Hospitals, Medical Society At Odds Over New Legislation

Hospitals, Medical Society At Odds Over New Legislation
David Wroten

The Arkansas Medical Society and the Arkansas Hospital Association don’t see eye-to-eye on new legislation that deals with physician peer reviews.

Last month, Baptist Health of Little Rock, Mercy Health System of Chesterfield, Missouri, which operates six hospitals in Arkansas, and Washington Regional Medical Center of Fayetteville filed a lawsuit in Pulaski County Circuit Court challenging the constitutionality of the Peer Review Fairness Act of 2013.

The AMS said last week that it wants to jump into the middle of the lawsuit and help the Attorney General’s Office defend the case, which was filed against the Arkansas Department of Health and Arkansas Attorney General Dustin McDaniel.

“We think it’s constitutional,” said David Wroten, executive vice president of the AMS.

The AMS will ask to intervene in the lawsuit, and if Pulaski County Circuit Judge Tim Fox approves, the Litigation Center of the American Medical Association and state medical societies will assist in defending the constitutionality of the case, he said.

The legislation was sponsored last year by state Sen. Cecile Bledsoe, R-Rogers, who wanted to prevent problems involving conflicts with hospitals and physicians peer review committees, she said. Some doctors feared that hospitals could use the peer review process to retaliate against doctors who opened competing facilities or refused to sell their practices to the hospital.

In the peer review process, doctors volunteer to review the performance of other doctors to identify potential problems, to improve patient care or, in some cases, to protect patients by removing a doctor from practicing at a hospital.

The AMS helped draft the peer review legislation that now requires hospitals to notify physicians promptly if they are referred for an investigation. Under the federal Health Care Quality Improvement Act, though, hospitals don’t have to notify physicians that they are a target of a peer review investigation until later in the process.

In addition, the state Peer Review Fairness Act allows doctors to have their attorneys present, but only if a peer review committee’s attorney is also present.

“That’s just fair,” Wroten said. “We had support from physicians across the state on this issue.”

The hospitals and their medical staffs, though, found the legislation “really burdened the peer review process,” said Elisa White, vice president and general counsel for the Arkansas Hospital Association, which supports the hospital’s lawsuit. The lawsuit was filed by attorney Megan Hargraves of Little Rock, who referred questions about the case to White.

“Anything that burdens the process is bad for the medical staff and bad for hospitals,” White said. “And then when those two groups can’t work together, it ends up being bad for patients.”

She said the federal Health Care Quality Improvement Act deals with due process protections for doctors who have to go before a peer review committee. And under the federal law, doctors on a peer review committee can’t have a conflict with the physician under review, White said.

“The hospitals are having trouble reconciling the state law with the federal law because it’s very confusing and seems to contradict the federal law in places,” she said. “This law is somewhat unclear about what exactly is expected.”

For example, the section on notifying physicians when they are the target of a possible professional review action has caused some concerns for hospitals, White said. She said hospitals are routinely reviewing charts and other metrics, but hospitals don’t know if pulling charts on a doctor triggers an investigation as defined by the Peer Review Fairness Act.

“This law really defines ‘investigation’ so broadly,” White said. “Hospitals want to make sure they’re doing the right thing. … This law is somewhat unclear about what exactly is expected.”

If the legislation isn’t voided, the hospitals want the Peer Review Act better explained, the hospitals said in the lawsuit.

The Attorney General’s Office filed a response on July 11 and asked that the case be dismissed.

White said the current fight isn’t between doctors and hospitals. “We believe this is a quality of patient care issue,” she said.