Federal antitrust jurisdiction in peer review cases: the Pinhas decision

In Summit Health Ltd. v. Pinhas, the United States Supreme Court by a narrow majority found that the exclusion of an ophthalmologist from a hospital in Los Angeles had a sufficient effect on interstate commerce to establish federal jurisdiction under the Sherman Act. In resolving a split among the federal circuit courts of appeal, the Court applied the broad jurisdictional test from McLain v. Real Estate Board of New Orleans, Inc. to peer review proceedings. Despite many ambiguities in the majority opinion by Justice Stevens and a scathing dissent by Justice Scalia, the effect of Pinhas will be to increase the suits in federal court on antitrust grounds brought by aggrieved medical staff members and applicants denied appointments or privileges, and to decrease, if not eliminate, the likelihood of preliminary dismissal on jurisdictional grounds. This, in turn, should serve to emphasize the importance of complying with the Health Care Quality Improvement Act in order to obtain immunity from damages under federal antitrust and state laws.     

Arnett v. Dal Cielo: peer review confidentiality threatened by medical board investigational subpoenas

If not modified or overturned on appeal, the Dal Cielo decision will very likely have a significant negative impact on the ability of California's organized peer review bodies to conduct frank, candid, and confidential peer review. Dal Cielo appears to permit the Board to subpoena committee minutes, physician credentials files, and live testimony whenever it determines that a physician should be investigated. Further, the impetus for the Board's investigation might be little more than a complaint from a single patient or even a disgruntled former employee of the physician or hospital. Regardless of current and future decisions, however, peer review bodies in California and other states operating under similar court decisions still retain at least some limited means to protect the confidentiality of their evaluative work. If, for example, a peer review body can establish that an investigatory subpoena seeks irrelevant information, is based upon little more than unsubstantiated rumor, or that the medical board has made no efforts to obtain information from other available, non-privileged sources, it may be able to convince a court that the subpoena is not supported by good cause. Peer review organizations should thus consider challenging medical board subpoenas in court to narrow their scope or establish that there is sufficient need for them. If any peer review body is served with an investigatory subpoena by a medical board requesting production of peer review information, it should carefully assess applicable state confidentiality protections.(ABSTRACT TRUNCATED AT 250 WORDS)     

The government's best offense is deference: the decision of the Supreme Court in Shalala v. Guernsey Memorial Hospital

The United States Supreme Court agreed with the Secretary of Health and Human Services that Guernsey Memorial Hospital's advance refunding transaction costs would be subject to a medicare reimbursement policy that is not based upon generally accepted accounting principles. According to the sharp dissent in this case, this policy, set forth in a manual provision, contradicts federal regulations.     

Preston v. Meriter Hospital in the Supreme Court of Wisconsin

When a baby is born in a hospital birthing center, the newborn has come to the "emergency department" for purposes of the Emergency Medical Treatment and Active Labor Act (EMTALA). Thus, the hospital must provide "an appropriate medical screening examination" to any infant born at the hospital birthing center in order to determine whether the infant has an emergency medical condition.     

Lebron v. Gottlieb Memorial Hospital: capping medical practice reform in Illinois

On February 4, 2010 the Illinois Supreme Court struck down Illinois' medical practice reform bill, P.A. 94-677, when it decided Lebron v. Gottlieb Memorial Hospital. Although the court only considered the unconstitutionality of the cap on non-economic damages contained in that bill, an inseverability provision resulted in the invalidation of all of its provisions. The end result of the Lebron decision extends much further than the striking of the cap on non-economic damages. It affects such areas as medical liability insurance law, physician discipline, public disclosure of information, the admissibility of physician statements into evidence, and expert witness standards. The Lebron holding has raised a significant obstacle to the implementation of a wide range of legislative measures intended to improve both the delivery and quality of healthcare services in Illinois. This article explains the impact of Lebron in these collateral, but important, areas of the law.