With great interest, I read the new provisions in California law. The article that is the subject of today's discussion is an excellent article that can be reached at the following link:
The article of interest is a publication of Davis Wright Tremaine LLP. They state that their purpose in publishing that advisory is to inform their clients and friends of recent legal developments. They also state that it is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.
On Sept. 29, 2010, California Gov. Arnold Schwarzenegger signed Senate Bill 700 (SB 700) into state law. The amendments and new provisions will go into effect on Jan. 1, 2011. According to a Senate analysis of SB 700, the bill was needed to address various criticisms of the peer review process.
Criticisms of the peer review process:
(1) A perceived reluctance among physicians to serve on peer review committees due to the risk of involvement in related future litigation
(2) A rising concern about “sham peer review” (defined as the use of the peer review system to discredit, harass, discipline, or otherwise negatively affect a physician's ability to practice medicine or exercise professional judgment for a nonmedical or patient safety related reason).
(3) The “over legalization of the process, lack of transparency in the system, and [the] burdensome human and financial toll” on both the hospital and the physician. The article noticed that, SB 700's additional requirements appear more likely to increase the over-legalization and burdensome nature of peer review than to alleviate its perceived problems.
The article reported, "B&P Code Sections 800 and 805(f) also allow a physician to supplement the 805 Report segment of the physician’s Central File with “additional exculpatory or explanatory statements” and add any finding of bad faith by a court regarding a peer review proceeding that resulted in an 805 Report. The licensee has the burden of notifying his or her licensing board about such a bad-faith finding."
My Comment: I believe that this will not help the majority of physicians while asserting the "guilty till proven otherwise" attitude. We know that only a minority of sham peer review cases can be proven, considering the required insurmountable burden. This reporting provision does not remedy the situation for the vast majority of cases.
Comment on the 805 Report requirements:
An 805 must be submitted after any of the following events occurs for a medical disciplinary cause or reason:
- “Denial or rejection of an application for membership or privileges.” What if the decision to deny or reject an application was improper? Are there any safeguards before defaming the physician?
- “Summary suspension of a licensee’s membership, privileges, or employment that remains in effect for more than 14 days”. Why so quick to destroy? What if the suspension was improper? How to prevent bad faith actions from turning into a total disaster?
“SB 700 provides, in newly enacted B&P Code Section 805.01, for an additional report, distinct from the 805 Report (the 805.01 Report), which must be made within 15 days after a peer review body—e.g., the Medical Executive Committee (MEC)—makes a final decision or recommendation—not 15 days after a licensee is informed of the proposed action, or after the decision becomes effective—regarding a disciplinary action (as specified in Section 805(b)) against a licensee based upon a formal investigation. In this context, the term “formal investigation” is defined to mean “an investigation performed by a peer review body based on an allegation that any of the acts listed in [Section 805.01] have occurred.” Why should an adversarial recommendation be reported while the physician did not have a chance yet to defend himself against a process that does not provide the constitutional right of “due process”? And why so quick to destroy the physician? Is such a physician, who is guilty and before being given a chance to prove innocent, considered an enemy of the state?
The article comments: “One of the most basic questions, which inevitably will spark lively debate, is when a "final decision or recommendation of a peer review body" has occurred to trigger the new 805.01 reporting requirement. For example, if the MEC adopts a recommendation to terminate a practitioner's privileges, is that a reportable event, or does it not become a "final recommendation ... of the peer review body" (which is defined by Section 805 as "the medical or professional staff") until it is ripe for consideration and action by the governing body? That might be after the physician has either waived his hearing rights or pursued them unsuccessfully.”
Practicing medicine while under the threat of the current hostile environment should make one wonder, is it really worth it? Something is not right here.