Three Arkansas hospitals are asking the state's top court whether a 2013 law governing how hospitals handle peer reviews of physicians is unconstitutional.
In late April, Pulaski County Circuit Judge Tim Fox found that the Arkansas Peer Review Fairness Act, which added rules to hospitals' review process and gave greater protections to doctors under review, was constitutional.
In his finding, Fox denied a request for a summary judgment from the hospitals, who argued, among other things, that the law improperly attempted to supersede existing federal law.
Baptist Health Medical Systems, Washington Regional Medical Center and Mercy Health system filed their notice of appeal in late May, and on Monday, their attorney submitted the record from Fox's court to the Supreme Court.
Act 766 of 2013 created additional rules for peer reviews at hospitals. A peer review in a hospital setting is when a group of volunteer physicians -- or peers -- evaluates the quality of care provided by individual doctors.
Supporters of the act said it added protection for physicians receiving a job performance review, including ensuring they are notified of an investigation when it begins and allowing those doctors to have their own attorneys present at the beginning of the process.
The federal law, the Health Care Quality Improvement Act, does not require a physician to be notified until a hearing is initiated, sometimes months after an investigation is started, they say.
Several hospitals have protested that the state law unnecessarily burdens the process, places additional demands on an already volunteer body of peer doctors, and makes the process more combative.
The Arkansas Hospital Association came out against the act before it was introduced in early March 2013 and continues to oppose it.
David Wroten, a vice president with the Arkansas Medical Society which represents doctors, said the law was necessary to ensure "due process" for physicians and to see that they were getting a fair shake during reviews.
"We've seen too man cases where the peer review process is being used for other reasons other than quality care. It's being used to remove physicians from the staff that don't see eye to eye with [other hospital staff]," Wroten said. "In a nutshell, [Act 766] says if the hospital peer review committee is represented by a legal counsel, then the physician is entitled to the same [standard of legal] representation."
Sen. Cecile Bledsoe, R-Rogers, drafted the legislation that became Act 766 and said it was a matter of "fairness" and "transparency" that prompted her to push for the law.
Elisa White, chief counsel for the Arkansas Hospital Association, said the new law may cause delays and create hardships for hospitals.
While empowering physicians under review to obtain an attorney, the 2013 law also gives those physicians the right to object to the attorney representing the hospital or the review committee.
If the hospital kept the attorney despite the doctor's protest, the decision could be used against them if the doctor under review chose to file a lawsuit against the peer review group, according to a March brief filed by the hospitals' attorney, Megan Hargraves.
"Taken together, [Act 766] permit an individual physician, who is the subject of peer review, to force a hospital or its medical staff into using an attorney other than its preferred counsel during the review process," Hargraves wrote. "This unconstitutionally chills [the hospitals'] First Amendment right to select the attorney of their choice."
Act 766's opponents also argued that many of its provisions undercut the intent of the federal law by interfering with a process that is supposed to be a "frank exchange of information among professionals."
Attorneys with the Arkansas attorney general's office said the law did not run contrary to the Health Care Quality Improvement Act and did not violate the constitutional rights of hospital officials.
A brief from the hospitals is due Sept. 12.
Metro on 08/05/2015