311. Nonwaivable

(a) Unless part of a mutually agreed upon mediation or settlement, a provision in an agreement, policy, procedure, or contract, including bylaws, that purports to waive any provision of this subchapter is void.

(b) However, the time periods for compliance with procedural requirements may be waived by mutual consent of the parties on a case-by-case basis.

§20-9-1312. Applicability

On and after August 1, 2017, this subchapter shall apply to any investigation or professional review activity at any stage.

§20-9-1313. Remedy

(a) Within sixty (60) days of a final decision that adversely affects a physician, a physician may file a petition to remedy a violation of this subchapter by filing the petition in:

(1) The circuit court of the county in which the professional review activity occurred; or

(2) The circuit court of an adjoining county.

(b)(1) After receiving a petition, the court shall review the record of the professional review activities and professional review action.

(2) The record shall consist of:

(A) The transcripts and minutes of any meetings or hearings;

(B) Correspondence;

(C) Internal and external reviews; and

(D) All other relevant information pertaining to the matter before the professional review body.

(3) The hospital shall transmit the record, but the court may require or permit subsequent corrections or additions to the record.

(4) The review conducted by the court shall be confined to the record, except upon a showing of good cause to go beyond the record.

(5) The court may hear, upon request, oral arguments and receive written briefs.

(6) Absent a showing of bad faith, a member of the medical staff who participated in the professional review activity shall not be compelled to testify in court under this subsection.

(c) Except as provided in subsection (e) of this section, the court may order any relief within the purview of the circuit court to remedy the violation of this subchapter.

(d)(1) If a physician prevails under this section, the physician shall be entitled to reasonable attorney’s fees, costs, and expenses as determined by the court.

(2) A defendant who prevails shall be entitled to reasonable attorney’s fees, costs, and expenses as determined by the court to the extent permitted under the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11113, as existing on January 1, 2017.

(e) Except as expressly permitted by state law or federal law, a professional review body or its members, agents, or employees are not liable for civil damages as a result of making a decision or recommendation in good faith in connection with a professional review activity or professional review action or furnishing any records, information, or assistance in good faith to a professional review body in connection with a professional review activity.

(f)(1) The remedies provided for in this section do not supplant any other remedy available under law to a physician.

(2) If a physician has more than one (1) cause of action, all causes of action may be joined in the same pleading.