Alliance for Patient Safety

                            All that is necessary for the triumph of evil...
                                                                ... is for good men to do nothing.

                                                                                                   Edmund Burke

Retaliation Against Eric Anthony Peper, M.D.

from Health Lawyers Weekly
December 19, 2008 Vol. VI Issue 48

Physicians Colorado Appeals Court Says Hospital That Revoked Surgeon’s Privileges Without Notice Or Hearing Not Entitled To HCQIA Immunity

A Colorado hospital that revoked a surgeon’s provisional staff privileges without providing him notice and a hearing was not entitled to immunity under the Health Care Quality Improvement Act (HCQIA), a state appeals court ruled December 11.

The Colorado Court of Appeals reversed a lower court’s decision granting summary judgment to the hospital and three of its officers (collectively, defendants).

In so doing, the appeals court rejected defendants’ argument that HCQIA’s notice and hearing requirements were waived voluntarily by the surgeon when he applied for provisional status and agreed to be bound by medical staff bylaws that did not give rise to hearing and appeal rights for provisional staff.

In spring 2002, plaintiff Eric Anthony Peper, a cardiothoracic surgeon, applied for and was granted medical staff privileges at St. Mary’s Hospital and Medical Center (St. Mary’s) in Denver, Colorado.

Subsequently, in December 2002, Peper was reappointed to St. Mary’s provisional active medical staff until December 2004, and was subject to the terms of the initial appointment and to hospital and medical staff bylaws.

At that time, St. Mary’s, without notifying Peper, decided to review a random sample of his cardiothoracic cases. According to Peper, this decision was made after he told the hospital’s president that he planned to establish a competing medical practice.

An external reviewer examined the selected cases and found a potential “problem with surgical technique and/or judgment.”

In February 2003, without any notice, St. Mary’s revoked Peper’s privileges and staff membership. The letter sent to Peper notified him of an already-concluded review process and external reviewer comments indicating “care falling below generally accepted standards of review.”

The letter informed Peper that the members of the credentials committee had determined that, under St. Mary’s bylaws, a physician whose provisional privileges are revoked is not afforded a hearing or appeal. The committee said it would report the revocation to the National Practitioner Data Bank and the Colorado Board of Medical Examiners.

Peper filed a lawsuit in state court, seeking monetary damages based on eight contract and tort claims. The court dismissed the complaint, concluding defendants were entitled to immunity from damages under the HCQIA.

In an unpublished opinion, a division of the appeals court reversed. A majority of the court concluded that three of the four HCQIA immunity prerequisites were met, i.e., defendants acted in the reasonable belief their action was in furtherance of quality healthcare; defendants acted after a reasonable effort to obtain the facts; and defendants acted in the reasonable belief that the action was warranted by the known facts.

The majority ultimately reversed the lower court’s decision, however, after determining the remaining HCQIA prerequisite, i.e., adequate notice and hearing procedures, had not been met. The appeals court remanded the case to the lower court for further proceedings.

The district court then granted summary judgment to defendants, agreeing that, under the terms of the medical staff bylaws in effect at the time, provisional appointees clearly and unambiguously were not entitled to a hearing or appeal in the event of an adverse action against them during the provisional period. Peper appealed. On second review of the case, the appeals court found Peper’s application for provisional appointment was legally insufficient to waive his statutory due process rights under HCQIA.

The bylaw provision at issue—that actions against provisional staff do not give rise to hearing and appeal rights—could be read, at most, to have waived a right to hearing and appeal under the medical staff bylaws, the appeals court concluded.

However, “[t]here is a legally significant distinction between rights under a hospital’s or medical staff’s own bylaws and those under the HCQIA,” the appeals court said.

The appeals court concluded Peper’s HCQIA rights to notice and hearing were not waived by his alleged acknowledgment that medical staff bylaws did not afford him hearing and appeals rights.

Peper v. St. Mary’s Hosp. and Med. Ctr., No. 07CA2491 (Col. Ct. App. Dec. 11, 2008).