Section 146.37. Health care services review; civil immunity.

 

(1)  In this section:

(a) “Health care provider" includes an ambulance service provider, as defined in s. 256.01 (3) , and an emergency medical technician, as defined in s. 256.01 (5) , and a first responder, as defined in s. 256.01 (9) .

(b) “Medical director" has the meaning specified in s. 256.01 (11) .

(1g)  Except as provided in s. 153.76 , no person acting in good faith who participates in the review or evaluation of the services of health care providers or facilities or the charges for such services conducted in connection with any program organized and operated to help improve the quality of health care, to avoid improper utilization of the services of health care providers or facilities or to determine the reasonable charges for such services, or who participates in the obtaining of health care information under subch. I of ch. 153 , is liable for any civil damages as a result of any act or omission by such person in the course of such review or evaluation. Acts and omissions to which this subsection applies include, but are not limited to, acts or omissions by peer review committees or hospital governing bodies in censuring, reprimanding, limiting or revoking hospital staff privileges or notifying the medical examining board or podiatry affiliated credentialing board under s. 50.36 or taking any other disciplinary action against a health care provider or facility and acts or omissions by a medical director in reviewing the performance of emergency medical technicians or ambulance service providers.

(1m)  The good faith of any person specified in subs. (1g) and (3) shall be presumed in any civil action. Any person who asserts that such a person has not acted in good faith has the burden of proving that assertion by clear and convincing evidence.

(2)  In determining whether a member of the reviewing or evaluating organization or the medical director has acted in good faith under sub. (1g) , the court shall consider whether the member or medical director has sought to prevent the health care provider or facility and its counsel from examining the documents and records used in the review or evaluation, from presenting witnesses, establishing pertinent facts and circumstances, questioning or refuting testimony and evidence, confronting and cross-examining adverse witnesses or from receiving a copy of the final report or recommendation of the reviewing organization or medical director.

(3)  This section applies to any person acting in good faith who participates in the review or evaluation of the services of a psychiatrist, or facilities or charges for services of a psychiatrist, conducted in connection with any organization, association or program organized or operated to help improve the quality of psychiatric services, avoid improper utilization of psychiatric services or determine reasonable charges for psychiatric services. This immunity includes, but is not limited to, acts such as censuring, reprimanding or taking other disciplinary action against a psychiatrist for unethical or improper conduct.

1975 c. 187 ; 1979 c. 221 ; 1981 c. 323 ; 1983 a. 27 ; 1985 a. 29 s. 3202 (27) ; 1985 a. 340 ; 1987 a. 27 , 399 ; 1989 a. 102 ; 1997 a. 175 ; 1999 a. 56 ; 2007 a. 130 ; 2009 a. 113 , 274 ; 2011 a. 260 s. 81 . Anyone who has the good faith belief that they are participating in a valid peer review procedure of a health care provider is entitled to the presumption of good faith under sub. (1g) and is immune from liability unless the presumption is overcome. Limjoco v. Schenck, 169 Wis. 2d 703 , 486 N.W.2d 567 (Ct. App. 1992). When a 3rd party becomes an integral part of the ongoing medical services review, its actions are eligible for immunity from civil liability under this section. It would defeat the purpose of this section if the participation of an outside entity enlisted by a reviewing committee to perform an assessment of the abilities of a physician to perform effectively while on call is not eligible for immunity simply because the outside entity is not part of a formal “peer review program." Rechsteiner v. Hazelden, 2008 WI 97 , 313 Wis. 2d 542 , 753 N.W.2d 496 , 06-1521 . When a 3rd party's diagnosis of the condition of the doctor subject to review was indistinguishable from the employing hospital's review, evaluation, and analysis of the doctor's ability to perform as an on-call surgeon, the diagnosis was the essence of the peer review process initiated by the hospital. Even if the diagnosis was negligent, it was immune because it was central to the peer review process. However, this case does not mean that the peer review statute will immunize medical negligence in all situations, irrespective of the circumstances. Rechsteiner v. Hazelden, 2008 WI 97 , 313 Wis. 2d 542 , 753 N.W.2d 496 , 06-1521 . A person reviewing a peer can be found to have acted in bad faith even if procedural rights under sub. (2) were not denied, but whether procedural rights were denied is a factor that must be considered in a determination of “good faith." Qasem v. Kozarek, 716 F.2d 1172 (1983).