Thereafter, at the request of Richard Harris, M.D., a clinic surgeon, the executive committee of the hospital’s medical staff initiated a review of Dr. Patrick’s hospital privileges. The committee voted to recommend the termination of Dr. Patrick’s privileges on the ground that his care of his patients was below the hospital’s standards.

Dr. Patrick demanded a hearing, as provided by hospital bylaws. A five-member ad hoc committee heard the charges and defense. Dr. Patrick asked that the committee members testify as to their personal bias against him, but they refused to accommodate this request. Before the committee rendered its decision, Dr. Patrick resigned from the hospital staff rather than risk termination.

During the course of the hospital peer-review proceedings, Dr. Patrick filed a lawsuit in the U.S. District Court for the District of Oregon. He alleged that the partners of the Astoria Clinic had violated the antitrust laws. Specifically, he contended that the clinic partners had initiated and participated in the hospital peer-review proceedings not to improve patient care, but to reduce competition by eliminating his practice. The peer-review committee denied these allegations. The jury returned a verdict against the peer-review committee and awarded damages of $650,000 to Dr. Patrick. The district court, as required by law, trebled the antitrust damages.

The Court of Appeals for the Ninth Circuit reversed the district court’s decision. The appeals court held that even if respondents had used the peer-review process to set a competitor at a disadvantage rather than to improve patient care, their conduct in the peer-review proceedings was immune from antitrust scrutiny. The court reasoned that the peer-review activities of physicians in Oregon fall within the state-action exemption from antitrust liability, because Oregon has articulated a policy in favor of peer review and has actively supervised the peer-review process.

The Supreme Court accepted the appeal and concluded that peer-review activities in the state of Oregon were not actively supervised by the state. Thus, the high court determined that the district court’s decision was correct—that the behavior of the peer-review committee violated the antitrust laws.¹ Accordingly, the Supreme Court found that there was no state-action exemption from the antitrust laws for peer-review committees.

After this decision, Congress established the Health Care Quality Improvement (HCQI) Act.² The purpose of this act was to improve the quality of medical care by identifying and disciplining physicians who engage in unprofessional behavior or are incompetent. To accomplish this, Congress granted limited immunity from suits for money damages to participants in professional peer-review actions. For immunity to attach to a peer-review action, the peer-review committee had to follow certain procedural requirements to afford the physician a fair hearing.

In a recent decision by the appeals court of Massachusetts,³ the court affirmed the decision of a peer-review committee that required plaintiff Jeffrey Zisk, M.D., to participate in a one-year specialized residency program focused on improving clinical judgment.

In a lawsuit contesting the peer-review committee’s decision, Dr. Zisk alleged that this decision violated his federal and state constitutional rights, that the action was in bad faith and that certain members of the peer-review committee were in competition with Dr. Zisk. In a 19-month period, three of the plaintiff’s surgical patients had died as a result of surgery. The peer-review committee, after hearing the evidence involving those three patients, found that the plaintiff’s problems were poor judgment and poor attitude, with both patients and other doctors, rather than poor technical skills.

The appeals court reviewed whether the peer-review committee had adhered to the procedural requirements of the HCQI. First, the appeals court reviewed whether there was a reasonable belief that the actions were in furtherance of quality health care. Although Dr. Zisk argued that one of the physicians on the peer-review committee was in direct competition with him and that this prevented him from having a fair hearing, the appeals court found that the alleged anticompetitive motives were irrelevant and that the plaintiff failed to demonstrate by a preponderance of the evidence that the hospital’s actions were not reasonable in furtherance of quality health care.

The appeals court also concluded that a reasonable effort was made to obtain the facts and that the HCQI Act does not require a perfect investigation but a reasonable one. The plaintiff argued that he should not be judged on the basis of three cases out of the approximately 600 cases that he had handled. The appeals court found that the record reflected a careful review of all of the evidence and determined that the peer-review committee had made a reasonable effort to obtain the facts.

The appeals court also found that Dr. Zisk was afforded proper notice of a hearing and an opportunity to be heard–and that the record supported these procedural protections. In addition, the appeals court found that there was a reasonable belief that corrective action was warranted under the facts in this case, and therefore it affirmed the peer-review committee’s corrective action.

	CONCLUSION

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With the HCQI, if a peer-review committee follows the reasonable procedural protections of the Act, it may determine that a physician can be disciplined for incompetent or unprofessional behavior. If Congress had not promulgated the HCQI Act, many peer-review committees would be intimidated by the notion that their activities could form the basis of an antitrust case. As indicated by Patrick v. Burget, without the HCQI Act, there would have been a very serious risk of antitrust liability for the members of the peer-review committee. The decision by the appeals court of Massachusetts is undoubtedly correct pursuant to the HCQI and serves the Act’s purpose in providing for quality health care.