In response to egregious cases of medical malpractice, to many hospitals’ failure to properly hold physicians accountable, and to claims by physicians that the peer review process was often weaponized for political or commercial purposes, Congress enacted the Health Care Quality Improvement Act (HCQIA) in 1986. The law was intended to protect patient safety and peer review members, and to prevent incompetent physicians from moving to new hospitals by monitoring all doctors through a national database that reports malpractice events.
Unfortunately, the HCQIA has been manipulated to shield unethical or incompetent doctors and to target good physicians who have acted as strong patient advocates on issues adverse to hospitals’ financial interests. The law has also been used to influence hospital human resource policies, which are well beyond the act’s original intention. Nearly 40 years after its passage, the HCQIA desperately needs serious revision.
The HCQIA provides peer review committee members and those who provide information to committees with qualified immunity from state and federal suit. This was intended to encourage self-policing by the medical profession by foreclosing retaliatory lawsuits against these members and witnesses. A second component of HCQIA, the National Practitioner Data Bank (NPDB), was created to track adverse actions taken against physicians and malpractice payments, ensuring accountability.
However, profound changes in the nation’s health care system since the implementation of HCQIA have enabled this process to be abused in the opposite direction. Consolidation into ever larger hospital organizations under gargantuan governmental and private health insurance carriers and the increasing loss of physician independence have allowed some hospitals to use this shield for patients as a sword against whistleblowing physicians or medical competitors using “sham peer review.”
As explained in a 2022 World Journal of Surgery and Surgical Research editorial entitled “The Health Care Quality Improvement Act of 1986: What Every Surgeon Needs to Know”:
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.
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.
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The potential harms of this shift were documented in a series of 2003 articles titled “The Cost of Courage: How the tables turn on doctors”:
While it’s unknown exactly how often physicians are targeted for patient advocacy, a 1998 survey of 448 emergency physicians across the United States found that 23 percent had either lost a job, or were threatened with it, after they’d raised quality-of-care concerns.
The silencing of whistleblower physicians hasn’t received the kind of intense publicity malpractice reform arguments have. … The irony of this growing trend is that hospitals are silencing doctors by using a piece of federal legislation that was meant to protect patients.
The Center for Peer Review Justice, Inc states,
Since the advent of managed health care in this country, physicians are now motivated by everything from the accumulation of vast numbers of patients to the formation of large medical groups whose sole purpose is to monopolize the health care market in a single geographic area. These large medical groups often possess a significant number of physicians who either dominate powerful committees or control the fate of economic competitors by using a hospital peer review system to deny other physicians medical staff privileges. … As a result, a once well-intentioned principle of physicians monitoring other physicians has been transformed into a means of assassinating one’s economic and political rival.
The HCQIA is overdue for an overhaul. Overbroad immunity for peer review committees has harmed patient care and stymied medical professionals’ efforts to address poor management — the exact opposite of the legislation’s laudable intentions. The HCQIA must be amended to improve effectiveness, including by better protecting physician and staff whistleblowers, holding peer review members legally accountable when the act’s protections are abused, prohibiting the use of proceedings to silence doctors for allegedly “disruptive behaviors,” and ensuring protections of due process and other civil rights.
