By Daniel J. Schulte
MDA Legal Counsel
Published in the October 2006 issue of the Journal
Question: I have served on a peer review committee for the last few years. I know that Michigan’s peer review law protects me from liability (both civil and criminal) arising from claims of dentists who have been adversely affected by decisions of my peer review committee. As I understand it, the only time this liability protection would not apply is when the committee and/or one of its members acts with "malice." What does this mean, exactly?
Answer: The Michigan Supreme Court has now defined what conduct constitutes malice resulting in a loss of the protections of Michigan’s peer review immunity statute. The court defined malice in its opinion issued in the Feyz vs. Mercy Memorial Hospital, et al. case, decided July 24, 2006, to include only the acts of: (i) providing information in connection with a peer review proceeding which the provider either knows is false or submits with a reckless disregard of the information’s truth or falsity; and (ii) a peer review entity acting on information that it knows to be false or with a reckless disregard of the truth or falsity of the information.
This ruling by the court is significant. Dentists supplying information to peer review committees and the dentists serving on those committees have always acted with some amount of doubt regarding whether their actions some day would be deemed by a court to have been taken with malice. Dentists providing information in connection with a peer review proceeding concerning another dentist have wondered when the providing of the information (and what types of information supplied) would be deemed malicious. This trepidation often arises in peer review ethics cases where the information sought is often something other than the dentist’s treatment records (for example, statements made, observations of a dentist’s professional practices, behavior, etc.).
Those dentists volunteering to serve on a peer review committee often have been concerned whether the severity of the sanction (for example, censure, suspension, probation or expulsion) would be deemed a malicious act by a court given the circumstances. Dentists who are involved in peer review proceedings sometimes threaten the MDA, the individual members of the peer review committee, and those known to them to have supplied the committee with information with lawsuits seeking damages for income alleged to have been lost as a result of the peer review committee’s sanction.
The Feyz decision goes a long way to putting these fears to rest. Dentists who are asked to supply information in connection with a peer review proceeding now know that they will have the protection provided by the peer review immunity statute so long as the information provided is not known by them to be false or provided with a reckless disregard for the information’s truth or falsity. What this means for the providers of information in connection with a peer review proceeding is that they should only supply information they know to be true or which they have a good faith basis to believe is true.
Similarly, the peer review committees and their members now know that they will have the protection provided by the peer review immunity statute so long as their decisions are based on information that is known to be true or which the committee has a good faith basis to believe is true. The severity of sanctions decided upon by the peer review committee (for example, expulsion vs. probation) cannot be the basis for a lawsuit alleging that the committee acted with malice.
Instead, whether a malicious act has been committed in connection with a peer review proceeding will be determined by reference solely to whether someone provided or acted on information they knew to be false or with a reckless disregard for the information’s truth or falsity.