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A Peer Review Reminder: How to Treat Contextual Information

on Friday, 21 April 2017 in Health Law Alert: Erin E. Busch, Editor

A recent Illinois case  highlights a dilemma that medical staffs often face when taking corrective action against peers, namely, whether and how to consider the physician’s prior history as context for new concerns.  The case also reinforces the principle that the role of courts is typically limited to determining whether bylaws and due process are followed, rather than second guessing clinical judgments by peer review bodies.

Briefly, Dr. Patrick Murphy was an interventional cardiologist who had held privileges at the hospital since 1994. His clinical privileges were summarily suspended following a discussion among peers earlier the same day regarding his care of patient E.W., who had died.  Per the medical staff bylaws, the summary suspension notice was sent to the MEC at which the Chair of Dr. Murphy’s department presented a technical summary of Dr. Murphy’s care of E.W., noting four areas of deficiency as follows: “(1) the absence of any documentation concerning the…cardiac catheterization procedure Murphy performed on E.W.; (2) a delay in the bedside evaluation of E.W.’s status; (3) an inappropriate response to clinical findings; and (4) Murphy’s refusal to consult with an intensive care unit (ICU) physician who had requested to confer with Murphy about the management of E.W.’s care.” 

The summary suspension was on again – off again, but ultimately on again and upheld following a hearing.  At different stages of considering the case against Dr. Murphy, medical staff representatives made the point that the summary suspension was based solely on the consideration of Murphy’s care of E.W.  Even the trial court had concluded that there was sufficient evidence regarding the care of E.W. to support the summary suspension.  However, the minutes, testimony and other communications indicated the MEC and other bodies and committees considering Dr. Murphy, including the hearing committee that ultimately heard the case, knew about, considered and discussed certain prior peer reviews and reports as context or as additional grounds for supporting the summary suspension decision.  Specifically, there were two recently completed peer reviews and two ongoing peer reviews not yet completed.  There were also ten Midas reports reflecting inadequate documentation. When Murphy requested copies of these reports and all documentation surrounding them, his request was generally ignored, but it was clear that various decision makers at various times had these matters in mind as context, although their weighting or role in the decision making was not clear.

The Illinois Hospital Licensure Act is unusually proscriptive in mandating content for medical staff bylaws, particularly with respect to peer review proceedings, and requiring hospitals to follow their bylaws.  Among other things, the Act requires that “[a] summary suspension may not be implemented unless there is actual documentation or other reliable information that an immediate danger exists.”  The court appeared to view the references to prior peer reviews and Midas reports as making up part of the case against Dr. Murphy, thereby entitling him to the copies he had requested.

The court acknowledged that the judiciary’s role in hospital peer review cases is limited.  Citing prior Illinois case law the court stated:

“Courts are ill-qualified to run a hospital but they can read and interpret bylaws.  Therefore, when a physician sues over the suspension of a clinical privilege, the court will ask only one question:  Did the suspension violate any bylaw? … If a suspension violated no bylaw, the court will defer to the superior qualifications of the hospital officials who made the decision.” 

The court then concluded the Hospital had not followed its bylaws, reversed the decision and remanded the case back to the trial court for further consideration.

The lesson for hospitals is this:  when supporting a current case with context to show that the current case is part of a pattern of adverse care, be prepared to prove up on that context and make it a part of the case.  Alternatively, focus exclusively on the current matter.  If running an investigation, understand the ramifications of pulling in prior peer reviews or cases for context.  This is not to suggest that peer review bodies should not put current concerns into context.  They can and should whenever necessary for decision makers to see the complete picture.  However, the price for doing so may be needing to prove up the prior cited matters as if they are original bases for action.

The Murphy case may be something of an anomaly; courts in Nebraska and Iowa, for example, might very well not take such a legalistic view on the Murphy facts, particularly given the fact that the E.W. case alone, in the eyes of the trial court (and not disputed by the appellate court), constituted adequate support for summary suspension.  However, pulling in prior cases and peer reviews for context, while entirely natural, and while probably unavoidably part of the thought processes of decision makers, does raise a genuine issue of fairness.  The case is thus a good reminder to consider seriously whether and how to add historical context to a current case.

Alex M. “Kelly” Clarke


1 Murphy v. Advocate Health and Hospitals Corporation, 2017 IL APP(4th) 160513 (March 7, 2017).

2 Id. at 6.



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