Saturday, November 13, 2010

Does The Law Necessarily Protect Good Medicine?

I believe that the following paragraphs are worth reading and pondering.  They are from an article "How to Protect Physician Whistleblower-Patient Advocates - From Retaliation to Benefit Patients" - October 2007
by Gil N. Mileikowsky, MD, Encino, CA, and Bartholomew Lee , Spiegel Liao & Kagay, San Francisco, CA.  The link is:

The Law Today Favors Bad Medicine:

Once a hospital hearing to test a summary suspension commences, the administrative process controls the suspended physician. Due to the "doctrine of exhaustion of administrative remedies" no court will intervene to prevent administrative dissemination of the defamation of the report of the summary suspension, even though there has been no adverse finding or adjudication. "Exhaustion of administrative remedies" usually means exhaustion of physician resources, in litigation and its antecedents, especially inasmuch as the physician cannot (on interim suspension) practice medicine.

Furthermore, due to the abuse by hospitals of that doctrine, hospitals can prolong that administrative process with many delays, e.g., by an ostensibly favorable ruling of the hospital's appeal board granting yet another, new "hearing" to the still suspended physician. That is a most effective strategy, at worst malicious prosecution, at best "good intentions gone awry," to exhaust the physician as an adversary emotionally, financially and physically. Hence, the hospital wins by attrition before any litigation is even possible. In the end, the physician's "exhaustion of administrative remedies" may be futile. It all too often ends up with a final blow by the governing board of the hospital (even if members of that board may believe that this physician is innocent). This is so, because a ruling by the governing board in favor of the physician, would open the door to claims for monetary damages for the physician against the hospital. The board in its perceived fiduciary responsibility will wish to prevent such a financial loss.
The hospital simply must bury its mistake, and take advantage of the reluctance of judges to substitute judgment for medical professionals in staff matters.
Moreover, a physician who can get to court generally at most wins a remand to the administering hospital, for yet another round of hearings.
When it is understood that hospitals' attorneys drafted the amended federal Health Care Quality Improvement Act (HCQIA 1989), the insertion of a quasi-judicial immunity provision can also be explained. The effect if not the object was not so much protection of physician participants in good faith peer review; rather it was the perhaps unintended consequence of protection of hospitals that sponsor bad faith peer review. Hence, only very few injured physicians in the last 20 years have been able to get past the twin peaks of judicial deference to medical prosecutors and administrators and immunity for the complicit as well as the innocent.
As if this were not enough, the HCQIA also provides that a peer review body's failure to meet the conditions described in the law does not constitute failure to meet the applicable standards. In other words, failure to comply with this particular law is not a violation of this particular law. Such a caveat sacrifices the health care quality improvement spirit of the law by gutting the letter of the law. In effect, the hospitals' lawyers' lobbying has loaded the dice. The public cannot expect this process to be either fair or reasonable. An objective observer could join advocates in concluding that at this time, the "peer review" disciplinary hearing process is rigged to a point way beyond any "stacked deck" of cards. Even without malicious intent, physicians from the same hospital are frequently too close to the personalities to avoid bias one way or the other (unlike, for example, a jury of one's peers in court, who are strangers to the parties). Hospital administrators face economic incentives to maximize income, but not to minimize complications.

Ironically, bad physicians are rarely subject to such malicious prosecution. This is so because they are often significant income providers to the hospital and thus enjoy the protection of a hospital more concerned with revenues than patient well-being. This was the case in Redding, California for two heart doctors who did hundreds of sometimes fatal heart procedures, utterly unneeded, and full of risk. All monitoring and inspection by several agencies failed to detect this enormity. When hospital managements, closest to the problems, are compensated only in proportion to revenue growth, patient safety suffers. Often bad physicians, without the leverage of big revenue, simply agree to leave the hospital, provided the hospital does not report them to the state medical board, thereby minimizing its own exposures. They thus evade the "radar screen" of mandatory reporting.
The public is not protected. The reporting system tells of summary suspensions of even outstanding physicians without adjudications, but cannot report cover-ups.

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