Immunity and Confidentiality: The Legal Significance of Peer Review
For most healthcare organizations, conducting medical staff peer reviews is a central component of quality management. The majority of insurance companies, accreditors, and regulatory bodies require consistent peer review as part of the credentialing process. Although peer review is widely practiced as an industry standard, its implications are often misunderstood.
Most health organizations understand peer review within the scope of the American Medical Association’s definition (AMA). The AMA states, “The foremost objective of the medical peer review process is the highest quality of medical care as well as patient safety.”1 While this definition serves well in illustrating the process’ outcome, its subjects are more a byproduct of state and federal law.
Legislation Defines Peer Review
In comparing the scope of federal and state laws, federal laws are largely designed to govern certain protections and liabilities while most state laws define the subjects:
- Who receives and conducts the review
- The frequency of reviews
- What is being reviewed
- The procedures of the review
These definitions are very important as they play a major role in how protections and liabilities are applied, specifically immunity and confidentiality.
State Immunity vs. Federal Immunity
Consider what happens when a peer review reveals potentially harmful information. It is always in your healthcare organization’s best interest to seek immunity from civil monetary damages. It’s the more common immunity form, freeing the party in question from any financial liability. However, immunity isn’t always a given protection. Most states have laws concerning peer reviews that grant protections if the peer review was performed in good faith. Simply put, this is intended to encourage better quality performance.
Federal immunity is afforded by the Health Care Quality Improvement Act (HCQIA) and unlike state immunity, there are four major requirements that must be met:
- Was the peer review conducted to improve the quality of care?
- Was there a reasonable investigation of all available information in the peer review process?
- Was the course of action reasonable in light of what the investigation found?
- Were notice and hearing rights extended to the affected practitioner?
Another consideration: the standard for federal immunity is much higher than that of state immunity, where immunity is earned through good will. In acquiring federal immunity, it is much more important that all procedures meet the four requirements. Otherwise, the case will need to be contested in court for civil monetary damages.
The Umbrella of Confidentiality
Maintaining a high level of confidentiality is also crucial to improving your quality of care. Challenges of confidentiality will review how well information generated during peer reviews is protected. It is important to remember that confidentiality is not an option.
In today’s healthcare landscape, every regulatory agency and insurance organization is making decisions based on quality of care. To prevent peer reviews from being potentially punitive, it’s important to maximize confidentiality around legitimate peer review activities.
A breach of confidentiality could lead to sanction and immunity loss. Similar to immunity, upholding confidentiality is highly enforced in both state and federal courts. However, for matters where cases are prosecuted by the state, there are many exceptions to the law.
Understanding the sensitive nature of how confidentiality laws apply to peer review is crucial. The majority of state laws concerning confidentiality are older than the peer review process, which means there are many exceptions and legal nuances. Most states only allow limited access to government investigations. There are also highly varied laws about how peer review information is managed internally among dependent departments like Human Resources.
Understanding how state and federal laws factor into your peer review process is imperative to improving quality of care, without seeming punitive. Where most other regulatory agencies and actions occur periodically, a well-conducted peer review will provide a micro-view of how physicians contribute to the quality of care.
With risks of unfair physician hearings and civil monetary penalties always looming over your head, it’s an uphill battle to implement a consistent peer review process. We take complex paper policies and automate them into workflows for repeatable success. To learn more about Peer Review software by symplr, Schedule a Demo Now!
You can also gain unique insights into the legal implications of peer review with our webcast series, Why and When to Use Peer Review: Understanding the Legal Significance, Benefits, and Challenges. This webcast is presented by special guest Brian C. Betner, Esq., Vice Chair of the medical staff credentialing and peer review practice group of the American Health Lawyers Association.
About Tracey Meyer
Tracey Meyer is responsible for all symplr software product management, and was in the Cactus Software product development group for 2 years before being selected to helm the product management team for symplr. She brings 20 years of business and technical software experience building products to simplify and enhance the user experience for her clients.