The Health Care Quality Improvement Act of 1986:
What Every Surgeon Needs to Know
by Gharagozloo F*, Poston R and Gruessner R
Institute for Advanced Thoracic Surgery, USA
Published 27 December, 2022
Editorial
In the 1980’s a number of bills were introduced in the United States Congress which were
designed to address “the medical malpractice crisis”. At that time, medical malpractice cases were
increasing in number, and the size of medical malpractice claims were becoming larger. Although
the medical malpractice crisis has been disputed by several observers, clearly, in the 1980’s the
increasing number of medical malpractice cases posed a significant concern to the Lawmakers. The
increase in the number and the size of malpractice claims has been attributed to unrealistic public
expectations, physician overestimation of expected results, expanded tort liability, and a lack of
meaningful governmental oversight of “bad actors. At the same time, members of Congress were
concerned about the increasing number of lawsuits which were brought against peer review groups
by physicians whose privileges had been restricted at hospitals, medical societies, and state medical
licensing boards. The Congress perceived that the lawsuits against peer review groups had a “chilling
effect” on the existentially important peer review process and its role in self-policing of the medical
profession.
The response of the Congress to these concerns was the passage of Health Care Quality
Improvement Act of 1986 (HCQIA) which was signed into effect on November 14th, 1986, and
became fully operational on September 1st, 1990. HCQIA was designed to protect the health and
safety of the public by 1) enhancing the Peer Review process through protection for peer review
members from lawsuits, and 2) providing a national repository for reported information regarding
medical malpractice payments and adverse actions involving physicians, which among other things,
would monitor the movement of incompetent or unprofessional physicians.
HCQIA
HCQIA is comprised of two parts
Part A: Immunity for Professional Review Activity:
HCQIA provides peer review members,
and those individuals who provide information to the peer review committee, with qualified
immunity from private suits under both state and federal laws. In order to provide immunity,
HCQIA stipulates compliance with the Act’s requirements which are outlined in section 11112 (a)
and are:
1. Peer review action must have been undertaken in the reasonable belief that the action
would further the quality of healthcare
2. Peer review action must have been undertaken after reasonable efforts to obtain the facts
3. Peer review action is in compliance with adequate due process requirements for notice,
and an impartial fair hearing
4. Peer review action must have been undertaken with the “reasonable” belief that the facts
warranted the action.
It is important to emphasize that the intent of HCQIA was to encourage self-policing by the
medical profession by protecting physicians who participated as members of the peer review
committee, or as witnesses in such proceedings, from retaliatory lawsuits. As a result, the immunity
protection provided by HCQIA is broad and only requires adherence to “fundamental fairness” for
the process to satisfy the Act.
In order for a physician to challenge Peer Review, Congress adopted the “preponderance of
evidence” standard for the peer review proceedings.
HCQIA does not provide immunity to hospitals outside the
peer review process in terms of being named as codefendants in a
malpractice lawsuit, or liability for negligence in granting of staff
privileges.
Part B: Reporting to the National Practitioner Data Bank:
HCQIA stipulated that as of September 1st, 1990, adverse actions
taken against physicians in terms of professional review actions
and curtailment of clinical privileges for greater than 30 days,
and malpractice payments, were to be reported to the National
Practitioner Data Bank (NPDB).
In order to further the goal of strengthening the confidential peer
review process, HCQIA does not provide the public with access to
NPDB. However, HCQIA grants attorneys access to information
contained in NPDB after two elements are met: 1. A medical
malpractice action or claim is filed against both hospital and the
practitioner, and 2. Evidence is produced at the hospital failed to
request in NPDB information on the practitioner as required by law.
General and Present-Day Concerns
A 35-year fast forward since the enactment of HCQIA reveals
unintended yet professionally threatening consequences of the
law. Over time it has become apparent that HCQIA requires some
amendments.
The original purpose of HCQIA was to improve the health and
safety of the public by encouraging reporting of incompetence and
unprofessional behavior by physicians. To achieve this goal, peer
review groups are granted qualified immunity from damages and
suits brought by physicians under federal and state law. The act is
further facilitated by the establishment of NPDB. However, since its
inception, HCQIA has been the subject of controversy.
HCQIA became law as the medical system was undergoing
a significant organizational change. In the years which preceded
the Congressional hearings in 1986, most physicians were private
practitioners who practiced in hospitals by virtue of holding
“privileges” at that hospital. In the 1980’s, there was effectively an
organizational and administrative wall between Medical Staff Office
Governance and the Hospital Administration. With this level of
separation in the business interests of the hospital, from the patient
care interests of the medical staff, the Peer Review process was a time-
honored method of physician self-policing. Therefore, protecting the
sanctity of the Peer Review and providing an even playing field was
paramount for the health and safety of the public.
Fast forward to the drastic changes in the health care system since
1986. In 2022, healthcare has been consolidated into increasingly
larger Hospital Organizations, payment for health care services has
become consolidated under more powerful governmental and private
insurance carriers, and the majority of physicians are now “employed”.
These changes have given rise to concerns that the HCQIA may have
become antiquated and used unfairly by some hospitals to effectively
engage in anti-competitive behavior against opposing physicians by
using “Sham Peer Review”. Although “Sham Peer Review” remains
a matter of interpretation, the mere concern about this concept has
taken the legitimacy of Peer Review, the cornerstone of self-policing
of physicians, back to 1986.
Nowadays, Peer Review committee members are no longer
independent. Members are typically hospital-employed physicians
that have signed an agreement to make decisions (including those
about peer review) that comport with expectations, metrics and
targets of the administration of the healthcare system. At times,
this requires members to accept the political or strategic goals of a
CEO who may want to exploit Sham Peer Review for the hospital
administration’s purposes. A CEO that selects this route becomes
immune under HCQIA from any lawsuits by a terminated physician
merely by labeling those actions “Peer Review”. Most hospital bylaws
grant the hospital the right to remove members that are unwilling to
comply with such capricious decisions. While the original intent of
immunity was to protect the judgments of physician reviewers about
the medical competency of their peers, it has now been also coopted
to protect political decisions such as in terminating “difficult”
physicians.
In addition, most hospital-appointed Peer Review committee
members lack specific training and are not experts in that specific
field. Hospitals shy away from true and fair Peer Review by mutually
agreed-upon national experts because they do not necessarily align
with the goals of hospital administration. However, the judgments of
hospital-appointed members are at significant risk of being biased by
personal or professional ties and administrative expectations. These
“unfair” issues add up to investigations that are often incompetently
performed with tremendous adverse consequences to the practitioner.
Currently, the remedy for an accused physician facing grave
professional consequences as the result of a violation of his
constitutional rights is to file a lawsuit against perceived Sham Peer
Review. But the hospital has a very potent ace-in-the-hole. Its legally
guaranteed immunity as per HCQIA allows hospitals to keep their
actions confidential and information privileged from legal discovery.
It also allows hospital administrators to officially distance themselves
from the accused physician for several reasons and from a process
they know was corrupt or fear of being blamed for a negative outcome.
Although legal claims for retaliatory or “Sham” Peer Review,
have had little success, a recent California Supreme Court decision
may have lasting ramifications. In Bonni v. St Joseph Health System,
California Medical Association filed an amicus curiae brief which
sought to ensure protection for physicians on both sides of the Peer
Review process and to preserve the maintenance of high professional
standards and the protection of patient welfare. The brief sought to
provide the court with a practical, realistic depiction of the problems
with the Peer Review system and presented a solution that protected
physicians due process rights while also insulating medical staffs and
medical executive committees from harassing frivolous lawsuits. In
its decision the California Supreme Court concluded that peer review
is a protected activity, but those protections are limited to speech and
petitioning activity taken in conjunction with peer review. The court
proposed a balanced position stating that while protection extends to
statements made in the peer review proceeding and to the required
reporting of any decision to the medical board, the protection does
not apply to final disciplinary decisions. The court reasoned that such
disciplinary decisions are disconnected from speech and petitioning
activities thereby giving physicians who claim to be victims of “Sham
Peer Review” their day in court.
Some authors have proposed that the notion of fairness in the
medical community will never be achieved unless the provisions of
HCQIA are amended to respond to the changing times. Seven areas
of change have been proposed: 1) the burden of proof should be
placed on the accusers, 2) “absolute immunity” should be withdrawn
from the members of the peer review committee who are proven
to have acted in malice, for anticompetitive purpose, or engaged in
fraudulent behavior, 3) standardize guidelines from the literature and
relevant clinical practice should be mandated to be used by the peer
review committees, 4) peer review committees should be comprised of
physicians in the same specialty as the physician undergoing review.
5) “Due Process” as is mandated under the US Constitution and is
used in other legal proceedings, and the presumption of innocence
until proven guilty, should be afforded to every physician undergoing
peer review 6) physicians under review should have the right for
representation by an attorney in all stages of the peer review process,
7) state medical boards should be mandated to review all hospital
adverse actions toward physicians, and that adverse action only be
reported after the state board proceedings.
In summary, improving HCQIA through appropriate and
present-day amendments as outlined will benefit not only physicians
and hospitals but quality and safety standards in all aspects of
healthcare.
Conclusion
The Peer-Review Process is a fundamental aspect of medicine.
It allows the profession to maintain the highest standards of quality
and professional behavior and insures the highest level of quality
and safety for patients. Most physicians are not familiar with the
provisions of HCQIA, and unfortunately only become aware of the
law and its provisions if they become a subject of peer review. Given
the existential nature of the reporting of adverse actions, it is crucial
for every physician to be familiar with HCQUA and work to improve
it with the goal of fairness for all physicians, and the highest standards
of quality for the profession. The time has come to correct HCQIA
deficiencies and loopholes and make peer review truly objective and
fair as the original intention was.
Remedy Publications LLC., | http://surgeryresearchjournal.com
World Journal of Surgery and Surgical Research
2022 | Volume 5 | Article 14341
The Health Care Quality Improvement Act of 1986:
What Every Surgeon Needs to Know
OPEN ACCESS
*Correspondence:
Farid Gharagozloo, Institute for
Advanced Thoracic Surgery, 6718 Lake
Nona Blvd. Orlando, Florida 32827,
USA,
E-mail: rainer.gruessner@downstate.
edu
Received Date: 30 Nov 2022
Accepted Date: 23 Dec 2022
Published Date: 27 Dec 2022
Citation:
Gharagozloo F, Poston R, Gruessner R.
The Health Care Quality Improvement
Act of 1986: What Every Surgeon
Needs to Know. World J Surg Surgical
Res. 2022; 5: 1434.
Copyright © 2022 Gharagozloo F. This
is an open access article distributed
under the Creative Commons Attribution
License, which permits unrestricted
use, distribution, and reproduction in
any medium, provided the original work
is properly cited.