1 See Morter, Christopher S., Note, The Health Care Quality Improvement Act of 1986: Will Physicians Find Peer Review More Inviting?, 74 Va. L. Rev. 11151, 1117 (1988)CrossRefGoogle Scholar. Peer review takes place in health care settings other than hospitals. For example, it is conducted by nonhospital institutional providers such as freestanding surgery centers, and by third-party payers of health care expenses. See Bierig, Jack R. & Portman, Robert M., The Health Care Quality Improvement Act of 1986, 32 St. Louis U. L.J. 977, 979 n.17 (1988)Google Scholar. Hospitals, however, are the most common place where peer review takes place, and this Article is limited to an analysis of hospital based peer review. State laws vary greatly in the application of the protection statutes to such other settings. See id. at 983-84. Therefore, no generalization should be made to nonhospital settings from the discussion about hospital peer review.

2 See, e.g., Ga. Code Ann. § 43-39-20 (1998) (providing immunity to any psychologist who “testifies in good faith .. . in any proceeding relating to a licensee's or applicant's fitness to practice psychology”); HAW. Rev. STAT. § 67ID-10 (1998) (affording immunity to any professional review body meeting the requirements set forth in the statute).

3 See, e.g., ALA. Code § 34-24-58 (1998); IDAHO Code § 39-1392b (1998).

4 For examples of state statutes limiting the liability of participants on medical peer review committees, see Mo. Stat. § 537.035(3) (1998) (providing civil immunity for peer review committee members and for persons providing information to peer review committees “so long as the acts are performed in good faith, without malice and are reasonably related to the scope of inquiry of the peer review committee”); 63 PA. CONS. Stat. § 425.3(a)(l)-(2) (1998) (providing criminal and civil immunity for persons providing information to peer review committees, unless “(1) such information is unrelated to the performance of the duties and functions of such review organization, or (2) such information is false and the person providing such information knew, or had reason to believe, that such information was false”). The Pennsylvania statute also created civil and criminal immunity for peer review committee members subject to their exercise of “due care” and provided that their actions are not “motivated by malice.” See id. § 425.3(b)(l)-(2).

5 See Darricades, Jeanne, Comment, Medical Peer Review: How is it Protected by the Health Care Quality Improvement Act of 1986?, 18 J. Contemp. L. 263, 263 (1992)Google Scholar. See generally Dorothy Duffy & Martha C. Romney, Medicine and Law: Recent Developments in Peer Review and Informed Consent, 26 Tort & Ins. L.J. 331 (discussing the scope of protection against discovery provided by various states’ medical peer review statutes). For an example of a state statute limiting the discoverability of medical peer review information, see Ariz. Rev. Stat. § 36-445.01 (1998) (providing that all peer review information will be confidential and nondiscoverable except in “proceedings before the board of medical examiners, or the board of osteopathic examiners, or in actions by an individual health care provider against a hospital or center or its medical staff arising from discipline of such individual health care provider or refusal, termination, suspension or limitation of his privileges”).

6 See Scott, Charity, Medical Peer Review, Antitrust and the Effect of Statutory Reform, 50 Md. L. Rev. 316, 329-32 (1991)Google Scholar.

7 See infra Part IV. A (discussing recent developments in the area of immunity and privilege laws).

8 See infra Part IV.E (discussing results of this study).

9 Congress established the NPDB to provide for effective peer review and interstate monitoring of incompetent physicians. See Julie Barker Pape, Physician NPDBs: The Public's Right to Know Versus The Physician's Right to Privacy, 66 FORDHAM L. Rev. 975, 976 (1997). The NPDB, a computerized national directory, contains information on malpractice judgments, settlement payments, disciplinary actions, and license suspensions and revocations. See id. at 976-77. Thus, it serves as an information clearinghouse that peer review boards can check when evaluating a physician's ability to practice quality medicine. See id. at 977.

10 See Tables 5 & 6.

11 See infra Part III.B (discussing the policy rationale for peer review statutes).

12 See, e.g., Cal. HEALTH & SAFETY Code § 1370 (West 1995); ME . Rev. Stat. Ann. tit. 24, § 2511 (West 1995); Mo. Ann. Stat. § 537.035 (West 1995). See also Susan L. Horner, The Health Care Quality Improvement Act of 1986: Its History, Provisions, Applications and Implications, 16 Am. J. L. & Med. 455, 467 (1990) (noting that Health Care Quality Improvement Act (HCQIA) “promotes professional review activity by providing peer review members with qualified immunity from private [lawsuits]”).

13 See, e.g., Iowa Code Ann. § 147.135 (1995); KY. Rev. Stat. Ann. § 311.377(2) (Banks- Baldwin 1998); 63 PA. CONS. Stat. Ann. § 425.4 (West 1995).

14 See, e.g., Ohio Rev. Code Ann. §2305.251 (West 1995); R.I. Gen. Laws §§ 5-37.3-7 (1995).

15 See, e.g., N.C. Gen. Stat. § 90-14.13 (1995); OR. Rev. Stat. § 441.820 (1995).

16 See, e.g., Cal. Bus. & Prof. Code § 805 (West 1995); N.J. Stat. Ann. § 26:2H-12.2 (West 1995).

17 42 U.S.C. §§ 11101-11152 (1994).

18 See H.R. Rep. NO . 104-879, at 63 (1997); Marilee Frazer, Note, Patrick v. Burget and the Health Care Quality Improvement Act: The Future Scope of Peer Review, 35 Wayne L. Rev. 1181, 1192(1989).

19 See Hickson, Gerald B. et al., Development of an Early Identification and Response Model of Malpractice Prevention, 60 Law & Contemp. Probs. 7, 28 (1997)CrossRefGoogle Scholar.

20 See Pape, supra note 9, at 976.

21 The final regulations implementing HCQIA became effective on September 1, 1990. See 45 C.F.R. §60.5(1997).

22 See 42 U.S.C. § 11133(a)(1) (1994); see also infra Part IV.C.l (providing a detailed description of HCQIA's reporting requirements).

23 Arguably, peer review does not need to result in adverse actions to be effective. The most effective peer review program may be one that identifies a physician's problems early on and encourages remedial measures so that actions against the physicians do not become necessary. Given the low levels of peer review activity taking place compared with the low rate of malpractice actions, state disciplinary actions and other measures of physician incompetence this study adopted as a basic premise that increased levels of peer review would result in increased numbers of adverse actions being reported to the NPDB.

24 See infra Part IV.D (describing the study methodology).

25 See Morter, supra note 1, at 1119-20; Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined than Real, 7 J.L. & Health 169, 171 (1992-1993); Arthur Owens, Peer Review: Is Testifying Worth the Hassle?, Med. Econ., Aug. 20, 1984, at 167.

26 See Miller, Barbara K., Defending the System: Application of the Intraenterprise Immunity Doctrine in Physician Peer Review Antitrust Cases, 75 TEXAS L. Rev. 409, 432 (1996)Google Scholar.

27 See Scheutzow & Gillis, supra note 25, at 170.

28 See id. at 171.

29 See id. at 188-89.

30 See id. at 187.

31 For the classification of states based on the level of statutory protection offered to participants in the peer review process, see Appendix B.

32 See discussion infra Part V.E (noting the lack of disincentives under federal law for failing to report adverse peer review decisions to the NPDB).

33 HCQIA, for example, requires that reports be made to the NPDB via state boards of medical examiners, which are defined as the boards in a state responsible for licensing physicians. See 42 U.S.C. § 11151 (2) (1994). The state boards have an obligation to forward the report to the NPDB. See 45 C.F.R. § 60.5(c) (1998). Therefore, it is unlikely that a hospital would make a report to the required state agency and not also make a report to the NPDB. If underreporting of adverse peer review reports is occurring, such a phenomenon is probably happening with equal frequency with respect to both state agencies and the NPDB.

34 See discussion infra Part IV.E (discussing the ambiguities confronting hospitals in determining whether an action by a peer review board must be reported to the NPDB).

35 See Horner, supra note 12, at 463-66 (noting that the failure of medical peer review results in part from physicians being reluctant to participate in peer review activities due to the possibility that lawsuits might be brought against the medical staff for peer review actions); Ronald L. Goldman, The Reliability of Peer Assessments of Quality of Care, 267 JAMA 958, 958 (1992) (contending that considerable doubt exists regarding peer assessment because “physician agreement regarding quality of care is only slightly better than the level expected by chance”).

36 See Scheutzow & Gillis, supra note 25, at 173.

37 See id. at 172.

38 See Darricades, supra note 5, at 270. At times, outside experts not on the hospital's medical staff may be brought into the process. See id. at 268.

39 See id. at 263; see, e.g., Murray G. Sagsveen & Jennifer L. Thompson, The Evolution of Medical Peer Review in North Dakota, 73 N.D. L. Rev. 477, 478 (1997).

40 See Darricades, supra note 5, at 269-70.

41 The Joint Commission on Accreditation of Hospitals was created through the combined efforts of the American College of Surgeons, the American Medical Association, the American College of Physicians and the American Hospital Association. See id. at 269.

42 See id.; see also, B. Abbott Goldberg, The Peer Review Privilege: A Law in Search of a Valid Policy, 10 Am. J.L. & Med. 151, 151 (1984) (stating that one of Joint Commission on Accreditation of Healthcare Organization's (JCAHO) accreditation criteria is to require hospitals to organize peer review boards).

43 See Griffith, Richard L. & Parker, Jordan M., With Malice Toward None: The Metamorphosis of Statutory and Common Law Protections for Physicians and Hospitals in Negligent Credentialing Litigation, 22 Tex. Tech L. Rev. 157, 158 (1991)Google Scholar.

44 See id. at 164-65.

45 See, e.g., OHIO Rev. Code Ann. § 2305.25(A) (West 1998) (granting privilege protection to medical societies and third-party payers performing peer review activities).

46 See Griffith & Parker, supra note 43, at 165.

47 See id. at 164-65. The medical staff may seek input from an applicant's peers to assist the medical staff in making its determinations. See id.

48 See Morter, supra note 1, at 1117.

49 See id.

50 Cholecystotomy is a surgical incision in the gallbladder specifically for exploration or for the removal of the gallbladder. See Merriam-Webster Med. Desk Dictionary 134 (1996).

51 Laparoscopic cholecystotomy is an operation involving a visual exploration of the inside of the abdomen using a fiber optic instrument. See id. at 426.

52 See, e.g., American Academy of Hospital Attorneys, American Hospital Association, Peer Review Guidebook §§2.3.3, .3.21 (1995).

53 See Lowell C. Brown et al., Facing the Limits on Uses of Medical and Peer Review Information: Are High Technology and Confidentiality on a Collision Course?, 19 Whittier L. Rev. 97, 104-05 (1997).

54 See id.; Scibetta, Paul L., Note, Restructuring Hospital-Physician Relations: Patient Care Quality Depends on the Health of Hospital Peer Review, 51 U. Pitt. L. Rev. 1025, 1029(1990)Google Scholar.

55 See Brown et al., supra note 53, at 105.

56 See id. (emphasizing the need to monitor physicians’ practices outside of the credentialing process).

57 See Scibetta, supra note 54, at 1032. Both JCAHO and the American Osteopathic Association (AOA) require hospitals to reappoint physicians to the medical staff every two years and to review the physician's performance and credentials at such reappointment. See Joint Commission on Accreditation of Healthcare Organizations, Comprehensive Accreditation Manual for Hospitals MS.5.11 (1996) [hereinafter JCAHO Manual]; American Osteopathic Association, Accreditation Manual for Hospitals VI.D.2 (1998) [hereinafter AOA MANUAL]. The Medicare “Conditions of Participation” also require hospitals to have an organized medical staff as a prerequisite for receiving certification from the Medicare program. 42 C.F.R. § 482.22 (1999).

58 See Brown et al., supra note 53, at 105.

59 See Scheutzow & Gillis, supra note 25, at 172-73. Limitations on physicians’ privileges occur in various forms, such as requiring the physician to be proctored or take additional training in an area or restricting a physician from performing certain procedures or treatments in an institution. See Robert S. Walzer & Stephen Miltimor, Mandated Supervision. Monitoring, and Therapy of Disciplined Health Care Professionals, 14 J. Legal Med. 565, 570-75 (1993).

60 See Kara M. McCarthy, Note, Doing Time for Clinical Crime: The Prosecution of Incompetent Physicians as an Additional Mechanism to Assure Quality Health Care, 28 SETON HALL L. Rev. 569, 576,583(1997).

61 See id. at 576.

62 See id. at 578.

63 See Morter, supra note 1, at 1118. As noted by the Supreme Court of Minnesota: “[T]he wisdom of [a] legislative policy [that encourages peer review] is obvious. Our ignorance of such multisyllabic terms found in the present record as ‘parathyroidectomy’ and ‘aneurysmectomy’ is no less than that shared by the general public.” Campbell v. St. Mary's Hosp., 252 N.W.2d 581, 587 (Minn. 1977).

64 See Office of Inspector General, U.S. Dep’t of Health and Human Services, Hospital Reporting to the National Practitioner Data Bank 3 (1995) [hereinafter OIG REPORT].

65 See id. at 4.

66 See, e.g., OHIO Rev. Code Ann. § 4731.22(B) (West 1998); GA. Code Ann. § 43-34-37 (1998). In addition, convictions of misdemeanors and felonies unrelated to a physician's medical practice may also give rise to disciplinary action. See OHIO Rev. Code Ann. § 4731.22(B)(9), (13).

67 The OIG Report also raised concerns about whether: (1) the seemingly low numbers of reported adverse peer review actions indicate that hospitals were not taking an adequate number of disciplinary actions against physicians, or (2) hospitals were taking disciplinary actions but failed to report such actions to the NPDB. See OIG Report, supra note 64, at B-l (comment of the Public Health Service concerning the OIG Report).

68 See id. at 4.

69 See id. at B-l.

70 See Scibetta, supra note 54, at 1029 (suggesting that “[p]eer review is an on-going process whereby physician practice is monitored to identify patterns of unacceptable patient care”).

71 See John D. Blum, Medical Peer Review, 38 J. LEGAL EDUC. 525, 525 (1988).

72 See, e.g., Rodney Hayward et al., Evaluating the Care of General Medicine Inpatients: How Good is Implicit Review?, 118 ANNALS INTERNAL Med. 550, 550 (1993) (discussing how the wide variety of practice norms frustrates reliability of peer judgment); Haya Rubin et al., Watching the Doctor-Watchers, How Well Do Peer Review Organization Methods Detect Hospital Care Quality Problems, 267 JAMA 2347, 2349, 2350 (1992) (enumerating factors that raise doubts concerning the accuracy of the peer review process).

73 Goldman, supra note 35, at 958.

74 See Morter, supra note 1, at 1119-20; Owens, supra note 25, at 167.

75 See, e.g., ARIZ. Rev. Stat. § 36-445.02 (1998) (granting immunity to individuals who participate in the peer review process from civil damages and legal actions); DEL. Code Ann. tit. 24, § 1768 (1998) (granting immunity to the organizations or individuals engaging in “the review of medical records, medical care and physicians’ work, with a view to the quality of care”).

76 See Scheutzow & Gillis, supra note 25, at 169-70.

77 See id. at 192.

78 See 42 U.S.C. § 11111(a)(1) (1994).

79 W. Page Keeton et al., Prosser & Keaton on the Law of Torts § 131, at 1055 (5th ed. 1984).

80 Ohio, for example, amended its statute in 1996 to expand the privilege for peer review information from hospital peer review committees to peer review committees of a variety of health care organizations. See Ohio Rev. Code Ann. § 2305.251 (West 1997).

81 See generally Tambone v. Mem'l Hosp. for McHenry County, Inc., 825 F.2d 1132 (7th Cir. 1987) (discussing the liability of hospital and hospital peer review committee members for alleged antitrust violations); Dorn v. Mendelzon, 242 Cal. Rptr. 259 (1987) (discussing the liability of two hospitals and hospital administrators for defamation).

82 See Jenkins v. Wu, 468 N.E.2d 1162, 1168 (Ill. 1984).

83 See, e.g., N.Y. Pub. Health Law § 2805-m(3) (McKinney 1995); N.C. Gen. Stat. § 131E-95(a) (1995); Wash. Rev. Code Ann. § 4.24.250 (West 1995). As Representative David Waxman stated during the House of Representatives’ debate on HCQIA, “nearly every witness indicated that the threat of litigation under current law is a major barrier to effective peer review.” 132 Cong. Rec. 33,118 (1986) (emphasis added).

84 See 42 U.S.C. § 11101 (1994).

85 Id.

86 See Abraham, Kenneth S. & Weiler, Paul C., Enterprise Medical Liability and the Evolution of the American Health Care System, 108 Harv. L. Rev. 381, 392 (1994)CrossRefGoogle Scholar.

87 See Sagsveen & Thompson, supra note 39, at 480.

88 See Fed. R. Civ. P. 26(b)(1).

89 See Colo. Rev. Stat. Ann. § 12-36.5-104 (West 1995); K.Y. Rev. Stat. Ann. § 3111.377 (Michie 1995); VA. Code Ann. § 8.01-581.16 (Michie 1995).

90 Oviatt v. Archbishop of Bergan Mercy Hosp., 214 N.W.2d 490, 492 (Neb. 1974) (quoting Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249, 250 (1970)).

91 See Trinity Med. Ctr., Inc. v. Holum, 544 N.W.2d 148, 155 (N.D. 1996); see also Tenn. Code Ann. § 63-6-219 (1998) (recognizing that “confidentiality is essential both to effective functioning of peer review committees and to continued improvement of the care and treatment of patients”).

92 See Scheutzow & Gillis, supra note 25, at 171.

93 See Owens, supra note 25, at 167; Horner, supra note 12, at 481.

94 See Owens, supra note 25, at 168. Unfortunately, state and federal legal protections can probably do little to protect peer review participants from the loss of referrals and other informal retribution.

95 See Trinity Med. Ctr., 544 N.W.2d at 155.

96 There is evidence that Congress passed HCQIA in large part to address the concerns of antitrust lawsuits being brought against peer review participants. An illustrative case is that of Patrick v. Burget, 486 U.S. 94 (1988). Dr. Timothy Patrick declined an invitation to become a partner in the Astoria Clinic, a private group medical practice in Oregon. See id. at 96. Instead, he established an independent practice that competed with the practice of the clinic. See id. The only hospital in Astoria was the Columbia Memorial Hospital. See id. Dr. Patrick was a member of the medical staff of the hospital, and a majority of the medical staff members were employees or partners of the Astoria Clinic. See id. After Patrick refused to join the Astoria Clinic, one of the clinic's partners filed a complaint with the executive committee of the Columbia Memorial Hospital's medical staff asserting that Patrick had left a patient in the care of a recently hired associate, who then left the patient unattended. See id. at 96-97. Two years later, the hospital's medical staff recommended that Patrick's privileges be terminated because the care he rendered was below hospital standards. See id. at 97. During the pendency of the peer review proceedings, Patrick filed a lawsuit in federal court alleging antitrust violations by the partners of the Astoria Clinic. See id. The jury awarded him $650,000 in damages, which the court, as required by law, trebled. See id. at 98. The U.S. Court of Appeals for the Ninth Circuit reversed. See id. The appellate court found substantial evidence that the clinic partners used the peer review process to disadvantage a competitor rather than to improve patient care, but their conduct in the peer review proceedings was immune from antitrust scrutiny because it fell within the state action exemption from antitrust liability. See id. On appeal, the U.S. Supreme Court reversed, concluding that traditional medical staff peer review procedures are subject to antitrust scrutiny. See id. at 105. It should be noted, however, that HCQIA would not bar recovery in Patrick because the Ninth Circuit found that the peer review process was used to disadvantage a competitor rather than for good faith review of physician competence. See Elizabeth Ryzen, The National Practitioner Data Bank: Problems and Proposed Reforms, 13 J. LEGAL Med. 409, 411 n.8 (1992).

97 See Scott, supra note 6, at 324; Horner, supra note 12, at 457 n.7.

98 See Ryzen, supra note 96, at 414.

99 See Scott, supra note 6, at 332.

100 See id. at 333.

101 See id.

102 See infra notes 144-46 and accompanying text.

103 See Nazareth Literary & Benevolent Inst. v. Stephenson, 503 S.W.2d 177, 179 (Ky. 1973); Charles David Creech, The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C. L. Rev. 179, 179(1988).

104 See Goldman, supra note 35, at 958 (concluding that peer reviews are generally unreliable). Over a 24-year period, only 17 studies evaluating the effectiveness of peer review were found. See id.

105 See JCAHO Manual, supra note 57, MS.l; AOA MANUAL, supra note 57, V.B. JCAHO and AOA are nongovernment entities that accredit hospitals. See Scheutzow & Gillis, supra note 25, at 173. These private nonprofit organizations operate voluntary survey and accreditation programs for hospitals and other health care entities and set the industry standards for hospital operations including peer review. See Morter, supra note 1, at 1116.

106 See JCAHO Manual, supra note 57, MS.1; AOA Manual, supra note 57, VLB.

107 See JCAHO Manual, supra note 57, MS.2; AOA Manual, supra note 57, VI.D.3.

108 See 42 U.S.C. §§ 1395x(e), 1395bb (1998).

109 See, e.g., FLA. Stat. Ann. § 394.876 (West 1998); 50 PA. CONS. Stat. Ann. § 7105 (West 1998).

110 See 42 C.F.R. § 482.22 (1999).

111 See, e.g., GA. Code Ann. § 31-7-15 (1998); MASS. Gen. LAWS Ann. ch. Ill , § 203 (West 1998); OHIO Rev. Code Ann. § 3701.351 (West 1998).

112 JCAHO, for example, requires the peer review process to include having medical staff members monitor and evaluate patient care rendered by physicians on the hospital medical staff and review the qualifications of initial applicants to the medical staff. See JCAHO Manual, supra note 57, MS.1.MS.2.

113 For example, the JCAHO accreditation procedure does not review the peer review process nor make any independent assessment as to whether the outcome of the peer review was appropriate.

114 See Joint Commission on Accreditation of Healthcare Organizations, Sentinel Events Policy and Procedure (last modified October 1, 1998) <http://www.jcaho.org/sentinel/se_pp.htm>.

115 See id. at <http://www.jcaho.Org/sentinel/se_pp.htm#SentinelEvents>. Serious injury includes “loss of limb or function”; the phrase “or the risk thereof includes “any process variation for which a recurrence would carry a significant chance of a serious adverse outcome.” Id.

116 See id. at <http://www.jcaho.0rg/sentinel/se_pp.htm#TheStandards>.

117 See id. at <http://www.jcah0.0rg/sentinel/se_pp.htm#R00tCauseAnalysis>.

118 See id. at <http://www.jcaho.0rg/sentinel/se_pp.htm#TheJointCommission'sResponse>.

119 See, e.g., Cal. Bus. & PROF. Code § 2282(c) (West 1995) (providing only that the “medical staff shall be self-governing with respect to professional work performed in the hospital; that medical staff shall meet periodically and review and analyze at regular intervals their clinical experience; and the medical records of patients shall be the basis for such review and analysis”).

120 211 N.E.2d 253 (111. 1965), cert, denied, 383 U.S. 946 (1966).

121 See Insigna v. LaBella, 543 So. 2d 209, 211 (Fla. 1989); Johnson v. Misericordia Community Hosp., 301 N.W.2d 156, 162 (Wis. 1981). Hospitals have always been liable for the negligent acts of their employees under the doctrine of respondeat superior. See Martin C. McWilliams & Hamilton E. Russell, Hospital Liability for Torts of Independent Contractor Physicians, 47 S.C. L. Rev. 431, 438 (1996). However, physicians generally are not considered hospital employees. See Griffith & Parker, supra note 43, at 161. Therefore, hospitals historically have not controlled such physicians and consequently have not been held accountable for the physicians’ actions. See id.

122 See Rule v. Lutheran Hosp. & Homes, 835 F.2d 1250, 1253 (8th Cir. 1987) (involving a negligence action against the hospital for a birth injury inflicted on a child during breech delivery); Purcell v. Zimbelman, 500 P.2d 335, 341 (Ariz. Ct. App. 1972) (involving a negligence action against the hospital and several doctors for performing an inappropriate “pull-through” operation); Register v. Wilmington Med. Ctr., Inc., 377 A.2d 8, 10 (Del. 1977) (involving a lawsuit against the hospital brought by a mother whose minor child was injured during childbirth); Insigna, 543 So. 2d at 214 (involving a wrongful death action against the hospital for failing to select and retain competent physicians); Mitchell County Hosp. Auth. v. Joiner, 189 S.E.2d 412, 414 (Ga. 1972) (involving a lawsuit to hold the hospital liable for negligently permitting a physician to practice in the hospital wherein plaintiff alleged that the hospital knew of the physician's incompetence); Oehler v. Humana, Inc., 775 P.2d 1271, 1272 (Nev. 1989) (involving a medical malpractice action against the hospital for failing to monitor and supervise a physician on its medical staff); Misericordia Community Hosp., 301 N.W.2d at 164 (involving an action against the hospital for negligence in appointing an orthopedic surgeon to its medical staff).

123 See Rule, 835 F.2d at 1253; Purcell, 500 P.2d at 342.

124 301 N.W.2d 156 (Wis. 1981).

125 See id. at 174-75.

126 See, e.g., Alexander v. Superior Ct., 859 P.2d 96 (Cal. 1993) (protecting applications for medical staff privileges from discovery); Riggs Nat'l Bank v. Boyd, No. 96C-05-122-WTQ, 1998 WL 283384 (Del. Super. Ct. Mar. 16, 1998) (refusing to compel the hospital's credentialing committee to answer the plaintiffs interrogatories); St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex. 1987) (affording the hospital immunity from negligent credentialing actions).

127 See Brochner v. Thomas, 795 S.W.2d 215, 217-18 (Tex. Ct. App. 1990). In this case, a patient sued her doctor's estate and a medical center, claiming that the doctor was negligent in his diagnosis and treatment and that the medical center failed to discharge its duty to the patient by not controlling the doctor's actions. See id. at 215. The plaintiff sought discovery of various files of the Texas State Board of Medical Examiners and of the medical center. See id. However, the court held that the documents were privileged under the Texas Medical Practice Act. See id. at 216.

128 See, e.g., Tex. Rev. Civ. Stat. Ann. art. 4495b(l) (West 1998). The Texas statute shields peer review participants from liability:

See id. (emphasis added); see also Harris v. Bellin Mem'l Hosp., 13 F.3d 1082, 1087 (7th Cir. 1994) (finding Wisconsin's peer review statute immunized hospital and peer review organization from a surgeon's lawsuit where defendants acted in good faith in reviewing the surgeon's performance); accord Cal. Clv. Code § 43.7 (West 1995) (providing immunity for peer review action taken without malice); N.C. Gen. Stat. § 131E-95 (1995) (providing immunity for peer review actions taken without malice or fraud).

129 See ALA. Code § 34-24-58 (1995) (protection for peer review actions “acted upon in good faith and without malice”).

130 See Smith v. Our Lady of the Lake Hosp., 639 So. 2d 730, 747 (La. 1994) (holding that plaintiff-surgeon failed to demonstrate “bad faith” by the peer review board when it voted to terminate the surgeon's hospital privileges); Zamanian v. Christian Health Ministry, 715 So. 2d 57, 60 (La. Ct. App. 1998) (holding that malice exists when the motivating factor for the peer review action is based on a reason other than one for which the privilege was designed to protect); St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 506 (Tex. 1997) (holding that the hospital was immune from a negligent credentialing claim absent a showing of malice).

131 See, e.g., Ky. Rev. Stat. Ann. § 311.377 (Michie 1995). The Kentucky statute provides that:

Id.

132 See Griffith & Parker, supra note 43, at 187.

133 See id.

134 See 42 U.S.C. § 11111(a)(1) (1994) (providing that “a professional review body … [and] any person acting as a member or staff to the body … shall not be liable in damages under any law of the United States or of any State (or political subdivision thereof) with respect to the action”).

135 See id.

136 Id. §11115(d) (1998) (emphasis added).

137 See 952 S.W.2d 503, 507 (Tex. 1997).

138 See id. at 506-07.

139 See id.

140 See Bridget Fuselier, Note, St. Luke's Episcopal Hospital v. Agbor: The End of Negligent Credentialing, 50 BAYLOR L. Rev. 251, 266 (1998) (noting that under the current Texas peer review statute, “hospitals will not be held accountable for their hiring decisions”).

141 See Greenwood v. Wierdsma, 741 P.2d 1079, 1087 (Wyo. 1987) (suggesting that, in order to prove negligence by a hospital, the plaintiff “must have access to information concerning a doctor's performance”).

142 See id. at 1089.

143 Id.

144 See, e.g., Creech, supra note 103 (examining the effect of peer review protection statutes on hospitals); Fuselier, supra note 140 (describing the impact of the St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 507 (Tex. 1997)); Goldberg, supra note 42 (expressing concern about the impact of peer review privilege); Griffith & Parker, supra note 43 (arguing that protection of good faith peer review will facilitate quality medical care).

145 Goldberg, supra note 42, at 162.

146 See, e.g., St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex. 1997) (holding that HCQIA immunity provisions applied to negligent credentialing cases and finding hospitals immune absent a showing of malice). Cf., e.g, Logue v. Velez, 699 N.E.2d 365 (N.Y. 1998) (holding that protections provided to peer review participants by New York's peer review confidentiality statute applied to negligent credentialing cases, because to hold otherwise would permit plaintiffs to defeat the peer review protection simply by adding a negligent credentialing action to every medical malpractice lawsuit). But see, e.g., Kalb v. Morehead, 654 N.E.2d 1039 (Ohio Ct. App. 1996) (holding that Ohio's peer review statute did not provide the hospital with immunity in negligent credentialing actions).

147 See Darricades, supra note 5, at 271.

148 See Morter, supra note 1, at 1117 (discussing peer review functions performed by the hospital's medical staff).

149 American Medical Association, Policy Compendium H-375.996 (1998).

150 See id. H-375.984.

151 See Darricades, supra note 5, at 271.

152 See Appendix A (listing state laws protecting the peer review process).

153 See, e.g., Ark. Code Ann. § 20-9-502 (Michie 1995).

154 See, e.g., Del. Code Ann. tit. 24, § 1768 (1995).

155 See, e.g., Ind. Code Ann. § 34-4-12.6-2 (West 1995).

156 See 42 U.S.C. § 11111 (1994).

157 The District of Columbia was considered a separate state because it has peer review protection laws and the number of hospitals in it matched the number of some states.

158 See, e.g., Axline v. Saint John's Hosp. & Health Ctr., 74 Cal. Rptr. 2d 385 (Cal. Ct. App. 1998) (involving a physician's lawsuit against the hospital for its peer review committee's decision to deny his application to become a member of the medical staff).

159 See, e.g., Smith v. Vallejo Gen. Hosp., 216 Cal. Rptr. 189 (Cal. Ct. App. 1985) (involving a physician who petitioned the court to overturn the decision of the medical board to restrict and limit his privileges until he finished formal residency training).

160 See, e.g., Siegel v. St. Vincent Charity Hosp. & Hosp. Ctr., 520 N.E.2d 249 (Ohio Ct. App. 1987) (involving a physician's lawsuit against the hospital for revoking his hospital staff privileges because he engaged in noncooperative and disruptive behavior); Kolker v. St. Francis Hosp., 548 N.Y.S.2d 616 (N.Y. Sup. Ct. 1989) (involving a physician's lawsuit against the hospital for restricting his staff privileges and seeking injunctive relief from the court for reinstatement of full privileges).

161 See, e.g.. Smith v. Our Lady of the Lake Hosp., 639 So. 2d 730 (La. 1994) (involving a surgeon's lawsuit against the hospital and members of its medical peer review board who terminated his hospital privileges); Adkins v. Sarah Bush Lincoln Health Ctr., 544 N.E.2d 733 (111. 1987) (discussing a physician's lawsuit against the hospital, members of its executive committee and its executor director for the hospital's failure to renew the physician's privileges).

162 See, e.g., Smith, 639 So. 2d at 730. Given the deference shown to hospital peer review decisions by state courts, suits challenging the hospitals’ decision are usually unsuccessful. See id.

163 See, e.g., Marshall v. Planz, 13 F. Supp. 2d 1231 (M.D. Ala. 1998); Toyos v. Northwestern Mut. Life Ins. Co., 1 F. Supp. 2d 1462 (S.D. Fla. 1998); Islami v. Covenant Med. Ctr., Inc., 822 F. Supp. 1361 (N.D. Iowa 1992); Pudlo v. Adamski, 789 F. Supp. 247 (N.D. 111. 1992); Miami Heart Inst, v. Reis, 638 So. 2d 530 (Fla. Dist. Ct. App. 1994); Pepple v. Parkview Mem'l Hosp., Inc., 511 N.E.2d 467 (Ind. Ct. App. 1987); Smith, 639 So. 2d at 730.

164 See, e.g., Marshall, 13 F. Supp. 2d at 1231; Reis, 638 So. 2d at 530; Smith, 639 So. 2d at 730.

165 See, e.g., Marshall, 13 F. Supp. 2d at 1231; Pudlo, 789 F. Supp. at 247; Reis, 638 So. 2d at 530; Smith, 639 So. 2d at 730.

166 See, e.g., Marshall, 13 F. Supp. 2d at 1231; Ginzburg v. Mem'l Healthcare Sys., Inc., 993 F. Supp. 998 (S.D. Tex. 1997); Islami, 822 F. Supp. at 1361; Smith, 639 So. 2d at 730.

167 See, e.g., Johnson v. Nyack Hosp., 169 F.R.D. 550 (S.D.N.Y. 1996); Johnson v. Greater Southeast Community Hosp. Corp., 789 F. Supp. 427 (D.D.C. 1992); Smith, 639 So. 2d at 730.

168 See infra Appendices A & B.

169 See id.

170 See ALA. Code §6-5-333 (1995); GA. Code Ann. § 43-39-20 (1995); WYO. Stat. Ann. § 35-17-103 (Michie 1995).

171 See Cal. CIV. Code § 43.7(a)-(b) (West 1995); ME. Rev. Stat. Ann. tit. 24, § 2511 (West 1995); W. VA. Code § 30-3-14(m) (1995).

172 States providing immunity from criminal liability include Delaware, Georgia, Pennsylvania and West Virginia. See Del. Code Ann. tit. 24 § 1768(a) (1995); GA. Code Ann. § 43-39-20; 63 PA. CONS. Stat. Ann. § 425.3(a) (West 1995); W. Va. Code § 30-3-14(m). A number of states specifically grant immunity from antitrust actions. See Colo. Rev. Stat. Ann. § 12-36.5-105(2) (West 1995); Fla. Stat. Ann. § 395.0193(1) (West 1995); R.I. Gen. Laws § 23-17-25(d) (1995). It is theoretically possible for a participant in a peer review proceeding to face criminal charges, such as criminal antitrust violations, resulting from his involvement in the peer review. However, only a few criminal actions have been brought against health care professionals. See, e.g., People v. Einaugler, 208 A.D.2d 946 (N.Y. App. Div. 1994); People v. Klvana, 15 Cal. Rptr. 2d 512 (Ct. App. 1993). As such, for the purposes of this study, criminal liability resulting from peer review activity were not considered as a significant threat to the effectiveness of peer review generally, and researchers in this study did not take into account immunity from criminal charges in the classification of state laws. In addition, antitrust actions seeking civil damages would already be covered under the broader immunity from civil actions, and therefore were also not given any additional weight.

173 See GA. Code Ann. § 43-39-20 (affording immunity protection to psychologists participating in the credentialing process); N.M. Stat. Ann. § 41-9-4 (Michie 1995) (extending immunity protection for peer review members only to lawsuits brought by health care providers under review by the peer review committee); S.C. Code Ann. § 40-71-10 (Law Co-op. 1995) (providing immunity only to peer review committee members).

174 See Cal. Civ. Code § 43.7(a)-(b); S.C. Code Ann. § 40-71-10. The study's design considered this variation to be irrelevant because participants in states that provide protection only if the peer review takes place in certain committees could structure their peer review process so that the review always occurs in those committees. Therefore, the study did not provide a separate classification for this variation.

175 See Me. Rev. Stat. Ann. tit. 24, § 2511 (West 1995); N.M. Stat. Ann. § 41-9-4.

176 Compare Alaska Stat. §§ 18.23.010, -.020 (Michie 1995) (providing immunity to persons testifying before peer review committees as well as to individuals serving on these committees) and Minn. Stat. Ann. § 145.63 (West 1995) (same) with Ark. Code Ann. § 20-9-502 (Michie 1995) (providing immunity only to peer review committee members) and N.C. Gen. Stat. § 131E-95 (1995) (same).

177 Compare La. Rev. Stat. Ann. § 13:3715.3 (West 1995) (providing that no member of a peer review committee shall be liable for actions taken in that capacity) and 210 III . Comp. Stat. Ann. 85/10.2 (West 1995) (providing immunity to individuals on peer review committees) with ARIZ. Rev. Stat. Ann. § 36-445.02 (West 1995) (affording immunity to hospitals, outpatient surgery centers and individuals serving on peer review committees) and HAW. Rev. Stat. Ann. § 663-1.7 (Michie 1995) (providing peer review immunity to individuals, hospitals and clinics).

178 Arizona, California, Colorado, Florida, Hawaii, Idaho, Indiana, Kentucky, Maine, Massachusetts, Missouri, New Hampshire, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Vermont, Washington, West Virginia and Wisconsin.

179 Alabama, Alaska, Arkansas, Connecticut, Delaware, Georgia, Illinois, Iowa, Kansas, Louisiana, Maryland, Minnesota, Mississippi, Montana, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Virginia and Wyoming.

180 Michigan, Nebraska and Nevada.

181 Because HCQIA's immunity supersedes any state-created peer review immunity, provided the professional review body meets all of the procedures specified in the federal statute, HCQIA is actually the minimum amount of immunity offered. See 42 U.S.C. § 11111(a)(1) (1994) (stating that professional reviewers “shall not be liable in damages under any law of the United States or of any State (or political subdivision thereof) with respect to [a professional review] action”). For the purpose of the study, states were not classified by whether they were equal to or greater than the protection provided by HCQIA. Instead, the study focused on the relative strength of state statutes because the study's primary focus was on state laws.

182 Cf. Lane v. Pena, 518 U.S. 187, 192 (1996) (discussing waivers of federal sovereign immunity); Library of Congress v. Shaw, 478 U.S. 310, 318 (1986) (same).

183 See Smith v. Our Lady of the Lake Hosp., Inc., 639 So. 2d 730, 743 (La. 1994) (stating that “[t]he majority of states have qualified the immunity, imposing as statutory hurdles the threshold requirement that the peer review actions be taken without malice, in good faith or reasonably in order to invoke the immunity”).

184 See 42U.S.C. § 11111(a).

185 Id. § 11151(11).

186 See id. § 11111(a)(1).

187 Id. § 11151(10). Although many professional review actions are taken to evaluate the competence or professional conduct of a physician, many other reasons exist for taking such actions, including the need to reduce the size of a medical staff, a failure to meet established qualifications, and a failure to follow hospital bylaws or rules and regulations. See American Academy of Hospital Attorneys, supra note 52, § 2.3. Hospitals only need to report to the NPDB professional review actions they have taken concerning a physician's competence or conduct. See McCarthy, supra note 60, at 594.

188 See 42 U.S.C. § 11111(a).

189 See id.

190 See id. § 11112(a).

191 Id. § 11112(a)—(b). Initially, the congressional committee considered a good faith standard; however, in response to concerns that good faith might be a test of a subjective state of mind and consequently unfair to the reviewed practitioner, the committee changed to a more objective reasonable belief standard. See H.R. REP. No. 99-903, reprinted in 1986 U.S.C.C.A.N. 6287, 6392-93. Professional review actions will be presumed to have met HCQIA's procedural standards unless the presumption is rebutted by a preponderance of the evidence. See 42 U.S.C. § 11112(a).

192 See 42 U.S.C. § 11111(b); see also infra Part IV.C.l (discussing HCQIA reporting requirements).

193 See, e.g., Shilling v. Moore, 545 N.W. 2d 442, 447 (Neb. 1996) (holding in a defamation action that HCQIA preempted state law because the federal statute afforded greater protection to medical peer reviewers than did the state law).

194 See St. Lukes Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 507 (Tex. 1997); 42 U.S.C. § 11115(a). Section 111 15(a) provides that:

Id.

195 See supra note 128 and accompanying text.

196 For example, Arizona simply provides that:

Ariz. Rev. Stat. Ann. § 36-445.02 (West 1995). Arizona does not require the peer review process to afford a physician under review any specific due process protections. Some states, such as Colorado and Hawaii, on the other hand, have followed the example of HCQIA and have provided a set of detailed due process requirements. See Colo. Rev. Stat. Ann. § 12-36.5-104 (West 1995); HAW. Rev. Stat. Ann. § 671D-11 (West 1995). Procedural protections include requiring that the physician subject to peer review be given notice, have the right to request timely hearings and be given a list of witnesses expected to testify on behalf of the peer review committee. See HAW. REV . Stat. Ann. § 671D-11.

197 One should also note that failure to meet HCQIA standards for immunity should be distinguished from a state's finding of bad faith on the part of peer reviewers. For immunity to attach under 42 U.S.C. § 11111(a), all four requirements of § 11112(a) must be satisfied. See Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 633 (3d Cir. 1996); Bryan v. James E. Holmes Reg'l Med. Ctr., 33 F.3d 1318, 1334 (11th Cir. 1994); Austin v. McNamara, 979 F.2d 728, 733 (9th Cir. 1991). Therefore, failure to satisfy § 11112(a)(3)'s “adequate notice and hearing” requirement alone would be sufficient to defeat HCQIA immunity, but would not necessarily constitute bad faith for purposes of state law. Instead, courts have held that plaintiffs’ claims of bad faith are immaterial to any inquiry under § 11112(a). See Mathews, 87 F.3d at 635; Bryan, 33 F.3d at 1335; Austin, 979 F.2d at 734.

198 See 42 U.S.C. § 11112(a)(l)-(4) (1994); Austin, 979 F.2d at 733.

199 See Austin, 979 F.2d at 735 (holding that to enjoy the immunity, the peer review process only requires a reasonable effort to obtain the facts and a reasonable belief in the necessity of the process).

200 It is impossible to know, however, if the statute has preempted cases from being brought.

201 See, e.g., Shilling v. Moore, 545 N.W.2d 442 (Neb. 1996) (granting summary judgment when the plaintiff failed to show that the physician making the peer review report had made statements with the knowledge that they were false; therefore, physician was entitled to HCQIA immunity).

202 See Mark A. Kadzielski, The Health Care Quality Improvement Act of 1986: How Much Impact Will it Really Have?, FED'N Am. HEALTH Systems Rev., Sept.-Oct. 1988, at 45 (suggesting that some courts are reluctant to make the kind of factual determinations necessary for summary judgment dispositions under HCQIA without the aid of a jury).

203 Letter from Fredric J. Entin, Senior Vice President and General Counsel, American Hospital Association, to June Gibbs Brown, Inspector General, Office of Inspector General, Department of Health and Human Services 2 (Jan. 26, 1995) (on file with author) (emphasis added).

204 See Darricades, supra note 5, at 264-65.

205 See infra Appendices A & B. New Jersey, Oklahoma and West Virginia are the only states that did not have a privilege statute during the study period. See id.

206 Most states protect peer review performed by hospitals. See, e.g., Del. Code Ann. tit. 24, § 1768(a) (1995); IND. Code Ann. § 34-4-12.6-2 (West 1995). However, there is great variation in the entities protected by the privilege outside the hospital context, such as nonhospital providers and insurance companies. For example, Maryland's immunity statute provides protection for a wide range of health care providers who perform peer review, including the medical staff, risk management, credentialing, and utilization review committees of a hospital, related institution, or alternative health care system. See Md. Code Ann., Health Occ. § 14-501(b)(5) (1995). Alternative heath care systems include health maintenance organizations, preferred provider organizations and independent practice associations. See id. In contrast to Maryland, Arizona provides immunity only to individuals performing peer review for hospitals and outpatient surgical centers. See Ariz. Rev. Stat. Ann. § 36-445.02 (West 1995).

207 Compare Cal. Evid. Code § 1156(a) (West 1995) (providing privilege protection to in-hospital medical staff committees of a licensed hospitals) with Mont. Code Ann. § 37-2-201(2) (1995) (providing privilege protection to professional utilization, peer review, medical ethics review and professional standards review committees).

208 Compare VT. Stat. Ann. tit. 26, § 1443(a) (1995) (providing privilege for peer review committee records and further prohibiting any person “who was in attendance at a meeting of such committee” from testifying regarding matters that came before the committee) with Md. Code Ann., HEALTH Oca , § 14-501(e) (providing only that proceedings, records and files of peer review committees shall not be discoverable or admissible).

209 See, e.g., 75 III . Comp. Stat. Ann. 5/8-2101 (West 1995); Haw. Rev. Stat. Ann. § 624-25.5(d) (Michie 1995).

210 See, e.g., Ind. Code Ann. § 34-4-12.6-2(a); Mich. Comp. Laws Ann. § 333.20175(7) (West 1995).

211 Peer review privilege statutes were considered to be weakened if they specifically permitted release of peer review information to state licensing boards.

212 See, e.g., Del. Code Ann. tit. 24, § 1768(a) (1995); Ind. Code Ann. § 34-4-12.6-2; ME. Rev. Stat. Ann. tit. 32, § 2599 (West 1995). Whether a peer review privilege statute applied to criminal actions was not considered because criminal actions against health care providers are rare. See supra note 172. Although information developed in peer review proceedings may prove to be useful in criminal cases brought against physicians, researchers for this study believed that the applicability of peer review statutes to such circumstances was not significant enough to warrant a five-part classification.

213 Alabama, Delaware, Maine, Michigan, Montana, Nebraska, Nevada, Utah, Virginia and Wyoming.

214 See, e.g., MD . Code Ann., HEALTH Occ. § 14-501 (1995) (providing that the statutory privilege does not apply when information is sought by a health care provider under scrutiny in the peer review process); Smith v. Alice Peck Day Mem'l Hosp., 148 F.R.D. 51 (D.N.H. 1993) (holding that quality assurance privilege does not apply to litigation challenging a hospital's decision to revoke a physician's staff privileges).

215 See, e.g., 75 III . Comp. Stat. Ann. 5/8-2101 (West 1995); N.M. Stat. Ann. § 41-9-5 (Michie 1995).

216 See, e.g., Colo. Rev. Stat. Ann. § 12-36.5-104(ii) (West 1995); Haw. Rev. Stat. § 624-25.5(b) (1995); N.Y. Pub. Health Law § 2805-m(l) (McKinney 1995).

217 Colorado, Hawaii, Idaho, Illinois, Louisiana, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas and Washington.

218 See, e.g., Ariz. Rev. Stat. Ann. § 36-445.02 (West 1995); Ind. Code Ann. § 34-4-12.6-2 (West 1995).

219 Alaska, Arizona, Arkansas, California, Connecticut, District of Columbia, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Maryland, Minnesota, Missouri, Mississippi, North Carolina, North Dakota, Ohio, Pennsylvania, Vermont and Wisconsin.

220 New Jersey, Oklahoma and West Virginia. Four states, Indiana, New Hampshire, Texas and West Virginia, all provide for waiver of the privilege. See Ind. Code Ann. § 34-4-12.6-2(h); N.H. Rev. Stat. Ann. § 151:13-a (1995); Tex. Rev. CIV. Stat. Ann. art. 4495b, § 5.060) (1995); W. Va. Code § 30-3C-3 (1995). Indiana and Texas provide that the committee that performed the peer review could waive the privilege. See Ind. Code Ann. § 34-4-12.6-2(h); Tex. Rev. CIV. Stat. Ann. art. 4495b, § 5.06(j). This was not considered to weaken the privilege protection because this study contemplated that the committee would act in the best interests of its members and not arbitrarily waive such privilege protection. New Hampshire provided for waiver by the hospital. See N.H. Rev. Stat. Ann. § 151:13-a. Similarly, this statutory provision was not deemed to reduce the classification of privilege protection because the study anticipated that the hospitals would also want to encourage effective peer review. On the other hand, West Virginia provides a broad waiver by the physician whose actions were the subject of peer review. See W. Va. Code § 30-3C-3. This provision allows physicians who are the subject of the peer review to waive the privilege in any circumstance. See Young v. Saldanha, 431 S.E.2d 669, 674 (W. Va. 1993). It is substantially broader than statutes that allow physicians who are the subject of the peer review to waive the privilege only when the physicians themselves are bringing an action against the hospital. Because we could not assume that a physician who was the subject of a peer review action would always act in the interest of encouraging effective peer review and could permit the press or patients suing the hospital for malpractice to obtain the records, the study considered that the waiver would essentially negate any privilege protection and classified the state as having no protection.

221 See Audrey Rogers, New Insights on Waiver and the Inadvertent Disclosure of Privileged Materials: Attorney Responsibility as the Governing Precept, 47 FLA. L. Rev. 159, 181-86 (1995).

222 See generally Ellen W. Grabois, The Liability of Psychotherapists for the Breach of Confidentiality, 12 J.L. & HEALTH 39, 65-71 (1998) (noting that liability for the breach of confidentiality is founded in contract and tort law).

223 See Fed. R. Evid. 501 (stating that state laws govern attorney-client privilege).

224 See, e.g., American Bar Association, Model Rules of Professional Conduct Rule 1.6 (1998) (prohibiting an attorney from revealing information related to the representation of a client); New Jersey Rules of Professional Conduct Rule 1.6 (1998) (same); Colorado Rules of Professional Conduct Rule 1.6 (1998) (same).

225 See, e.g., California, Florida, Illinois, Missouri, New York and Virginia.

226 See, e.g., Del. Code Ann. tit. 24, § 1731A (1995); KY. Rev. Stat. Ann. § 311.377 (Michie 1995).

227 See, e.g., R.I. Gen. Laws § 5-37.3-7(b) (1995); Wis. Stat. Ann. § 146.38(4) (West 1995).

228 See 42 U.S.C. § 11137(b)(1) (1994). HCQIA requires that information submitted to the NPDB be kept confidential except as specifically authorized by the NPDB. See 45 C.F.R. § 60.13(a) (1999). HCQIA also provides that its confidentiality provision does not prevent a party, otherwise authorized under applicable state law, from disclosing the information it has reported to the NPDB. See 42 U.S.C. § 11137(b)(1).

229 Alaska, Illinois, Indiana, Minnesota, New Mexico, Ohio, Rhode Island and Wisconsin.

230 Alabama, Arizona, Colorado, Delaware, Idaho, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, New Hampshire, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, West Virginia and Wyoming.

231 Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Kansas, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, Oklahoma, Oregon, South Dakota, Virginia and Washington.

232 See Robert E. Kuelthau, Ambulatory Surgery Centers—Medical Clinics and the National Practitioner NPDB, 79 Marq. L. Rev., 819, 820 (1996); Ryzen, supra note 96, at 413-14.

233 These entities include “an entity (including a health maintenance organization or group medical practice) that provides health care services and that follows a formal peer review process for the purpose of furthering quality health care (as determined under regulations of the Secretary).” 42 U.S.C. § 11151(4)(A)(ii).

234 See id. § 11133(a)(1)(A). An adverse peer review action is one that reduces, restricts, suspends, revokes or denies clinical privileges or membership in a health care entity. See 45 C.F.R. § 60.3 (1999).

235 See 42 U.S.C. § 11133(a)(1)(B).

236 See 45 C.F.R. § 60.5(a).

237 See id. § 60.5(b).

238 See id. § 60.5(c).

239 see 42 U.S.C. § 11135(a)(lM2).

240 See Darricades, supra note 5, at 2 4 (stating that HCQIA was enacted in part to prevent incompetent physicians from moving freely to different hospitals).

241 See 42 U.S.C. § 11133(c)(1).

242 Conversation with Robert Oshel, Ph.D., Associate Director for Research and Disputes of the Division of Quality Assurance, Health Resources and Services Administration, U.S. Department of Health and Human Services (Aug. 7, 1998).

243 See id. (providing only that the reviewing body will lose immunity protection provided by HCQIA for failure to comply with the statute's reporting requirement).

244 See 42 U.S.C. § 11133(a) (enumerating the types of peer review actions that must be reported by a health care organization).

245 See, e.g., Ark. Code Ann. § 17-95-104 (Michie 1995); Del. Code Ann. tit. 24, § 1731A (1995).

246 The statutes also varied on the time period in which a disciplinary action must be reported. See, e.g., Del. Code Ann. tit. 24, § 1731A (requiring that reports be filed within 30 days); Wis. Stat. Ann. § 50.36 (West 1995) (same); ME. Rev. Stat. Ann. tit. 24, § 2506 (West 1995) (requiring that reports be filed within 60 days); Wash. Rev. Code Ann. § 70.41.210 (West 1995) (same).

247 See, e.g., Conn. Gen. Stat. Ann. § 20-13d (West 1995); GA. Code Ann. § 31-7-8 (1995); TENN. Code Ann. § 68-11-218 (1995). State reporting laws generally do not permit information reported to the state to be shared with other hospitals. See, e.g., GA. Code Ann. § 31-7-8; IDAHO Code § 39-1393 (1995). Therefore, state laws and HCQIA do not share the same rationale. As noted earlier, Congress passed HCQIA as an attempt to focus on those “instances in which physicians injure patients through incompetent or unprofessional service, are identified as incompetent or unprofessional by their medical colleagues, but are dealt with in a way that allows them to continue to injure patients.” See H.R. REP. NO. 99-903, supra note 191, at 6384. As such, Congress found that a national need exists to “restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance.” See 42 U.S.C. § 11101(2).

248 See, e.g., COLO. Rev. Stat. Ann. § 12-36.5-104 (West 1995); Wis. Stat. Ann. § 50.36 (West 1995).

249 See, e.g., OHIO Rev. Code Ann. § 4731.224 (West 1995); WASH. Rev. Code Ann. § 70.41.210.

250 Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Virginia, West Virginia, Wisconsin and Wyoming.

251 Alabama, Illinois, Iowa, Ohio, South Dakota, Tennessee and Washington.

252 California, Louisiana, Nebraska, Oklahoma, Oregon and Vermont.

253 See Cal. Bus. & Prof. Code § 805(g) (West 1995) (imposing a penalty of up to $10,000 on a health care facility for an intentional failure to report adverse peer review reports); W. Va. Code § 30-3-14 (1995) (providing a penalty of $10,000 for noncompliance); Colo. Rev. Stat. Ann. § 12-36.5-104 (providing for no penalty).

254 California, New Jersey and West Virginia.

255 Alabama, Delaware, Florida, Georgia, Hawaii, Illinois, Kansas, Maine, Maryland, Massachusetts, Missouri, Montana, New Mexico and Washington.

256 Alaska, Arizona, Arkansas, Colorado, Connecticut, District of Columbia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin and Wyoming.

257 The contract required that the identity of the hospitals, which may or may not make reports to the NPDB confidential.

258 See Darricades, supra note 5, at 274-75.

259 Chi-square is a frequently used test of statistical significance. See Andrew L. Comrey et al., Elementary Statistics a Problem-Solving Approach 266 (2d ed. 1989). Chi-square analysis is generally used when two or more sets of frequencies are being analyzed for independence. See id. The test is based on the null hypothesis. See EARL R. BABBIE, SURVEY RESEARCH METHODS 309 (1973). The null hypothesis assumes that there is no relationship between the variables being analyzed. See id. The observed frequency (representing the observed or measured frequency of a variable) and the expected frequency (representing the frequency one would expect to obtain if the null hypothesis was true) are computed and compared, and a chi-square value is calculated. See Comrey et al., supra, at 266-68. The chi-square value is then compared with a constant, standard value known as the critical value to determine whether a relationship exists between the variables being studied. See id. at 268-70.

260 The confidence interval is the interval around the parameter for which it is estimated that the results actually fall. See Comrey et al., supra note 259, at 218-23. For instance, a researcher may determine that he or she is 95% confident that the results fall within ±5 percentage points of a certain parameter. The ±5 percentage points of the parameter is the confidence interval.

261 Multiple logistic regression is a method of analyzing the relationship between two variables to determine the effect of change in the independent variable on the dependent variable. See BABBIE, supra note 259, at 239.

262 Multiple linear regression is a method of analyzing the relationship between many variables at the same time to determine the joint contribution of several independent variables to the prediction of the values on the dependent variable. See Comrey et al., supra note 259, at 153.

263 Prior studies have documented that some of the barriers to effective peer review, such as difficulty in objectively evaluating a peer with whom the reviewer has close personal or professional ties or a beneficial economic relationship, are especially salient in rural settings. See C.C. Roberts, Quality Assurance and Risk Management in Small and Rural Hospitals: The Roles of Trustees, Administration, and Medical Staff, 13 QUALITY Rev. BULL. 205, 205-08 (1987). For a discussion of reasons for the failure of peer review, including reluctance among physicians to perform peer review, possible review options and effects of compensation on peer review problems, see generally Nathan Hershey, Compensation and Accountability: The Way to Improve Peer Review, 7 Quality Assurance Utilization 23 (1992).

264 Of the 1,266 hospitals open for all five years that did not fit the study criteria, 337 were long-term facilities, 588 were short-term specialty hospitals, 161 were federally operated institutions and 180 had changed their status throughout the study period and were excluded.

265 Of the 3,328 disciplinary actions reported, 3,322 reported lengthy disciplinary action periods. Of the actions taken, 81.5% were either permanent or of indefinable length; 3.7% were over a year in length; 5.1% were over six months to a year; and 9.8% were 31 days to six months.

266 This was done to allow the extrapolation to result in whole numbers of reports rather than fractions. A sample of hospitals with average characteristics was used which included the following characteristics: (1) being JCAHO-accredited; (2) having a medical staff comprised of 72% board-certified physicians; (3) being noncontract managed; (4) not being a member of AAMC Council of Teaching Hospitals; and (5) not having a nursing home associated with the hospital. This was done to allow the extrapolation to result in whole numbers of reports rather than fractions.

267 Colorado, Hawaii, Idaho, Maine, Massachusetts, New Hampshire, Rhode Island, Tennessee, Texas and Washington.

268 Alabama, Arizona, California, Delaware, District of Columbia, Florida, Indiana, Kentucky, Missouri, Montana, Ohio, Utah, Vermont, Virginia, Wisconsin and Wyoming.

269 Illinois, Louisiana, New Mexico, New York, Oregon, South Carolina and South Dakota.

270 Alaska, Arkansas, Connecticut, Georgia, Iowa, Kansas, Maryland, Minnesota, Mississippi, North Carolina, North Dakota and Pennsylvania.

271 New Jersey.

272 Michigan, Nebraska and Nevada.

273 Oklahoma and West Virginia.

274 New Jersey and West Virginia.

275 California.

276 Delaware, Florida, Georgia, Hawaii, Kansas, Maine, Maryland, Massachusetts, Missouri, Montana and New Mexico.

277 Alabama, Illinois and Washington.

278 Alaska, Arizona, Arkansas, Colorado, Connecticut, Idaho, Indiana, Kentucky, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Virginia, Wisconsin and Wyoming.

279 Iowa, Ohio, South Dakota and Tennessee.

280 District of Columbia, Louisiana, Nebraska, Oklahoma, Oregon and Vermont.

281 California and Maine.

282 Hawaii, Massachusetts and Washington.

283 West Virginia.

284 Colorado, Idaho, New Hampshire, Rhode Island, Tennessee and Texas.

285 Alabama, Delaware, Florida, Missouri and Montana.

286 Arizona, District of Columbia, Indiana, Kentucky, Ohio, New Jersey, Utah, Vermont, Virginia, Wisconsin and Wyoming.

287 New Mexico and Illinois. 288 Louisiana, New York, Oregon, South Carolina and South Dakota.

289 Georgia, Kansas and Maryland.

290 Alaska, Arkansas, Connecticut, Iowa, Minnesota, Mississippi, North Carolina, North Dakota and Pennsylvania.

291 Michigan, Nebraska, Nevada and Oklahoma.

292 See Tables 5 & 6.

293 See Laura-Mae Baldwin et al., Hospital Peer Review and the National Practitioner Data Bank: Where Have All the Clinical Privileges Action Reports Gone? 14 (1998) (unpublished final report, on file with author).

294 See infra notes 306-07and accompanying text.

295 See Tables 3 & 4.

296 See Table 4.

297 See supra note 193-97 and accompanying text.

298 Cf. Morter, supra note 1, at 1124 & n.52 (noting that HCQIA's procedural requirements may create potential hardships on hospitals and physicians performing peer review).

299 Compare Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.06(m) (West 1995) (providing that a health care entity “that, without malice, participates in medical peer review activity … is immune from any civil liability arising from such an act”) with St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 509 (Tex. 1997) (holding that Texas's peer review immunity statute prescribes a threshold standard of malice for any cause of action against a hospital for its credentialing activities).

300 See Tables 3 & 4.

301 See Agbor, 952 S.W.2d at 506-07 (addressing a hospital's compliance with HCQIA and determining that negligent credentialing claims do not bar HCQIA's immunity protection).

302 See, e.g.. Brooks v. Robinson, 284 N.E.2d 794 (Ind. 1972) (interspousal immunity); Plumley v. Klein, 199 N.W.2d 169 (Mich. 1972) (intrafamily immunity); Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978) (interspousal immunity).

303 See generally Henry T. Zale, Comment, Judicial Abrogation of Governmental and Sovereign Immunity: A National Trend with a Pennsylvania Perspective, 78 DICK. L. Rev. 365 (1973) (discussing the trend away from sovereign immunity and toward collective responsibility).

304 143 N.E.2d 3, 9 (N.Y. 1957).

305 The position that the state peer review immunities should be abandoned begs the question of whether HCQIA immunity should also be abandoned. The author takes no position on HCQIA immunity other than that it should not be used to protect hospitals from negligent credentialing suits.

306 See Developments in the Law—Privileged Communications, 98 Harv. L. Rev. 1450, 1472-73 (1985) [hereinafter Developments in the Law]; John Louis Kellogg, What's Good for the Goose Differential Treatment of the Deliberative Process and Self-critical Analysis Privileges, 52 WASH. U. J. URB. & Contemp. L. 255, 257 (1977).

307 United States v. Nixon, 418 U.S. 683, 710 (1974).

308 See 8 John Henry Wigmore, WIGMORE ON EVIDENCE § 2285, at 527 (3d ed. 1940). 30 9 See id.

310 See id.

311 See id.

312 See id.

313 See Trammel v. United States, 445 U.S. 40, 44 (1980).

314 See Klitzman v. Krut, 744 F.2d 955, 960 (7th Cir. 1984) (reaffirming the attorney-client privilege as one of the oldest common law privileges); see also In re Grand Jury Proceedings, 575 F. Supp. 197, 198 (N.D. Ohio 1983) (stating that the attorney-client privilege was developed to “promote full and open consultation between [the] client and legal advisor”).

315 See Developments in the Law, supra note 306, at 1558. It is this encouragement of the relationship between parishioner and clergy that has led to criticism of the privilege as unduly preferring religion in violation of the First Amendment. See Colombo, Ronald J., Forgive Us Our Sins: The Inadequacies of the Clergy-Penitent Privilege, 73 N.Y.U. L. Rev. 225, 225 (1998)Google Scholar.

316 See Developments in the Law, supra note 306, at 1457-58.

317 See id. (noting that some modern privileges are unsupported by traditional common law).

318 See Holland v. Muscatine Gen. Hosp., 971 F. Supp. 385, 389 (S.D. Iowa 1997); Johnson v. Nyack Hosp., 169 F.R.D. 550, 559 (S.D.N.Y. 1996).

319 See 50 F.R.D. 249, 250 (D.D.C. 1970).

320 See id.

321 See, e.g., Laws v. Georgetown Univ. Hosp., Inc., 656 F. Supp. 824, 825-26 (D.D.C. 1987) (relying on Bredice v. Doctor's Hosp., Inc., 50 F.R.D. 249 (D.D.C. 1970), to support a testamentary privilege where plaintiffs sought to discover a letter concerning childbirth complications); Gillman v. United States, 53 F.R.D. 316, 318-19 (S.D.N.Y. 1971) (holding that an administratrix was not entitled to government reports made by a board of inquiry established to conduct investigations into the decedent's suicide).

322 See, e.g., Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058, 1062 (7th Cir. 1981) (finding no privilege extended to hospital in a federal antitrust action where a physician sought discovery of evidence that other physicians with comparable or worse records were not denied staff privileges); Wei v. Bodner, 127 F.R.D. 91, 100-01 (D.N.J. 1989) (finding that information sought by an anesthesiologist in a federal antitrust lawsuit was not protected by peer review privilege); Dorsten v. Lapeer County Gen. Hosp., 88 F.R.D. 583, 585-86 (E.D. Mich. 1980) (concluding that a physician was entitled to discovery of peer review records notwithstanding a state law that purports to establish an “absolute privilege” for peer review reports).

323 See Syposs v. United States, 179 F.R.D. 406, 409 (W.D.N.Y. 1998); Holland, 971 F. Supp. at 388.

324 See Teasdale v. Marin Gen. Hosp., 138 F.R.D. 691, 694 (N.D. Cal. 1991); Wei, 127 F.R.D. at 99-100.

325 No. C96-4345SI (D.N. Cal. Jan. 13, 1998), discussed in Susan Webster, No Peer Review Protection in EMTALA Action, 1 Health Law Reporter (BNA) No. 12, at 470-72 (Mar. 19, 1998).

326 See Webster, supra note 325, at 470.

327 See id.

328 See id. at 471.

329 See id.

330 179 F.R.D. 406, 411 (W.D.N.Y. 1998).

331 See id.

332 See id.

333 See Patient Protection Act of 1998, H.R. 4250, 105th Cong. § 5004. Congress, however, failed to pass this bill in the 105th session. Search of WESTLAW, Bill Track (Feb. 11, 1999).

334 See Elise Dunitz Brennan, Presentation on Peer Review Confidentiality at the American Health Lawyers Association Annual Meeting (June 30, 1998) (outline of presentation on file with author).

335 See Kellogg, supra note 306, at 258-59.

336 See, e.g., COLO. Rev. Stat. Ann. § 25-1-114.5 (West 1998); OR. Rev. Stat. § 468.963 (1997); Wyo. Stat. Ann. § 35-11-1105(c) (Michie 1997). For a discussion of privileges provided to environmental audits, see generally Philip Weinberg, “If it Ain't Broke …”: We Don't Need Another Privileges and Immunities Clause for Environmental Audits, 22 J. Corp. L. 643 (1997); Kirk F. Marty, Moving Beyond the Body Count and Toward Compliance: Legislative Options for Encouraging Environmental Self-Analysis, 20 VT. L. Rev. 495 (1995).

337 See generally, Note, The Privilege of Self-Critical Analysis, 96 HARV! L. Rev. 1083 (1983) (examining the development, nature and application of the self-critical analysis privilege).

338 See Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939, 947 (Ct. CI. 1958).

339 See, e.g., Banks v. Lockheed-Georgia Co., 53 F.R.D. 283, 285 (N.D. Ga. 1971) (holding that a defense contractor's disclosure of self-critical analysis would hinder compliance with equal employment opportunity practices).

340 See Simpson, Stephen C., The Self-Critical Analysis Privilege in Employment Law, 21 J. Corp. L. 577, 580(1996)Google Scholar.

341 See Reichhold Chem. v. Textron, Inc., 157 F.R.D. 522, 525-27 (N.D. Fla. 1994) (enumerating additional cases supporting qualified privilege for self-analysis materials).

342 See id. at 524.

343 See Penk v. Oregon State Bd., 99 F.R.D. 506, 507 (D. Or. 1982); Roberts v. National Detroit Corp., 87 F.R.D. 30, 32 (E.D. Mich. 1980); Note, Making Sense of Rules of Privilege Under the Structural (IL) Logic of the Federal Rules of Evidence, 105 HARV. L. Rev. 1339, 1351-52(1992).

344 Federal courts have refused to adopt the privilege on a variety of grounds. See, e.g., Thorp v. Sivyer Steel Corp., 149 F.R.D. 177, 181 (S.D. Iowa 1993) (concluding that a “self critical analysis” privilege is not recognized when used to shield from disclosure documents prepared by employers in compliance with federally mandated affirmative action plans); Wei v. Bodner, 127 F.R.D. 91, 100-01 (D.N.J. 1989) (concluding that the privilege is not applicable where a plaintiff is alleging antitrust violations).

345 493 U.S. 182, 201-02 (1990).

346 See M. at 185.

347 See id. at 186.

348 See id. at 201.

349 See id.

350 See Darricades, supra note 5, at 264-65.

351 See Tables 3 & 4.

352 Most of the state confidentiality statutes simply state that the records should be confidential. See, e.g., W. Va. Code § 30-3C-3 (1995). This type of statute does not take information out of the legal system because, absent a privilege statute, the confidentiality statute does not preclude information from being released pursuant to a judicial process. See Scheutzow & Gillis, supra note 25, at 171.

353 See Tables 5 & 6.

354 See id.

355 See supra notes 241-43 and accompanying text.

356 See Conversation with Robert Oshel, supra note 242.

357 See Cal. BUS. & PROF. Code §§ 805(g), (h) (West 1995) (imposing a penalty of up to $10,000 on a health care facility for an intentional failure to report adverse peer review reports and a personal liability of up to $5,000 on the facility's administrator designated to transmit such report to the appropriate state authority whether or not failure was intentional); W. VA. Code § 30-3-14 (1995) (imposing a penalty of up to $10,000 on peer review organization that fail to report disciplinary actions).

358 See 42 U.S.C. § 11133(a)(1)(A) (1994).

359 California, New Jersey and West Virginia.

360 See, e.g., Letter from Fredric J. Entin, supra note 203, at 2.

361 See, e.g., Me. Rev. Stat. Ann. tit. 32, § 2599 (West 1995).

362 See. e.g., Del. Code Ann. tit. 24, § 1768(b) (1995).

363 See, e.g., W. Va. Code § 30-3C-3 (1995) (providing that “the proceedings and records of a review organization shall be confidential and privileged and shall not be subject to subpoena or discovery proceedings”); Iowa Code § 147.135 (1995) (providing that “peer review records are privileged and confidential … not subject to discovery, subpoena, or other means of legal compulsion for release”); Ark. Code Ann. § 20-9-503 (Michie 1995) (entitling § 20-9-503 as a “confidentiality” provision but only addressing privilege protection).

364 See, e.g., Ind. Code Ann. § 34-4-12.6-2(n) (West 1995) (providing that any person who violates the confidentiality requirement of the state's peer review statute shall lose the statute's immunity protection); Wis. Stat. Ann. § 146.38(4) (West 1995) (providing a separate cause of action for physicians under review against any person who, other than through a good faith mistake, discloses peer review records protected under the state's confidentiality statute).