Hospital Peer Review Standards and Due Process: Moving from Tort Doctrine Toward Contract Principles Based on Clinical Practice Guidelines

Abstract

In this Article, a fifty-state survey is provided of the standard of care measures being used to evaluate physician competence in peer review hearings over the termination physician staff privileges. This survey reveals that a wide range of exceptionally vague 'standard of care' measures are being relied upon during the hearing process.

Surprisingly, one of the standards most often utilized is a relic of the tort system, the locality rule, long-ago rejected by almost every state as undermining quality of patient care. Another oft-relied upon standard is even more regressive, creating a "super-locality rule" by relying on the standard of care as practiced within the hospital. This standard runs directly contrary to the efforts of the quality of care movement to establish a national standard of care. This Article examines the impact of all of these standards on the various stakeholders in the proceedings and on the quality of patient care. This examination is made in the context of the immunity from suit that the Health Care Quality Improvement Act ("HCQIA") bestows upon hospitals. The Article demonstrates that these vague standards bring with them a whole bag of rules and premises, both legal and evidentiary, that are detrimental to the quality of care goals of peer review and HCQIA. These vague standards also violate rule of law principles grounded in fundamental fairness/due process concerns. As a result of HCQIA's grant of immunity, this Article points out that a physician's ability to practice medicine can be unfairly impacted through peer review without any meaningful judicial review and without advancing quality of patient care.

This Article proposes that hospitals abandon these vague, constitutionally suspect standards and adopt express contractual terminology, such as 'expectations of performance.' Precise expectations of performance can be defined by reference to specifically chosen and uniquely tailored Clinical Practice Guidelines ("CPGs") allowing for the practice of evidence-based, rather than eminence-based, medicine. This proposal will eliminate both the unfairness of the current system and its negative impact on quality of care. By implementing evidence-based, national standards, peer review can become an effective system of accountability for poor physician performance.

Keywords: quality control, hospital peer review, quality patient care, medical malpractice, hospital staff privileges, standard of care, quality control, quality improvement