A December 2022 Editorial Review of the HCQIA of 1986

A December 2022 Editorial Review of the HCQIA of 1986

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


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


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 14
th, 1986, and
became fully operational on September 1
st, 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 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

Peer review action must have been undertaken after reasonable efforts to obtain the facts
Peer review action is in compliance with adequate due process requirements for notice,
and an impartial fair hearing

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


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


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”


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



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 1434
The Health Care Quality Improvement Act of 1986:

What Every Surgeon Needs to Know



Farid Gharagozloo, Institute for

Advanced Thoracic Surgery, 6718 Lake

Nona Blvd. Orlando, Florida 32827,


E-mail: rainer.gruessner@downstate.


Received Date
: 30 Nov 2022
Accepted Date
: 23 Dec 2022
Published Date
: 27 Dec 2022

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.

© 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.


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