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This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians to conform to appropriate institutional norms ex ante, which, this Article argues, enhances patient safety. In addition, providing physicians with clear notice of the conduct that could trigger the formal peer review process deters conduct that places patient safety at risk. This choice also decreases the risk of caprice and discrimination and permits a more meaningful judicial review of hospital peer review actions. This Article also proposes a mechanism to avoid CPG obsolescence to ensure that decisions are based on good outcomes data (evidence-based medicine), and not past practice (eminence-based medicine). This proposed mechanism is similar to that which is currently being used by hospital Institutional Review Boards to keep apace of scientific developments and avoid duplication of efforts, delays and expense.

Adopting this strategy may also avoid many of the pitfalls that are attendant to the use of the current vague standards and could minimize the temptation to import inappropriate and destructive legal and evidentiary doctrines into the peer review process. This may result in a more equitable balancing of the public's quality of care concerns with the interests of the physician in a fair process of formal peer review. This shift to contract principles could streamline the formal peer review process making a hospital less reluctant to engage in peer review, providing a greater assurance of patient confidentiality and enhancing the certainty of HCQIA [Health Care Quality Improvement Act (2000)] protections for all involved in the process. These clear expectations of performance meet rule of law principles as they provide clearly articulated standards that satisfy due process/fairness concerns. Finally, a switch from ad hoc judicial decision-making to rule-making carries with it the benefits of allowing a conscious choice between competing social values inherent in our complex health care system.

Part II of this Article provides a history of the oversight of the quality of care in hospitals. Part III furnishes a brief summary of how the formal peer review process is conducted. Part IV explains the [HCQIA]. Part V outlines the current schism in the courts over the appropriateness of the standards currently being used to evaluate physician competence in peer review. Part VI describes the problems inherent in the various vague categories of standards currently being used to evaluate physician competence. In Part VII, several potential solutions are evaluated. While not a perfect short term solution, this Article concludes that, ultimately, the use of CPGs to measure competency is a far superior approach in light of the myriad problems associated with the current system.