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11 Nw. J. L. & Soc. Pol'y 1 (2016)

handle is hein.journals/nwjlsopo11 and id is 1 raw text is: 

Copyright 2016 by Northwestern University Pritzker School of Law       Vol.  11, Issue 1 (2016)
Northwestern Journal of Law and Social Policy

                    Hospital Quality Improvement:

           Are Peer Review Immunity, Privilege, and

               Confidentiality in the Public Interest?

                          Michael   D.  Benson,  MD,   FACOG*
                             Jordan B. Benson, CPA, JDt
                                Mark   S. Stein, JD,  PhD*


       Participants in the hospital peer review process enjoy enormous protections under federal
and  state law.  We  contend  that  these protections-immunity,   evidentiary privilege, and
confidentiality-impede  quality improvement in health care. As a result of these protections, the
current peer review system produces both improper severity and improper leniency. We propose
to reform the system by eliminating all federal and state statutory protections for the peer review
process. A public process that is open to review and open to challenge by all interested parties
will better promote health-care quality.

                                   I.      INTRODUCTION

       Participants in the hospital peer review process enjoy enormous protections under federal
and state law. The federal Health Care Quality Improvement Act of 1986 (HCQIA) provides
qualified immunity to hospitals and members of peer review committees for professional review
action[s] that may result in the loss of a doctor's clinical privileges.' The great majority of states
have statutes that likewise provide some degree of peer review immunity.2 The great majority of
states also make peer review proceedings privileged-inadmissible in evidence and protected
from discovery-and   mandate that peer review proceedings be kept confidential.
       In addition to providing immunity to participants in the peer review process, the HCQIA
established a National Practitioner Data Bank (NPDB).3 Hospitals must report to the NPDB
when  they take certain actions against doctors, such as revoking their clinical privileges.4
       In this article, we argue that the federal and state protections lavished on the peer review
process are inimical to that process, impede full and effective disclosure to the NPDB, and
impede  quality improvement in health care. The quality assurance function of the peer review

*Clinical Associate Professor, Northwestern University Feinberg School of Medicine, Department of Obstetrics and
? LLM (Tax) Student, Northwestern University School of Law, Class of 2015.
Associate, Cornfield and Feldman, Chicago, IL.
1 See 42 U.S.C. § 11111(a)(1) (2012).
2 See infra Appendix.
3 See 45 U.S.C. § 11134; 42 U.S.C. § 11133; 42 U.S.C § 11134 (2012).
4 45 U.S.C. § 11134(a). The information required to be reported under sections 11131, 11132(a), and 11133 of this
title shall be reported regularly (but not less often than monthly) and in such form and manner as the Secretary


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