State medical peer review: High cost but no benefit - Is it time for a change?

American Journal of Law and Medicine

Volumn 25, Issue 1, 1999, Pages 7-60

  Scheutzow, Susan O ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

COST BENEFIT ANALYSIS; MEDICAL PRACTICE; PEER REVIEW; PRIVACY; REVIEW; UNITED STATES;

CONFIDENTIALITY; COST-BENEFIT ANALYSIS; CREDENTIALING; GUIDELINE ADHERENCE; HUMANS; LEGISLATION, HOSPITAL; LIABILITY, LEGAL; MALPRACTICE; MEDICAL STAFF PRIVILEGES; NATIONAL PRACTITIONER DATA BANK; ORGANIZATIONAL INNOVATION; PEER REVIEW, HEALTH CARE; PROGRAM EVALUATION; STATE GOVERNMENT; UNITED STATES;

EID: 0032928917     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (138)

1. See Christopher S. Morter, Note, The Health Care Quality Improvement Act of 1986: Will Physicians Find Peer Review More Inviting?, 74 VA. L. REV. 1115, 1117 (1988). Peer review takes place in health care settings other than hospitals. For example, it is conducted by nonhospital institutional providers such as freestanding surgery centers, and by third-party payers of health care expenses. See Jack R. Bierig & Robert M. Portman, The Health Care Quality Improvement Act of 1986, 32 ST. LOUIS U. L.J. 977, 979 n.17 (1988). Hospitals, however, are the most common place where peer review takes place, and this Article is limited to an analysis of hospital based peer review. State laws vary greatly in the application of the protection statutes to such other settings. See id. at 983-84. Therefore, no generalization should be made to nonhospital settings from the discussion about hospital peer review.
2. See Christopher S. Morter, Note, The Health Care Quality Improvement Act of 1986: Will Physicians Find Peer Review More Inviting?, 74 VA. L. REV. 1115, 1117 (1988). Peer review takes place in health care settings other than hospitals. For example, it is conducted by nonhospital institutional providers such as freestanding surgery centers, and by third-party payers of health care expenses. See Jack R. Bierig & Robert M. Portman, The Health Care Quality Improvement Act of 1986, 32 ST. LOUIS U. L.J. 977, 979 n.17 (1988). Hospitals, however, are the most common place where peer review takes place, and this Article is limited to an analysis of hospital based peer review. State laws vary greatly in the application of the protection statutes to such other settings. See id. at 983-84. Therefore, no generalization should be made to nonhospital settings from the discussion about hospital peer review.
3. See Christopher S. Morter, Note, The Health Care Quality Improvement Act of 1986: Will Physicians Find Peer Review More Inviting?, 74 VA. L. REV. 1115, 1117 (1988). Peer review takes place in health care settings other than hospitals. For example, it is conducted by nonhospital institutional providers such as freestanding surgery centers, and by third-party payers of health care expenses. See Jack R. Bierig & Robert M. Portman, The Health Care Quality Improvement Act of 1986, 32 ST. LOUIS U. L.J. 977, 979 n.17 (1988). Hospitals, however, are the most common place where peer review takes place, and this Article is limited to an analysis of hospital based peer review. State laws vary greatly in the application of the protection statutes to such other settings. See id. at 983-84. Therefore, no generalization should be made to nonhospital settings from the discussion about hospital peer review.
4. See, e.g., GA. CODE ANN. § 43-39-20 (1998) (providing immunity to any psychologist who "testifies in good faith ... in any proceeding relating to a licensee's or applicant's fitness to practice psychology"); HAW. REV. STAT. § 671D-10 (1998) (affording immunity to any professional review body meeting the requirements set forth in the statute).
5. See, e.g., GA. CODE ANN. § 43-39-20 (1998) (providing immunity to any psychologist who "testifies in good faith ... in any proceeding relating to a licensee's or applicant's fitness to practice psychology"); HAW. REV. STAT. § 671D-10 (1998) (affording immunity to any professional review body meeting the requirements set forth in the statute).
6. See, e.g., ALA. CODE § 34-24-58 (1998); IDAHO CODE § 39-1392b (1998)
7. See, e.g., ALA. CODE § 34-24-58 (1998); IDAHO CODE § 39-1392b (1998)
8. For examples of state statutes limiting the liability of participants on medical peer review committees, see MO. STAT. § 537.035(3) (1998) (providing civil immunity for peer review committee members and for persons providing information to peer review committees "so long as the acts are performed in good faith, without malice and are reasonably related to the scope of inquiry of the peer review committee");
9. 63 PA. CONS. STAT. § 425.3(a)(1)-(2) (1998) (providing criminal and civil immunity for persons providing information to peer review committees, unless "(1) such information is unrelated to the performance of the duties and functions of such review organization, or (2) such information is false and the person providing such information knew, or had reason to believe, that such information was false"). The Pennsylvania statute also created civil and criminal immunity for peer review committee members subject to their exercise of "due care" and provided that their actions are not "motivated by malice."
10. See id. § 425.3(b)(1)-(2).
11. See Jeanne Darricades, Comment, Medical Peer Review: How is it Protected by the Health Care Quality Improvement Act of 1986?, 18 J. CONTEMP. L. 263, 263 (1992). See generally Dorothy Duffy & Martha C. Romney, Medicine and Law: Recent Developments in Peer Review and Informed Consent, 26 TORT & INS. L.J. 331 (discussing the scope of protection against discovery provided by various states' medical peer review statutes).
12. See Jeanne Darricades, Comment, Medical Peer Review: How is it Protected by the Health Care Quality Improvement Act of 1986?, 18 J. CONTEMP. L. 263, 263 (1992). See generally Dorothy Duffy & Martha C. Romney, Medicine and Law: Recent Developments in Peer Review and Informed Consent, 26 TORT & INS. L.J. 331 (discussing the scope of protection against discovery provided by various states' medical peer review statutes).
13. For an example of a state statute limiting the discoverability of medical peer review information, see ARIZ. REV. STAT. § 36-445.01 (1998) (providing that all peer review information will be confidential and nondiscoverable except in "proceedings before the board of medical examiners, or the board of osteopathic examiners, or in actions by an individual health care provider against a hospital or center or its medical staff arising from discipline of such individual health care provider or refusal, termination, suspension or limitation of his privileges").
14. See Charity Scott, Medical Peer Review, Antitrust and the Effect of Statutory Reform, 50 MD. L. REV. 316, 329-32 (1991).
15. See infra Part IV.A (discussing recent developments in the area of immunity and privilege laws).
16. See infra Part IV.E (discussing results of this study).
17. Congress established the NPDB to provide for effective peer review and interstate monitoring of incompetent physicians. See Julie Barker Pape, Physician NPDBs: The Public's Right to Know Versus The Physician's Right to Privacy, 66 FORDHAM L. REV. 975, 976 (1997). The NPDB, a computerized national directory, contains information on malpractice judgments, settlement payments, disciplinary actions, and license suspensions and revocations. See id, at 976-77. Thus, it serves as an information clearinghouse that peer review boards can check when evaluating a physician's ability to practice quality medicine. See id. at 977.
18. Congress established the NPDB to provide for effective peer review and interstate monitoring of incompetent physicians. See Julie Barker Pape, Physician NPDBs: The Public's Right to Know Versus The Physician's Right to Privacy, 66 FORDHAM L. REV. 975, 976 (1997). The NPDB, a computerized national directory, contains information on malpractice judgments, settlement payments, disciplinary actions, and license suspensions and revocations. See id, at 976-77. Thus, it serves as an information clearinghouse that peer review boards can check when evaluating a physician's ability to practice quality medicine. See id. at 977.
19. Congress established the NPDB to provide for effective peer review and interstate monitoring of incompetent physicians. See Julie Barker Pape, Physician NPDBs: The Public's Right to Know Versus The Physician's Right to Privacy, 66 FORDHAM L. REV. 975, 976 (1997). The NPDB, a computerized national directory, contains information on malpractice judgments, settlement payments, disciplinary actions, and license suspensions and revocations. See id, at 976-77. Thus, it serves as an information clearinghouse that peer review boards can check when evaluating a physician's ability to practice quality medicine. See id. at 977.
20. See Tables 5 & 6.
21. See infra Part III.B (discussing the policy rationale for peer review statutes).
22. See, e.g., CAL. HEALTH & SAFETY CODE § 1370 (West 1995); ME. REV. STAT. ANN. tit. 24, § 2511 (West 1995); MO. ANN. STAT. § 537.035 (West 1995). See also Susan L. Horner, The Health Care Quality Improvement Act of 1986: Its History, Provisions, Applications and Implications, 16 AM. J.L. & MED. 455, 467 (1990) (noting that Health Care Quality Improvement Act (HCQIA) "promotes professional review activity by providing peer review members with qualified immunity from private [lawsuits]").
23. See, e.g., CAL. HEALTH & SAFETY CODE § 1370 (West 1995); ME. REV. STAT. ANN. tit. 24, § 2511 (West 1995); MO. ANN. STAT. § 537.035 (West 1995). See also Susan L. Horner, The Health Care Quality Improvement Act of 1986: Its History, Provisions, Applications and Implications, 16 AM. J.L. & MED. 455, 467 (1990) (noting that Health Care Quality Improvement Act (HCQIA) "promotes professional review activity by providing peer review members with qualified immunity from private [lawsuits]").
24. See, e.g., CAL. HEALTH & SAFETY CODE § 1370 (West 1995); ME. REV. STAT. ANN. tit. 24, § 2511 (West 1995); MO. ANN. STAT. § 537.035 (West 1995). See also Susan L. Horner, The Health Care Quality Improvement Act of 1986: Its History, Provisions, Applications and Implications, 16 AM. J.L. & MED. 455, 467 (1990) (noting that Health Care Quality Improvement Act (HCQIA) "promotes professional review activity by providing peer review members with qualified immunity from private [lawsuits]").
25. See, e.g., CAL. HEALTH & SAFETY CODE § 1370 (West 1995); ME. REV. STAT. ANN. tit. 24, § 2511 (West 1995); MO. ANN. STAT. § 537.035 (West 1995). See also Susan L. Horner, The Health Care Quality Improvement Act of 1986: Its History, Provisions, Applications and Implications, 16 AM. J.L. & MED. 455, 467 (1990) (noting that Health Care Quality Improvement Act (HCQIA) "promotes professional review activity by providing peer review members with qualified immunity from private [lawsuits]").
26. See, e.g., IOWA CODE ANN. § 147.135 (1995); KY. REV. STAT. ANN. § 311.377(2) (Banks-Baldwin 1998); 63 PA. CONS. STAT. ANN. § 425.4 (West 1995).
27. See, e.g., IOWA CODE ANN. § 147.135 (1995); KY. REV. STAT. ANN. § 311.377(2) (Banks-Baldwin 1998); 63 PA. CONS. STAT. ANN. § 425.4 (West 1995).
28. See, e.g., IOWA CODE ANN. § 147.135 (1995); KY. REV. STAT. ANN. § 311.377(2) (Banks-Baldwin 1998); 63 PA. CONS. STAT. ANN. § 425.4 (West 1995).
29. See, e.g., OHIO REV. CODE ANN. § 2305.251 (West 1995), R.I. GEN. LAWS §§ 5-37.3-7 (1995).
30. See, e.g., OHIO REV. CODE ANN. § 2305.251 (West 1995), R.I. GEN. LAWS §§ 5-37.3-7 (1995).
31. See, e.g., N.C. GEN. STAT. § 90-14.13 (1995); OR. REV. STAT. § 441.820 (1995).
32. See, e.g., N.C. GEN. STAT. § 90-14.13 (1995); OR. REV. STAT. § 441.820 (1995).
33. See, e.g., CAL. BUS. & PROF. CODE § 805 (West 1995); N.J. STAT. ANN. § 26:2H-12.2 (West 1995).
34. See, e.g., CAL. BUS. & PROF. CODE § 805 (West 1995); N.J. STAT. ANN. § 26:2H-12.2 (West 1995).
35. 42 U.S.C. §§ 11101-11152 (1994).
36. See H.R. REP. NO. 104-879, at 63 (1997); Marilee Frazer, Note, Patrick v. Burget and the Health Care Quality Improvement Act: The Future Scope of Peer Review, 35 WAYNE L. REV. 1181, 1192 (1989).
37. See H.R. REP. NO. 104-879, at 63 (1997); Marilee Frazer, Note, Patrick v. Burget and the Health Care Quality Improvement Act: The Future Scope of Peer Review, 35 WAYNE L. REV. 1181, 1192 (1989).
38. See Gerald B. Hickson et al., Development of an Early Identification and Response Model of Malpractice Prevention, 60 LAW & CONTEMP. PROBS. 7, 28 (1997).
39. See Pape, supra note 9, at 976.
40. The final regulations implementing HCQIA became effective on September 1, 1990. See 45 C.F.R. § 60.5 (1997).
41. See 42 U.S.C. § 11133(a)(1) (1994); see also infra Part IV.C.1 (providing a detailed description of HCQIA's reporting requirements).
42. Arguably, peer review does not need to result in adverse actions to be effective. The most effective peer review program may be one that identifies a physician's problems early on and encourages remedial measures so that actions against the physicians do not become necessary. Given the low levels of peer review activity taking place compared with the low rate of malpractice actions, state disciplinary actions and other measures of physician incompetence this study adopted as a basic premise that increased levels of peer review would result in increased numbers of adverse actions being reported to the NPDB.
43. See infra Part IV.D (describing the study methodology).
44. See Morter, supra note 1, at 1119-20; Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined than Real, 7 J.L. & HEALTH 169, 171 (1992-1993); Arthur Owens, Peer Review: Is Testifying Worth the Hassle?, MED. ECON., Aug. 20, 1984, at 167.
45. See Morter, supra note 1, at 1119-20; Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined than Real, 7 J.L. & HEALTH 169, 171 (1992-1993); Arthur Owens, Peer Review: Is Testifying Worth the Hassle?, MED. ECON., Aug. 20, 1984, at 167.
46. See Morter, supra note 1, at 1119-20; Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined than Real, 7 J.L. & HEALTH 169, 171 (1992-1993); Arthur Owens, Peer Review: Is Testifying Worth the Hassle?, MED. ECON., Aug. 20, 1984, at 167.
47. See Barbara K. Miller, Defending the System: Application of the Intraenterprise Immunity Doctrine in Physician Peer Review Antitrust Cases, 75 TEXAS L. REV. 409, 432 (1996).
48. See Scheutzow & Gillis, supra note 25, at 170.
49. See id. at 171.
50. See id. at 188-89.
51. See id. at 187.
52. For the classification of states based on the level of statutory protection offered to participants in the peer review process, see Appendix B.
53. See discussion infra Part V.E (noting the lack of disincentives under federal law for failing to report adverse peer review decisions to the NPDB).
54. HCQIA, for example, requires that reports be made to the NPDB via state boards of medical examiners, which are defined as the boards in a state responsible for licensing physicians. See 42 U.S.C. § 11151(2) (1994). The state boards have an obligation to forward the report to the NPDB. See 45 C.F.R. § 60.5(c) (1998). Therefore, it is unlikely that a hospital would make a report to the required
55. HCQIA, for example, requires that reports be made to the NPDB via state boards of medical examiners, which are defined as the boards in a state responsible for licensing physicians. See 42 U.S.C. § 11151(2) (1994). The state boards have an obligation to forward the report to the NPDB. See 45 C.F.R. § 60.5(c) (1998). Therefore, it is unlikely that a hospital would make a report to the required
56. See id. at 263; see, e.g., Murray G. Sagsveen & Jennifer L. Thompson, The Evolution of Medical Peer Review in North Dakota, 73 N.D. L. REV. 477, 478 (1997).
57. See id. at 263; see, e.g., Murray G. Sagsveen & Jennifer L. Thompson, The Evolution of Medical Peer Review in North Dakota, 73 N.D. L. REV. 477, 478 (1997).
58. See Darricades, supra note 5, at 269-70.
59. The Joint Commission on Accreditation of Hospitals was created through the combined efforts of the American College of Surgeons, the American Medical Association, the American College of Physicians and the American Hospital Association. See id. at 269.
60. The Joint Commission on Accreditation of Hospitals was created through the combined efforts of the American College of Surgeons, the American Medical Association, the American College of Physicians and the American Hospital Association. See id. at 269.
61. See id.; see also, B. Abbott Goldberg, The Peer Review Privilege: A Law in Search of a Valid Policy, 10 AM. J.L. & MED. 151, 151 (1984) (stating that one of Joint Commission on Accreditation of Healthcare Organization's (JCAHO) accreditation criteria is to require hospitals to organize peer review boards).
62. See Richard L. Griffith & Jordan M. Parker, With Malice Toward None: The Metamorphosis of Statutory and Common Law Protections for Physicians and Hospitals in Negligent Credentialing Litigation, 22 TEX. TECH L. REV. 157, 158 (1991).
63. See id. at 164-65.
64. See, e.g., OHIO REV. CODE ANN. § 2305.25(A) (West 1998) (granting privilege protection to medical societies and third-party payers performing peer review activities).
65. See Griffith & Parker, supra note 43, at 165.
66. See id. at 164-65. The medical staff may seek input from an applicant's peers to assist the medical staff in making its determinations. See id.
67. See Morter, supra note 1, at 1117.
68. See id.
69. Cholecystotomy is a surgical incision in the gallbladder specifically for exploration or for the removal of the gallbladder. See MERRIAM-WEBSTER MED. DESK DICTIONARY 134 (1996).
70. Laparoscopic cholecystotomy is an operation involving a visual exploration of the inside of the abdomen using a fiber optic instrument. See id. at 426.
71. See, e.g., AMERICAN ACADEMY OF HOSPITAL ATTORNEYS, AMERICAN HOSPITAL ASSOCIATION, PEER REVIEW GUIDEBOOK §§ 2.3.3, .3.21 (1995).
72. See Lowell C. Brown et al., Facing the Limits on Uses of Medical and Peer Review Information: Are High Technology and Confidentiality on a Collision Course?, 19 WHITTIER L. REV. 97, 104-05 (1997).
73. See id., Paul L. Scibetta, Note, Restructuring Hospital-Physician Relations: Patient Care Quality Depends on the Health of Hospital Peer Review, 51 U. PITT. L. REV. 1025, 1029 (1990).
74. See Brown et al., supra note 53, at 105.
75. See id. (emphasizing the need to monitor physicians' practices outside of the credentialing process).
76. See Scibetta, supra note 54, at 1032. Both JCAHO and the American Osteopathic Association (AOA) require hospitals to reappoint physicians to the medical staff every two years and to review the physician's performance and credentials at such reappointment. See JOINT COMMISSION ON ACCREDITATION OF HEALTHCARE ORGANIZATIONS, COMPREHENSIVE ACCREDITATION MANUAL FOR HOSPITALS MS.5.11 (1996) [hereinafter JCAHO MANUAL]; AMERICAN OSTEOPATHIC ASSOCIATION, ACCREDITATION MANUAL FOR HOSPITALS VI.D.2 (1998) [hereinafter AOA MANUAL]. The Medicare "Conditions of Participation" also require hospitals to have an organized medical staff as a prerequisite for receiving certification from the Medicare program. 42 C.F.R. § 482.22 (1999).
77. See Scibetta, supra note 54, at 1032. Both JCAHO and the American Osteopathic Association (AOA) require hospitals to reappoint physicians to the medical staff every two years and to review the physician's performance and credentials at such reappointment. See JOINT COMMISSION ON ACCREDITATION OF HEALTHCARE ORGANIZATIONS, COMPREHENSIVE ACCREDITATION MANUAL FOR HOSPITALS MS.5.11 (1996) [hereinafter JCAHO MANUAL]; AMERICAN OSTEOPATHIC ASSOCIATION, ACCREDITATION MANUAL FOR HOSPITALS VI.D.2 (1998) [hereinafter AOA MANUAL]. The Medicare "Conditions of Participation" also require hospitals to have an organized medical staff as a prerequisite for receiving certification from the Medicare program. 42 C.F.R. § 482.22 (1999).
78. See Brown et al., supra note 53, at 105.
79. See Scheutzow & Gillis, supra note 25, at 172-73. Limitations on physicians' privileges occur in various forms, such as requiring the physician to be proctored or take additional training in an area or restricting a physician from performing certain procedures or treatments in an institution. See Robert S. Walzer & Stephen Miltimor, Mandated Supervision, Monitoring, and Therapy of Disciplined Health Care Professionals, 14 J. LEGAL MED. 565, 570-75 (1993).
80. See Scheutzow & Gillis, supra note 25, at 172-73. Limitations on physicians' privileges occur in various forms, such as requiring the physician to be proctored or take additional training in an area or restricting a physician from performing certain procedures or treatments in an institution. See Robert S. Walzer & Stephen Miltimor, Mandated Supervision, Monitoring, and Therapy of Disciplined Health Care Professionals, 14 J. LEGAL MED. 565, 570-75 (1993).
81. See Kara M. McCarthy, Note, Doing Time for Clinical Crime: The Prosecution of Incompetent Physicians as an Additional Mechanism to Assure Quality Health Care, 28 SETON HALL L. REV. 569, 576, 583 (1997).
82. See id. at 576.
83. See Scibetta, supra note 54, at 1029 (suggesting that "[p]eer review is an on-going process whereby physician practice is monitored to identify patterns of unacceptable patient care").
84. See John D. Blum, Medical Peer Review, 38 J. LEGAL EDUC. 525, 525 (1988).
85. See, e.g., Rodney Hayward et al., Evaluating the Care of General Medicine Inpatients: How Good is Implicit Review?, 118 ANNALS INTERNAL MED. 550, 550 (1993) (discussing how the wide variety of practice norms frustrates reliability of peer judgment); Haya Rubin et al., Watching the Doctor-Watchers, How Well Do Peer Review Organization Methods Detect Hospital Care Quality Problems, 267 JAMA 2347, 2349, 2350 (1992) (enumerating factors that raise doubts concerning the accuracy of the peer review process).
86. See, e.g., Rodney Hayward et al., Evaluating the Care of General Medicine Inpatients: How Good is Implicit Review?, 118 ANNALS INTERNAL MED. 550, 550 (1993) (discussing how the wide variety of practice norms frustrates reliability of peer judgment); Haya Rubin et al., Watching the Doctor-Watchers, How Well Do Peer Review Organization Methods Detect Hospital Care Quality Problems, 267 JAMA 2347, 2349, 2350 (1992) (enumerating factors that raise doubts concerning the accuracy of the peer review process).
87. Goldman, supra note 35, at 958.
88. See Morter, supra note 1,at 1119-20; Owens, supra note 25, at 167.
89. See, e.g., ARIZ. REV. STAT. § 36-445.02 (1998) (granting immunity to individuals who participate in the peer review process from civil damages and legal actions); DEL. CODE ANN. tit. 24, § 1768 (1998) (granting immunity to the organizations or individuals engaging in "the review of medical records, medical care and physicians' work, with a view to the quality of care").
90. See, e.g., ARIZ. REV. STAT. § 36-445.02 (1998) (granting immunity to individuals who participate in the peer review process from civil damages and legal actions); DEL. CODE ANN. tit. 24, § 1768 (1998) (granting immunity to the organizations or individuals engaging in "the review of medical records, medical care and physicians' work, with a view to the quality of care").
91. See Scheutzow & Gillis, supra note 25, at 169-70.
92. See id. at 192.
93. See 42 U.S.C. § 11111(a)(1) (1994).
94. W. PAGE KEETON ET AL., PROSSER & KEATON ON THE LAW OF TORTS § 131, at 1055 (5th ed. 1984).
95. Ohio, for example, amended its statute in 1996 to expand the privilege for peer review information from hospital peer review committees to peer review committees of a variety of health care organizations. See OHIO REV. CODE ANN. § 2305.251 (West 1997).
96. See generally Tambone v. Mem'l Hosp. for McHenry County, Inc., 825 F.2d 1132 (7th Cir. 1987) (discussing the liability of hospital and hospital peer review committee members for alleged antitrust violations); Dora v. Mendelzon, 242 Cal. Rptr. 259 (1987) (discussing the liability of two hospitals and hospital administrators for defamation).
97. See Jenkins v. Wu, 468 N.E.2d 1162, 1168 (III. 1984).
98. See, e.g., N.Y. PUB. HEALTH LAW § 2805-m(3) (McKinney 1995); N.C. GEN. STAT. § 131E-95(a) (1995); WASH. REV. CODE ANN. § 4.24.250 (West 1995). As Representative David Waxman stated during the House of Representatives' debate on HCQIA, "nearly every witness indicated that the threat of litigation under current law is a major barrier to effective peer review." 132 Cong. Rec. 33, 118 (1986) (emphasis added).
99. See, e.g., N.Y. PUB. HEALTH LAW § 2805-m(3) (McKinney 1995); N.C. GEN. STAT. § 131E-95(a) (1995); WASH. REV. CODE ANN. § 4.24.250 (West 1995). As Representative David Waxman stated during the House of Representatives' debate on HCQIA, "nearly every witness indicated that the threat of litigation under current law is a major barrier to effective peer review." 132 Cong. Rec. 33, 118 (1986) (emphasis added).
100. See, e.g., N.Y. PUB. HEALTH LAW § 2805-m(3) (McKinney 1995); N.C. GEN. STAT. § 131E-95(a) (1995); WASH. REV. CODE ANN. § 4.24.250 (West 1995). As Representative David Waxman stated during the House of Representatives' debate on HCQIA, "nearly every witness indicated that the threat of litigation under current law is a major barrier to effective peer review." 132 Cong. Rec. 33, 118 (1986) (emphasis added).
101. See, e.g., N.Y. PUB. HEALTH LAW § 2805-m(3) (McKinney 1995); N.C. GEN. STAT. § 131E-95(a) (1995); WASH. REV. CODE ANN. § 4.24.250 (West 1995). As Representative David Waxman stated during the House of Representatives' debate on HCQIA, "nearly every witness indicated that the threat of litigation under current law is a major barrier to effective peer review." 132 Cong. Rec. 33, 118 (1986) (emphasis added).
102. See 42 U.S.C. § 11101 (1994).
103. Id.
104. See Kenneth S. Abraham & Paul C. Weiler, Enterprise Medical Liability and the Evolution of the American Health Care System, 108 HARV. L. REV. 381, 392 (1994).
105. See Sagsveen & Thompson, supra note 39, at 480.
106. See FED. R. CIV. P. 26(b)(1).
107. See COLO. REV. STAT. ANN. § 12-36.5-104 (West 1995); KY. REV. STAT. ANN. § 3111.377 (Michie 1995); VA. CODE ANN. § 8.01-581.16 (Michie 1995).
108. See COLO. REV. STAT. ANN. § 12-36.5-104 (West 1995); KY. REV. STAT. ANN. § 3111.377 (Michie 1995); VA. CODE ANN. § 8.01-581.16 (Michie 1995).
109. See COLO. REV. STAT. ANN. § 12-36.5-104 (West 1995); KY. REV. STAT. ANN. § 3111.377 (Michie 1995); VA. CODE ANN. § 8.01-581.16 (Michie 1995).
110. the peer review to waive the privilege in any circumstance. See Young v. Saldanha, 431 S.E.2d 669, 674 (W. Va. 1993). It is substantially broader than statutes that allow physicians who are the subject of the peer review to waive the privilege only when the physicians themselves are bringing an action against the hospital. Because we could not assume that a physician who was the subject of a peer review action would always act in the interest of encouraging effective peer review and could permit the press or patients suing the hospital for malpractice to obtain the records, the study considered that the waiver would essentially negate any privilege protection and classified the state as having no protection.
111. See Audrey Rogers, New Insights on Waiver and the Inadvertent Disclosure of Privileged Materials: Attorney Responsibility as the Governing Precept, 47 FLA. L. REV. 159, 181-86 (1995).
112. See generally Ellen W. Grabois, The Liability of Psychotherapists for the Breach of Confidentiality, 12 J.L & HEALTH 39, 65-71 (1998) (noting that liability for the breach of confidentiality is founded in contract and tort law).
113. See FED. R. EVID. 501 (stating that state laws govern attorney-client privilege).
114. See, e.g., AMERICAN BAR ASSOCIATION, MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1998) (prohibiting an attorney from revealing information related to the representation of a client); NEW JERSEY RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1998) (same); COLORADO RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1998) (same).
115. See, e.g., California, Florida, Illinois, Missouri, New York and Virginia.
116. See, e.g., DEL. CODE ANN. tit. 24, § 1731A (1995); KY. REV. STAT. ANN. § 311.377 (Michie 1995).
117. See, e.g., DEL. CODE ANN. tit. 24, § 1731A (1995); KY. REV. STAT. ANN. § 311.377 (Michie 1995).
118. See, e.g., R.I. GEN. LAWS § 5-37.3-7(b) (1995); WIS. STAT. ANN. § 146.38(4) (West 1995).
119. See, e.g., R.I. GEN. LAWS § 5-37.3-7(b) (1995); WIS. STAT. ANN. § 146.38(4) (West 1995).
120. See 42 U.S.C. § 11137(b)(1) (1994). HCQIA requires that information submitted to the NPDB be kept confidential except as specifically authorized by the NPDB. See 45 C.F.R. § 60.13(a) (1999). HCQIA also provides that its confidentiality provision does not prevent a party, otherwise authorized under applicable state law, from disclosing the information it has reported to the NPDB. See 42 U.S.C. § 11137(b)(1).
121. See 42 U.S.C. § 11137(b)(1) (1994). HCQIA requires that information submitted to the NPDB be kept confidential except as specifically authorized by the NPDB. See 45 C.F.R. § 60.13(a) (1999). HCQIA also provides that its confidentiality provision does not prevent a party, otherwise authorized under applicable state law, from disclosing the information it has reported to the NPDB. See 42 U.S.C. § 11137(b)(1).
122. See 42 U.S.C. § 11137(b)(1) (1994). HCQIA requires that information submitted to the NPDB be kept confidential except as specifically authorized by the NPDB. See 45 C.F.R. § 60.13(a) (1999). HCQIA also provides that its confidentiality provision does not prevent a party, otherwise authorized under applicable state law, from disclosing the information it has reported to the NPDB. See 42 U.S.C. § 11137(b)(1).
123. Alaska, Illinois, Indiana, Minnesota, New Mexico, Ohio, Rhode Island and Wisconsin.
124. Alabama, Arizona, Colorado, Delaware, Idaho, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, New Hampshire, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, West Virginia and Wyoming.
125. Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Kansas, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, Oklahoma, Oregon, South Dakota, Virginia and Washington.
126. See Robert E. Kuelthau, Ambulatory Surgery Centers - Medical Clinics and the National Practitioner NPDB, 79 MARQ. L. REV., 819, 820 (1996); Ryzen, supra note 96, at 413-14.
127. See Robert E. Kuelthau, Ambulatory Surgery Centers - Medical Clinics and the National Practitioner NPDB, 79 MARQ. L. REV., 819, 820 (1996); Ryzen, supra note 96, at 413-14.
128. See, e.g., Brooks v. Robinson, 284 N.E.2d 794 (Ind. 1972) (interspousal immunity); Plumley v. Klein, 199 N.W.2d 169 (Mich. 1972) (intrafamily immunity); Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978) (interspousal immunity).
129. See, e.g., Brooks v. Robinson, 284 N.E.2d 794 (Ind. 1972) (interspousal immunity); Plumley v. Klein, 199 N.W.2d 169 (Mich. 1972) (intrafamily immunity); Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978) (interspousal immunity).
130. See, e.g., Brooks v. Robinson, 284 N.E.2d 794 (Ind. 1972) (interspousal immunity); Plumley v. Klein, 199 N.W.2d 169 (Mich. 1972) (intrafamily immunity); Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978) (interspousal immunity).
131. See generally Henry T. Zale, Comment, Judicial Abrogation of Governmental and Sovereign Immunity: A National Trend with a Pennsylvania Perspective, 78 DICK. L. REV. 365 (1973) (discussing the trend away from sovereign immunity and toward collective responsibility).
132. 143 N.E.2d 3, 9 (N.Y. 1957).
133. The position that the state peer review immunities should be abandoned begs the question of whether HCQIA immunity should also be abandoned. The author takes no position on HCQIA immunity other than that it should not be used to protect hospitals from negligent credentialing suits.
134. See Developments in the Law - Privileged Communications, 98 HARV. L. REV. 1450, 1472-73 (1985) [hereinafter Developments in the Law]; John Louis Kellogg, What's Good for the Goose ... Differential Treatment of the Deliberative Process and Self-critical Analysis Privileges, 52 WASH. U. J. URB. & CONTEMP. L. 255, 257 (1977).
135. See Developments in the Law - Privileged Communications, 98 HARV. L. REV. 1450, 1472-73 (1985) [hereinafter Developments in the Law]; John Louis Kellogg, What's Good for the Goose ... Differential Treatment of the Deliberative Process and Self-critical Analysis Privileges, 52 WASH. U. J. URB. & CONTEMP. L. 255, 257 (1977).
136. United States v. Nixon, 418 U.S. 683, 710 (1974).
137. See 8 JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 2285, at 527 (3d ed. 1940).
138. See id.