QUESTION: In the Davidson v. Glenny case described in this week’s Health Law Express, the appellate court did not apply statutory immunity to the faculty members involved in the reappointment process because the immunity was conditioned on “good faith.” Are there other, stronger protections for our medical staff leaders when they are engaged in credentialing and peer review?
ANSWER: Yes, while many state statutes providing immunity for those involved in the medical staff processes, such as credentialing and peer review are conditioned on “good faith” or “lack of malice,” the federal Health Care Quality Improvement Act (“HCQIA”) provides stronger protections for medical staff leaders. Before we tell you about those protections, the reason that the “good faith” and “absence of malice” conditions are concerning is because they are factual issues. Whether someone acted in good faith, for example, is an issue that usually is determined by a jury. When a physician files a suit claiming they were wronged by an adverse action, the physician generally has their own side of the story, typically involving allegations of unfair treatment or instances of medical staff leaders acting in bad faith. If that is the case, the jury weighs the evidence of the physician against the evidence of the hospital and/or medical staff leaders and concludes whether the action was taken in good faith and the immunity should apply. The bottom line is that this makes it more difficult for medical staff leaders who are named in a suit to be dismissed from the suit at an earlier stage.
The immunity under the HCQIA is different. The courts, generally, recognize this. For example, the Supreme Court of Pennsylvania, in a case called Manzetti v. Mercy Hospital of Pittsburgh instructed that “In an HCQIA action, plaintiffs are not permitted to introduce evidence of bad faith of the participants in the peer review process…the alleged bad faith of the participants in the peer review process is immaterial to determining whether these participants are entitled to immunity under the HCQIA.” That being said, there are requirements embedded in the HCQIA that have to be met for immunity to apply. Nonetheless, the distinction described in the Manzetti case makes the federal law stronger than most state immunity laws.
Another tool to enhance protections for your Medical Staff leaders is to include solid immunity language in your application form and Medical Staff documents. By way of example, your application should provide as follows:
As a condition of applying for appointment, to the fullest extent permitted by law, the individual releases from any and all liability, extends immunity to, and agrees not to sue the Hospital, the Board, and the Medical Staff, their authorized representatives, any members of the Medical Staff or the Advanced Practice Clinician Staff, or Board, and any third party who provides information.
This immunity covers any actions, recommendations, reports, statements, communications, or disclosures that are made, taken, or received by the Hospital, its representatives, or third parties in the course of credentialing and peer review activities or when using or disclosing information. Nothing herein will be deemed to waive any other immunity or privilege provided by federal or state law.
For more information on the legal protections available to Medical Staff leaders, join Lauren Massucci and Charlie Chulack for the Horty, Springer & Mattern virtual seminar, Credentialing for Excellence on November 19 & 20, 2020.