1 See Cate, Matthew J., Physician Peer Review: Serving the Patient or the Physician?, 20 J. LEGAL MED. 479, 479 (1999).CrossRefGoogle ScholarPubMed

2 Darricades, Jeanne, Medical Peer Review: How is it Protected By the Health Care Quality Improvement Act of 1986?, 18 J. CONTEMP. L. 263, 263 (1992).Google Scholar

3 Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101–11153 (2000).

4 For purposes of the HCQIA, “review committee” includes “the professional review body, … any person acting as a member or staff to the body, … any person under a contract or other formal agreement with the body, and … any person who participates with or assists the body with respect to the [professional review] action ….” Id. § 11111(a)(1).

5 “Professional review action” is defined as “an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician.” Id. § 11151(9).

6 See id. § 11134(b).

7 See id. § 11133.

8 See 45 C.F.R. §§ 60.7–.9 (2003).

9 A pre-HCQIA case illustrates the potentially draconian consequences of a peer review action. See Dallon, Craig W., Understanding Judicial Review of Hospitals’ Physician Credentialing and Peer Review Decisions, 73 TEMP. L. REV. 597, 615-16 (2000)Google Scholar (quoting Ritter v. Bd. of Comm’rs, 637 P.2d 940 (Wash. 1981)).

Id. (citations omitted).

10 42 U.S.C. §§ 11112(a)(1)–(2) (2000).

11 Id. §§ 11112 (a)(3), (b)–(c).

12 U.S. CONST. amend. V.

13 See 42 U.S.C. § 11134(b); 45 C.F.R. § 60.1 (2003). In reality, a private corporation manages the NPDB and lists all new information. The use of a private corporation for such limited purposes, however, will not likely convert the listing of information on the NPDB into a private action for purposes of the Due Process Clause. See Driscoll v. Int’l Union of Operating Eng’rs, Local 139, 484 F.2d 682 (7th Cir. 1973) (holding that the activity of a private entity is subject to the strictures of the Fifth Amendment insofar as the entity's activity is endorsed by a regulatory agency); Lathan v. Block, 627 F. Supp. 397 (D.N.D. 1986) (holding that a government agency may be responsible for a private party's decisions when the agency has exercised coercive power or has provided encouragement such that the private party's action may be deemed to be that of the agency).

14 See Siegert v. Gilley, 500 U.S. 226, 231 (1991) (holding that there was not a claim for denial of liberty because the Constitution does not protect an interest in reputation without more); Paul v. Davis, 424 U.S. 693, 712 (1976) (holding that injury to the interest in reputation “does not result in a deprivation of any ‘liberty’ or ‘property’ recognized by state or federal law … [and] [f]or these reasons … is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due process of law”).

15 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 7.3.3, at 447 (1997) (citing Owen v. City of Independence, 445 U.S. 622, 661 (1980)).

16 See H.R. REP. NO. 99-903, at 2, reprinted in 1986 U.S.C.C.A.N. (P.L. 99-660) 6384.

17 Id.

18 See Cate, supra note 1, at 490-91.

19 See H.R. REP. NO. 99-903, at 2, reprinted in 1986 U.S.C.C.A.N. (P.L. 99-660) 6384.

20 See 42 U.S.C. § 11134(b) (2000).

21 45 C.F.R. §§ 60.1, .2, .7-.9 (2003).

22 42 U.S.C. § 11133(a).

23 Id. § 11134(b).

24 See id.; see also 45 C.F.R. § 60.1.

25 SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND REGULATORY AFFAIRS, U.S. GENERAL ACCOUNTING OFFICE, PUB. NO. GAO-01-130, NATIONAL PRACTITIONER DATA BANK: MAJOR IMPROVEMENTS ARE NEEDED TO ENHANCE DATA BANK's RELIABILITY (2000) [hereinafter GAO REPORT].

26 42 U.S.C. § 11111(b); see also 45 C.F.R. § 60.9(c).

27 42 U.S.C. § 11137(b).

28 45 C.F.R. § 60.11(a).

29 42 U.S.C. §§ 11135(a)(1)–(2); see also 45 C.F.R. § 60.10(a).

30 45 C.F.R. § 60.6(b).

31 Id. § 60.14.

32 Darricades, supra note 2, at 263.

33 298 F.3d 333 (5th Cir. 2002).

34 Id. at 336.

35 Id. at 337.

36 Id.

37 Id. at 338.

38 Id.

39 See Scott M. Smith, Annotation, Construction and Application of Health Care Quality Improvement Act of 1986 (42 U.S.C.A. §§ 11101-11152), 121 A.L.R. FED. 255 § 2 (1994).

40 H.R. REP. NO. 99-903, at 2, reprinted in 1986 U.S.C.C.A.N. (P.L. 99-660) 6384.

41 42 U.S.C. §§ 11112(a)(1)–(2) (2000).

42 Bryan v. James E. Holmes Reg’l Med. Ctr., 33 F.3d 1318, 1332 (11th Cir. 1994).

43 See Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 32 (1st Cir. 2002).

44 See 42 U.S.C. § 11112(a)(3).

45 Id. §§ 11112(b)(1)–(2).

46 Id. § 11112(b)(3)(A).

47 Id. § 11112(b)(3)(C).

48 Id. § 11112(b) (“A professional review body's failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of subsection (a)(3) of this section.”); see also Smith v. Ricks, 31 F.3d 1478, 1485 n.5 (1994) (holding that the procedural protections described by § 11112(b) create a “safe harbor” for immunity under § 11111(a)(1), but are not “necessary” to receive that immunity).

49 See 42 U.S.C. § 11112(c)(2).

50 Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972).

51 Paul v. Davis, 424 U.S. 693, 712 (1976).

52 Id. at 695.

53 Id. at 696.

54 Id.

55 Id. at 696-97.

56 Id. at 710.

57 Id. at 710-11.

58 408 U.S. 564 (1972).

59 400 U.S. 433 (1971).

60 Roth, 408 U.S. at 573.

61 Constantineau, 400 U.S. at 437.

62 Id. at 435.

63 Id. at 436.

64 Id. at 437.

65 Paul v. Davis, 424 U.S. 693, 708 (1976). The Davis court did not deny the broader grant of liberty in Constantineau, but instead reasoned that it would “not read this language as significantly broadening [prior] holdings … if there [was] any other possible interpretation of Constantineau's language.” Id.

66 Id. at 710-11.

67 Board of Regents of State Colleges v. Roth, 408 U.S. 564, 568 (1972).

68 Id. at 569.

69 Id. at 572.

70 Id. at 573.

71 Id.

72 Davis, 424 U.S. at 710.

73 CHEMERINSKY, supra note 15, § 7.3.3, at 447 (“[I]n deciding if there is a liberty interest, the Court is to look at the positive law and not base its decision on a conclusion about the importance of the interest of the individual.” (citing Paul v. Davis, 424 U.S. 693 (1976))) (emphasis added).

74 See Roth, 408 U.S. at 570-71 (reasoning that, in “determin[ing] whether due process requirements apply in the first place, [the court] must look not to the ‘weight’ but to the nature of the interest at stake”) (emphasis added).

75 490 U.S. 454 (1989).

76 Id. at 460.

77 See Roth, 408 U.S. at 572 (“While this court has not attempted to define with exactness the liberty guaranteed by the Fourteenth Amendment, the term has received much consideration and some of the included things have been definitely stated. Without a doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to … engage in any of the common occupations of life.” (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923))) (emphasis added).

78 Meyer, 262 U.S. at 399.

79 See, e.g., Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 404 (3d Cir. 1999) (holding that the reversal of a teacher's conviction under an English-only statute in Meyer v. Nebraska did not rely on the Court's “celebrated language about the right to engage in any of the common occupations of life,” but rather was based on the effect of that statute on a parent's liberty right to control the raising of his or her children).

80 Roth, 408 U.S. at 572.

81 Paul v. Davis, 424 U.S. 693, 711 n.5 (1976) (“There are other interests, of course, protected not by virtue of their recognition by the law of a particular State, but because they are guaranteed in one of the provisions of the Bill of Rights which has been ‘incorporated’ into the Fourteenth Amendment.”); see also RONALD A. CASS ET AL., ADMINISTRATIVE LAW: CASES AND MATERIALS 605-07 (4th ed. 2002). Jack Beermann takes it a step further, reasoning that the Roth Court's reliance on Meyer v. Nebraska, rather than on the Davis positive law analysis, “suggests that liberty is a purely constitutional concept to be elaborated exclusively by the Court.” Id. at 605.

82 See Cantwell, Michael K., Constitutional Torts and the Due Process Clause, 4 TEMP. POL. & CIV. RTS. L. REV. 317 (1995)Google Scholar. Specifically, Cantwell states, “The Supreme Court has yet to address whether the defamation must be in connection with dismissal from a government job, or whether this ‘stigma plus’ is satisfied by defamation that results in the plaintiff's loss of employment, coupled with an impairment of future employment opportunities. [However,] [t]he bulk of lower court authority requires that the defamation occur in the course either of a dismissal from a government position or termination of any other legal right or status enjoyed by the plaintiff.” Id. at 324 (emphasis added).

83 Davis, 424 U.S. at 708.

84 667 F.2d 773 (9th Cir. 1982).

85 Id. at 777-78 (emphasis added). The full test, as stated in Vanelli, for determining if an assault on an individual's reputation violates that individual's liberty is that, “The procedural protections of due process apply if the accuracy of the charge is contested, there is some public disclosure of the charge, and it is made in connection with the termination of employment or the alteration of some right or status recognized by state law.” Id.

86 Davis, 424 U.S. at 709-10.

87 Id. at 710.

88 557 F.2d 435 (5th Cir. 1977).

89 Id. at 438.

90 Siegert v. Gilley, 500 U.S. 226, 233-34 (1991).

91 Id.

92 Id. at 234.

93 Id. at 228.

94 See id. at 233-34. In Siegert, the plaintiff's claim failed in part because the defamatory letter at issue had been written several weeks after the plaintiff's resignation, and as such was not incident to termination. Id.

95 Simpkins v. Shalala, 999 F. Supp. 106 (D.D.C. 1998).

96 Id. at 117.

97 Id. at 118.

98 Id. (citing Kartseva v. Dep't of State, 37 F.3d 1524, 1527 (D.C. Cir. 1994)).

99 See Paul v. Davis, 424 U.S. 693, 711 n.5 (1976).

100 See 45 C.F.R. § 60.5(c) (2003) (“A health care entity must report an adverse action to the Board within 15 days from the date the adverse action was taken. The Board must submit the information received from a health care entity within 15 days from the date on which it received this information.”).

101 GAO REPORT, supra note 25.

102 See 42 U.S.C. § 11133(c)(1) (2000); see also 45 C.F.R. § 60.9(c)(1)(iii) (2003). But see, GAO REPORT, supra note 25, at 13 (discussing the HHS Office of Inspector General's concern that there has been a “relatively low number of reported clinical privileges restrictions since NPDB's early years of operation,” and suggesting that the Health Resources and Services Administration “seek legislative authority to fine nonreporting providers”); Sara Hoffman Jurand, Managed Care Companies Don't Report Bad Doctors, Federal Study Finds, TRIAL MAG., Aug. 1, 2001, at 80.

103 See Siegert v. Gilley, 500 U.S. 226, 234 (1991).

104 See id. at 228.

105 See 42 U.S.C. §§ 11111(a), 11133(a).

106 See Paul v. Davis, 424 U.S. 693, 709-10 (1976).

107 See Dallon, supra note 9, at 612-13; see, e.g., Simpkins v. Shalala, 999 F. Supp. 106, 112 (D.D.C. 1998) (noting that there was no meaningful distinction between the resignation of the plaintiff physician's employment and the surrender of his clinical privileges).

108 See Dallon, supra note 9, at 613.

109 Simpkins, 999 F. Supp. at 118.

110 See Johnson v. Misericordia Cmty. Hosp., 301 N.W.2d 156, 164 (Wis. 1981) (“[T]he failure to investigate a medical staff applicant's qualifications for the privileges requested gives rise to a foreseeable risk of unreasonable harm and we hold that a hospital has a duty to exercise due care in the selection of its medical staff.”); see also Blum, John D., The Evolution of Physician Credentialing into Managed Care Selective Contracting, 22 AM. J.L. & MED. 173, 189 (1996)Google ScholarPubMed (“Capitated plans, like hospitals, are engaging in credentialing not only to ensure quality, but also as a form of risk management to protect themselves from potential liability.”).

111 The HCQIA prohibits disclosure of information contained in the NPDB to parties other than those specifically authorized by the Act. See 42 U.S.C. § 11137(b)(1) (2000). Thus, the public, malpractice insurers, and third party payers are precluded from accessing the NPDB. See Flynn, Ruth E., Demand for Public Access to the National Practitioner Data Bank: Consumers Sound Their Own Death Cry, 18 HAMLINE J. PUB. L. & POL’Y 251, 252 (1996).Google Scholar It is unclear, however, whether this provision would also preclude a plaintiff in a medical malpractice claim from acquiring such information, through discovery, to prove that the healthcare entity negligently selected its medical staff. Compare 42 U.S.C. § 11137(b)(1) (“Information reported under this part is considered confidential and shall not be disclosed (other than to the physician or practitioner involved)”), with id. (“Nothing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure.”).

112 See Dallon, supra note 9, at 614.

113 42 U.S.C. §§ 11112(b)(1)–(2).

114 Id. § 11112(b)(3)(A).

115 Id. § 11112(b)(3)(C).

116 See, e.g., id. § 11112(a) (stating that a review committee may only take a review action if, after making “a reasonable effort to obtain the facts of the matter,” it reasonably believes the action will further the quality of healthcare); id. § 11112(b) (requiring notice and opportunity for a hearing, with assistance of counsel, before an arbitrator, hearing officer, or panel of unbiased individuals).

117 See id. § 11112(c)(2) (“Nothing in this section shall be construed as … precluding an immediate suspension or restriction of clinical privileges … where the failure to take such an action may result in an imminent danger to the health of any individual.”).

118 See, e.g., Patel v. Midland Mem’l Hosp. and Med. Ctr., 298 F.3d 333, 340 (5th Cir. 2002) (relying on due process principles rather than the HCQIA, the court found that patient safety outweighed the physician's Due Process right to a pre-termination hearing).

119 424 U.S. 319 (1976).

120 Id. at 335.

121 While the Eldridge Court focused on the “fiscal and administrative burden” created by additional procedural requirements, the third prong of the Eldridge test also weighs a state's compelling interest in preserving the public health, or, in this case, the federal government's interest in the regulation of interstate commerce. See Eldridge, 424 U.S. at 334; cf. Freilich v. Bd. of Dirs. of Upper Chesapeake Health, Inc., 142 F. Supp. 2d 679, 694 (D. Md. 2001) (holding that Congress may pass the HCQIA as a valid exercise of its power to regulate commercial activity under the Commerce Clause).

122 See Patel, 298 F.3d at 340 (“In some cases, ‘where a state may act quickly, or where it would be impractical to provide pre-deprivation process,’ post-deprivation process is enough to satisfy the requirements of due process.”); Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991) (“[U]nder such exigent circumstances, where the safety of the public is at risk, an adequate post-suspension remedy satisfies the requirements of due process.”); see also FDIC v. Mallen, 486 U.S. 230, 240 (1998) (“An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.”).

123 See Eldridge, 424 U.S. at 334 (“‘[D]ue [P]rocess,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961))).

124 A healthcare entity, such as a hospital, will theoretically be required to provide procedural protections at the reporting stage only if the entity can be characterized as a public actor. See Freilich, 142 F. Supp. 2d at 691 (holding that the plaintiff's claim, “that the HCQIA violates her right to due process and equal protection under the Fifth Amendment must be dismissed against the private hospital defendants because the Fifth Amendment restricts only actions of the federal government.”). Listing, however, will always constitute public action, regardless of the hospital's status, since only HHS may list peer review information in the NPDB pursuant to the HCQIA, 42 U.S.C. § 11134(b) (2000). See also 45 C.F.R. § 60.1 (2003). For purposes of this Note, therefore, this analysis will proceed only with regard to the listing stage of the peer review process.

125 See 45 C.F.R. §§ 60.6(a)–(b).

126 See 42 U.S.C. § 11136(2); see also Simpkins v. Shalala, 999 F. Supp. 106, 111 (D.D.C. 1998) (“[T]he HCQI Act requires HHS to establish procedures to govern disputes concerning the accuracy of information contained in the Data Bank.”).

127 45 C.F.R. § 60.14 (a).

128 Id. §§ 60.14(b)(1)–(b)(3). The physician, however, is summarily precluded from challenging the listing if he fails to submit the required challenge within sixty days. See id. § 60.14(b).

129 Id. § 60.14(c)(1).

130 Id. § 60.14(c)(2).

131 Id. §§ 60.14(c)(2)(i)–(ii).

132 Id. § 60.14(c)(2).

133 Id.

134 Simpkins v. Shalala, 999 F. Supp. 106, 110 (D.D.C. 1998) (citing Camp v. Pitts, 411 U.S. 138, 142-43 (1973)). But see Citizens v. Overton Park, 401 U.S. 402, 420-21 (1971) (determining that the reviewing court may remand to the Secretary so that he may supplement the record).

135 Contra Ingraham v. Wright, 430 U.S. 651 (1977). The Supreme Court in Ingraham, found that a student was able to vindicate his right to freedom from bodily restraint and punishment through tort liability and held that due process did not require a pre-sanction hearing. Id. at 678. In the HCQIA context, however, the vindication of rights through alternative means is not available to physicians who have been listed in the NPDB—the immunity provisions in section 11111 of that Act prevent an aggrieved physician from seeking damages, thereby distinguishing Ingraham. Id.

136 See 42 U.S.C. § 11114 (2000) (“The Secretary may establish, after notice and opportunity for comment, such voluntary guidelines as may assist the professional review bodies in meeting the standards described in section 11112(a) of this title.”); see also id. § 11136 (“With respect to the information reported to the Secretary … respecting a physician or other licensed health care practitioner, the Secretary shall, by regulation, provide for … procedures in the case of disputed accuracy of the information.”).