Medical Peer Review, Antitrust, and the Effect of Statutory Reform

Posted by Social Science Research Network

Medical Peer Review, Antitrust, and the Effect of Statutory Reform – Charity Scott (Georgia State University – College of Law)

ABSTRACT: This article analyzes whether the Health Care Quality Improvement Act (HCQIA) effects any real change in peer-review litigation under the antitrust laws. Although HCQIA’s protection from legal liability is not limited to antitrust cases, the threat of antitrust liability provided the primary impetus for enacting the immunity provision, and thus this article focuses on the Act’s impact on antitrust litigation only. The article concludes that, although Congress could have made reforms in the substantive or procedural adjudication of peer-review disputes under the antitrust laws, it has not done so by this Act, and that therefore courts should not interpret HCQIA as if it had enacted true reforms. Moreover, because the immunity granted by HCQIA is limited, a substantial amount of peer-review litigation will continue to arise that is outside the scope of the Act. This article is intended to guide courts not only in the interpretation of HCQIA, but also in the resolution of medical peer-review litigation under the antitrust laws whether or not the Act applies.