Sunday, October 17, 2010

Sham Peer Review: Napoleonic Law In Medicine

The following article is already available on-line as a PDF document from the following link: which came up from a Google search using the keywords "medical center sham peer review".   Here goes:

Sham Peer Review:
Napoleonic Law In Medicine

Verner S.Waite, M.D.


Professional peer review is intended to protect the public from incompetent or unethical practitioners.  However, it could and often does remove the most honest, ethical, and competent physicians, to the advantage of unscrupulous competitors. The Health Care Quality Improvement Act (HCQIA), which was
enacted with the support of the American Medical Association, immunizes false testimony, thus allowing gossip to be converted into testimony and depriving physicians of independent judicial review. The accused physician is often ruined financially. The victim must pay his own legal fees, whereas his accusers are not
responsible for any legal fees, which are paid by the hospital. The National Practitioner Databank (NPDB) transforms “disciplinary” actions into a professional death sentence. The abuse of the process is, unfortunately, widespread. 

Off With His Head!”
My own experience with sham peer review began in 1979.  As is true in many cases of sham peer review, the attack was initiated by jealous competitors who viewed a hospital computer printout and
discovered that I was doing approximately twice the volume that they were doing. Never mind the fact that I was going into the hospital, at hours when they would not, to take care of gunshot wounds and indigent patients. My numbers were larger, and they were intent on doing something about it. And thus the first attack
againstmewas launched.

The pretext concerned a 6-year-old boy who presented to the hospital at an inconvenient hour with an epidural hematoma (lifethreatening hemorrhage on the brain). I prevailed upon a neurosurgeon friend of mine to come into the hospital. I assisted him in the surgical evacuation of the hematoma, and the child’s life was saved.  Although I was only the assistant surgeon on the case, competitors brought charges against me, accusing me of operating outside of my area of competence and expertise. My qualifications, however,
as assistant surgeon in this case included training at City Hospital where I did 19 emergency neurosurgical cases. And in this case, three neurosurgeons had refused to come in to the hospital to care for the comatose child before I was called. This was a true emergency, I responded appropriately, and the documentation in the chart was accurate and complete. As I soon discovered, however, truth is not an impediment to sham peer review.

The surgery department held a fact-finding meeting, which was tape recorded, and two nights later a formal peer review hearing was conducted. Since the tape was favorable to my case, the hospital CEO ordered it to be destroyed. I continued to obtain appropriate consultations when needed, and my privileges remained intact. But this was only the beginning. Other charges soon followed. Attackers coordinated their lies and stories, and it was open season again. Often the only evidence they could offer was “it is so because I say it is so… off with his head!” It was a collaboration between Alice in Wonderland and prestigious purveyors. The charges against me were mounting, and the predators were moving in for the kill. 
Fortunately, at that time there was no immunity for peer reviewers who offered false testimony. Therefore, I filed a lawsuit against my attackers in 1984 ( ). Peer review documents were also discoverable and admissible in court at that time. This is no longer the case, purportedly to protect the confidentiality of the accused, although the actual effect in most cases is to protect the accusers. Although the trial itself involved only six cases, an additional 75 charges were made against me only two months before trial. This is a typical tactic used by sham peer reviewers to bolster their case and to intimidate the victim. Some of these cases also involved situations in which I was not the physician of record – another common tactic used in sham peer review.  At trial, the judge ordered the hospital to produce a transcript of the exculpatory tape that the hospital CEO had ordered to be destroyed. The hospital’s copy of the transcript was twelve pages long. The one that I was given was only two pages long. Both the judge and jury noted this glaring discrepancy. Blatant inconsistencies were also noted in testimony provided by many of my accusers.  In pretrial deposition and also at trial, the hospital administrator admitted to knowing that the case against me was based on lies.
The hospital CEO was were subsequently fired as a result, but quickly found a job at another hospital. Physician accusers were also forced at trial to admit that they had been “careless with the truth.”  Although they accused me of “having the highest complication rates and hospital stays, and death and infection rates,” the
hospital’s own computer data showed the opposite. My statistics were far better than those of my accusers. “It is so, because I say it is so” just didn’'t pass muster in the courtroom, where actual evidence was required.
The outcome of the case was to block an unfavorable decision from the hospital peer review committee and to award me a $559,000 judgment against the hospital for slander. Although I remained on the hospital’s medical staff, the damage to my reputation remained largely unaltered. Half the doctors at the hospital still thought that I was a “bad doctor” and had won only because I had a sharp lawyer. A state accreditation committee also looked at the 75 last-minute charges brought by my accusers and found that my care was commendable in those cases.

Getting a judgment and actually collecting the judgment are two different matters, of course. As a victim of sham peer review, one often finds oneself in a high-stakes poker game with an opponent whose resources far exceed one’s own. The hospital can continue to raise the ante by pursuing appeal after appeal until the victim can no longer afford to play the game.

For the rest of the article, go to

Due and full credit is given to the author Verner S. Waite, M.D. and to the Journal of American Physicians and Surgeons. Please notice that I am not a member of, and have no affiliation with, the Association of American Physicians and Surgeons.  My only interest is focused on the article displayed herein, since it addresses a real problem in a superb manner.

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