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Several practitioners have proposed amendments
or changes to the present system.

Statewide Independent Peer Review

Many physicians, and some organizations have proposed a statewide peer review requirement that would utilize independent, non-biased peer review organizations that make judgments based upon clearly acceptable standards, taking into consideration reasonable differences of opinion. Like a physician being judged for a licensure infraction, the burden of proof would remain on the entity seeking to impose discipline (the hospital) with at least a preponderance of the evidence standard, if not a clear and convincing standard. Only this level of independence would balance the playing field and return quality of care to the forefront of peer review.

The Shamming of Physicians and Other Providers

 

ALLAN TOBIAS, MD, JD

This newsletter will be critical of the peer review process and the state licensing boards on the unfair way some treat physicians and other providers.  It will discuss shamming.  Shamming is the word used by Richard Willner, President of the Center for Peer Review Justice, Inc in Metairie, Louisiana, www.peerreview.org.  He uses shamming as the metaphor for unfair peer review and licensing decisions. 

Peer review is designed to be a fair process to both the hospital and the practitioner.  It is to be utilized when the medical staff finds or perceives problems with the care rendered by a practitioner.  Almost all states have adopted the Federal Health Care Quality Improvement Act (HCQIA) verbatim.  Several states, including California, opted out and have their own version of the law.  

 

The law was enacted by Congress to prevent people sitting on peer review committees from having to defend themselves for their actions. It states that if the peer review is done in the reasonable belief of the furtherance of quality health care, that the people involved have made a reasonable inquiry into the facts and that the action taken was reasonable based on the facts, the committee members would be protected from monetary damages.  The quid pro quo for this protection is the reporting requirement to a national data bank of all peer review actions and the checking of this bank by the reporting institutions at the time of appointment or re-appointment to an approved institution. The law states that no monetary damages can be obtained if the rules are followed and the only remedy is return to the medical staff.  This seems straightforward and fair, but only if the rules are truly followed.  The problem comes when the system is used by CEOs and medical staff members to get back at providers who have been a thorn in their side as either competitors, whistleblowers or for other political reasons not affecting the quality of care. 

 

A case in point is a CEO of a hospital that belongs to a large religious chain.  He wanted to bring a new urologist into the small town in central California.  The new urologist did not do well since the area had an excellent urologist already on the staff.  This urologist had to go so the new one could make a living.  The CEO utilized the medical Chief of Staff who had strong financial ties with the hospital as his dupe.  She had the urologist charged as a disruptive physician because he was over protective of his patients.  He made rounds several times a day and sometimes at night.  When he called to check on his patients he would only speak to the nurse.  The hospital hired a well known, highly paid hospital attorney from out of state.  They stated that the urologist had problems with quality of care and disruption.  There were thirty three charges.  The hospital physicians would not serve on the voluntary peer review committee against the urologist until they were paid by the hospital $1000 per session.  This already potentially biased the panel in favor of the one who was paying them.  After many months of strung out hearings the panel stated in their final report that the urologist was an excellent physician with no quality of care problems.  However, they said he should be removed from the staff since he was a pain to the nurses and nurses were hard to hire and retain.  They cited the leaving of one nurse but did not have any proof that the nurse left because of the urologist. 

 

The urologist is now up for appeal to the hospital Board of Directors but will probably lose since they will listen to the peer review and CEO.  The physician will then have to take the hospital to court for the unfairness of the hearing.  In the meantime, the urologist has applied and been placed on the staff of other hospitals and will retain his office.  He will retain his patients since he has an excellent reputation and the hospital will lose not only his patients but the new urologist as well plus the high six figures they have spent on paying the hospital hired attorney and the members of the peer review committee, a true lose lose situation.

 

Is this a fair hearing?  Is being a disruptive physician without any quality of care issues enough to take away someone’s livelihood?  I don’t think so. This is a good time to put in a plug for the physician hiring a healthcare attorney for any accusations that may lead to peer review.  This doctor hired a criminal defense attorney with no expertise in medicine.

 

In a Southeastern state a physician had some adverse outcomes in 1994.  He was asked and agreed to be proctored for a period of time.  This was done and the physician came away clean.  There were no other cases until 2002.  He was called to the MEC without any warning of what was to be discussed.  When he arrived he was told about three cases.  The first was a surgical complication from six months prior which required the patient to be transferred.  The next was a nurse’s unsubstantiated complaint that he took out staples without wearing gloves and the third was a fire on a patient caused by an electrosurgical unit after a nurse scrubbed the patient with an alcohol based solution and did not tell anyone.  There was no injury in any of the three cases.  The doctor presented testimony from the anesthesiologist on the last case that no warnings about the alcohol prep was told to anyone in the OR.  He presented a letter from a surgical colleague who witnessed the staple removal and reported nothing unprofessional.  The initial case was reviewed by a competitor who was critical of the care.  Hours later he was summarily suspended.  There was no evidence of imminent danger to any patients.  The physician at the peer review committee meeting presented two opinions who agreed with the way the surgical case was handled. No evidence was presented by the nurse who complained of the staple removal nor the surgical competitor.  The peer review committee stated in its report to the MRC that privileges should be restored.  The MEC got another outside consultant who stated the surgical case was within the standard of care.  The MEC then continued the physician’s suspension.  The Board backed the MEC, despite QA data that showed he had a lower complication and readmission rates than his peers.  He was, of course reported to the Data Bank.  He is now considering suing the hospital and the MEC individually for breaking the bylaws and unfair peer review by the MEC. This is a perfect case why peer review decisions should not go back to the MEC except as a report.

 

In several states some hospital organizations are miffed that Orthopods and others are opening specialized health hospitals.  They are afraid of “cherry picking” and the lack of EDs.  They forget that the reason for many of these new hospitals is the inability of the physicians to schedule cases promptly and conveniently.  The hospitals are threatening the physicians with loss of medical staff privileges for new physicians joining the staff or those already on the staff.  The AMA is fighting this by asking the OIG to investigate whether this constitutes an illegal kickback to the hospital for staff privileges.

 

Let’s look at two licensing matters.  The first is one in a southwest state.  A Black Intensivist had her license revoked for being removed off of four hospital medical staffs.  The Medical Board did not investigate the reasons for the peer review.  Three hospitals removed the doctor because she was removed from the fourth hospital.  There were no quality of care issues in those three hospitals.  The hospital she was first removed from investigated her because of a death.  The patient was terminal and comfort care only.  She gave the patient who was in pain five mg. of morphine IV and then an infusion of five mg. per hour.  As the patient continued to have discomfort, this dosage was increased first to 10 and then to 20 mg per hour.  The patient had received a total of about 16 mg. in an hour and twenty minutes.  The patient later died and was sent to the coroner.  The coroner ruled it a homicide since there were high levels of morphine in the body.  The press got hold of the story and this doctor was named Dr. Death.  She was peer reviewed and found to have not done anything wrong.  The Hospital Board did not agree due to adverse publicity and let her go, leading to the cascade of events.

 

What does this say about what physicians should do with patients in pain?  Do you potentially sacrifice your license and give the patient what is necessary to relieve pain and suffering or do you allow the patient to suffer due to fear of Medical Board reprisal?   Even California, who has come out with multiple statements by their Medical Board fostering the use of pain medicine, does not practice what it says. Several good physicians have had their license revoked for giving pain medicines.  A new law in California requires all licensees to have 12 hours of pain management courses by 2006.  If these courses are taught correctly and explaining the Medical Board stance, physicians of the Golden State will be getting a lot of consults before giving pain medications.

 

In another upper plains state a podiatrist was turned in to the Podiatry Board by a group of competitor orthopedists for doing ankle surgery.  This surgery is allowed in the state. The four members of the Podiatry Board were direct competitors of the podiatrist involved.  They yanked his ticket.  The Center for Peer Review Justice became involved with this case and over a period of time got the Board of Podiatry members replaced. The podiatrist’s case was then reheard and he got his license back. 

This is a prime example of what can be done outside the legal system by a group of people dedicated to help those who have been shammed.  Kudos to Richard Willner and his Center for their long and dedicated work in this case.

The message of this newsletter is to those of you who work in the medical staff offices of hospitals either as the medical or non-medical head is “there but for the grace of God go I”.  Everybody makes errors.  The question is whether or not this makes one a danger to patients. If there is a trend or a single error so egregious, then the practitioner needs to be removed immediately from the ability to harm the public.  However, it should be done with investigation of all the facts and with fairness to the accused practitioner as well as the patients.  This is not the place for a kangaroo court. 

To those practitioners who are now or who will be subject to discipline, do not be cheap.  You need to obtain the services of a healthcare attorney who can work for you to get you the best decision possible.  This may mean forgoing a peer review process and negotiating a settlement.  It may mean being a bulldog in fighting an unfair process.  It may mean doing things outside of the legal process such as what was done with the Podiatry Board being replaced.  It all depends on what the affected physician wants to do after being given all the options, the realistic chance of success of each of those options and the approximate costs associated with each option as related to the money lost if their ticket is punched. 

If you remember nothing else, remember that you should not be like a sign in a Denver office building that states “Braille Instructions.  Please see below.”  Please see the whole picture and see what you would want done if you were accused.

Also, remember the admonition of the AMA that states that all medical staff should have and pay their own attorney if there is the perception of a conflict of interest.  The most common example of this is in bylaws writing and interpretation.  An example is as above that the decision of the peer review committee should only go back to the MEC as a report but to the Board for action.  The rationale is if the MEC was not going to follow the peer review decision, why do peer review.  It is a process for fairness, not just for legality.

Articles on the HCQIA

AMENDING THE HCQIA OF 1986
written by Edward Gray Davis , 12/22/02
Here are some suggestions for amending the HCQIA(42 USC Sec. 11101,et.seq.)

1) Sec. 11101(3) should be changed to read; This nationwide problem can be remedied through effective and fair professional peer review, but to ensure this, basic procedural due process rights shall be accorded the physician subject to the peer review process. Otherwise, the system could result in damaging the reputation and career of physicians being reviewed and could undermine the purpose of this Act by allowing physicians to base their decisions on prejudice, the desire to restrict the supply of physicians in the area, retaliation based on jealousy or their own incompetence and damage the public health by falsely designating competent physicians as incompetent and depriving the public of their services.

2) Sec. 11112(a)(3) should be changed to read : after adequate notice, including specific notice of the charges against the physician to be reviewed, and impartial hearing procedures are afforded to the physician involved. (the language beginning with or after such other procedures is arbitrary and capricious and should be deleted).

3)Sec. 11112(a)(4) This paragraph should end after the first sentence. The second sentence which begins A professional review action shall be presumed to have met...... should be deleted.

4) Sec. 11112(b)(3)(D) should be changed as follows: In (D)(ii) the second sentence should be deleted. In addition a third subsection (iii) should be added. It should state: to receive notice of his or her right to appeal an adverse decision of the hearing to the Board of Medicine of the state involved and a form which directs him or her how and where to file such appeal within 30 days of receiving the adverse decision.

5) Sec. 11115(a) At the end of the paragraph the following sentence should be added: However no state law which prevents the physician from obtaining documents, witnesses or or any other material which is essential to his or her preparing a full and adequate defense shall be valid with respect to the peer review in question and shall not be allowed to interfere with the basic due process rights accorded the physician under review. Any such state law shall yield to the supremacy of this Federal Act and shall not be enforceable by the state with respect to any part of the professional peer review procedures as created and made enforceable pursuant to this Act.

Edward Gray Davis
2030 Meadowlake Ct.
Norfolk VA 23518

AMA Policies Regarding Due Process
REPORT OF THE BOARD OF TRUSTEES
Subject: Peer Review Immunity


Presented by: Timothy T. Flaherty, MD, Chair
At the 2001 Interim Meeting, Board of Trustees Report, Peer Review Immunity, adopted as amended by the House of Delegates ask our AMA 1) to monitor legal and regulatory challenges to peer review immunity and non-discoverability of peer review records/proceedings and continue to advocate for adherence to AMA policy, and 2) to produce an additional report with recommendations that will protect patients and physicians in the event of misdirected or negligent peer review at the local level while retaining peer review immunity for the process.

This report recommends that 1) medical staffs adopt bylaws that provide for a peer review process that is consistent with Health Care Quality Improvement Act criteria and AMA policy, 2) medical staffs consider bylaw provisions that include an option or alternative for external peer review when there is a reasonable allegation by the reviewed physician, and 3) if states believe that negligent or misdirected peer review is a problem, they consider legislative action establishing an administrative review panel to review physicians claims of unfair peer review prior to judicial involvement.

AMA Policy

Current AMA policy supports peer review activities by physicians and discourages involvement in a peer review process by physicians who are economic competitors of the involved physician. AMA policy also supports confidentiality protection of peer review documents and proceedings (Policies H 375.972, H 375.983, H 375.987, H 375.989, H375.990. H 375.992, H 375.993, H 375.997.

Background

Board Report 8-I-01, Peer Review Absolute Immunity for Lawsuits, adopted as amended as Peer Review Immunity, discussed the history and purpose of the Health Care Quality Improvement Act (HCQIA) and described in detail, the requirements that must be met in order to invoke immunity under the act. The limited immunity provided by HCQIA does not preclude all claims for damages against a peer review committee. The report specified those situations in which immunity would not apply, namely, 1) civil rights violations; 2) peer review which does not meet HCQIA criteria for fair process and notice and 3) suits for injunctive relief.

The report also acknowledged the potential for abuse as well as the occasional personal agendas that may motivate peer review actions. It recommends that, among other things, medical staffs adopt/implement medical staff bylaws that are consistent with HCQIA and AMA policy.

Discussion


Physicians sanctioned by a peer review panel face a daunting process if they challenge a peer review action and seek money damages. The time and expense involved in judicial proceedings is significant. Moreover, HCQIA generally enables a defendant to prevail in damage actions so long as the peer review committee has provided due process and notice to the physician under review.

HCQIA immunity provides protection for good faith peer reviewers but was not intended to protect illegitimate actions taken under the guise of furthering quality care. Congress did not want to see patient care undermined when privileges are unfairly terminated. Congress specifically recognized the potential abuse in the peer review process and limited immunity to actions that met the criteria articulated in the Act. Further, Congress did not place any barriers or impediments in the way of physicians who chose to file a complaint with federal antitrust agencies, bring matters to the attention of the state boards or licensing authorities, or file an action to enjoin the actions of a peer review committee or hospital. Physicians who feel that they have been the victim of unfair peer review have always had the opportunity to seek injunctive relief, for instance suits alleging violation of due process or suits alleging antitrust, so long as the claimant is not seeking money damages. HCQIA immunizes peer review participants from money damages; it does not insulate peer reviewers from suits. Physicians can also raise their concerns to the attention of the Department of Justice (DOJ) or the Federal Trade Commission (FTC) or the state board of medical examiners at no cost.

Current AMA policy recommends that hearing panels consist of members who are not in economic competition with the involved physician. Furthermore, When an objective fair peer review process is at risk due to participation of competitors, persons motivated by retaliation, discrimination, cronyism or other personal agendas, a mechanism for external review would provide physicians with some assurance of fairness. Medical staffs have discretion to establish procedures that provide for external peer review either as a standard bylaw provision or whenever there is a reasonable allegation that the peer review panel is biased. While one process may not necessarily be workable for all medical staffs, a variety of approaches can be established in bylaws which involve external peer reviewers. It should be noted, however, that even when HCQIA and state immunity is assured, it may be difficult for medical staffs to recruit physicians for external peer review. Some communities may have only one hospital and some physicians may still be reluctant to participate in professional matters of other medical staffs.

Private peer review organizations also exist to provide external peer review for medical staffs. These organizations provide independent physician evaluation to assist medical staff and committees and can provide board certified physicians in all specialties. Physicians who believe that peer review is the responsibility of medical staff members may meet utilization of these professional consultants with some resistance. The cost of using private peer review organizations is an issue which needs to be addressed and requires creative solutions on the part of both hospital and medical staff

State medical societies or specialty societies may also be a resource in peer review by recommending physicians they know are willing to assist in peer review when requested by a party to peer review.

Because local external peer review may be unworkable in some communities, because local external peer review may not guarantee an objective and fair process, and because some medical staffs may be resistant to establishment of external review panels, a state remedy may be required.

Some states have legislated a process for judicial review of negative credentialing actions. Washington D.C., Arizona, and Virginia, for example, have enacted laws establishing a process for judicial review of negative credentialing decisions. These laws give the courts parameters by which to determine whether a credentialing decision should be upheld.

Other states have created administrative review boards to hear the merits of physicians claims prior to court proceedings. In New York, an impartial panel of 14 persons appointed by the governor reviews the adverse decision. The panel may revise or uphold the decision of the hospital or it may make its own finding. After the panels review, the physician may then file suit, although the panels findings become evidence in any judicial proceeding. AMA staff has reviewed these programs and notes that some physicians are critical of a state-mandated review mechanism. Some physicians believe that state intervention encroaches on the medical professions' responsibility to monitor itself. Other physicians caution that more punitive recommendations than those of the original peer review committee may result .

Colorado established a committee to review claims of unreasonable anticompetitive conduct in connection with privilege or staff membership decisions. The committee may reverse, remand, or modify the action or dismiss the physicians complaint. Any allegation other than anticompetitive conduct may be filed directly with the court.

Conclusion

The potential for discriminating or anticompetitive peer review exists despite the integrity of the medical profession. However, immunity for peer reviewers must not be compromised. Peer review is essential for ensuring and improving quality patient care and immunity is essential to those physicians who participate in peer review.

In order to assure a fair process and avoid time-consuming and costly litigation by physicians who challenge the objectivity of the hearing panel, an opportunity for external review should exist at the local level. However, because of the assortment of bylaws in place in hospitals and possible resistance to incorporate alternatives for external review panels, state legislative action should be considered to offer redress to physicians when states believe that the peer review process is being undermined.

Recommendations

The Board of Trustees recommends that the following recommendations be adopted and the remainder of the report to be filed:

1. That the AMA recommend medical staffs adopt bylaws that provide for a peer review process that is consistent with HCQIA criteria and AMA policy (Directive to Take Action.)

2. That the AMA recommends medical staffs consider bylaw provisions that include an option or alternative for external review when there is a reasonable allegation by a reviewed physician. (Directive to Take Action)

3. That the AMA recommends that if states believe that negligent or misdirected peer review is a problem, legislative action be considered. (Directive to Take Action)
 

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