Nebraska Supreme Court (J.McCormack) partially reverses Defendant-Bergan Mercy Hospital's summary judgment in former surgeon's suit against the hospital peer review committee; Plaintiff's witnesses' depositions overcame peer review committee's presumption of immunity under the Health Care Quality Improvements Act of 1986; case of first impression whether subsequent claim may relate back to filing date of complaint McLeay v. Bergan Mercy Health Sys., 270 Neb. 693 Filed December 9, 2005. No. S-04-117. Former surgeon with admitting privileges at Bergan Mercy Hospital sued hospital for defamation from negative reports its peer review committee made about some of doctor's cases. Doctors earlier breach of contract verdict against the hospital had been reversed. Supreme Court found that genuine issues of fact remained as to whether the hospital could rely on immunity in the federal peer review reporting law, (Health Care Quality Improvements Act, HCQIA), 42 U.S.C. § 11101 et seq. (2000)Becausee the plaintiff doctor produced deposition statements from other doctors that the committees conduct was unreasonable.

"The process by which physicians and hospitals evaluate and discipline staff doctors is the peer review process. In furtherance of its purpose, HCQIA grants limited immunity in suits brought by disciplined physicians from liability for money damages to those who participate in professional peer review actions, as that term is defined in HCQIA. 42 U.S.C. § 11111(a). Whether an entity or individual is entitled to HCQIA immunity is a question of law for the court to decide and may be resolved whenever the record becomes sufficiently developed., citing Bryan v. James E. Holmes Regional Medical Center, 33 F.3d 1318, 1321 (11th Cir. 1994) "

Nebraska Supreme Court finds genuine issues of fact as to the 1st prong whether the hospital's actions were with the reasonable belief that the action was in the furtherance of quality health care,42 U.S.C. § 11112(a). Justice McCormack rules that "relation back" doctrine does not apply to incidents that arise after the date of the lawsuit

"The issue presented is whether a claim can relate back to a petition which predates the action or actions giving rise to the claim. We have not previously addressed this." ...We conclude that because the alleged defamation regarding the 1995 report by Bergan to the databank occurred after the original petition was filed, the claim could not relate back to that petition. Since the claim could not relate back to the original petition, the claim with regard to the report to the databank of February 8, 1995, was first raised in the amended petition filed May 22, 2002. As such, the claim is barred by the statute of limitations. See § 25-208