By Daniel Nuccio, Heartland Institute

The Health Care Quality Improvement Act (HCQIA) is undermining patient care, say Patricia Robitaille and Coleen Rickabaugh, a pair of retired emergency medicine physicians who have partnered to bring attention to the issue and advance draft legislation that would bring about reform.

Their concerns and suggested reforms to the 1986 act can be found in a proposal on Robitaille’s Substack.

The proposal details how HCQIA was initially passed to address problems with malpractice and physician incompetence by granting protections to physicians who engaged in peer review, a process in which physicians review the actions of fellow physicians believed to have endangered patients or behaved in an unethical or unprofessional manner, and by creating a National Practitioner Data Bank (NPDB) to act as a repository for reports regarding such actions.

However, the proposal states, “healthcare entities have been increasingly able to channel fabricated human resource concerns into peer reviews which are intended to silence and suppress legitimate physician concerns related to clinical practice, patient outcomes, and patient safety.”

Physicians Not Independent

Part of the reason for this change, the proposal states, is that “[a]t the time HCQIA was instituted, members of peer review committees were typically members of the medical staff and largely independent of hospitals and corporations.”

“However, since the Act was created, this has largely changed,” the proposal states. “Today, physicians are often direct employees of the hospital and the committees which oversee peer review are appointed by, and subservient to, the corporation.”

As a result of this change in the independence of physicians, the proposal states, “healthcare entities, hospitals, and corporations now direct all aspects of the peer review process, as they initiate the investigation, gather and control the facts, obscure discovery through privilege, appoint the hearing officer and committee members, select witnesses of their choosing, and through the actions of the hearing officer, are able to suppress the testimony of witnesses proposed by the physician.”

Peer Review Not Independent

The American Medical Association (AMA) made similar observations about HCQIA and its unintended consequences in a 2024 document. “Barriers persist that prevent physicians from reporting patient care concerns or seeking recourse if a bad-faith peer review process has been initiated against them based on what they believe are unfounded, unfair allegations,” the AMA stated.

“Because peer review committees are typically not independent, and often comprise hospital-employed physicians who have agreed to make decisions on behalf of the organization, judgments made by these committees have the potential to be biased,” the AMA document noted.

“A bad-faith, or ‘sham’ peer review, may be politically motivated, manipulated to achieve economic gains or to avoid financial risks, conducted in a way that helps the organization avoid reputational damage or is facilitated to fulfill a personal vendetta against an individual,” the AMA document stated. “The peer review process may also be exploited to deem the whistleblower incompetent or disruptive, undermining the merits of their report.”

Weaponized Allegations

A 2011 document from the American College of Emergency Physicians (ACEP) similarly highlights alleged problems with “Sham Peer Reviews” and the perceived weaponization of terms such as “Disruptive Physician” and “Disruptive Behavior,” which can be associated with sham peer review.

“Sham peer review or malicious peer review is defined as the abuse of a medical peer review process to attack a doctor for personal or other non-medical reasons,” the ACEP document stated.

The term “Disruptive Behavior” is deliberately “vague and subjective,” thus allowing “hospital administrators to interpret it however they wish,” the ACEP document noted.

Similarly, the label of “Disruptive Physician” can be “easily manipulated to include a physician who properly defends patient care, exercises his/her right of free speech on political matters, seeks to improve various clinical practices, or who properly demands adherence to excellence,” the ACEP document stated.

Clear Timelines Absent

For physicians subjected to sham peer review, the process can be incredibly stressful, partly because basic due process may not be observed and procedural timelines may be drawn out, Robitaille and Rickabaugh told Health Care News in a joint interview via Zoom.

“There’s no time frame to have a hearing,” said Robitaille, noting that it can take months or even years.

“During this process, time is elapsing,” Robitaille told Health Care News. “You have no income. You’re running out of money. Your spirit is waning. Your clinical skills are not being utilized.”

All of this is deliberate, says Robitaille.

“The hospital or healthcare system wants you to run out of resources, give up, and go away,” Robitaille said. “And that’s what happens to most people who undergo malicious or sham peer review.”

Notification Requirements Absent

Being notified that one is under investigation in a timely manner is important for physicians, and requirements for such timely notification are lacking, Robitaille says.

“They don’t have to tell you when they’re launching an investigation,” said Robitaille.

As a result, physicians who may sense something is wrong at their hospital but are unaware that they are under investigation, may resign with the intent of finding a job elsewhere and then end up getting reported to the NPDB for resigning while under investigation, says Robitaille.

Recommended Reforms

Robitaille and Rickabaugh propose HCQIA be amended to ensure physicians under investigation are notified in a timely manner, the due process rights of physicians are maintained, and allegations are specific and appropriate for peer review.

Robitaille and Rickabaugh also recommend the removal of HCQIA protections from hospitals, health care facilities, and corporations, as well as the addition of an administrative subsection to the NPDB to punish administrators who misuse the peer review process or endanger patients.

Will Reform Be Effective?

It is not clear that the reforms proposed by Robitaille and Rickabaugh would have their desired effects if passed, says Steven Kritz, a retired physician with 50 years of experience in the health care field, 19 of which were spent providing direct patient care.

Kritz says HCQIA, peer review, and the NPDB are being abused, and he was placed in the NPDB himself following an attempt to reprimand an incompetent physician. Even so, Kritz questions whether reforming HCQIA would make a difference.

Given that physicians are now largely direct employees of hospitals, hospital administrators “can now order the physicians around or they’ll have the physicians do the dirty work. And from what I’ve seen they’re perfectly willing to do it.”

“What we saw with Covid … is that physicians were given their marching orders as to what they were going to do with regard to dealing with Covid patients, and if they didn’t do it, they would be fired, and if they were fired, their specialty board would remove their board certification, and in some states … if you got your board certification removed, they would remove your registration and you were dead,” said Kritz.

“So, here’s this, say, 35 year old physician, board certified in something, still has a quarter of a million dollars in education debt, is married, has two kids, has a huge mortgage that’s even more than the [education] debt and … has a certain lifestyle, most people [in that situation] are going to do what they’re told,” said Kritz.

Need for Moral Courage

In response to some of these observations by Kritz, Rickabaugh acknowledged that “reforming HCQIA does not prevent employer malfeasance across the board on all matters. But it does virtually eliminate sham peer review attempts that would culminate in a career-ending Data Bank report.

“By ending financial immunity for health care systems in bad-faith peer review actions, the improperly accused physician can seek redress in the courts,” said Rickabaugh. “Hospital systems would not want to risk reputational harm, nor penalties from HHS for improper peer review proceedings. Additionally, if the parallel administrative Data Bank were enacted, hospital administrators would not want to be entered in this database.”

Even so, whether any individual physician will be willing to challenge their employer “will always be a matter of moral conviction,” said Rickabaugh.

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Daniel Nuccio is a Spring 2026 College Fix fellow at the Heartland Institute's Health Care News.

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