Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

Liability for peer review

Q: I am a member of the credentials committee of an HMO. How likely am I to be sued for my committee work? Do I need extra malpractice coverage? Who will defend me or pay any award?

A: These are questions that you and other physicians who serve on such committees, including hospital peer review groups, should have asked before signing on. There are several possible areas of liability:

• Libel suits. Such suits have been brought over allegedly false statements made about a doctor. The litigation is usually unsuccessful, because the statements made in peer review are generally considered to be opinion. But the suit—typically against the committee and its members—will still have to be defended in court.

• Discrimination suits. A doctor could claim he was excluded from an HMO panel for bias, rather than for legitimate reasons, such as his credentials or the needs of the plan.

• Breach of contract suits. These could be brought by doctors who feel they are wrongfully suspended from the panel.

• Malpractice suits. A credentials committee's main duty is to assure that unqualified physicians are excluded from a plan's panel or won't receive hospital privileges. So a patient suing a physician for malpractice could bring suit against the committee and its members for failure to adequately credential that doctor. They'll argue that the committee either knew or should have known that the doctor was a problem.

Such claims have involved allegations of drug or alcohol abuse, many prior malpractice suits, privilege or licensure suspensions, and practicing without a license. Patients could also sue committee members if they need a certain specialist in their locale, but none are on the panel.

Unfortunately, the courts haven't clearly determined how liability for credentialing decisions should be apportioned among the plan, hospital, and physician reviewers. Physicians have been named individually as defendants in such suits, and the question of whether their insurance coverage applies has been dicey.

Typically, doctors are covered for their activities on the committee by their HMO or hospital, as well as by their own malpractice insurer. But don't take this coverage for granted. Some physicians have had to defend themselves at their own expense.

If you're employed by the HMO whose committee you serve on, it's likely that the plan would pay for your legal defense and cover any award. But the plan's policy would cover you only for acts that are within the scope of your employment. So make sure the plan agrees that your credentials committee activities are covered.

A private physician who serves on such a committee should specifically ask the health plan or hospital if he's covered. The organization may cover committee members through an endorsement to its insurance. But these endorsements typically cover physicians only for their work on the committee, not for patient care activities.

If there's no special endorsement, you'll probably have to rely on your own malpractice insurer. Most policies cover physicians for peer review. But some specifically exclude coverage for credentialing activities for managed care plans.

Some malpractice insurers provide credentials committee coverage at no extra cost. Others tack on an additional fee. It's important to check your policy carefully and call your underwriting representative before agreeing to serve on a committee.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

Lee Johnson. Malpractice Consult.

Medical Economics

2002;16:80.