The Illinois Appellate Court for the First District recently affirmed a trial court’s dismissal of a multi-count complaint asserting claims for tortious interference and antitrust violations based on a hospital system’s rejection of preliminary applications for privileges submitted by two surgeons, under the rule of non-review.
The rule of non-review generally precludes courts from reviewing a private hospital’s decision to deny a physician’s initial application for privileges. In an attempt to circumvent the rule, plaintiffs alleged that the decision to reject their preliminary applications was not made by the hospital’s formal credentialing body, but instead by two staff physicians whose practices competed with those of the plaintiffs. The court rejected this argument based on undisputed evidence that the initial decision to deny the preliminary applications was later reaffirmed by the hospital administration. This ruling suggests that the claim might have survived if the evidence had shown that the decision to reject the preliminary applications was made by the two staff physicians without hospital oversight.
As for the antitrust claims, the court noted that the decision of the Illinois Supreme Court in the seminal case of Barrows v. Northwestern Memorial Hospital, decided 20 years ago, left open the question of whether the rule of non-review would bar antitrust claims. Without much analysis, the court held that in the absence of contrary authority from the Illinois high court, the rule of non-review will continue to bar not only traditional tort claims, but also antitrust claims based on a decision to reject preliminary applications for medical staff privileges.
The decision is important for two principal reasons. First it reaffirms that the rule of non-review precludes court review of a private hospital’s decision to deny an initial application for staff privileges. Second, it provides a warning that the rule of non-review may not be applied if the decision to deny an initial application is made by staff physicians without the participation of the hospital credentialing committee or other administrators involved in the credentialing process. Hospitals should therefore ensure that denials of initial applications are reviewed by the hospital’s credentialing body, to avoid claims for tortious interference and other torts based on allegations that the physicians denying the initial application had ulterior motives.