Federal Court in Texas Holds Discriminatory Peer Review Relevant In Antitrust Case.

On May 1, 2006, a federal district court in Houston, Texas held that disparate treatment of a physician in peer review was relevant to the physician’s antitrust case. In Royal Benson, M.D. v. St. Joseph Regional Medical Center, ( C.A. H-04-04323), Judge Keith P. Ellison ruled that Dr. Benson was entitled to pursue discovery of discriminatory treatment of him in peer review by sustaining his request that St. Joseph Regional Medical Center produce peer review cases of physician’s other than himself who went through peer review proceedings at St. Joseph. Judge Ellison, acknowledged the validity of St. Joseph’s argument that the relevant issue in the peer review proceedings was whether a physician’s peer reviews could reasonably have concluded that Dr. Benson provided substandard care. See Willman v. Hartland Hospital East, 34 F.3d 605, 610-11 (8th Cir. 1994).

Judge Ellison found, however, that that was not the only issue relevant to the existence of anti-competitive conduct.

"On the contrary, an analysis of how Defendants treated Dr. Benson in the peer review process, may be quite relevant to Plaintiff’s claims that Defendants acted with anti-competitive intent. If Defendants in fact treated Dr. Benson more harshly than other physicians, this would seem to lend support to Plaintiffs’ contention that Defendants acted with intent to remove Dr. Benson as a competitor in the Brazos County OB/Gyn market."

Hospitals and their medical staffs frequently assert in post privileges termination legal proceedings that the only issue is whether the hearing panel could reasonably conclude that the physician practices substandard medicine justifying the restriction or elimination of his privileges. See Smith v. Ricks, 31 F.3d 1478 (9th Cir. 1994); Pamituan v. Nanticoke Memorial Hospital, 192 f. 3d 378 (3d Cir. 1999) and Morgan v. Peacehealth, 14 P 3d 773 (Wash. App. 2000). Notwithstanding, the lack of consistency and evenhandedness in the peer review of hospital physicians represents potentially compelling evidence of intent to commit an antitrust violation or to violate the civil rights of a physician. In Benson, the Court ordered the hospital to produce all of the underlying cases in the hospital peer review of other physicians in order to permit Dr. Benson to do a comparative analysis of peer review of others compared to his own. One of the major problems for hospitals in peer review actions is the lack of articulated standards for removing or non-renewal of medical staff privileges. In the absence of civil articulated and defined standards, each physician performing peer review is free to apply his or her own personal standards. In such circumstances, it is easy for personal agendas or animus to intervene in the result against an unpopular or politically marginalized physician. It is also true that such a situation would adhere to the benefit of a popular and politically astute member of the staff. Hospitals would be well advised to assure that its medical staff develop clear and explicit standards for determining privileges in its facilities and require that all peer review cases be measured against the adopted standards, not only to provide effective due process of law but to insulate the organization from claims of disparate treatment. The Court in Benson underscored that,

"This view, that disparate treatment in the peer review process is relevant to claims of anti-competitive conduct is also compatible with the decisions of other courts on the issue of peer review discovery. Memorial Hospital v. Shadur, for example, invalidated a physician’s claim that a disciplinary proceeding against him was a sham intended only as a means of restraining trade. 664 F.2d 1058, 1062, 63 (7th Cir. 1981). To prove this allegation the court found that the physician needed to produce “evidence that other physicians with comparable or worse records than his” were not similarly disciplined. Id. at 1063. Similarly, in Swarthmore Radiation Oncology v. Lanes, the court recognized that “where plaintiff’s theory turns on comparison of how the defendants treated similarly situated physicians, staff privileges records are unquestionably relevant.” 1993 WL 17722 at 1 (E.D. Pa. 1993). Consistency and fairness in the application of peer review are the best defenses. "