Three Arkansas hospitals filed a lawsuit in Pulaski County Circuit Court late Tuesday asking that a 2013 law passed by the Legislature be struck down.
Baptist Health Medical Systems, Mercy Health System and Washington Medical Center filed the suit jointly through attorney Megan Hargraves, alleging that the 2013 Arkansas Peer Review Fairness Act is unconstitutional because it is vague and attempts to supersede federal law, among other reasons.
The suit names Arkansas Attorney General Dustin McDaniel and Arkansas Department of Health Director Dr. Nathaniel Smith as defendants. No answer had been filed by either official as of late Wednesday, and spokesmen for both departments said they could not comment on the lawsuit until their attorneys had time to review it.
The seven-page act created additional rules for peer reviews at hospitals on the state level. A peer review in a hospital setting is when a group of volunteer physicians -- or peers -- evaluates the quality of care provided by individual doctors.
Supporters of the act said it added protection for physicians receiving a job performance review including ensuring they are notified of an investigation when it begins and allowing those doctors to have their own attorneys present at the beginning of the process.
The federal law, the Health Care Quality Improvement Act, does not require a physician to be notified until a hearing is initiated, sometimes months after an investigation is started, they say.
Several hospitals have protested that the state law unnecessarily burdens the process, places additional demands on an already volunteer body of peer doctors and makes the process more combative.
The Arkansas Hospital Association came out against the act before it was introduced in early March 2013 and continues to oppose it, said Elisa White, the association's vice president and legal counsel.
"We as an association are dedicated to a fair peer-review process, but this law really serves to burden that process and make it, in fact, less workable," White said. "It's very vague and burdensome on volunteer physicians. We just think that it's bad for doctors and hospitals, which means it's ultimately bad for patients."
The act was sponsored by Sen. Cecile Bledsoe, R-Rogers, who said Wednesday that the legislation was the result of several weeks of compromise between the Hospital Association and the Arkansas Medical Society, which represented physician interests. Bledsoe is married to a surgeon, Dr. James Bledsoe, who specializes in thoracic surgeries.
"The federal law specifically allows states to provide regulations... 'in addition to or greater than the protection of federal law.' We don't think this law is pre-empted by federal law," said David Ivers, a private attorney that provides counsel to the Medical Society.
"The lawsuit doesn't really make it clear, but this law protects not just the physicians who are being reviewed, but also the volunteer physicians who sit on the panels. If they act fairly, they're immune from damages."
Ivers and fellow attorney Michael Mitchell said before the law passed, they received complaints from physicians around the state who had undergone peer reviews at hospitals that seemed designed to retaliate against them if they attempted to open a private practice. Ivers said at one hospital, the staff attorney -- who had performed the investigation -- served as the person overseeing the review hearing for a physician. At most hospitals, Ivers said, physicians can appeal peer-review decisions, but the hospitals often choose the members of the appeals panel.
"This [state law] was designed to ensure due process and prevent sham peer reviews," he said.
The lawsuit alleges that the Arkansas law is unconstitutional for five reasons: The federal law already set rules for the reviews that trump state law; the Arkansas law treats hospitals differently than other medical treatment facilities that might perform peer reviews; the state law restricts hospitals' ability to retain an attorney of their choice by allowing doctors under review to request that an attorney not employed by the hospital oversee the review; the act interferes with the exclusive jurisdiction of Arkansas courts to regulate the practice of law; and it's vague and ambiguous, because it does not give "fair notice of what is prohibited under the law."
Metro on 06/12/2014