Agbor and Credentialing Suits by Patients

By Joseph J. Wang
JWang@central.uh.edu

The medical peer review process is designed to ensure the qualifications and quality of care provided by physicians in hospital settings. The peer review process therefore is extremely important to physicians and patients. Peer review decisions affect physicians by determining whether the physicians can provide certain services within a particular hospital. Peer review decisions affect hospital patients by regulating the quality of care provided in the hospital. The importance of the peer review process to physicians and to patients is recognized at the federal level by the Health Care Quality Improvement Act, 42 U.S.C.A. § 11101 et. seq., which provides limited types of immunity for peer review participants under certain guidelines. The federal statute also provides that states can implement laws which offer greater protections to participants in the peer review process. See 42 U.S.C.A. §11115.

States have enacted a broad range of statutes that provide different levels of immunity for peer review activities (see chart below). The type of immunity provided may vary depending upon whether the suit is brought against an individual who participates in peer review activities or against the committee or entity that makes the final peer review determination. In addition, the level of immunity may vary based on the nature of the underlying action. Legislatures and courts sometimes provide greater or lesser immunity depending on whether the claim is asserted by an allegedly injured patient or by an allegedly injured physician. This article focuses on actions against review entities by injured patients with an emphasis on Texas law.
 

 
 
 
 

State


 
 
 
 

Statutory Reference

Are members of

committees generally immune from credentialing suits by patients?

Are hospitals/

Committees generally immune from credentialing suits by patients?

Additional requirements for immunity*
YES
NO 
YES
NO
Alabama Ala. Code §6-5-333
X
   
X
R,S,M
Alaska Alaska Stat. §18.23.020  
X
 
X
N/A
Arizona Ariz. Rev. Stat. Ann. §§36-445.02, 36-446.11, 36-2917
X
   
X
S
Arkansas Ark. Code Ann. §20-9-502
X
   
X
S,M,F
California Cal. Health & Safety Code Cal. §1370; Civ. Code §43.7
X
   
X
R,M
Colorado Colo. Rev. Stat. Ann. §§12-36.5-105, 12-36.5-203, 25-3-109  
X
 
X
N/A
Connecticut Conn. Gen. Stat. Ann. §19a-17b
X
   
X
R,S,M
Delaware Del. Code Ann. tit. 2, §1768
X
 
X
 
GF,S,M
D.C. D.C. Code Ann. §32-503
X
 
X
 
R,S
Florida Fla. Stat. Ann. §766.101
X
   
X
S,F
Georgia Ga. Code Ann. §§31-7-132, 31-7-141
X
   
X
S,M
Hawaii Haw. Rev. Stat. Ann. §663-1.7
X
   
X
S,M
Idaho Idaho Code §39-1392c
X
 
X
 
S
Illinois 210 Ill. Comp. Stat. Ann. 85/10.2; 225 Ill. Comp. Stat. Ann. 60/5
X
 
X
 
S,WW
Indiana Ind. Code Ann. §§34-30-15-15, 34-30-15-17
X
   
X
GF
Iowa Iowa Code Ann. §147.135
X
   
X
S,M
Kansas Kan. Stat. Ann. §65-442
X
   
X
GF,S,M
Kentucky Ky Rev. Stat. Ann. §311.377  
X
 
X
N/A
Louisiana La. Rev. Stat. Ann. §13:3715.3
X
 
X
 
R,S,M
Maine Me. Rev. Stat. Ann. tit.32, §3293
X
   
X
S
Maryland Md. Code Ann., Health Occ. §14-501
X
   
X
S
Massachusetts Mass. Gen. Laws Ann. ch.111, §203
X
 
X
 
GF,R
Michigan Mich. Comp. Laws Ann. §331.531
X
 
X
 
S,M
Minnesota Minn. Stat. Ann. §145.63  
X
 
X
N/A
Mississippi Miss. Code Ann. §41-63-5
X
 
X
 
R,S,M
Missouri Mo. Ann. Stat. §537.035
X
 
X
 
GF,S,M
Montana Mont. Code Ann. §37-2-201
X
   
X
R,S,M
Nebraska Neb. Rev. Stat. §71-147.01
X
   
X
R,S,M
Nevada NONE          
New Hampshire N.H. Rev. Stat. Ann. §§329:17, 507:8-c
X
 
X
 
GF,S
New Jersey N.J. Stat. Ann. §2A:84A-22.10
X
   
X
R,S,M
New Mexico N.M. Stat. Ann. §41-9-4  
X
 
X
N/A
New York N.Y. Educ. Law §6527
X
   
X
R,S,M
North Carolina N.C. Gen. Stat. §131E-95
X
   
X
S,M,F
North Dakota N.D. Cent. Code §23-34-06
X
 
X
 
R,M
Ohio Ohio Rev. Code Ann. §§2305.25, 2305.28
X
 
X
 
R,S,M
Oklahoma Okla. Stat. Ann. tit.63, §§1-1709, 1-1709.1
X
   
X
GF
Oregon Or. Rev. Stat. §41.675
X
   
X
GF
Pennsylvania Pa. Stat. Ann. tit.63, §425.3
X
   
X
S,M
Rhode Island R.I. Gen. Laws §§5-37.3-7, 23-17-25
X
 
X
 
R,S,M
South Carolina S.C. Code Ann. §40-71-10
X
   
X
R,S,M
South Dakota S.D. Codified Laws §36-4-25
X
   
X
R,S,M
Tennessee  Tenn. Code Ann. §63-6-219
X
 
X
 
GF,S,M
Texas Tex. Occ. Code Ann. §160.010
X
 
X
 
M
Utah Utah Code Ann. §§58-13-4, 58-13-5
X
 
X
 
GF,M
Vermont Vt. Stat. Ann. tit.26 §1442
X
 
X
 
R,S,M
Virginia Va. Code Ann. §8.01-581.13
X
   
X
GF,S,M
Washington Wash Rev. Code Ann. §4.24.240  
X
 
X
N/A
West Virginia W. Va. Code §§30-3-14, 30-3C-2  
X
 
X
N/A
Wisconsin Wis. Stat. Ann. §146.37
X
 
X
 
GF
Wyoming Wyo. Stat. Ann §§35-17-103, 33-26-408
X
 
X
 
R,S,M
* Requirements of board or its members:

GF = acted in "good faith"
R = acted with "reasonable" belief that action taken was warranted
S = acted within "scope" of function, duty, or activity
M = acted without "malice" 
WW = acted without "willful and wanton" misconduct
F = acted without "fraud"
N/A = "not applicable"

In 1997, the Texas Supreme Court issued an important decision regarding a patient’s ability to sue a hospital for deficiencies in its credentialing process. In St. Luke’s Episcopal Hospital v. Agbor, 952 S.W.2d 503 (1997), the patient and her husband, the Agbors, sued the hospital, St. Luke’s, for the negligent credentialing of a physician who delivered the Agbors’ baby. The physician was not a Texas resident, was not properly insured for medical malpractice, and had been the subject of many malpractice claims. The plaintiffs argued that the hospital was negligent in allowing the physician to provide services to hospital patients. The Texas Supreme Court held that Agbors’ claim was barred because of language found in a Texas statute providing immunity to hospital credentialing committees. The Texas Medical Practice Act (TMPA), now Tex. Occ. Code Ann. § 160.010, provides that "[a] person, medical peer review committee, or health care entity that, without malice participates in medical peer review…is immune from any civil liability arising from that act[,]" controls. Thus, absent a showing of malice, St. Luke’s was immune from civil liability.

The dissent in Agbor argued that the TMPA should not be read literally, but that the provisions of TMPA should be read in context considering "the object sought to be attained, the circumstances under which the statute was enacted, the legislative history, common law, and the consequences of a particular construction." See Tex. Gov’t. Code Ann. § 311.023. In applying the above principle and reading the purpose of the TMPA as to protect patients and the public from medical negligence through the regulation of credentialing, the dissent concluded that the Legislature did not intend to insulate hospitals and health care providers from patient suits for negligent credentialing. Thus, the dissent argued that the injured patient should not be required to show malice.

In a majority of states, credentialing suits by patients against health care entities, medical peer review committees, and other review organizations are not prohibited by law. The right of patients to bring credentialing claims against health care entities is established in one of several ways: (1) the state statute governing peer review activities may fail to provide any immunity to peer review committees and health care entities; (2) the state statute may provide immunity to medical peer review committees and health care entities but may limit that immunity to suits brought by physicians, by implication thus permitting suits by patients; or (3) the state statute may specifically provide that medical peer review materials are discoverable for purposes of patient suits against health care entities.

In a minority of states, health care entities, medical peer review committees and other review bodies are generally immune from credentialing suits by patients. The statutes in these jurisdictions use language that confers immunity from patient actions on the health care entity, the committee, or both. In these jurisdictions, patients will not be able to bring credentialing claims absent proof that the immunity should not apply because of malice, lack of good faith, or some other statutorily prescribed factor.

On March 9, 2001, Representative Jim Dunnam introduced H.B. 3395 relating to standards for credentialing of health care providers in health care liability claims. The bill, in pertinent part, allows patient actions against hospitals without proving malice. H.B. 3395 would make Texas law consistent with that of the majority of other states. It provides that:

a hospital or health maintenance organization is liable to a patient without proof of malice if the trier of fact determines by a preponderance of the evidence that the members or staff of a medical peer review committee or the officers, agents, employees, or the members of the governing body of a hospital, or the health maintenance organization is negligent with respect to the granting of medical staff privileges or employment, or in retaining members of the medical staff whose privileges are expiring, or in failing to revoke privileges, or in failing to place appropriate limitations on the exercise of privileges, and that such negligence was a proximate cause of injury to or death of the patient in question.
H.B. 3395, 77th Leg. Sess. (Tex. 2001).

04/19/01