Disclosure of Information Outside of Professional Review Bodies and Falsity of Information
The United States District Court for the Western District of Washington’s decision interpreting the Health Care Quality Improvement Act, 42 U.S.C. § 11101, et seq., (“HCQIA”), highlights specific requirements for immunity from damages under HCQIA, specifically limiting dissemination of peer review information to professional review bodies and avoiding information that is false and known to be false.
Hospital Removes Physician as Chair of Neurosurgery After Receipt of Numerous Complaints
Defendant, Dr. Charles Cobbs, originally sent a letter on November 4, 2016, to the Swedish Medical Center (“Hospital”) Chief Executive Officer (“CEO”) and two other Hospital administrators regarding Dr. Johnny Delashaw, Jr., a neurosurgeon and the Chair of Neurosurgery and Spine at the Swedish Neuroscience Institute (“SNI”). The November 2016 letter outlined several concerns allegedly raised by physicians, nurses, and staff about Dr. Delashaw that fell into the following categories: (i) a pattern of intimidation, harassment, and retaliation; (ii) discouraging the reporting of errors; (iii) discouraging staff from asking questions; (iv) contributing to the loss of experienced personnel; (v) jeopardizing patient safety with disruptive behavior; and (vi) interfering with other physicians’ referrals and practices.
Over the next several weeks, Dr. Cobbs distributed the letter to several other individuals via email, including his fellow SNI surgeons, at least two other individuals who did not appear to work at the Hospital, the Hospital Medical Group’s (“HMG”) CEO, and another physician. Additionally, Dr. Cobbs also emailed his November 4 letter to a group of individuals that he allegedly believed were part of the Hospital’s Medical Executive Committee (“MEC”). In December 2016, the Hospital’s CEO notified Dr. Delashaw that he would be removed from his role as Chair of Neurosurgery and would be moved to an administrative role as Chair Emeritus of Neurosurgery at SNI due to repeated and numerous complaints about his leadership.
Dr. Delashaw Sues Dr. Cobbs Based on the Contents of his November 4, 2016 Letter
After learning of Dr. Cobbs’ letter, Dr. Delashaw filed suit against Dr. Cobbs, and alleged that Dr. Cobbs’ statements resulted in extreme reputational harm and loss of employment opportunities. Dr. Delashaw also brought claims of civil conspiracy and tortious interference with a business expectancy against Dr. Cobbs. The civil conspiracy claim was based on certain allegedly defamatory statements in Dr. Cobbs’ letter, while the tortious interference claim alleged that Dr. Cobbs interfered with Dr. Delashaw’s business relationship with the Hospital “through improper means, including defamation and Dr. Cobbs’ violation of his obligations” to the Hospital.
Immunity from Damages Under HCQIA is Not Absolute
Dr. Cobbs filed a motion for summary judgment and argued that he was immune from damages for any defamatory statements made in his letter under HCQIA. As a preliminary matter, the court found that the plain meaning of HCQIA demonstrated that Dr. Cobbs’ assertion that HCQIA entitled him to summary judgment on all claims was overbroad; rather, the court concluded that HCQIA only provides immunity from liability for damages, and Dr. Delashaw sought both damages and equitable relief (i.e., Dr. Delashaw sought an order “enjoining Dr. Cobbs from making false statements about Dr. Delashaw”). Hence, before even determining whether Dr. Cobbs was immune from damages under HCQIA, the court reasoned that such an argument would not dispose of all of Dr. Delashaw’s claims.
Only Statements Made to Members of a Professional Review Body Are Entitled to Immunity Under HCQIA
The court then turned to the question of damages and found that Dr. Cobbs was not immune from liability for all potential damages. Instead, Dr. Cobb was entitled to immunity from damages only for claims tied to specific recipients of the letter who constituted members of a “professional review body” as defined in the HCQIA. The court divided the recipients of the letter into two categories – corporate officers and possible MEC members. Regarding the former, the court found that Dr. Cobbs’ communications to the Hospital’s CEO and three other persons were protected because these individuals were corporate officers of the Hospital, and under HCQIA, such individuals constituted a professional review body. Thus, the court concluded that Dr. Cobbs was providing information to a professional review body as defined by HCQIA when he sent the letter to these individuals.
With respect to the email to the alleged MEC members, the court noted that Dr. Delashaw did not dispute that MEC members are members of a professional review body under HCQIA, but instead contended that Dr. Cobbs only established that one recipient of the email was actually a member of the MEC. When examining the evidence – specifically, a text message exchange between Dr. Cobbs and another physician containing a list of names to whom Dr. Cobbs sent the email – the court found that the text messages clearly showed that Dr. Cobbs did not believe the list of names actually comprised MEC members, but instead considered them to be members of the Swedish Medical Group (“SMG”) Executive Council. The court further concluded that Dr. Cobbs made no arguments and submitted no evidence suggesting that the SMG Executive Council was a professional review body of the Hospital under HCQIA. Although the court determined that two of the individuals from the email list were actual MEC members and were therefore members of a professional review body under HCQIA, the court held that Dr. Cobbs failed to demonstrate that HCQIA immunity applied to any other recipients of the November 4, 2016 letter apart from the Hospital’s CEO, three other corporate officers, and two members of the MEC.
Applying the Falsity Exception Under HCQIA
The court also addressed whether HCQIA’s falsity exception applied to Dr. Cobbs’ statements. Specifically, HCQIA does not provide immunity in instances where information is provided to members of a professional review body if the information is false and the provider knew it was false. In such instances, there is no HCQIA immunity, even if the recipient of the false information is a member of a professional review body.
In analyzing the issue of falsity, the court noted that it previously determined that five out of the seven categories of Dr. Cobbs’ allegedly defamatory statements in the letter were not made with a reckless disregard for truth. The court explained that knowledge of falsity is a higher standard than reckless disregard for truth, and therefore found that Dr. Cobbs was immune from any damages stemming from those five categories of statements made to the professional review body members. As to the remaining two categories of statements (i.e., Dr. Cobbs’ statements regarding (1) SNI surgeons’ unanimous opposition to Dr. Delashaw, and (2) Dr. Delashaw causing mass personnel departures), the court determined there was a genuine dispute of material fact as to the falsity of these categories of statements and Dr. Cobbs’ knowledge of their falsity. Thus, the court held that Dr. Cobbs would not enjoy HCQIA immunity from damages relating to these two categories of statements if Dr. Delashaw could demonstrate that they are false and that Dr. Cobbs knew the statements were false when Dr. Cobbs made them.
As noted, the court concluded that six of the November 2016 letter’s recipients constituted members of a professional review body under the HCQIA – four corporate officers of the Hospital and two MEC members. As such, the court held that Dr. Cobbs could only be found liable for damages resulting from the publication of the letter to these individuals if the statements he made to them were false and Dr. Cobbs knew they were false at the time of publication.
HCQIA can and has proven to be a valuable tool for physicians, nurses, and other healthcare providers to relay vital information to a hospital or other health care entity’s peer review bodies in a manner that promotes immunity from damages for defamation and other torts. However, the immunity from damages available under HCQIA is not absolute. Immunity ultimately depends upon whether an informant, as well as the members of a professional review body, understand and comply with HCQIA’s requirements. The informant must limit the dissemination of information to professional review bodies as defined by HCQIA and the informant must protect against dissemination of information that is false or known to be false, even to professional review bodies. It is essential that a hospital’s professional review body members and other health care providers are aware of these requirements to promote the availability of immunity from damages under HCQIA.
Evan Schrode authored this article.
© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XI, Number 215