WASHINGTON - It may take an act of Congress. That's what attorneys Alan Ullberg and Paul Blumenthal think might be necessary to change the federal law that now allows doctors' committees in hospitals to punish fellow doctors with little fear of being sued.
The two represent Dr. Linda Freilich, who last year unsuccessfully challenged the constitutionality of the law, known as the Health Care Quality Improvement Act.
Dr. Freilich, a board-certified internist and kidney specialist, lost her privileges at a Maryland hospital after she complained about budget cutbacks that she said had lowered the quality of care. She believed a panel of her peers and the hospital board punished her for speaking out on behalf of patients, and so she challenged the federal law that grants immunity to those groups.
The 4th U.S. Circuit Court of Appeals, upholding the trial court, said the law made it clear that it was not the judiciary's job to interfere with hospital decisions on how to spend money or which physicians to employ.
“The medical community is best equipped to conduct the balancing that medical resource allocations inevitably require,” the 4th Circuit panel ruled in December. “It is not the job of a federal court ... to referee disagreements between a hospital and staff physician over what constitutes the appropriate funding or manner of such care.”
On Dr. Freilich's contention that when the hospital denied her admitting privileges, it was retaliating against her for her advocacy, the court said, “Hospitals have historically had wide discretion to make decisions regarding their medical staff,” including “the consideration of factors beyond technical medical skills.”
Because of that, the two lawyers say, Congress needs to change the law so hospitals cannot act with impunity against doctors who criticize the quality of care. “There is no recourse without further legislation,” Mr. Blumenthal said.
The case marked the first direct attack on the law in federal court. The problem with the law, from Mr. Ullberg's perspective, is that it presumes that hospital review panels will make good-faith decisions based on a fair and reasonable process.
But too often, he said, the 1986 law is being used to silence physicians who complain about poor quality care by labeling them “disruptive” and subjecting them to career-crippling sanctions.
The immunity clauses were included in the law because physicians had been reluctant to serve on review panels for fear of being sued if, for instance, they tried to dismiss a doctor who was harming patients. The unintended effect, Mr. Ullberg said, is that the hospital-appointed panels now can unfairly target physicians without being held accountable.
That turns the intent of the law on its head, he said. “The whole system is set up and is operating to discourage complaints about quality of care.”
Congress does not have to undo the law, Mr. Ullberg said. It just needs to rewrite the law so it can go back to the original intent of encouraging doctors to enhance the quality of care.
Dr. Freilich, 52, treated patients at Harford Memorial Hospital in Maryland's Upper Chesapeake area from 1982 until 2000.
After Harford decided to contract out its quality assurance services, Dr. Freilich became alarmed at the growing instances of poor care, including the use of uncertified nurse assistants. In one case, a patient's cervical fracture went undetected. Another time, one of Dr. Freilich's patients was given dialysis without her knowledge and the patient nearly died, Dr. Freilich said.
She was particularly vocal about uninsured and disabled patients receiving less care than other patients.
But her advocacy did not sit well with Harford administrators.
When Dr. Freilich applied for the standard two-year renewal of her credentials in 1998, the hospital balked, agreeing only to a one-year renewal.
In April, 2000, the hospital board, even though it did not question her clinical competence, said it would not reappoint her. The denial of privileges “was based upon your failure to demonstrate ethical and cooperative behavior with regard to your position in the hospital and patient care,” according to a letter Dr. Freilich later received from the Maryland Department of Health and Mental Hygiene.
The state began its own investigation of Dr. Freilich. Four months later, she was cleared.
But by then, the hospital had submitted a report on her to the National Practitioner Data Bank, a list that is kept to identify doctors with malpractice judgments or who have lost their hospital privileges because of misconduct. Dr. Freilich's listing flagged her as a problem physician to any future employer. She has not worked in her home county since and has struggled to keep her practice alive.
After Dr. Freilich filed suit in December, 2000, the hospital's attorneys countered that if she was successful, “all disruptive, yet clinically competent, physicians would have been insulated from peer review in Maryland hospitals.”
“What grabbed my attention,” said Mr. Ullberg, 70, “was that she is a good practitioner and yet the system was beating up on her.”
While Dr. Freilich is still pursuing a suit in state court, Mr. Ullberg believes the chances of any successful legal challenge to the law “are probably low.” That's bad news for Dr. Freilich and other physicians like her, Mr. Ullberg said, but it is also bad news for patients.
With reimbursements falling short of costs, hospitals will continue to be under financial pressure to lower expenses, he believes, and eventually that will mean lowering the acceptable minimum standard of care.
If a doctor notices this, he might not speak up under the present law, Mr. Ullberg said, because if he is threatened with the loss of his credentials “he can't afford to care if a patient lives or dies.”
The Pittsburgh Post-Gazette is the sister paper of The Blade. Steve Twedt is a Post-Gazette staff writer.