If Roth were a doctor: physician reputation under the HCQIA.

I. INTRODUCTION Hospitals in the United States rely on peer review committees to make credentialing decisions and to conduct ongoing evaluations of all medical care, thereby ensuring the quality of the physicians they employ.1 Physicians, however, may be reluctant to serve on peer review committees for fear of retaliatory litigation.2 In response, and in an effort to improve the quality of healthcare in the United States, Congress passed the Health Care Quality Improvement Act of 1986 ("HCQIA").3 Congress designed the HCQIA to improve the quality of healthcare in two ways. First, it increased the effectiveness of peer review by providing review committees4 with immunity from lawsuits filed in response to professional review actions.5 Second, it authorized the Secretary of Health and Human Services ("HHS") to create the National Practitioner's Data Bank ("NPDB").6 Any disciplinary action taken by a review committee must, as a condition to immunity, be reported for listing in the NPDB.7 "Listing" in the NPDB can, and is in fact designed to, stigmatize the practitioner against whom the review action is taken. The NPDB lists a physician's name, address, and social security number, as well as the physician's history of malpractice payouts, adverse licensure actions, and sanctions regarding his or her clinical privileges.8 Hospitals are reluctant to hire a physician after he or she has been terminated or otherwise sanctioned by his or her prior employer. In extreme cases, practitioners may effectively be precluded from practicing at all.9 This potential deprivation raises questions regarding the constitutional validity of the HCQIA. The HCQIA establishes reasonableness10 and notice and hearing requirements11 with which review committees must comply before claiming immunity. Assuming the employer is a state actor for purposes of Fourteenth Amendment jurisprudence, compliance with these requirements will generally ensure that a physician receives constitutionally adequate procedural protections prior to sanction or termination. Thus, termination of employment in compliance with the procedural requirements of the HCQIA will rarely result in the unconstitutional deprivation of a practitioner's property right to employment. For reasons developed later, however, listing in the NPDB is likely to result in the deprivation of a practitioner's liberty interest in good reputation. Moreover, unlike termination of employment, which may be done by private healthcare providers, "listing" will always be a government action and thus subject to the strictures of the Due Process Clause,12 since only HHS, a federal agency, may list practitioner specific information in the NPDB.13 This Note explores two issues. First, it explores the threshold question of whether the Constitution creates a liberty interest in good reputation. The Supreme Court has been careful to limit the protection of reputation as a liberty interest,14 but has indicated that such an interest may be implicated "when there is harm to reputation if it is accompanied by a tangible detriment, such as the loss of employment."15 Assuming that listing in the NPDB constitutes the deprivation of a recognized liberty interest, the second issue is whether the procedural protections already provided by sections 11112(b) and 11112(c) of the HCQIA satisfy the requirements of due process at the listing stage. This Note argues that they do not. Part II of this Note discusses the relevant provisions of the HCQIA insofar as they relate to peer review and the NPDB. Part III explores whether and under what circumstances the Supreme Court should recognize a medical practitioner's liberty interest in reputation. Part IV assumes that such a liberty interest exists, and explores whether the Fifth Amendment requires that HHS provide additional procedural protection before listing potentially stigmatizing information on the NPDB. Finally, Part V explores the means by which HHS may meet its constitutional mandate under the Fifth Amendment without diminishing the effectiveness of the NPDB, or derailing the policy objectives behind the HCQIA. …