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Peer review using a retired physicain without liability insurance

Compliance Monitor, December 30, 2005

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Q:We want to use a retired physician who is on our emeritus staff for outside peer review. He does not carry professional liability insurance (this is not due to any practice-related issues). I have two questions: (A) Is there any other type of insurance available to cover him for providing this type of peer review report? (B) Could the hospital indemnify him for any liability that may stem from such a review (barring gross negligence)?

A:(A) You should check with your directors' and officers' liability insurance to see if that might cover this physician for outside peer review activities. Outside peer review does not typically entail the performance of clinical care for patients, so it is possible that any errors the physician makes could be legitimately covered under the directors' and officers' policy. (B) A hospital can agree to indemnify anybody for anything that it chooses. The fundamental question facing the hospital would be whether such indemnification would be covered by its professional liability insurance coverage or by its directors' and officers' coverage. Again, check with the insurance carrier to see what the policies cover. Presumably, the risk facing a physician making peer review judgment would be some kind of anti-trust claim. Such claims usually fail unless the institution has failed to follow the requirements of its own medical staff bylaws.

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