In 1987, the Washington legislature enacted RCW 7.71, and adopted the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101-11152, to protect medical peer review. RCW 7.71 also created a private cause of action for physicians “occasionally hurt by peer review decisions”, because the Legislature concluded that peer review decisions “based on matters unrelated to quality and utilization review need[ed] redress”. RCW 7.71 sought to balance the benefits of peer review to the public against the harms caused by peer review decisions not related to a physician’s competence or professional conduct.
In Cowell v. Good Samaritan, the Washington Court of Appeals destroyed this balance, and joined other jurisdictions that have protected abuses of the peer review process under HCQIA by holding defendants immune for a peer review action that did not comply with HCQIA’s fairness and reasonableness standards. The court also construed RCW 7.71 to permit defendants, held immune under HCQIA, to recover attorneys’ fees and costs under the mandatory fee-shifting provision of RCW 7.71.030(3). The court’s construction of RCW 7.71 is inconsistent with the plain language of the statute, will deter physicians from even attempting to defend themselves against questionable peer review actions, and defeats the remedial purpose of RCW 7.71.
This article argues that RCW 7.71 can and should be amended not only to prevent misapplication of the statute’s fee-shifting provision but also to prevent peer review abuses from being protected under HCQIA. This can be achieved by amending the definitional and fee-shifting provisions of the statute. Since legislative intent is the touchstone of the U.S. Supreme Court’s preemption analysis, the legislative history of HCQIA is reviewed to demonstrate that Congress repeatedly cut back the immunity provisions in the original bill to ensure that HCQIA would not be used to protect peer review abuses. This legislative history, and respect for federalism, make it extremely unlikely that the U.S. Supreme Court would construe HCQIA as preempting state laws intended to protect physicians from abuses of the peer review process. The article concludes by arguing that RCW 7.71 should be amended to prevent peer review abuses because the legal protection currently being afforded these abuses under HCQIA not only harms competent physicians but is detrimental to the peer review process itself, and ultimately to public safety.
- Healthcare Quality Improvement Act,
- RCW 7.71,
- Medical Peer Review
Available at: http://works.bepress.com/nicholas_kadar/1/