A physician whose competency was questioned by a colleague decided that confronting the physician colleague, demanding that the colleague stop questioning his experience, training, and competency, and threatening to sue him while blocking the doorway to prevent the colleague from leaving was the preferred approach to quality assurance.

As one might imagine, the physician colleague pushed aside the physician confronting him and exited the area. Of course, the parties differ on the degree of menace the confronting physician presented and the amount of force used to push him aside. Recognizing that no good deed goes unpunished, the hospital suspended the physician colleague for pushing the confronting physician aside based upon a complaint from the confronting physician.

Ordinarily the hospital would have been protected for its peer review actions under the Health Care Quality Improvement Act (HCQIA). However, in Stratienko v. Chattanooga-Hamilton County Hospital Authority, et al., the court held that several mistakes made by the hospital prevented dismissal of the physician's claims, at least in the summary judgment phase of the case. Stratienko v. Chattanooga-Hamilton County Hospital Authority, et al., No. 1:07-CV-258 (E.D. Tenn. Sept. 8, 2008).

First, the hospital suspended the physician for 30 days, which was too long without providing adequate notice and hearing procedures to the suspended physician. The HCQIA permits a summary suspension prior to investigation under 42 U.S.C. § 11112 (c)(2) for no longer than 14 days, during which an investigation should be conducted to determine the need for a professional review action.

Second, the hospital failed to make a reasonable effort to obtain the facts as required under 42 U.S.C. § 11112 (a)(2). In particular, the court was bothered by the fact that the decision to suspend was made within an hour of the fight and the people involved in the suspension decision "were unaware of the actions of" the assaulted physician. The physician, whose competency was challenged, reportedly was angry and actively sought out his colleague for a challenge. Based upon the lack of factual investigation, the court concluded that a reasonable jury could not reasonably believe that a physician should be suspended based upon an altercation, the cause of which was unclear or unknown. In essence, the court held that the hospital suspension was not imposed in the reasonable belief that it was warranted by the facts known after a reasonable effort to obtain the facts, as required under 42 U.S.C. § 11112 (a)(4). While the hospital's decision to suspend the physician was made within an hour of the fight, the suspension letter was not delivered to the physician until the following day, even though the letter was written and dated on the same day as the altercation.

The court likely was moved by the fact that the physician being punished had tried to advance the quality of care and was the victim of the menacing actions of the challenged physician through no fault of his own. Nonetheless, the message is clear, that for the HCQIA's prohibition on damages for professional review actions to be applicable, the hospital's actions must be consistent with the due process requirements of the HCQIA