Recent Legal Developments That Are Going To Make Medical Peer Review In Texas Harder (But More Important Than Ever)

The courts have been relatively quiet in Texas this past year when it comes to cases addressing medical peer review. The Texas Legislature, however, has been hard at work passing laws that raise the risks and reduce the protections for health care organizations engaging in medical peer review.

Meanwhile, recent changes to the National Practitioner Data Bank reporting requirements close perceived loopholes for reporting physician resignations and restrictions of clinical privileges, thereby making peer review activities subject to greater scrutiny.

In other words, the stakes have never been higher.

Accordingly, it is more important than ever to conduct medical peer review correctly in order to improve quality of care and police incompetent physicians, all the while meeting federal reporting requirements and avoiding legal liability.

This article addresses recent changes in law and policy and how health care organizations can still engage in effective medical peer review in Texas.

Removal of TCPA protections for medical peer review

The Texas Citizens Participation Act, Chapter 27 of the Texas Civil Practices and Remedies Code ("TCPA"), was once a highly effective tool for addressing spurious legal actions arising out of medical peer review. Texas appellate courts uniformly held that communications addressing physician competence were related to health and safety and were thus considered protected activities under the law. See, e.g., Batra v. Covenant Health Sys., 562 S.W.3d 696, 708-09 (Tex. App. 2018), reh'g denied (Nov. 5, 2018), review denied (June 14, 2019); Mem'l Hermann Health Sys. v. Khalil, No. 01-16-00512CV, 2017 WL 3389645, at *6 (Tex. App. Aug. 8, 2017).

Consequently, the TCPA's requirement that a plaintiff present "clear and specific evidence" of each claim at the outset of litigation, coupled with the threat of mandatory fees and sanctions occasioning a case dismissal, created a significant obstacle to litigation. Accordingly, the TCPA served for years to deter plaintiffs from filing many a questionable claim arising out of the medical peer review process.

Not so any more. Effective Sept. 1, 2019, the TCPA no longer applies to a legal action in which a moving party raises a defense pursuant to Section 160.010, Occupations Code, Section 161.033, Health and Safety Code, or the Health Care Quality Improvement Act of 1986 (42 U.S.C. 11101 et seq.). See Tex. Civ. Prac. & Rem. Code. § 27.010(a)(8). These statutes, which are explicitly...

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