IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA ) DR. JOHN FULLERTON, ) ) Plaintiff, ) ) v. ) Case No. 04 CA 1249 ) THE FLORIDA MEDICAL ASSOCIATION, ) INC., DR. JONATHAN B. WARACH, ) DR. PRAVINCHANDRA ZALA, and ) DR. JOSEPH O. KREBS, ) ) Defendants. ) ) BRIEF AMICUS CURIAE OF THE WASHINGTON LEGAL FOUNDATION IN SUPPORT OF DEFENDANTS MOTIONS TO DISMISS Amicus curiae Washington Legal Foundation respectfully submits that Defendants motions to dismiss should be granted, and the complaint dismissed, to the extent the complaint seeks money damages. Defendants in this action are immunized from monetary liability under the Health Care Quality Improvement Act of 1986, 42 U.S.C. 11101 et seq. ( HCQIA or the Act ). While amicus also supports the other grounds for dismissal set out by Defendants, this brief addresses only the applicability of the HCQIA. The HCQIA defense has been properly raised by Defendant Florida Medical Association in its Motion to Dismiss, Or in the Alternative, Motion For More Definite Statement (pp. 9-13). 1
INTEREST OF AMICUS The Washington Legal Foundation ( WLF ) is a non-profit public interest law and policy center with supporters nationwide. WLF engages in litigation and participates in administrative proceedings in a variety of areas of importance to free enterprise, including the screening and policing of expert witness testimony in civil cases. To that end, WLF appeared as an amicus in the U.S. Supreme Court s recent cases addressing the use of expert testimony, Kumho Tire Co., Ltd. v. Carmichael, 526 U. S. 137 (1999), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). WLF is submitting this brief because it is concerned by the potential chilling effect of this litigation on salutary programs, such as that of the Florida Medical Association, which promote professionalism in expert testimony. ARGUMENT I. THE HCQIA IMMUNIZES PARTICIPANTS IN PROFESSIONAL REVIEW ACTIONS FROM LIABILITY FOR MONEY DAMAGES The HCQIA was prompted by concerns that the fear of litigation would deter hospitals, medical associations, and physicians from carrying out peer review of incompetent or unprofessional conduct or from providing candid information to peer review bodies. The congressional purpose in enacting the statute was to improve the quality of medical care by encouraging physicians to identify and 2
discipline other physicians who are incompetent or who engage in unprofessional behavior. Bryan v. James E. Holmes Regional Medical Center, 33 F.3d 1318, 1321 (11th Cir. 1994) (quoting H.R. Rep. No. 903, 99th Cong., 2d Sess. 2). HCQIA is designed to facilitate the frank exchange of information among professionals conducting peer review inquiries without the fear of reprisals in civil lawsuits. Id. at 1322. Under 42 U.S.C. 11111(a)(1), participants in a qualifying professional review action cannot be held liable in damages under any law of the United States or of any State (or political subdivision thereof) with respect to the action. The Act immunizes a broad list of parties under this section: (A) the professional review body, (B) any person acting as a member or staff to the body, (C) any person under a contract or other formal agreement with the body, and (D) any person who participates with or assists the body with respect to the action Section 11111(a)(1)(A) immunizes Defendant Florida Medical Association as a professional review body. That term is defined by HCQIA as a health care entity and the governing body or any committee of a health care entity which conducts professional review activity, and includes any committee of the medical staff of such an entity when assisting the governing body in a professional review activity. 42 U.S.C. 11151(11). The term health care entity, in turn, includes, inter alia, a professional medical society such 3
as the Florida Medical Association. 1 In addition, 42 U.S.C. 11111(a)(2) provides immunity from damages to any person providing information to a professional review body regarding the competence or professional conduct of a physician... unless such information is false and the person providing it knew such information was false. This provision covers Defendants Dr. Warach, Dr. Zala, and Dr. Krebs. Although the complaint alleges that the doctors July 11, 2003, letter to the Florida Medical Association included statements that were untrue, nowhere does the complaint allege that Dr. Warach, Dr. Zala, or Dr. Krebs knew them to be untrue. Thus, if the Florida Medical Association s Expert Witness Program is a qualified professional review action under HCQIA, the Defendants are immune from monetary liability in state and federal court actions such as the present action. II. PROCEEDINGS OF THE FLORIDA MEDICAL ASSOCIATION S EXPERT WITNESS PROGRAM ARE PROFESSIONAL REVIEW ACTIONS UNDER THE HCQIA The HCQIA places two sets of requirements on professional review actions as prerequisites for immunity. The Florida Medical Association s Expert Witness Program meets both of these sets of requirements. 1 The term health care entity is defined as a professional society (or committee thereof) of physicians or other licensed health care practitioners that follows a formal peer review process for the purpose of furthering quality health care (as determined under regulations of the Secretary), except where within the previous 5 years, the society has been found by the Federal Trade Commission or any court to have engaged in any anti-competitive practice which had the effect of restricting the practice of licensed health care practitioners. 42 U.S.C. 11151(4). 4
First, a program must meet the statute s definition of a professional review action, defined by 42 U.S.C. 11151(9) as follows: The term professional review action means 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 (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician. Such term includes a formal decision of a professional review body not to take an action or make a recommendation described in the previous sentence and also includes professional review activities relating to a professional review action. Actions of the Expert Witness Program are based on the competence or professional conduct of an individual physician in this case, the February, 2003, expert testimony of plaintiff and another physician in civil litigation. Inquiries into a physician s competence and professionalism in giving expert testimony are not among the areas of activity excluded by the statute as outside the scope of competence or professional conduct, 2 and indeed, 2 According to 42 U.S.C. 11151(9), In this chapter, an action is not considered to be based on the competence or professional conduct of a physician if the action is primarily based on - (A) the physician's association, or lack of association, with a professional society or association, (B) the physician's fees or the physician's advertising or engaging in other competitive acts intended to solicit or retain business, (C) the physician's participation in prepaid group health plans, salaried employment, or any other manner of delivering health services whether on a fee-for-service or other basis, (D) a physician's association with, supervision of, delegation of authority to, support for, training of, or participation in a private group practice with, a member or members of a particular class of health care practitioner or professional, or (E) any other matter that does not relate to the competence 5
allegations as to competence and professional conduct are unquestionably the focus of the letter giving rise to this lawsuit. The action affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician because if the charges are sustained first by the Expert Witness Committee, and then by the full Council on Ethical and Judicial Affairs the respondents may be censured, suspended, or expelled from the Association. 3 Finally, the alleged misconduct in question could affect adversely the health or welfare of a patient or patients by contributing to pressure upon physicians to engage in inordinate defensive measures in their medical practices exposing patients to tests or procedures primarily to create a shield against later malpractice litigation; by creating a deterrence against physicians taking highly difficult cases (such as that of the elderly diabetic stroke victim in the underlying negligence action here), for fear that they may be held liable should the patient take a turn for the worse despite receiving appropriate care; and ultimately, by contributing to liability conditions that may drive physicians to other jurisdictions or other professions. Second, to qualify under HCQIA, a program must meet the four-fold procedural and substantive requirements of 42 U.S.C. 11112(a), namely, that the professional review action must be taken: or professional conduct of a physician. 3 Procedural Guidelines for the Expert Witness Program of the Council on Ethical and Judicial Affairs of the Florida Medical Association 4 (reproduced as Exhibit B to plaintiff s Complaint). 6
(1) in the reasonable belief that the action was in the furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3). The provision further states that a professional review action shall be presumed to have met these standards unless the presumption is rebutted by a preponderance of the evidence. Compliance with the four requirements is to be assessed objectively, not based on the subjective intentions and beliefs of the Defendants. Singh v. Blue Cross/Blue Shield of Massachusetts, Inc., 308 F.3d 25, 32 (1 st Cir. 2002). Here, the requirements have been met. Defendants could reasonably believe the action is in the furtherance of quality health care in view of the fact that the alleged misconduct could affect adversely the health or welfare of a patient or patients, as elaborated above. The Expert Witness Program incorporates fact-finding, notice, and hearing procedures, including (1) notice to the Respondent that a professional review action has been proposed, (2) provision to the Respondent of all materials furnished to the Expert Witness Committee, (3) an initial determination by the Expert Witness Committee (EWC) after receiving written submissions from Complainant and Respondent, (4) if a prima facie case is found by the EWC, appointment of a panel of physicians who are experts in 7
the subject matter at issue to make a preliminary determination whether to sustain the complaint, and (5) if a majority of the panel votes to sustain the complaint, a hearing before the full Committee on Ethical and Judicial Affairs with 30 days notice. Physicians who are in economic competition with the Respondent may not take part in the expert panel or sit on the full committee for the hearing. The Respondent has a right to representation by an attorney or other person; to call, examine, and cross-examine witnesses; and to present evidence. 4 4 Procedural Guidelines for the Expert Witness Program of the Council on Ethical and Judicial Affairs of the Florida Medical Association 4 (reproduced as Exhibit B to plaintiff s Complaint). 8
CONCLUSION With regard to protection of peer review, the Texas Supreme Court has noted, Nothing is worse than a half-hearted privilege; it becomes a game of semantics that leaves parties twisting in the wind while lawyers determine its scope. Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 17 (Tex. 1996). Amicus respectfully submits that the complaint in this case should be dismissed to the extent it seeks money damages because such damages are barred by the federal HCQIA. Respectfully submitted, Rebecca O'Dell Townsend, Esquire Florida Bar No. 235090 Haas, Dutton, Blackburn, Lewis & Longley, P.L. 1901 N. 13th St., Suite 300 Tampa, Florida 33605 (813) 253-5333 Counsel for Amicus Curiae Dated: September 9, 2004 9
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 9th day of September, 2004, a true and correct copy of the foregoing brief has been mailed to the following counsel by First Class Mail: James F. McKenzie, Esq. McKenzie, Taylor & Zarzaur, P.A. 905 East Hatton Street Pensacola, FL 32503 John Vail, Esq. Julie Schroeder, Esq. 1050 31st Street, N.W. Washington, DC 20007 Robert V. Williams, Esq. John A. Schifino, Esq. Williams, Schifino, Mangione & Steady, P.A. P.O. Box 380 Tampa, FL 33601 George W. Hatch, III Kubicki Draper 106 East College Ave. Suite 710 Tallahassee, FL 32301 Rebecca O'Dell Townsend, Esquire