The California Third District Court of Appeal recently upheld the actions of a healthcare facility reporting a provider to the National Practitioner Data Bank who resigned while under investigation. In doing so, the court provided a welcome example of the immunities and protections afforded to those involved in good faith peer review while also shedding some light on the broad interpretation and meaning of the term “investigation.”

In the matter of Wisner v. Dignity Health (2022) 2022 WL 16706648, a surgeon sued St. Joseph’s Medical Center (“SJMC”) claiming it falsely reported him to the National Practitioner Data Bank (“NPDB”) alleging causes of action for defamation, intentional interference with his right to pursue a lawful profession, negligent and intentional interference with prospective economic advantage, unlawful business practices, and intentional infliction of emotional distress.

The surgeon initiated the lawsuit after the SJMC reported him to the NPDB for resigning while under investigation. The surgeon disputed that he was under investigation and asserted that he resigned in good standing.

SJMC responded to the complaint by filing a motion to strike the action (i.e., an anti-SLAPP motion). SJMC argued the complaint arose from the protected activity (i.e., the filing of the NPDB report for resignation while under investigation) and the lawsuit should therefore effectively be dismissed. The trial court granted the motion finding that the NPDB report was true when filed and that the federal Health Care Quality Improvement Act granted SJMC immunity from liability for its peer review activities. The Court of Appeal agreed and upheld the trial court’s order granting the motion to strike the complaint.

This case provides an example of how the immunities granted by law to those engaged in good faith peer review can and do protect medical staffs, medical staff members and health care entities from frivolous or retaliatory lawsuits.

We far too often hear that peer review committee members are hesitant to take corrective action or report a fellow colleague for fear of retaliation particularly in the form of litigation. The law, however, encourages peer review for the safety and wellbeing of patients and public policy purposes of maintaining a high level of quality of care within our healthcare facilities.

The law grants medical staff immunities from liability for engaging in good faith peer review. (See 42 USC 11101 et seq.) Here, the peer review activity includes investigation and reporting to the NPDB of the surgeon for resignation while under investigation. The term “investigation,” is not defined by California state or Federal law. As indicated by the court in Wisner v. Dignity Health, the U.S. Department of Health and Human Services published an NPDB Guidebook that provides guidance on what constitutes an “investigation.” Looking at this guidance, the court in Wisner v. Dignity Health noted that routine review is not an investigation. An investigation results when there is “‘a formal, targeted process’” that “‘is used when issues related to a specific practitioner’s professional competence or conduct are identified.’” Most importantly for medical staffs, the court affirmed that the definition of “investigation” in the medical staff bylaws does not control the analysis and is not a determinative factor as to whether an investigation took place. Doing so would create inconsistent and arbitrary findings by different healthcare facilities and medical staffs as to the imposition of an investigation and thus create inconsistency in mandated reporting. Here, the court found SJMC had engaged in a targeted review of a specific provider, the surgeon, that was a precursor to potential adverse action against his privileges. Thus, the surgeon was under investigation and his resignation triggered SJMC’s duty and obligation to report him to the NPDB.

Procedurally, in the litigation, SJMC filed an anti-SLAPP motion. This allows for the early disposal or dismissal of meritless lawsuits resulting from protected activities. In other words, it is essentially is a mechanism for defendants, such as SJMC, to strike the complaint and dismiss the action by asserting the lawsuit is being made for the purpose of chilling the valid exercise of the right to free speech or protected activity. Peer review activities, such as the investigation and subsequent NPDB report, are protected activities. SJMC was therefore able to effectively use the anti-SLAPP motion with the immunities granted to it for engaging in good faith peer review to dismiss the lawsuit brought on by the surgeon.

This case therefore stands as a prime example of how good faith peer review is protected as well as demonstrating how the legal mechanics work to dispatch of a case that is brought to chill such protected activity. At the same time, it further provides us additional insight into the meaning of the oftentimes ambiguous term “investigation.”