Hospital Developed Immunity To A Doctor

May 20, 2002
Reprinted with permission of the Connecticut Law Tribune, May 20, 2002. By Thomas Scheffey
Litchfield Superior Court Judge Alexandra D. DiPentima handled the defamation case of Dr. Richard Munch against a Torrington hospital with the deftness of a surgeon.
 
The doctor claimed Charlotte Hungerford Hospital libeled him when it reported to a federal data bank that his privileges were curtailed. The hospital countersued Munch for vexatious litigation.
 
This was the first Connecticut case to construe hospital immunity under the federal Health Care Quality Improvement Act of 1986. It was enacted to create a national record bank that would prevent doctors from simply moving to a new state to escape past findings of incompetence or negligence.
 
The case had the potential to be messy. Munch claimed the hospital breached its own bylaws when it revoked his privileges to perform ureteroscopys. He claimed the HCQIA form checked off by the hospital was "totally false" when it read, "Denial privileges: Incompetence/malpractice/negligence." Munch also sued the hospital's vice president of medical affairs, Dr. Alan Bier, for telling the hospital that Munch had relinquished his privileges.
 
LEGALLY INOCULATED
The hospital countered in defense that it and Bier had complete immunity under HCQIA, and further that anything negative it had said was true.
 
The judge, however, stanched the legal bloodletting. She dismissed the count against Bier with simple reference to a calendar. Munch, she ruled, sued Bier for acts which occurred before the two-year statute of limitations.
 
DiPentima's April 22 decision centers on a letter Munch wrote the hospital's chief of surgery in July of 1997, offering to "voluntarily reduce my privileges" to perform ureteroscopys. On reviewing the hospital's study, he wrote, "it is apparent to me that my urologic colleagues, Dr.Schettler and Dr. Devanney, are more fascicle [sic] in doing ureteroscopys" and would refer his patients to them. He asked to preserve the right to do the procedure in emergencies, and said his training is continuing.
 
Munch also sought a hearing on what he described as his "privilege reduction." He was told that he could schedule one even after the normal 30 day period had passed, but he never did so, DiPentima wrote. Under the federal act, the hospital has immunity from liability if it acts in the reasonable belief that the action was in the furtherance of quality health care, after making reasonable effort to obtain the facts of the matter, with notice and a hearing for the physician.
 
There is a rebuttable presumption under the act that a hospital's professional review meets those standards, the judge noted.
 
In his action against the hospital, Munch contended that the hospital didn't have immunity because it had not established the truth behind its adverse action report. He also said the hospital wasn't require to tell the Data Bank that he relinquished his privileges because he had only asked for a "clarification" of his privileges.
 
Munch was represented by Winsted solo Patsy Renzullo. The hospital was represented by Wiggin & Dana's Ian E. Bjorkman, a partner at the firm's New Haven offices.
 
NO ULTIMATE BLAME
After studying the affidavits and the HCQIA procedures, the judge concluded that the hospital took the necessary steps necessary to gain immunity. And, despite Munch's effort to press the issue, DiPentima wrote that "the truth of the report does not enter into this determination."