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The Health Care Quality Improvement Act of 1986: Its History, Provisions, Applications and Implications

Published online by Cambridge University Press:  24 February 2021

Susan L. Horner
Susan L. Horner*
Affiliation:
(Specialization in Cardiac Rehabilitation), Colorado State University; University of San Diego School of Law. Viviano & Bradley, San Diego
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Abstract

Congress granted qualified immunity from liability for peer review participation to physicians, osteopaths and dentists, created a national practitioner data bank to track inept, incompetent or unprofessional physicians, and enacted procedural rules for due process, privilege restrictions, and reporting and disbursement of information. The Health Care Quality Improvement Act of 1986 is now in full force, and peer review participants are anxious to cloak themselves with immunity from actions brought by health care professionals. Although its goals are worthy, HCQIA's effects remain to be seen. Serious loopholes appear to exist, warranting close monitoring and possibly early amendment of the Act. Cautious judicial assessment is needed, in order to prevent not only circumvention of the Act's requirements by artful litigants, but also use of the national data bank by health care entities as a pretext for denying privileges and escaping antitrust liability.

Type
Articles
Information
American Journal of Law & Medicine , Volume 16 , Issue 4 , 1990 , pp. 453 - 498
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1990

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References

1 Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101-52 (Supp. 1987) (HCQIA).

2 See infra note 4 for the complete legislative history of HCQIA.

3 Prout, Checks and Balances in Peer Review: Advice From the Patrick Case, 109 ANNALS INTERNAL MED. 689, 690 (1988).

4 Representative Wyden introduced the Health Care Quality Improvement Act of 1986, H.R. 4390, 99th Cong., 2d Sess. Representatives Waxman, Madigan and Tauke joined Representative Wyden in refining and introducing HCQIA as H.R. 5110, 99th Cong., 2d Sess. 132 CONG. REC. H4418 (daily ed. June 26, 1986). H.R. 5110 was considered in two open sessions of the Subcommittee on Health and the Environment. Medical Malpractice: Hearings on H. R. 5110 Before the Subcomm. on Health and the Environment of the House Comm. on Energy and Commerce, 99th Cong., 2d Sess. (Mar. 18 and July 15, 1986) [hereinafter Hearings on H.R. 3110]. H.R. 5110 was then amended and introduced as H.R. 5540, 99th Cong., 2d Sess. 132 CONG. REC. HI 131 (daily ed. Sept. 18, 1986). The Subcommittee on Health and the Environment recommended passage of H.R. 5540 on September 26, 1986. H.R. REP. NO. 903, 99th Cong., 2d Sess., pt. 1, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6384. The Act was considered further in Health Care Quality Improvement Act of 1986: Hearings Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 99th Cong., 2d Sess. (Oct. 8 and 9, 1986) [hereinafter Hearings on H.R. 5540]. The House of Representatives passed an amended H.R. 5540. 132 CONG. REC. H9964 (daily ed. Oct. 14, 1986). The House then passed HCQIA as an amendment to a larger pending bill, S. 1744, 99th Cong., 2d Sess. (1986). 132 CONG. REC. HI 1593 (daily ed. Oct. 17, 1986). The Senate then passed S. 1744. 132 CONG. REC. S17348 (daily ed. Oct. 18, 1986). The Act was approved, upon the President's signing of the bill, as Title IV of Pub. L. 99-660, 100 Stat. 3784 (1986), to take effect one year later. 22 WEEKLY COMP. PRES. DOC. 1565 (Nov. 14, 1986). See generally THE HEALTH CARE QUALITY IMPROVEMENT ACT OF 1986: A LEGISLATIVE HISTORY OF PUB. L. NO. 99-660 (B. Reams ed. 1990).

5 Hearings on H.R. 5110, supra note 4 (organizations testifying and/or submitting materials for the record in favor of HCQIA included, in alphabetical order: American Academy of Family Physicians, American Academy of Ophthalmologists (AAO), American Bar Association (ABA), American College of Obstetricians and Gynecologists (ACOG), American College of Physicians, American Dental Association (ADA), American Insurance Association (AIA), American Medical Association (AMA), American Osteopathic Association (AOA), American Society of Internal Medicine (ASIM), Federation of State Medical Boards (FSMB), General Accounting Office (GAO) Human Resources Division, Department of Health and Human Services (HHS), Kaiser Foundation Health Plan (“Kaiser“), National Council of Community Hospitals (NCCH), National Insurance Consumers Organization (NICO), Washington Business Group on Health).

6 The Medicare and Medicaid Patient and Program Protection Act of 1984, H.R. 5989, 98th Cong., 2d Sess. § 3, sought to amend and strengthen the clearinghouse provisions of the Social Security Act by inserting what would have been 11 U.S.C. § 1128c. Although the bill was not passed in its 1984 form, it identified a need to provide centralized, uniform information regarding health care practitioners that reappeared and was addressed in much greater detail in the Health Care Quality Improvement Act of 1986, H.R. 4390, 99th Cong., 2d Sess. See supra note 4 for the complete legislative history of HCQIA.

7 Saks, In Search of the “Lawsuit Crisis,” 14 L. MED. & HEALTH CARE 77 (1986), reprinted in FURROW, B., JOHNSON, S., JOST, T. & SCHWARTZ, R., HEALTH LAW: CASES, MATERIALS AND PROBLEMS 264 (1987)Google Scholar [hereinafter B. FURROW]; Hearings on H.R. 5110, supra note 4, at 86, 99 (ABA) (the only crisis that exists is in obstetrics and gynecology, orthopedic surgery and neurosurgery); see also J. GUINTHER, HEALTH CARE AND THE LAW — PATIENTS, DOCTORS, LAWYERS AND JURIES 13 (The Roscoe Pound Fellows Foundation 1988) (GAO statistics indicate that the crisis is contained to seven or eight states and high-risk groups). Contra Hearings on H.R. 5110, supra note 4, at 35 (Massachusetts Medical Society); id. at 80 (AMA); id. at 137 (NICO); id. at 182 (AOA); id. at 183 (ASIM) (each organization asserts that there is an “insurance crisis“).

8 Hearings on H.R. 5110, supra note 4, at 162 (AIA) (citing JURY AWARDS RESEARCH, INC., INJURY VALUATIONS: CURRENT AWARD TRENDS (1986)) (award statistics for the 1975-84 period show that the total number of jury verdicts for plaintiffs in medical malpractice cases increased 356%; excluding settlements, the size of the average medical malpractice award increased 203% — from $220,000 in 1975 to $666,000 in 1984; the total dollar amount of awards in 1975 was $17 million, as compared to $237 million in 1984 (not adjusted for inflation)).

The total dollar amount of awards to plaintiffs in 1987 was $3.4 billion. J. GUINTHER, supra note 7, at 14. The average settlement in 1970 was $5,000, as compared to $330,000 in 1984. Hearings on H.R. 5110, supra note 4, at 258 (HHS). The number of awards exceeding $1 million jumped from 3 in 1975 to 92 in 1986, but began to drop in 1987. HEALTH LAW. NEWS REP., July, 1989, at 5 (National Health Lawyers Ass'n, C. Barvin ed.).

9 See Hearings on H.R. 5110, supra note 4, at 161 (AIA); MCCAFFERTY, M. & MEYER, S., MEDICAL MALPRACTICE — BASES OF LIABILITY 6, 9 (1985)Google Scholar [hereinafter M. MCCAFFERTY] (quoting DEPARTMENT OF HEALTH, EDUC. & WELFARE, REPORT OF THE SECRETARY's COMMISSION ON MEDICAL MALPRACTICE 1 (DHEW No.'0573-88, 1973)).

10 See FURROW, B., supra note 7, at 14 (citing Couch, Tilney, Rayner & Moore, The High Cost of Low-Frequency Events, 304 NEW ENG. J. MED. 634, 636 (1981)Google Scholar).

11 See Hearings on H.R. 5110, supra note 4, at 162 (AIA); FURROW, B., supra note 7, at 701, 745, 780, 793-95; Sloan, State Responses to the Malpractice Insurance “Crisis” of the 1970s: An Empirical Assessment, 9 J. HEALTH POL., POL'Y & L. 629, 638 (1984)Google Scholar; Southwick, Hospital Liability: Two Theories Have Been Merged, in HOSPITAL LIABILITY, LAW AND PRACTICE 235, 263-80 (Bertolet, M. & Goldsmith, L. eds., 5th ed. 1987)Google Scholar [hereinafter HOSPITAL LIABILITY]; see also M. Mc-CAFFERTY, supra note 9, at 36 (the factors of greater dissemination of information, access to medical centers and mobility of patients and physicians is resulting in a trend toward expanding the standard of care to that of a national standard). But see Gastel, Medical Malpractice, INS. INFO. INST. NEWSL., Oct., 1990 (As of March, 1990 three states’ courts have held that unconscious victims, who are not eligible for damages for pain and suffering, cannot be compensated for loss of “enjoyment of life.“).

12 See Hearings on H.R. 5110, supra note 4, at 79-80 (AMA); id. at 258 (HHS); J. GUINTHER, supra note 7, at 9, 12. But see Frans, Medical Malpractice, in HEALTH CARE IN THE ‘80S AND BEYOND — DEALING WITH COMPETITION, GOVERNMENT REGULATION, AND THE MALPRACTICE CRISIS (American Law Inst.-American Bar Ass'n course of study materials 1987) [hereinafter ALI-ABA, HEALTH CARE] (Perhaps in response to the enactment of HCQIA, as of July, 1989, St. Paul Fire & Marine Insurance Company had decreased its premiums an average of 14% in 32 states and Medical Insurance Exchange of California had decreased its premiums 26%.).

13 Hearings on H.R. 5110, supra note 4, at 80-81 (AMA) (12-20% drop in number of practicing obstetricians nationwide (33% in Florida alone); 39% drop in number of practicing orthopedic surgeons nationwide); Gastel, supra note 11 (one in eight obstetricians stopped delivering babies because of the threat of malpractice suits).

14 See Hearings on H.R. 5540, supra note 4, at 34 (HHS).

15 See Dornette, The Legal Impact of Voluntary Standards in Civil Actions Against the Health Care Provider, in HOSPITAL LIABILITY, supra note 11, at 221, 223-28; Southwick, supra note 11, at 235.

16 Johnson v. Misericordia Community Hosp., 97 Wis. 2d 521, 565, 294 N.W.2d 501, 523, aff'd, 99 Wis. 2d 708, 301 N.W.2d 156 (1981).

17 Darling v. Charleston Memorial Community Hosp., 33 111. 2d 326, 211 N.E.2d 253 (1965), cert, denied, 383 U.S. 946 (1966). In Darling, the plaintiff's broken leg became infected and gangrenous from an improperly applied cast which cut off blood circulation, and ultimately resulted in a below-the-knee amputation. Even though the plaintiff frequently complained of severe pain, the hospital failed to request a consultation, which the hospital's bylaws, as well as state regulations and accreditation standards, required.

The Illinois Supreme Court held that the hospital had a duty to its patient to: 1) use reasonable care in granting hospital privileges to the physician; 2) supervise the quality of treatment physicians render pursuant to its own adopted standards required for accreditation by the Joint Commission on Accreditation of Hospitals (JCAH) and state licensing; and 3) require consultation in certain circumstances. Id. at 333, 211 N.E.2d at 257-58. This narrow holding requires hospitals to adopt policies and procedures that will reasonably assure competent care.

It is important to note that the hospital was held negligent because its administrators failed to adequately monitor the on-call staff physician's work when they knew or should have known of his incompetence. The Darling court did not hold the hospital vicariously liable for negligence of a member of the medical staff; therefore, the plaintiff did not have to show that a physician-hospital agency relationship existed. Id. at 330-31, 211 N.E.2d at 256. See generally Blase, , The Darling Case Shows a Silver Lining, 29 TRUSTEE 9 (1976)Google Scholar.

18 M. Callahan, Medical Staff Legal Issues 14 (material presented at National Health Lawyers Ass'n 1989 Health Law Update and Annual Meeting, San Francisco, Cal., June 7-9, 1989) (on file with American Journal of Law fcf Medicine). E.g., Elam v. College Park Hosp., 132 Cal. App. 3d 332, 339-40, 183 Cal. Rptr. 156, 160-61 (1982) (expands the concept of hospital's duty of reasonable care from observing and knowing the patient's condition and protecting patients from harm, into actual hospital liability for negligent conduct of independent physicians who avail themselves of hospital facilities but are neither employees nor agents of the hospital); Joiner v. Mitchell County Hosp. Auth., 125 Ga. App. 1, 186 S.E.2d 307 (1971), aff'd, 229 Ga. 140, 189 S.E.2d 412 (1972) (hospital liable for negligent selection of new staff physicians); Moore v. Board of Trustees of Carson-Tahoe Hosp., 88 Nev. 207, 211, 495 P.2d 605, 608, cert, denied, 409 U.S. 879 (1972) (court upheld hospital's revocation of staff privileges for nonsterile surgical procedures and articulated the duty to continually review and evaluate quality of care); Corleto v. Shore Memorial Hosp., 138 N.J. Super. 302, 350 A.2d 534 (1975) (holding the board of directors, the administration and the entire medical staff liable for negligent selection and retention of a staff physician when they knew or should have known of physician's incompetence); Blanton v. Moses H. Cone Memorial Hosp., 319 N.C. 372, 354 S.E.2d 455 (1987) (hospital owes duty of care to its patients to ascertain that a doctor is qualified to perform an operation before granting him the privilege to do so); Pederson v. Dumouchel, 72 Wash. 2d 73, 432 P.2d 973 (1967) (hospital has an independent duty to ensure that patients are not injured by hospital's failure to supervise medical staff members); Johnson, 99 Wis. 2d at 708, 301 N.W.2d at 156 (hospital negligent because full privileges were granted to physician without investigation of physician's application that contained perjured information about former privileges and positions); see generally Dornette, , supra note 15, at 221, 226; Southwick, supra note 11, at 251 (calling it “independent” or “corporate negligence,” courts merely adopted as the new standard of care those standards the hospitals had adopted from the JCAH); Note, Judicial Recognition of Hospital Independent Duty of Care to Patients: Hannola v. City of Lakewood, 30 CLEV. ST. L. REV. 711 (1981)Google Scholar, reprinted in HOSPITAL LIABILITY, supra note 11, at 301, 305 n. 11 (“holdings of courts have reflected the trend, not created it … .“).

19 See, e.g., Rule v. Lutheran Hosps. and Homes Soc'y of Am., 835 F.2d 1250 (8th Cir. 1987) (hospital's incomplete investigation prior to granting physician privileges resulted in nondiscovery of physician's lack of experience and training to perform breech deliveries on first-time mothers without supervision); Elam, 132 Cal. App. 3d at 342-44, 183 Cal. Rptr. at 161-63 (finding triable issues of fact on question of the necessity of non-negligent peer review investigation of the negligent physician; finding support for hospital corporate liability in CAL. Bus. & PROF. CODE §§ 2282, 32128 (West 1990), and CAL. ADMIN. CODE tit. 22, §§ 70701, 70703 (West 1983)); see also Copeland, Hospital Responsibility For Basic Care Provided by Medical Staff Members: “Am I My Brother's Keeper?” 5 N. KY. L. REV. 27 (1978); Hordy, & Mulholland, , The Legal Status of the Hospital Medical Staff, 22 ST. LOUIS U.L.J. 485 (1978)Google Scholar; McCall, , A Hospitals Liability For Denying, Suspending, and Granting Staff Privileges, 32 BAYLOR L.J. 175 (1980)Google Scholar; Reed, Expanding Theories of Hospital Liability: A Review, 21 J. HEALTH & HOSP. L. 217 (1988) (citing Janulis, & Horstein, , Damned If You Do, Damned If You Don't: Hospitals’ Liability For Physicians’ Malpractice, 64 NEB. L. REV. 689 (1985)Google Scholar); Southwick, , The Hospital as an Institution — Expanding Responsibilities Change Its Relationship With the Staff Physician, 9 CAL. W.L. REV. 429, 443 (1973)Google Scholar; Note, The Hospital's Responsibility for its Medical Staff: Prospects for Corporate Negligence in California, 8 PAC. L.J. 141, 141 n.3 (1977); Note, supra note 18, at 306; Note, Piercing The Doctrine of Corporate Hospital Liability, 17 SAN DIEGO L. REV. 383, 386 n.2 (1980); Note, Reallocating Liability to Medical Staff Review Committee Members: A Response to the Hospital Corporate Liability Doctrine, 10 AM. J. L. & MED. 115 (1984).

20 Cronic v. Doud, 168 111. App. 3d 665, 668, 523 N.E.2d 176, 178 (1988); Reynolds v. Mennonite Hospital, 168 111. App. 3d 575, 579-80, 522 N.E.2d 827, 829-30 (1988); Thompson v. Nason Hospital, 370 Pa. Super. 115, 124, 535 A.2d 1177, 1182 (1988). See, e.g., Sharsmith v. Hill, 764 P.2d 667, 673 (Wyo. 1988).

21 See v., Harrell Total Health Care, Inc., 781 S.W.2d 58, 60 (Mo. Ct. App. 1989)Google Scholar (The court reasoned that, while not applicable in Harrell, the 1983 amendments to the Missouri Code may extend corporate negligence to Health Maintenance Organizations because of their common law duty to subscribers to conduct a reasonable investigation of a physician's reputation in the medical community.).

22 JCAH, ACCREDITATION MANUAL FOR HOSPITALS 89 (1984); Neff, , Physician Staff Privilege Cases: Antitrust Liability and the Health Care Quality Improvement Act, 29 WM. & MARY L. REV. 609, 612-13 (1988)Google Scholar; Norman, So-Called Physician “Whistle Blowers” Protected: Immunity of Peer Review Committee Members From Suit, LEGAL ASPECTS MED. PRAC, Feb., 1983, at 3, 37 (peer review committees are now mandated by the JCAH and state and federal laws).

23 Neff, supra note 22, at 614, 622.

24 See, e.g., McElhinney v. William Booth Memorial Hosp., 544 S.W.2d 216 (Ky. 1976) (boards may also consider the degree of the physician's disruptive behavior, provided that standards of behavior are adequately outlined); Dooley v. Barberton Citizens Hosp., 11 Ohio St. 3d 216, 222, 465 N.E.2d 58, 62 (1984) (boards may consider such factors as “accepted measures of skill, education and competence” or, if expressly stated in hospital policies and procedures, physician conduct, ethics or cooperation).

25 Miller v. Indiana Hosp., 843 F.2d 139, 141 (3d Cir.), cert, denied, 488 U.S. 870 (1989); Weiss v. York Hosp., 745 F.2d 786, 794 (3d Cir. 1984), cert, denied, 470 U.S. 1060 (1985). See Comment, The Medical Staff Privileges Problem in Florida, 12 FLA. ST. U.L. REV. 339, 340 (1984).

26 E.g., Nanavati v. Burdette Tomlin Memorial Hosp., 857 F.2d 96 (3d Cir. 1988), cert, denied, 109 S. Ct. 1528 (1989); McKenzie v. Mercy Hosp., 854 F.2d 365 (10th Cir. 1988); Patrick v. Burget, 800 F.2d 1498 (9th Cir. 1986), rev'd, 486 U.S. 94 (1988); see generally Note, The Health Care Quality Improvement Act of 1986: Will Physicians Find Peer Review More Inviting? 74 VA. L. REV. 1115 (1988).

27 See Hearings on H.R. 5110, supra note 4, at 462 (AMA) (in 1986 immunity provisions existed in 44 states for board members and in 41 states for reporters); H.R. REP. NO. 903, 99th Cong., 2d Sess., p t . l , 2, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6384, 6385; B. FURROW, supra note 7, at 62 (lists cases); Norman, supra note 22, at 37; see also Firestone, & Schur, , Malicious Deprivation of Hospital Staff Privileges, in LEGAL MEDICINE: 1986 199Google Scholar (C. Wecht ed. 1986); M. MCCAFFERTY, supra note 9, at 135. Note that these standards do not grant absolute immunity, but merely set higher hurdles for plaintiffs to overcome in their antitrust claims. Though state statutory language varies, antitrust immunity is generally granted for peer review acts performed in good faith, without malice, and/or with the reasonable belief the action was warranted.

28 Patrick, 800 F.2d at 1498; Hearings on H.R. 5540, supra note 4, at 127 (ACOG).

29 Antitrust Laws and Health Care Institutions — Identifying and Reducing Antitrust Risks, in ALIABA, HEALTH CARE, supra note 12, at 107, 146, 149, 167.

30 Patrick, 800 F.2d 1498, 1505 (summarizing the unreported district court opinion).

31 Sherman Act, 15 U.S.C. § 1 (1982).

32 Patrick, 800 F.2d at 1504-05.

33 Id. at 1505.

34 Patrick, 486 U.S. 94, reh'g denied, 487 U.S. 1243 (1988). Parker v. Brown, 317 U.S. 341 (1943), established a two-prong test for state action. First, “the challenged [physician] restraint must be ‘one clearly articulated and affirmatively expressed as State policy’ “; and second, “the anticompetitive conduct ‘must be actively supervised by the state itself.’ “ Id. at 100 (quoting California Retail Liquor Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980) (citation omitted)). The Patrick court explained that “the mere presence of some state involvement or monitoring” is insufficient as the required ultimate authority by the state. Patrick, 486 U.S. at 101. See also Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48 (1985) (using the Midcal test to determine whether the private rate bureau's collective rate-making activities are protected under the federal antitrust laws).

35 Patrick, 486 U.S. at 102-05.

36 See id. Contra Bolt v. Halifax Hosp. Med. Center, 874 F.2d 755 (11th Cir. 1989) (in judicial review of Florida peer review actions, state action defense available for procedural fairness as well as adequate criteria based on state policy; the merits of the decision are subject to judicial review), cert, denied, 110 S. Ct. 1960 (1990).

37 42 U.S.C. § 11112(a).

38 Patrick, 800 F.2d at 1509.

39 See supra text accompanying note 37.

40 Curran, , Law-Medicine Notes: Medical Peer Review of Physician Competence and Performance: Legal Immunity and The Antitrust Laws, 316 NEWENG . J . MED 597 (1987)Google Scholar; Neff, supra note 22, at 615-16, 624; Waxman, , Sounding Board: Medical Malpractice and Quality of Care, 316 NEW ENG.J. MED 943 (1987)Google Scholar.

41 Health Care Lawyers Probe Antitrust Law Developments, Antitrust & Trade Reg. Rep. (BNA) No. 58, at 263, 268 (1990).

42 Marren, & Davis, , Buying and Selling Hospital Care: Elements of Rational Managed Care Contracting, 22 J. HEALTH & HOSP. L. 109, 112, 113 (1989)Google Scholar (citing dicta in FTC v. Indiana Fed'n of Dentists, 476 U.S. 447 (1986), that rejected the “quality of care” defense).

43 Pinhas v. Summit Health, Ltd., 880 F.2d 1108, 1113 (9th Cir. 1989).

44 Id. (requiring defendant to exhaust statutorily-required administrative remedies prior to bringing antitrust claim).

45 See Nanavati v. Burdette, 857 F.2d 96 (3d Cir. 1988), cert, denied, 109 S. Ct. 1528 (1989); Cooper v. Forsyth County Hosp. Auth., 789 F.2d 278, 282 (4th Cir.) (Motz, J., concurring), cert, denied, 479 U.S. 972 (1986); Weiss v. York Hosp., 745 F.2d 786 (3d Cir. 1984), cert, denied, 470 U.S. 1060 (1985); Buckner v. Lower Florida Keys Hosp. Dist., 403 So.2d 1025, 1029 (Fla. Dist. Ct. App. 1981); Annotation, Denial of Hospital Staff Privileges or Refusals to Physicians or Other Health Care Practitioners as Violation of Sherman Act, 89 A.L.R. FED. 419, 426, 446 (1988) (§ 4[a]). But see Oltz v. St. Peter Community Hosp., 861 F.2d 1440, 1449 (9th Cir. 1988) (exclusive contract violated section 1 of Sherman Act as it was at least partially motivated by a desire to bar an anesthesiologist from the practice; to determine whether a staff physician is an agent (cannot conspire) or independent contractor (can conspire), court looked at factors such as whether the hospital pays the physician a salary, and whether the physician bills separately); Bolt v. Halifax Hosp. Med. Center, 874 F.2d 755 (11th Cir. 1988), cert, denied, 110 S. Ct. 1960 (1990). See also Health Care Lawyers Probe Antitrust Law Developments, supra note 41, at 273.

46 42 U.S.C. § 11112(b)(1), (2), (3), (c) (provision available for both federal and state actions in states that had not opted out by Oct. 14, 1989, and have met the four professional review requirements and the notice and hearing requirements).

47 Hearings on H.R. 5110, supra note 4, at 192-93 (ASIM); id. at 225 (Kaiser); id. at 430 (AMA).

48 H.R. REP. NO. 903, 99th Cong., 2d Sess., pt. 1, 2, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6384, 6385.

49 Id.

50 Hearings on H.R. 5110, supra note 4, at 238 (HHS); id. at 309-12 (NCCH).

51 Id. at 317 (HHS).

52 Hearings on H.R. 5540, supra note 4, at 40 (HHS); Hearings on H.R. 5110, supra note 4, at 320 (HHS). See B. FURROW, supra note 7, at 26 (most disciplinary actions address crimes; an example of a criminal case is the illegal sale of controlled substances).

53 Hearings on H.R. 5110, supra note 4, at 425 (GAO Human Resources Division); id. at 462 (AMA) (up to 45 states require hospital reporting of disciplinary procedures in some form).

54 Hearings on H.R. 5540, supra note 4, at 41 (HHS). The FSMB, which was founded 1912 and computerized in 1984, is the national organization that collects data from member state licensing and disciplining boards on actions taken against physicians.

55 Id. at 258 (HHS); Shepard & Foley, When Physicians Go Bad, San Jose Mercury News, Oct. 19, 1986, at 1A, col.l, 18A, col. 6. (five California caseworkers monitored 439 physicians placed on probation; the average caseload was 87 physicians per caseworker). See Hearings on H.R. 5540, supra note 4, at 35 (HHS) (national figures indicate that investigators often have active caseloads of 60-70 cases).

56 Hearings on H.R. 5540, supra note 4, at 35 (HHS).

57 Hearings on H.R. 5110, supra note 4, at 234 (HHS). State Medical Boards’ (SMBs’) caseloads have also increased because of a number of other factors. E.g., id. (an increased number of professions they monitor); id. at 235 (the increasing number of licensed physicians); id. at 237 (greater detail required in cases reported); id. at 256 (more areas to monitor such as sexual abuse, incompetency, violations of controlled substance laws (writing of prescriptions and impairment from substance abuse), felonies, and fraud). See also Shepard & Foley, supra note 55, at 18A (the number of physicians in California increased from approximately 46,000 in 1976 to 64,000 in 1986).

58 Hearings on H.R. 5540, supra note 4, at 36 (HHS). The Medical Board of California incurred costs of $1.5 million just to prosecute its 1985 cases. Shepard & Foley, supra note 55, at 18A. In addition, costs remain for other disciplinary measures.

59 Dyll, , Professional Practice Regulation, in LEGAL MEDICINE: LEGAL DYNAMICS OF MEDICAL ENCOUNTERS 89 (American College of Legal Med. 1988)Google Scholar. Physician discipline generally increased 63% between 1984 and 1986. Koska, States Crack Down on Errant Physicians, HOSPITALS, July 5, 1988, at FB40. License revocations increased from 47 in 1974 to 255 in 1984 and 406 in 1985. B. FURROW, supra note 7, at 26-27 (citing Brinkley, State Medical Boards Disciplined Record Number of Doctors in ‘85, N.Y. Times, Nov. 8, 1986, § 1, at 6, col. 1). In 1986, SMBs alone took 2,302 actions. Tolchin, Agency Will Track Those Disciplined Over Medical Care, N.Y. Times, Sept. 25, 1988, § 1, at 1, col. 3. In addition, “serious actions” taken by the FSMB averaged 2.37 per 1,000 physicians nationally, or 1,277 in 1986.

60 Hearings on H.R. 5110, supra note 4, at 390 (FSMB). FSMB submitted FEDERATION OF STATE MED. BDS., A GUIDE T O THE ESSENTIALS OF A MODERN MEDICAL PRACTICE ACT (1985). Section IX: Disciplinary Action Against Licensees provides for a variety of disciplinary actions, including: physician license suspension or probation; stipulations, limitations and conditions relating to practice; fines; reprimands; letters of censure; letters of concern; and actual license revocation under specified conditions. Hearings on H.R. 5110, supra note 4, at 406-08. The Guide offers three pages of variations in improper conduct that warrant discipline, including: 1) fraud, misrepresentation or cheating by the licensee in procuring a medical license or regarding his or her skill; 2) any felony or gross misdemeanor; 3) mental incompetence, 4) illegally prescribing, selling or administering drugs; 5) obtaining fees by fraud; and 6) failing to report action taken against his or her license or privileges.

61 See Hearings on H.R. 5110, supra note 4, at 81 (AMA) (health care practitioners in California, Florida, Illinois, New York, Ohio, Pennsylvania and Texas bear extremely high medical malpractice insurance premiums partly because of the high number of persons 65 and older who reside in those states); ALI-ABA, HEALTH CARE, supra note 12, at 3 (adding Massachusetts, Michigan, New Jersey and Virginia to the states listed above for a 13-state region with a high physician-patient ratio); Hearings on H.R. 5110, supra note 4, at 62-65 (testimony of Rene Sue-Anne Smit, CNM, nurse-midwife and Frank W. Leak, M.D., Climon Medical Clinic) (allocate insurance costs based on intraspecialty/intrageographic differences); id. at 105 (ABA) (raise premiums and prices for procedures with increased risk); id. at 148 (NICO) (experiencerate physicians; adjust perceived risk to “actual risk“).

62 Tort reform suggestions included legislatively establishing caps on noneconomic, pain and suffering and/or overall damage awards. Id. at 71 (testimony of David E. Adelberg, M.D.); id. at 85 (AMA) (presenting text of the Federal Incentives for State Health Care Professional Liability Reform Act, H.R. 3865, 99th Cong., 1st Sess. (1985)); id. at 186 (ASIM). But see id. at 93-98 (ABA) (stressing deterrent effects of tort awards on potential defendants; expressing concerns for individual rights). As of 1989, five states have upheld caps: California, Indiana, Kansas, Louisiana, Virginia. Seven states have struck down caps: Idaho, Illinois, New Hampshire, North Dakota, Ohio, Texas, Washington. Gastel, supra note 7. Hearing participants suggested many other tort reform measures. Hearings on H.R. 5110, supra note 4, at 187 (ASIM) (elimination of punitive damages and leaving disciplining to state licensing boards); id. at 84 (AMA) (modification or elimination of collateral source rule, so that evidence of compensation from other sources can be introduced); id. 109 (ABA); id. at 186 (ASIM); id. at 63 (testimony of Rene Sue-Anne Smit, CNM, nurse-midwife) (modification of statutes of limitations; noting 21-year statute of limitations for some tort causes of action against obstetricians and certified nurse-midwives in some jurisdictions); id. at 119 (AMA) (eliminating joint and several liability); id. at 160 (AIA); id. at 84 (AMA) (structuring settlements, so that, for example, plaintiffs would mandatorily receive periodic payments if their award of future damages was over $100,000); id. at 109 (ABA); id. at 186 (ASIM); id. at 88-89 (AMA) (establishment of a sliding scale of limits on plaintiffs’ attorneys’ fees); id. at 109 (ABA) (non-disclosure of a defendant's financial worth unless to determine punitive damages); id. at 151 (NICO) (utilizing private arbitration agreements).

63 Hearings on H.R. 5110, supra note 4, at 74, 87 (AMA); id. at 109, 111 (ABA).

64 Id. at 87-88 (AMA); id. at 92 (ABA).

65 Id. at 71 (AMA); id. at 109 (ABA).

66 Id. at 150 (NICO). But see id. at 111 (ABA) (recommending that claims not be screened).

67 Id. at 92, 108 (ABA); id. at 150 (NICO).

68 Id. at 87-88 (AMA).

69 See generally Hearings on H.R. 5110, supra note 4; Tolchin, supra note 59.

70 42U.S.C. § 11101 (2), (3).

71 National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners, 54 Fed. Reg. 42,722 (1989) (to be codified at 45 C.F.R. § 60) (corrections at 54 Fed. Reg. 43,890 (1989)).

72 Announcement of Opening Date, 55 Fed. Reg. 31,239 (Aug. 1, 1990).

73 42 U.S.C. § 11111(a)(1) provides: “If a professional review action … meets all the standards specified… [peer review participants] … shall not be liable in damages under any law of the United States or of any State (or political subdivision thereof) with respect to the action.” Note that the four review standards to qualify for immunity apply only to review of physicians, not other health care practitioners. Id. at § 11115(c).

74 Id. at § 11111(a)(2). See H.R. REP. NO. 903, 99th Cong., 2nd Sess., pt. 1, at 6, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6384, 6390.

75 42 U.S.C. § 11112(a)(l)-(4). Subsection 4's “adequate notice and hearing” is described at 42 U.S.C. § 11112(b).

76 H.R. REP. N O . 903, at 6, reprinted in 1986 U.S. CODE CONG. ADMIN. NEWS, at 6390.

77 Id. at 10, reprinted in 1986 U.S. Code Cong. & ADMIN. NEWS, at 6392.

78 See, e.g., Curran, , Legal Immunity for Medical Peer-Review Programs — New Policies Explored, 320 NEW ENG. J. MED. 233, 233-35 (1989)CrossRefGoogle Scholar; Teske, & Allen, , Antitrust: Ninth Circuit Upholds Antitrust Violation in Hospital's Exclusive Contracting for Anesthesia Services, 22 J . HEALTH & HOSP. L. 47 (1989)Google Scholar; Tolchin, , supra note 59; Note, supra note 26, at 1140; Note, Patrick v. Burget: The State Action Doctrine and Bad Faith Peer Review, 74 VA. L. REV. 609, 617 (1988)Google Scholar.

79 See Annotation, supra note 45, at 451-52 (rule of reason requires proof of hospital's anticompetitive purpose or effect on the market); Neff, supra note 22, at 616-23, 626.

80 42 U.S.C. § l l l l l (a) (l) (D) .

81 Id. Actions could be under the following: Sherman Act, 15 U.S.C. §§ 1-7 (1988); Clayton Act, 15 U.S.C. §§ 12-27 (1988); Federal Trade Commission Act, 15 U.S.C. §§41-77 (1988). See also Klingensmith, , Applying Antitrust Concepts to the Acute Care Hospital Industry: Defining the Relevant Market for Hospital Services, 13 J. HEALTH POL., POL'Y & L. 153, 155-63 (1988)Google Scholar.

82 42U.S.C.§ 11111(1). See Hearings on H.R. 5540, supra note 4, at 90 (Statement of Ivy L. Davis, Asst. Counsel, Subcomm. on Civil and Constitutional Rights) (“[I]f the peer review committee is really used as a subterfuge for some other activity, the immunity will not apply and therefore, the affected doctor could get damages“); 42 U.S.C. § 11114(a) (“The Secretary may establish … voluntary guidelines [ to ] … assist the professional review bodies in meeting the standards described in section [11112(a)]); see also Quinn, , Procedural Due Process Rights of Physicians Applying For Hospital Staff Privileges, 17 LOY. U. CHI. L.J. 453 (1986)Google Scholar.

83 CAL. BUS. & PROF. CODE § 809(a)(9)(A) (Deering 1989); Mo. ANN. CODE art. 1974 § 14- 601.1 (1989); OKLA. STAT. tit. 76, §§ 24-27 (1989).

84 COLO. REV. STAT. §§ 12-36.5-201, -202 (1989 & Supp. 1990); HAW. REV. STAT. §§ 671- D-l to D-4, D-10, D-l 1(1989); IND. CODE ANN. § 34-4-12.6-3 (Burns 1989); KY. REV. STAT. ANN. § 311.377 (Baldwin 1988); 1988 La. Sess. Law Serv. 690 (West); N.M. STAT. ANN. § 61- 6-16 (1989); N.C GEN. STAT. § 90-21.23 (Supp. 1990); OR. REV. STAT. § 441.089 (1989); TEX. REV. CIV. STAT. ANN. art. 44495b (1987); W. VA. CODE §§ 30-3C-1, -2 (1989); WYO. STAT. § 35-17-106 (1989).

85 42U.S.C. § 11111(c)(2)(A).

86 Id. at § 11111(c)(1).

87 Id. at § 11115(d). (“Nothing in this title shall … [affect] … the rights and remedies afforded patients under any provision of Federal or State law to seek redress for any harm or injury suffered as a result of negligent treatment or care by any physician, health care practitioner, or health care entity … .“).

88 Id. at § 11115(a) (“Except as specifically provided in this part, nothing in this part shall … [change] the liabilities or immunities under law.“).

89 Id. at 42 U.S.C. § 11115(d).

90 See, e.g., Patrick v. Burget, 486 U.S. 94, 105 n.8 (1988), reh'g denied, 487 U.S. 1243 (1988).

91 42U.S.C. § 11112(b).

92 H.R. REP. NO. 903, 99th Cong., 2d Sess., pt. 1, at 6, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6384, 6391. Note that this phrase is undefined.

93 42U.S.C. § 11112(b).

94 Id. at § 11112(a)(3).

95 Id. at § 11112(c).

96 Id. at § 11112(a)(3). See H.R. REP. NO. 903, at 10, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS at 6393 (“[T]he test of ‘adequacy’ may still be met under other prevailing law.“).

97 See Neff, supra note 22, at 628.

98 42U.S.C. § 11113.

99 Neff, supra note 22, at 628 n.97.

100 Administrative Notice, 55 Fed. Reg. 7,035 (Feb. 28, 1990) (the clearinghouse is named after the involved organizations of Health and Human Services, Health Resources and Services Administration (HRSA), Bureau of Health Professions, Division of Quality Assurance and Liability Management). In 1990, HHS released the National Practitioner Data Bank Guidebook, which contains practical information and instructions regarding reporting. UNISYS CORP., NATIONAL PRACTITIONER DATA BANK GUIDEBOOK (HHS 1990) [hereinafter GUIDEBOOK].

101 Announcement of Opening Date, 55 Fed. Reg. 31,239 (1990).

102 Id. See also W. Copeland, An Update on Professional Review Activity and the Health Care Quality Improvement Act 7 (material presented at National Heath Lawyers Ass'n 1989 Health Law Update and Annual Meeting, San Francisco, Cal., June 7-9, 1989) (on file with American Journal of Law & Medicine).

103 Supplementary Information to 45 C.F.R. § 60.5, 54 Fed. Reg. 42,724 (1989).

104 42 U.S.C. § 11151(7); Definitions, 54 Fed. Reg. 42,730 (1989) (to be codified at 45 C.F.R. § 60.3).

105 When Information Must Be Reported, 54 Fed. Reg. 42,731 (1989) (to be codified at 45 C.F.R. § 60.5). See Rothschild, Analysis Of The Proposed Regulations On The Health Care Quality Improvement Act of 1986 3 (American Hosp. Ass'n 1988).

106 42 U.S.C. § 11131(c); Reporting Medical Malpractice Payment (Sanctions), 54 Fed. Reg. 42,731, 42,732 (1989) (to be codified at 45 C.F.R. § 60.7(c)). See Health Care, Physician Data Bank Sanctions Outlined by HRSA, Daily Report for Executives (BNA) No. 169 at A-13 (Aug. 30, 1990). Note that an incomplete report form is deemed not to be a report. GUIDEBOOK, supra note 100, at 9.

107 Reporting Medical Malpractice Payments, 54 Fed. Reg. 42,731 (1989) (to be codified at 45 C.F.R. § 60.7).

108 42 U.S.C. § 11151(7); Definitions (Medical Malpractice Action or Claim), 54 Fed. Reg. 42,730, 42,731 (1989) (to be codified at 45 C.F.R. § 60.3).

109 Definitions (Medical Malpractice Action or Claim), 54 Fed. Reg. 42,730,42,731 (to be codified at 45 C.F.R. § 60.3). See Supplementary Information to 45 C.F.R. § 60.3, 54 Fed. Reg. 42,723 (1989) (the description of “other adjudicative body” includes administrative bodies, arbitration boards or other dispute resolution practitioners).

110 42 U.S.C. § 11151(9). A “professional review action” against a practitioner must be: 1) taken in the course of professional review activity; 2) based on the practitioner's professional competence or conduct which does or could adversely affect a patient's health or welfare; and 3) threaten to adversely affect the physician's clinical privileges or professional society memberships. Id.

111 42 U.S.C. § 11151(3). “Clinical privileges” include privileges, medical staff membership “and the other circumstances pertaining to the furnishing of medical care” permitted by the health care entity. Id.

112 42 U.S.C. § 11133(a)(1)(A); Reporting Adverse Actions on Clinical Privileges, 54 Fed. Reg. 42,732 (1989) (to be codified at 45 C.F.R. § 60.9).

113 Definitions (Professional Review Action), 54 Fed. Reg. 42,730, 42,731 (1989) (to be codified at 45 C.F.R. § 60.3). Actions which might adversely affect patients include all restrictions, suspensions, revocations, censures, surrenders, reprimands or probations of physicians. Supplementary Information to 45 C.F.R. § 60.3, 54 Fed. Reg. 42,723 (1989). Examples of failings that do not require reporting include: voluntary retirement; reduction in clinical privileges for reasons of personal preference or relocation; issues regarding fees for license or membership; solicitation or advertisement; restrictions taken for technical or administrative failings or competitive acts and unrelated to the peer review process; or any other “matters that do not relate to the competence or professional conduct of a physician.” Id. at 42,723- 24. See also Havighurst, , Professional Peer Review and the Antitrust Laws, 36 CASE W. RES. 1117, 1162 (1986)Google Scholar.

114 Definitions, 54 Fed. Reg. 42,730 (1989) (to be codified at 45 C.F.R. § 60.3 (1989)). “Entities” include hospitals, HMOs, PPOs, medical societies, group practices or prepaid medical practices that meet the two criteria set forth in the text. Note that voluntary specialty boards such as ACOG are not “entities” under the Act since membership is voluntary and does not reflect competence. Id. Furthermore, in most jurisdictions, the medical staff is not an “entity” for purposes of the Act since it is not separate from the hospital: it is considered to be comprised of “agents.” See supra note 45.

Note, however, that California rejects this view. Oltz v. St. Peter Community Hosp., 861 F.2d 1440 (9th Cir. 1988) (hospital can conspire with medical staff because physicians are not agents); Teske & Allen, supra note 78, at 47. See also W. Copeland, supra note 102, at 7 (states have mixed reporting requirements and vary as to whether HMOs or PPOs must report, depending on who licensed the organizations); N. Crowley, Legal and Practical Issues in Physician- Managed Care Contracting 14-15 (material presented at 1989 National Health Lawyer's Ass'n, Health Law Update and Annual Meeting, San Francisco, Cal., June 7-9, 1989) (on file with American Journal of Law fcf Medicine).

115 42 U.S.C. §§11131-34 (updated by Reporting of Information, 54 Fed. Reg. 42,731-33 (1989) (to be codified at C.F.R. §§ 60.5-.9)).

116 Reporting Medical Malpractice Payments, 54 Fed. Reg. 42,731 (1989) (to be codified at 45 C.F.R. § 60.7). Note that health care entities make simultaneous reports to the NPDB and SLB only in the case of medical malpractice payments.

117 When Information Must Be Reported, 54 Fed. Reg. 42,731 (1989) (to be codified at 45 C.F.R. § 60.5).

118 Id.

119 Reporting Licensure Actions Taken by Boards of Medical Examiners, 54 Fed. Reg. 42,732 (1989) (to be codified at 45 C.F.R. § 60.8).

120 5 U.S.C. § 552a (1988).

121 Reporting of Information, 54 Fed. Reg. 42,731-33 (1989) (to be codified at 45 C.F.R. §§ 60.4-.9).

122 Reporting Errors, Omissions, and Revisions, 54 Fed. Reg. 42,731 (1989) (to be codified at 45 C.F.R. § 60.6).

123 42 U.S.C. § 11131(c); Reporting Medical Malpractice Payments (Sanctions), 54 Fed. Reg. 42,732 (1989) (to be codified at 45 C.F.R. § 60.7(c)); Reporting Adverse Actions on Clinical Privileges (Sanctions), 54 Fed. Reg. 42,733 (1989) (to be codified at 45 C.F.R. § 60.9(c)). See Health Care, Physician Data Bank Sanctions Outlined by HRSA, supra note 106, at A- 13.

124 H.R. REP. NO. 903, 99th Cong. 2d Sess. 14, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6384, 6398.

125 Reporting Adverse Actions on Clinical Privileges, 54 Fed. Reg. 42,732 (1989) (to be codified at 45 C.F.R. § 60.9). Note that 29-day suspensions, even for the purpose of avoiding reporting, are not “required” reporting since the Act's 30-day period is explicit.

126 Reporting Medical Malpractice Payments, 54 Fed. Reg. 42,731 (1989) (to be codified at 45 C.F.R. § 60.7).

127 (Who Must Report), id. (to be codified at 45 C.F.R. 60.7(a)).

128 Reporting Adverse Actions on Clinical Privileges (Sanctions), 54 Fed. Reg. 42,733 (1989) (to be codified at C.F.R. § 60.9(c)). This regulation updates 42 U.S.C. § 11.132(b).

129 42 U.S.C. § 11135(a)(1).

130 Id. at § 11131(a)(2).

131 Id. at § 11135(b); Information Which Hospitals Must Request from the National Practitioner Data Bank, 54 Fed. Reg. 42,733 (1989) (to be codified at 45 C.F.R. § 60.10).

132 Requesting Information from the National Practitioner Data Bank, 54 Fed. Reg. 42,733 (1989) (to be codified at 45 C.F.R. § 60.11).

133 Confidentiality of National Practitioner Data Bank Information (Penalty for Violation), 54 Fed. Reg. 42,734 (1989) (to be codified at 45 C.F.R. § 60.13(b)).

134 National Practitioner Data Bank, User Fee, 55 Fed. Reg. 30,037 (1990) (amending Fees Applicable to Requests for Information, 54 Fed. Reg. 42,733, 42,734 (1989) (to be codified at 45 C.F.R. §60.12)).

135 55 Fed. Reg. 30,037 (1990).

136 Supplementary Information to 45 C.F.R. § 60.13, 54 Fed. Reg. 42,729 (1989).

137 Hooper, Federal Data Bank on Bad Doctors Launched, United Press International Press Release, Dec. 30, 1988.

138 Requesting Information from National Practitioner Data Bank, 54 Fed. Reg. 42,733 (1989) (to be codified at 45 C.F.R. § 60.11).

139 Id.

140 42 U.S.C. § 11137(b)(1); Confidentiality of National Practitioner Data Bank (Limitations on Disclosure), 54 Fed. Reg. 42,734 (1989) (to be codified at 45 C.F.R. § 60.13(a)).

141 42 U.S.C. § 11137(d); Reporting Medical Malpractice Payments (Interpretation of Information), 54 Fed. Reg. 42,731-32 (to be codified at 45 C.F.R. § 60.7(d)).

142 Miller v. Indiana Hosp., 843 F.2d 139 (3d Cir. 1988); Tambone v. Memorial Hosp., 825 F.2d 1132 (7th Cir. 1987); Gill v. Mercy Hosp., 199 Cal. App. 3d 889, 245 Cal. Rptr. 304, cert, denied, 488 U.S. 892 (1988).

143 Cohn v. Wilkes, 127 F.R.D. 117, 119-21 (W.D.N.C 1989).

144 Caine v. Hardy, 905 F.2d 858 (5th Cir. 1990), reh'g granted, (Aug. 3, 1990); Maxey v. Kadrovach, 890 F.2d 73 (8th Cir. 1989), cert, denied, 110 S. Ct. 2176 (1990).

145 Pinhas v. Summit Health, Ltd., 894 F.2d 1024 (9th Cir. 1989), cert, granted in part, 58 U.S.L.W. 3800, No. 89-1679 (U.S.June 18, 1990).

146 Miller, 843 F.2d at 139.

147 Id. at 143 n.4.

148 Tambone v. Memorial Hosp., 825 F.2d 1132 (7th Cir. 1987).

149 The Tambone court distinguished a prior contrary Seventh Circuit holding by finding it inapplicable to the 1974-78 peer review activities in this case. Id. at 1134 (distinguishing Marrese v. Interqual Inc., 748 F.2d 373 (7th Cir. 1984) (state began active supervision of peer review after 1983)).

150 Austin v. McNamara, 731 F. Supp. 934 (CD. Cal. 1990).

151 Id. at 943.

152 Id. at 941.

153 Id. at 940. See Health Care Statute Immunizes Physicians Involved in Peer Review, Antitrust & Trade Reg. Rep. (BNA) No. 58, at 265, 266 (Feb. 22, 1990).

154 Austin, 731 F. Supp. at 941.

155 Id.

156 Id. at 939 n.4 (citing 42 U.S.C. § 11151(9)). Definitions, 54 Fed. Reg. 42,730-31 (1989) (to be codified at 45 C.F.R. § 60.3) (“The definition of ‘professional review action’ encompasses … professional review activities which are related to the professional competence or conduct … and which could adversely affect the health or welfare of a patient.“). The federal regulations instruct that the actual date of the adverse action against privileges is used only as a “triggering event” from which to measure the 15-day reporting period to the state licensing board. Supplementary Information to C.F.R. § 60, 54 Fed. Reg. 42,726 (1989).

157 See supra note 156 and accompanying text.

158 Cohn v. Wilkes, 127 F.R.D. 117, 119-21 (W.D.N.C. 1989).

159 Id. at 121.

160 St. Luke's Regional Medical Center v. United States, 717 F. Supp. 665, 666 (N.D. Iowa 1989).

161 Id. at 666.

162 Caine v. Hardy, 905 F.2d 858 (5th Cir. 1990), rehg granted, (Aug. 3, 1990).

163 Id. at 860, 862-63.

164 Id. at 863.

165 Id. at 170 (citing Gill v. Mercy Hosp., 199 Cal. App. 3d 889, 904, 245 Cal. Rptr. 304, 312 (1988)).

166 Maxey v. Kadrovach, 890 F.2d 73 (8th Cir. 1989), cert, denied, 110 S. Ct. 2176 (1990).

167 Maxey, 890 F.2d at 75-76.

168 Id.

169 Vankirk v. Board of Trustees of White County Memorial Hosp., No. 91001-8809- CP128 (Ind. Cir. Ct. Nov. 9, 1988).

170 Id.

171 Gill v. Mercy Hosp., 199 Cal. App. 3d 889, 245 Cal. Rptr. 304, cert, denied, 488 U.S. 892 (1988).

172 Gill, 199 Cal. App. 3d at 903-04, 245 Cal. Rptr. at 312. California requires a fair hearing, Anton v. San Antonio Community Hosp., 19 Cal. 3d 802, 827, 140 Cal. Rptr. 442, 457 (1977), but no requirement that an attorney be present at hospital staff peer review proceedings. Cipriotti v. Board of Directors, 147 Cal. App. 3d 144, 157, 196 Cal. Rptr. 367, 373 (1983).

173 Gill, 199 Cal. App. 3d at 904, 245 Cal. Rptr. at 312.

174 Id.

175 Pinhas v. Summit Health, Ltd., 880 F. 2d 1108 (9th Cir. 1989), cert, granted in part, 110 S. Ct. 3212 (1990).

176 Oltz v. Community Hosp., 861 F.2d 1440 (9th Cir. 1988).

177 H.R. REP. NO. 903, 99th Cong., 2d Sess., pt. 1, 10, reprinted in 1986 U.S. CODE CONG. & ADMIN. News 6384, 6395. See Teske & Allen, supra note 78, at 47.

178 Boyer v. Lehigh Valley Hosp. Center, No. 89-7315 (E.D. Pa. June 29, 1990).

179 Id.

180 Hearings on H.R. 5540, supra note 4, at 30 (U.S. Dep't of Justice, Office of Legislative and Intergovernment Affairs) (DOJ). To facilitate peer review activity, the DOJ recommended: 1) excluding money damages in actions against peer review groups; and 2) co-payment of attorney fees by both parties. Id. Even if this proposal might have improved peer review and reduced fear of damage awards, there is no reason to place these groups above the law and exempt them from the reach of traditional antitrust liability and treble damages.

181 Patrick v. Burget, 486 U.S. 94, reh'g denied, 487 U.S. 1243 (1988).

182 Havighurst, supra note 113, at 1165-67.

183 Pinhas v. Summit Health, Ltd., 894 F.2d 1024, 1033 (9th Cir. 1989), cert, granted in part, 58 U.S.L.W. 3800 (U.S.June 18, 1990) (No. 89-1679) (citing Lugar v. Edmondston Oil Co., 457 U.S. 922, 923 (1982)). Lugar provided a State Action Test which requires that “[f]irst the deprivation [of staff privileges] must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible … . [s]econd the party charged with the deprivation must be a person who may fairly be said to be a state actor… .” Lugar, 457 U.S. at 937.

184 42 U.S.C. § 11115(a) provides: “[e]xcept as specifically provided in [§ 11111], nothing in [§11111] shall [change] the liabilities or immunities under law.” See Maxey v. Kadrovach, 890 F.2d 73 (1989), cert, denied, 110 S. Ct. 2176 (1990); Caine v. Hardy, 715 F.Supp. 166 (S.D. Miss. 1989), rev'd, 905 F.2d 858 (5th Cir. 1990), reh'g granted, (Aug. 3, 1990); Neff, supra note 22, at 632.

185 Caine, 715 F. Supp. at 170.

186 42 U.S.C. § 11112(a)(3).

187 Id. at § 11112(b) provides: “[a] professional review body's failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards [for professional review actions] of subsection (a)(3).“

188 H.R. 5540 § 102(a) provided: “[a] professional review action is presumed to have been taken in the reasonable belief that it was in the furtherance of quality health care unless it is shown, by clear and convincing evidence, to the contrary.” Under this standard, a plaintiff- physician would have had to overcome the statutory presumption that the hospital board reasonably believed that the action was necessary by clear and convincing evidence — a substantial burden to meet. Many organizations found this burden too high. See Hearings on H.R. 5540, supra note 4, at 109 (Lawyers’ Committee for Civil Rights Under the Law) (describing this as an “onerous standard to overcome“); id. at 30 (DOJ); Hearings on H.R. 5110, supra note 4, at 348 (American Academy of Family Physicians) (the standard “places a substantial legal burden on the physician“).

189 Hearings on H.R. 5110, supra note 4, at 439 (AMA). The AMA contended that this standard would prevent “turf battles” between physicians and peer groups because once “evidence in the record show[ed] that quality of care concerns were the basis for the initial action, the inquiry would end.” Id. Note that under this scrutiny, the restricted physician would have a greater burden than under the clear and convincing evidence standard — the reviewing court could find any rational basis for the hospital board's decision and this alone would immunize the board from antitrust action.

190 42 U.S.C. § 11112(a) provides: “[a] professional review action shall be presumed to have met the preceding [four] standards necessary for the protection set out in section [11111(a)] unless the presumption is rebutted by a preponderance of the evidence.“

191 Austin v. McNamara, 731 F. Supp. 934, 942 (CD. Cal. 1990). The court found no issue regarding the burden since “Plaintiff… failed to even address, much less rebut, the Defendants’ evidentiary showing.” Id. at 942.

192 42 U.S.C. § 11115(a).

193 Note, supra note 26, at 1130.

194 See ALI-ABA, HEALTH CARE, supra note 12, at 46 (describes four possible antitrust suits); Enders, , Antitrust and Health Care: Reconciling Competing Values — Medical Staff Issues, 6 WHITTIER L. REV. 737, 738-40 (1984)Google Scholar.

195 CAL. BUS. & PROF. CODE § 809(a)(9)(A) (Deering 1989).

196 MD. ANN. CODE art. 1974 § 14-601 (1989). Maryland's Opt-Out Bill, effective July 1, 1989, specified that its current Maryland Medical Practice Act, MD. ANN. CODE tit. 1974 § 14- 101 (Supp. 1990), provides greater immunity protection for actions brought under state law.

197 CAL. BUS. & PROF. CODE §§ 809, 809.05, 809.1-.9, (Deering 1989). California's due process requirements were made much more specific. California still requires: 1) written notice of and reasons for the proposed action, id. at § 809.1(c)(1); 2) the right to request a hearing before a mutually-acceptable arbitrator(s). The arbitrator should preferably be of the same specialty as the physician, but with no direct financial benefit from the outcome of the proceedings. The arbitrator should be someone who was not an accuser, investigator, factfinder or initial decisionmaker. Id. at § 809.2(a).

Other rights include a physician's challenge of impartiality and right to witness lists and to inspect documentary evidence. Some provisions are identical to HCQIA such as the imposition of the cost of the suit, including reasonable attorney's fees if a suit challenging the action taken was “frivolous, unreasonable, without foundation, or in bad faith.” Id. at § 809.9.

198 Id. at §809(a)(9).

199 Id. at §§ 809(a)(9), 809.2, 809.9. The immunity protects members of mental health quality assurance committees, professional societies or hospital peer review committees if the staff operates pursuant to written bylaws approved by the hospital's governing board.

200 CAL. CIV. CODE § 43.7(a) (West Supp. 1990).

201 Id.

202 Hooper, supra note 137.

203 Id. Some states’ Board of Medical Examiners publish reports available to the public that list disciplinary actions. E.g., MEDICAL BOARD OF CAL., ACTION REPORT (NO. 38, 1989) (lists actions taken from April 1, 1989 to July 31, 1989).

204 Hooper, supra note 137.

205 GUIDEBOOK, supra note 100, at 7.

206 Confidentiality of National Practitioner Data Bank, 54 Fed. Reg. 42,734 (1989) (to be codified at 45 C.F.R. § 60.13). See also Hooper, supra note 137.

207 Supplementary Information to 45 C.F.R. § 60.13, 54 Fed. Reg. 42,729 (1989).

208 Requesting Information From the National Practitioner Data Bank, 54 Fed. Reg. 42,733 (1989) (to be codified at 45 C.F.R. § 60.11(a)(5)).

209 Id.

210 Supplementary Information to 45 C.F.R. § 60.11, 54 Fed. Reg. 42,727 (1989) (discovery methods may include a court order, deposition, response to interrogatories and request for admission).

211 42 U.S.C. § 11135(a), (b).

212 See Note, supra note 26, at 1131-33.

213 W. Copeland, supra note 102, at 97.

214 See supra note 134.

215 Pugsley, , Implementing the Health Care Quality Improvement Act, 23 J. HEALTH & HOSP. L. 42. 50 (1990)Google Scholar.

216 H.R. REP. NO. 903, 99th Cong., 2d Sess., pt. 1, 18, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6384, 6393.

217 42 U.S.C. § 11113.

218 Austin v. McNamara, 731 F. Supp. 934 (CD. Cal. 1990); Neff, supra note 22, at 627- 28, 632. See also supra text accompanying notes 97-98 (discussing 42 U.S.C. § 11113).

219 Tolchin, supra note 59, at 1.

220 See supra note 59 and accompanying text.

221 See supra notes 55-58 and accompanying text.

222 Hearings on H.R. 5110, supra note 4, at 422 (GAO Human Resources Division).

223 Health Care, Physician Data Bank Sanctions Outlined by HRSA, supra note 106, at A-13.

224 Id. at 440 (AMA) (a $35,000 floor under which entities need not report was proposed in H.R. 4390, but there was no floor proposed in H.R. 5110 [or H.R. 5540]).

225 H.R. REP. NO. 903, 99th Cong., 2d Sess., pt. 1, 14, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6384, 6397.

226 Hearings on H.R. 5110, supra note 4, at 313 (NCCH); id. at 314 (AHA). There was no agreement regarding what would constitute “adequate evidence” of a significantly alarming “pattern.” Some factors could include: 1) the total number of low-range settlements that occurred (5, 10, 15?); 2) the amount of settlement ($2,000, $5,000, $10,000?); 3) in what time period (1/2, 1, 5 years?); 4) geographic area; 5) specialty.

227 Hearings on H.R. 5540, supra note 4, at 59 (Public Citizen Health Research Group (PCHRG)) (citing PENNSYLVANIA MEDICAL SOC'Y & PENNSYLVANIA TRIAL LAWYERS ASS'N, MEDICAL MALPRACTICE IN PENNSYLVANIA (1985) [hereinafter MEDICAL MALPRACTICE IN PENNSYLVANIA]).

228 Hearings on H.R. 5540, supra note 4, at 59 (PCHRG).

229 42 U.S.C. § 11137(d). See also Reporting Medical Malpractice Payments (Interpretation of Information), 54 Fed. Reg. 42,731, 42,732 (1989) (to be codified at 45 C.F.R. § 60.7(d)).

230 See, e.g., Hearings on H.R. 5110, supra note 4, at 280, 286 (AHA) (does not support optout; urges no reporting of claims less than $10,000); id. at 305 (NCCH) (recommends only reporting payments of more than $25,000); id. at 329 (ACOG) (supports a threshold cutoff, citing an otherwise oppressive “volume of data“); id. at 351 (American Academy of Family Physicians) (supports reporting of payments in excess of “a certain amount“); id. at 373 (AAO) (supports no reporting of “lower figures“); id. at 465 (ADA). This concern continued to be raised by approximately one out of every four respondents to the Federal Regulations. Supplementary Information to 45 C.F.R. § 60.7, 54 Fed. Reg. 42,724 (1989).

231 Hearings on H.R. 5540, supra note 4, at 133 (ACOG).

232 See Reporting Medical Malpractice Payments (Interpretation of Information), 54 Fed. Reg. 42,731, 42,732 (to be codified at 45 C.F.R. § 60.7(d)).

233 Id.

234 Health Care, Physician Data Bank Sanctions Outlined by HRSA Administrator, supra note 106, at A-13.

235 How to Dispute the Accuracy of National Practitioner Data Bank Information (Procedures for Filing a Dispute), 54 Fed. Reg. 42,734 (1989) (to be codified at 45 C.F.R. § 60.14(b)(2)). See also Supplementary Information to 45 C.F.R. § 60.14, 42,729 Fed. Reg. (1989).

236 Supplementary Information to 45 C.F.R. § 60.7, 54 Fed. Reg. 42,725 (1989).

237 See Hearings on H.R. 5110, supra note 4, at 80 (AMA) (citing dramatic increase in malpractice insurance premiums for all Massachusetts physicians (62% increase), Maryland obstetricians (130% increase) and New York neurosurgeons (312% increase from 1975 to 1986)); id. at 105 (ABA) (citing MEDICAL MALPRACTICE IN PENNSYLVANIA, supra note 224) (25% of insurance claim payments were incurred by 1 % of Pennsylvania physicians; among the subspecialties, 92% of the payments were made by only 10% of the neurosurgeons and only 4% of the orthopedic surgeons); see also id. at 145 (NICO) (“a small percentage of doctors is responsible for a large pecentage of malpractice“); ALI-ABA, HEALTH CARE, supra note 12, at 396 (surgical claims accounted for 28% of all claims reported); J. GUINTHER, supra note 7, at 12; Sloan, supra note 11, at 637 (orthopedic surgery premiums were six times those of nonsurgeons).

238 E.g., Hearings on H.R. 5540, supra note 4, at 133-34 (ACOG); Hearings on H.R. 5110, supra note 4, at 365 (AAO).

239 Neff, supra note 22, at 627-28.

240 See Hearings on H.R. 5110, supra note 4, at 237, 316 (HHS). Nuisance claims are defined as those that are more costly to defend in time, money, effort and worry, than they cost to settle; this definition does not indicate whether the claim was meritorious or not. See id. at 271, 313 (AHA).

241 Hearings on H.R. 5540, supra note 4, at 41 (HHS); Hearings on H.R. 5110, supra note 4, at 237, 316 (HHS).

242 CAL. BUS. & PROF. CODE § 802(a)(b) (West 1988). The Board of Medical Quality Assurance is now known as the Medical Board of California.

243 Id.

244 See supra note 234 and accompanying text.

245 Hearings on H.R. 5110, supra note 4, at 389 (FSMB).

246 Id.

247 Pugsley, supra note 213, at 50.

248 42U.S.C. § 11131(d).

249 Hearings on H.R. 5110, supra note 4, at 422 (GAO Human Resources Division).

250 H.R. REP. NO. 903, 99th Cong., 2d Sess., pt. 1, 4, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6384, 6387.

251 Rothschild, , HHS Announces Data Base Contractor, 22 J. HEALTH & HOSP. L. 72 (1989)Google Scholar.

252 H.R. REP. NO. 903, at 5, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS at 6389.

253 w. Copeland, supra note 102, at 7.

254 M. Callahan, supra note 18, at 4.

255 Hearings on H.R. 5540, supra note 4, at 5354 (PCHRG) (citing Bernzweig, The Malpractice Equation: A Conceptual Tool for Analyzing the Problem,.J. LEGAL MED., Feb., 1976, at 17). PCHRG cited the Malpractice Commission of the Department of Health, Education and Welfare's study's estimate that 3.6% of all in-hospital patients received “injuries,” 14.5% of which were due to negligence. PCHRG next applied the 1970s figures to the current 38.8 million annual hospital admissions and calculated an annual overall number of 1.4 million injuries, 14.5 % (or 203,000 people) of which are due to negligence. Hearings on H.R. 5540, supra note 4, at 58.

Next, PCHRG used one hospital's estimated percentage of patients who “suffered adverse outcomes due to error by physicians during care.” Id. at 58 (citing Steel, Gertman, , Crescenzi, & Anderson, , Iatrogenic Illness on a General Medical Service at a University Hospital, 304 NEW ENG. J. MED. 638 (1981)Google Scholar). PCHRG extrapolated the hospital's percentage of injured patients to the number of all surgical admissions in all hospitals, and concluded that 136,000 surgical patients are injured each year from “doctor error.” PCHRG did not mention that the data came from a tertiary-care university hospital or that the authors of the study cautioned that other settings may produce different results. See B. FURROW, supra note 7, at 13 (summarizing same study). In addition, throughout these calculations, PCHRG did not define “injury” or how “negligence” was determined. Nor did PCHRG adjust for changes in type, complexity or volume of procedures between hospitals or geographic areas. PCHRG also did not factor in technological advances over the preceding decade.

Finally, using figures from a high-risk-for-claims state, PCHRG claimed that there are an annual 24,000 California patients to whom “adverse outcomes which appear to be the fault of one or more health care providers …” occur. Id. (citing California Medical Insurance Feasibility Study, Medical World News, July 22, 1985). PCHRG extrapolated the study's findings to the entire country's 38.8 million hospitalized patients, concluding that “this amounts to 310,400 instances in which patients were injured or killed as a result of negligent behavior.” Id. From these calculations, PCHRG concluded that “[t]he overriding purpose of the bill [H.R. 5540], to greatly strengthen peer review actions against and discipline of incompetent physicians — whose negligence kills or injures more than 100,000 people each year — is too important to delay action on … .” Id. at 56.

256 H.R. REP. NO. 903, 99th Cong., 2d Sess., pt. 1, 1, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6384, 6384.

257 Hearings on H.R. 5540, supra note 4, at 144 (ACOG).

258 See Patrick v. Burget, 800 F.2d 1498, 1505 (9th Cir. 1986).

259 Hearings on H.R. 5540, supra note 4, at 29 (DOJ) (opposing federal regulation of the health care industry).

260 Id. at 52 (Rep. Wyden).

261 Pugsley, supra note 213, at 48.