Was the Louisville hospital’s restriction of Dr. Ben Reid’s surgery privileges a professional review activity or a professional review action?

When Ben sued on various tort theories, the hospital claimed immunity under the Health Care Quality Improvement Act (HCQIA) and moved for judgment on the pleadings. The court granted the motion, ruling that the hospital’s conduct constituted a “professional review activity” and that Ben hadn’t rebutted HCQIA’s presumption of immunity.

The Kentucky Court of Appeals reversed, ruling that the hospital’s conduct constituted “a professional review action rather than simply professional review activities.” The court remanded for a determination whether the hospital was entitled to HCQIA immunity.

On appeal guess which side of the activity-vs.-action debate the Kentucky Supreme Court chose? Neither one. The high court respectfully opined that the both lower courts were wrong to regard the case as appropriate for judgment on the pleadings, noting that in arguing over the motion both parties had added details from outside the pleadings, including committee meeting dates, letters, and conversations.

Nor would summary judgment be appropriate at this stage because a factual dispute exists “as to whether the Hospital’s actions were merely ‘professional review activities’ … or were ‘professional review actions.’”

The Supreme Court vacated and remanded the case to the trial court, where it started in January, 2013. Slowly turn the wheels of justice.

The case is KentuckyOne Health v. Reid, Case No. 2016-SC-000321-DG (Ky., June 15, 2017).