O.C.G.A. § 31-7-132 (2019)

Annotations

Cross references. - Immunity of medical review committee members from civil liability, § 31-7-140 et seq. Nonliabil-

ity of licensed dentist serving on peer review board for damages for any action taken by such board, § 43-11-16. Receipt of evidence before Georgia Composite Medical Board regarding licensee’s or applicant’s fitness to practice medicine, § 43-34-8.

JUDICIAL DECISIONS Immunity from civil or criminal liability. - If an organization meets the definition of review organization and is conducting peer review within the meaning of O.C.G.A. § 31-7-132, a health care provider or member of a review organization is immune from criminal or civil liability, provided the health care provider is acting without malice. Fulton-DeKalb Hosp. Auth. v. Dawson, 270 Ga. 376, 509 S.E.2d 28 (1998). Georgia peer review and medical review statutes, which establish the privilege for the proceedings and records of peer review organizations and medical review committees, also provide for immunity to participants and witnesses in such proceedings under: (1) O.C.G.A. § 31-7-130, which sets forth the intent of the Georgia General Assembly; (2) O.C.G.A. § 31-7-132(a), which provides immunity from liability for peer review; (3) O.C.G.A.

§§ 31-7-133(a) and 31-7-141, which provide immunity for medical review committee members from claims for damages filed by health care providers; and (4) O.C.G.A. § 31-7-143, which provides that peer review and medical review proceedings are both absolutely privileged. Patton v. St. Francis Hosp., 260 Ga. App. 202, 581 S.E.2d 551 (2003). Hospital’s immunity following suit by physician. - Grant of summary judgment in favor of the hospital was affirmed because 42 U.S.C. § 11101 et seq. provided the hospital immunity, as a matter of law, from suit brought by a physician suspended of medical staff privileges as the physician failed to overcome, by a preponderance of the evidence, the presumption that the hospital summarily suspended clinical privileges only after a reasonable effort to obtain the facts of the matter occurred, as required under 42

U.S.C. § 11112(a)(2). Kolb v. Northside Hospital, 342 Ga. App. 192, 802 S.E.2d 413 (2017). Preemption. - To the extent that peer reviewer immunity under O.C.G.A. § 31-7-132(a) was conditioned upon the absence of the hospital’s bias in denying the doctor’s staff privileges, § 31-7-132(a) was preempted by the Health Care Quality Improvement Act (Act), 42 U.S.C. § 11101 et seq., under which bias was irrelevant; thus, the grant of summary judgment to the hospital on the ground that the hospital was entitled to immunity under the Act was not an error. Patrick v. Floyd Med. Ctr., 255 Ga. App. 435, 565 S.E.2d 491 (2002). Under O.C.G.A. § 31-7-132(a), a peer reviewer is immune unless the reviewer is motivated by malice toward any person affected by such activity, and under O.C.G.A. § 31-7-141, a medical review committee member is immune if the committee member acts without malice or fraud; to the extent that peer review and medical review immunity are conditioned upon the absence of malice and deception, the statutes are preempted by the Health Care Quality Improvement Act of 1986, specifically 42 U.S.C. § 11111(a), under which bias is irrelevant. Patton v. St. Francis Hosp., 260 Ga. App. 202, 581 S.E.2d 551 (2003). Federal law does not completely preempt O.C.G.A. § 31-7-132(a) as the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. § 11101 et seq., only preempts § 31-7-132(a) to the extent the two statutes conflict; because the HCQIA does not provide immunity against claims for equitable relief, it is not in conflict with that aspect of § 31-7-132(a) that provides immunity for equitable relief claims. Taylor v. Kennestone Hosp., Inc., 266 Ga. App. 14, 596 S.E.2d 179 (2004). Georgia’s peer review statute, O.C.G.A. § 31-7-132(a), was preempted by the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq., in a doctor’s suit alleging that defendants initiated a peer review proceeding for the purpose of closing down the doctor’s competing dialysis center because the allegations stated that defendants were moti-

vated by malice, and the doctor sought only monetary damages, not equitable relief. Wood v. Archbold Med. Ctr., No. 6:05-CV-53 (HL), 2006 U.S. Dist. LEXIS 44292 (M.D. Ga. June 28, 2006). O.C.G.A. § 31-7-132 was not intended to provide an absolute shield of immunity protecting utilization review providers from potential liability for the consequences of their administrative acts. Fulton-DeKalb Hosp. Auth. v. Dawson, 270 Ga. 376, 509 S.E.2d 28 (1998). Evaluation of anesthesiologists for working relationships rather than medical care was not peer review. - In an action by anesthesiologists who were not rehired by a hospital after their group contract was terminated, the hospital defendants were not entitled to immunity under O.C.G.A. § 31-7-132 because the panel was not evaluating the quality and efficiency of actual medical care services by the anesthesiologists but was evaluating their ability to work harmoniously; however, remand was required to determine whether the trial court had concluded that peer review immunity was appropriate. Sewell v. Cancel, 331 Ga. App. 687, 771 S.E.2d 388 (2015). Credentialing information not covered by civil immunity. - O.C.G.A. § 31-7-15 does not expand the privilege set forth in O.C.G.A. § 31-7-133(a) to those proceedings and records of a peer review committee which involve only the credentialing process and not a peer review function. The same analysis is equally applicable in holding that § 31-7-15 does not expand the civil immunity otherwise afforded to peer review groups under O.C.G.A. § 31-7-132(a) so as to include all aspects of the credentialing process. Hosp. Auth. v. Meeks, 285 Ga. 521, 678 S.E.2d 71 (2009). Malice allegation is not sufficient to trigger application of confidentiality requirement so as to allow the opportunity for full discovery of peer review material in every case; however, a motion to compel discovery could not be denied in its entirety, even though some of the materials sought were privileged. Freeman v. Piedmont Hosp., 264 Ga. 343, 444 S.E.2d 796 (1994).

Equitable claims covered. - Unlike the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq., O.C.G.A. § 31-7-132(a) provides immunity from civil liability, not just from monetary damages; consequently, Georgia’s peer review statute covers claims for equitable relief. Taylor v. Kennestone Hosp., Inc., 266 Ga. App. 14, 596 S.E.2d 179 (2004). Hospital immune from liability because malice not established. - Surgeon sued a hospital for revoking the surgeon’s medical staff privileges. As the evidence of the surgeon’s errors, some of which caused a patient’s death, supported the revocation, and as the surgeon did not prove that the hospital acted with malice in revoking the surgeon’s medical privileges, the hospital was entitled to summary judgment based on the hospital’s immunity from liability under Georgia’s peer review statute, O.C.G.A. § 31-7-132. Burrowes v. Northside Hosp., 294 Ga. App. 472, 671 S.E.2d 176 (2008). Superior court erred in denying a hos-

pital’s motion for summary judgment in a doctor’s action contending that the denial of an application for renewal of clinical privileges was void because the hospital was entitled to immunity from the doctor’s equitable claims pursuant to O.C.G.A. § 31-7-132(a); the superior court erred in finding that there was evidence from which the jury could infer that the peer review process was motivated by malice. DeKalb Med. Ctr. v. Obekpa, 315 Ga. App. 739, 728 S.E.2d 265 (2012). In a suit by doctors against a hospital where the doctors had served as anesthesiologists alleging that the hospital’s failure to rehire the doctors was motivated by malice, summary judgment to the hospital was proper based on peer review immunity under O.C.G.A. § 31-7-132(a); the doctors failed to show malice. Cancel v. Medical Center of Central Ga., Inc., 345 Ga. App. 215, 812 S.E.2d 592 (2018), cert. denied, 2018 Ga. LEXIS 769 (Ga. 2018). Cited in Patton v. St. Francis Hosp., 246 Ga. App. 4, 539 S.E.2d 526 (2000).

OPINIONS OF THE ATTORNEY GENERAL Member of peer review panel for rehabilitation suppliers not protected. - Person who is a private rehabilitation supplier serving on a peer review panel for the State Board of Workers’ Compensation would not be afforded the statutory protection provided in O.C.G.A. § 31-7-130 et seq., regardless of whether that peer review committee conformed to the model promulgated by the National Association of Rehabilitation Professionals. 1987 Op. Att’y Gen. 87-4. Applicability to trauma advisory committee. - Since the Trauma Advi-

sory Committee for Emergency Medical Services is a review organization consisting of surgeons licensed in the State of Georgia which evaluates care provided by professional health care providers as defined in O.C.G.A. § 31-7-131(2) for the purposes of improving the quality of care rendered and reducing morbidity and mortality due to trauma, it is a review organization within the meaning of § 31-7-131(3) and is covered by the immunity and confidentiality provisions of O.C.G.A. §§ 31-7-132 and 31-7-133. 1988 Op. Att’y Gen. No. 88-5.

RESEARCH REFERENCES ALR. - Tort liability of medical society or professional association for failure to discipline or investigate negligent or oth-

erwise incompetent medical practitioner, 72 A.L.R.4th 1148.