The Colorado Peer Review Act: the Fog Lifts

• Publication year: 2001
• Pages: 57
• Citation: Vol. 30 No. 1 Pg. 57

30 Colo.Law. 1 Colorado Lawyer 2001.

2001, January, Pg. 57. The Colorado Peer Review Act: The Fog Lifts

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57

Vol. 30, No. 1, Pg. 1

The Colorado Lawyer
January 2001
Vol. 30, No. 1 [Page 57]

Specialty Law Columns
Health Law Forum
The Colorado Peer Review Act: The Fog Lifts
by Frederick Y. Yu, Sarah E. Meshak

In 1989, the Colorado General Assembly enacted the Colorado Professional Review Act ("CPRA").1 The CPRA authorized the creation of professional or "peer" review committees to review the professional conduct and quality of care provided by physicians and established a basis for immunity for those committees and their participants. The CPRA also created the Committee on Anticompetitive Conduct ("Committee"), a permanent and independent committee of the Board of Medical Examiners composed of four physicians and an antitrust lawyer. The Committee is authorized to review final professional review actions for the purpose of determining whether such actions were the result of anticompetitive conduct.2

Until recently, there has been little case law interpreting the Committee's jurisdiction or the effect of that jurisdiction on professional review activities. However, in the past year the appellate courts have rendered several decisions that address the Committee's jurisdiction and further define the scope of professional review activities in Colorado. This article discusses these cases and their implications for professional review

Background of the CPRA

The CPRA was passed in response to the U.S. Supreme Court case of Patrick v. Burget,3 which denied state action immunity under the federal antitrust laws for professional review activities on the grounds that there was not sufficient state supervision of professional review activities to qualify for state action immunity.4 The General Assembly enacted the CPRA to allow various entities to establish professional review committees to act as extensions of the Board of Medical Examiners and to assist the Board in reviewing physician conduct and the quality and appropriateness of patient care.5

Under the CPRA, professional review committees are authorized to investigate a physician's qualifications, professional conduct and the quality or appropriateness of care.6 If a professional review committee makes an adverse finding against a physician, the physician may appeal to the entity's governing board, the body authorized to take final action on professional review matters under an entity's bylaws. The governing board's final action is typically based on the findings and recommendation of a subordinate professional review committee.7

If a governing board takes final action adverse to the physician and the physician believes the action resulted from unreasonable anticompetitive conduct, the physician must seek review of the action before the Committee. Such review is limited to the "sole issue" of whether the final board action resulted from unreasonable anticompetitive conduct. Failure to seek review before the Committee precludes a physician from seeking de novo review on the issue of unreasonable anticompetitive conduct.8

Scope of the Committee's Jurisdiction

In separate cases over the past year, the appellate courts have considered two aspects of the Committee's jurisdiction: (1) the Committee's jurisdiction over claims not arising out of professional review activities; and (2) the Committee's jurisdiction over claims other than antitrust claims. In Ryals v. St. Mary-Corwin Regional Medical Center,9 the Colorado Supreme Court held that the Committee's jurisdiction is limited to issues related to a physician's qualifications, professional conduct, and quality of patient care arising out of professional review committee activities. Prior to the Supreme Court's decision in Ryals, the Colorado Court of Appeals addressed the second issue in Pfenninger v. Exempla, Inc.,10 holding that a claim for defamation arising out of a professional review hearing was not within the Committee's jurisdiction. Each of these cases is discussed below

Ryals: Jurisdiction Limited To Professional Review

In Ryals, a board-certified neurologist applied for hospital privileges to read magnetic resonance images ("MRI scans") for his patients at the hospital. The hospital's medical qualifications committee determined that although Ryals was qualified to read MRI scans, the hospital had an exclusive contract with a radiology group preventing other physicians from performing radiology including reading MRI scans at the hospital. Eight days later, the governing board of the hospital passed a resolution affirming the exclusive radiology contract on the grounds that it promoted quality patient care and efficiency. The resolution did not reference Ryals's request for privileges, his competence to exercise such privileges, or indicate that it was a review of a professional review committee decision.11

Ryals filed suit in state court, asserting three antitrust claims based on the exclusive contract between the hospital and the radiology group, as well as claims for breach of contract, promissory estoppel, tortious interference with contractual relations, and outrageous conduct. The defendants moved to dismiss all claims on the grounds that Ryals failed to exhaust his administrative remedies because he did not first file a complaint with the Committee. The trial court agreed and dismissed the complaint. The Colorado Court of Appeals affirmed the trial court and held that Ryals was required to submit all of his claims to the Committee.12

The Colorado Supreme Court reversed, holding that the Committee has jurisdiction only over claims of anticompetitive conduct arising out of professional review activity that assesses a physician's qualifications conduct and the quality or appropriateness of patient care.13 In analyzing the scope of the Committee's jurisdiction under the CPRA, the Court concluded that the General Assembly intended to limit the Committee's jurisdiction to matters arising out of the activities of professional review committees. Professional review committees, in turn, are limited to reviewing issues of physician qualifications, quality...