This posting will only be appreciated by those who believe in the necessity of a good-faith and healthy peer review process in order to improve the medical care of the patients and the community. That is what every conscientious physician supports. Physicians and surgeons should be more assertive in seeking constructive peer review practices in their hospitals. Before engaging with a hospital, physicians ideally need to know how the peer review process works. Asking for a copy of the Bylaws early on may give a hint. I wish there were an on-line resource that identifies hospitals that have an on-going healthy educational peer review processes . One should probably avoid hospitals that do not employ the peer review process under any circumstance other than punishing or eliminating a physician.
In my opinion, a good peer review process should be:
1. On-going and continuous.
2. Applying the same level of chart reviews and scrutiny to all physicians in an institution, fairly. Initiating chart reviews against only one physicians based on some triggering statistical analysis is discriminatory.
3. Used to educate, and to prevent recurrence of problems
4. Transparent and involving all clinicians/providers. All providers should be both active participants of reviews as well as being reviewed. Every surgeon's problem cases should be reviewed. Every surgeon/physician should be treated with the same level of collegiality. The goal should be to improve the care of patients by all providers.
If need to, for cases where the staff may not reach a conclusion in a particular case, it may be a great idea to selectively use the services of a reputable external review service, or approach the nearest University Medical Center to see if they have staff that is willing to perform an external review. Such a service should be used primarily for education, rather than to make a case against an individual provider.
Hospitals whose only application of the peer review process is to restrict or revoke the privileges of select physicians should be identified and be known to the public. Physicians should avoid seeking privileges in, practicing in, or being employed by, those hospitals. Those are not quality-seeking institutions, but, rather, physician-victimizing and punishment systems that could be unfair and probably should be avoided.
Saturday, November 6, 2010
Wednesday, November 3, 2010
The American Medical Association and Peer Reviews (Part 2)
The full document that is the topic of this posting can be opened by clicking the following link:
www.ama-assn.org/ama1/pub/upload/mm/471/annotatedb.doc
I believe that the following recommendations from the American Medical Association (AMA) seem to be in the right direction:
------------------------------------
Here is the part of the report that pertains to the legal protections for the peer review process:
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recommended for referral
(24) BOARD OF TRUSTEES REPORT 18 - LEGAL PROTECTIONS FOR MEDICAL PEER REVIEW
RECOMMENDATION:
Mr. Speaker, your Reference Committee recommends that Board of Trustees Report 18 be referred.
Board of Trustees Report 18 recommends that our American Medical Association adopt the following definition of peer review including the definitions of the structural elements that support medical peer review process and the remainder of this report be filed.
Peer review is the task of self-monitoring and maintaining the administration of patient safety and quality of care, consistent with optimal standards of practice. It is the mechanism by which the medical profession fulfills its obligation to ensure that its members are able to provide safe and effective care, whereas credentialing is the process to verify practitioner qualifications at the time of initial appointment or reappointment to a health care institution. Effective peer review is an essential hallmark of the medical profession; it is the practice of medicine. Elements of medical care, which describe the knowledge, skills, attitudes, and educational experiences of physicians and provide the foundation of physician activities, are subject to peer review and its protections. Those elements include, but are not limited to the following: patient care, medical knowledge, practice-based learning and improvement, interpersonal and communication skills, professionalism, and systems-based practice.
Good faith peer review is the mechanism by which the medical profession fulfills its obligation to ensure that its members are able to provide safe and effective care; effective peer review is an essential hallmark of the medical profession. The responsibility assigned to and scope of peer review is the practice of medicine. The process of peer review is conducted by physicians who are within the same geographic area or jurisdiction and medical specialty of the physician subject to review to assure that all physicians consistently maintain optimal standards of competency to practice medicine. Physicians outside of the organization that is convening peer review may participate in that organization’s peer review of a physician if the reviewing physician is within the same geographic area or jurisdiction and medical specialty as the physician who is the subject of peer review.
Medical Peer Review Organizations. Any panel, committee, or organization that is composed of physicians or formed from a medical staff, which engages in or utilizes peer reviews concerning physician well-being (eg, fitness to practice medicine) or the care and treatment of patients for the purposes of self-monitoring and maintaining the administration of patient safety and quality of care consistent with optimal standards of practice is a medical peer review organization. The responsibility of a medical peer review organization is to assure (1) that all physicians consistently maintain optimal standards of competency to practice medicine and (2) the quality, safety, and appropriateness of patient care services. The medical peer review committee’s obligations include review of allegations of infirmity (eg, fitness to practice medicine), negligent treatment, and intentional misconduct. Peer review protections and privilege should extend to investigation and subsequent correction of negligent treatment and intentional misconduct.
Proceedings. Proceedings include all of the activities and information and records of a peer review committee. Proceedings are not subject to discovery and no person who was in attendance at a meeting of a peer review organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such organization or as to any findings, recommendations, evaluations, opinions, or other actions of such organization or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of a peer review organization, nor should any person who testifies before a peer review organization or who is a member of a peer review organization be prevented from testifying as to matters within his/her knowledge; but such witness cannot be asked about his/her testimony before a peer review organization or about opinions formed by him/her as a result of the peer review organization hearings.
Peer Review Activity. Peer review activity means the procedure by which peer review committees or quality assessment and assurance committees monitor, evaluate, and recommend actions to improve and assure the delivery and quality of services within the committees' respective facilities, agencies, and professions, including recommendations, consideration of recommendations, actions with regard to recommendations, and implementation of actions.
Peer Review Records. Peer review records mean all complaint files, investigation files, reports, and other investigative information relating to the monitoring, evaluation, and recommendation of actions to improve the delivery and quality of health care services, licensee discipline, or professional competence in the possession of a peer review committee or an employee of a peer review committee.
Privilege. The proceedings, records, findings, and recommendations of a peer review organization are not subject to discovery or use. Information gathered by a committee is protected. Purely factual information, such as the time and dates of meetings and identities of any peer review committee attendees is protected. Peer review information otherwise discoverable from “original sources” cannot be obtained from the peer review committee itself. In medical liability actions, the privilege protects reviews of the defendant physician’s specific treatment of the plaintiff and extends to reviews of treatment the physician has provided to patients other than the plaintiff.
Confidentiality. Peer review records and deliberations are confidential and may not be disclosed outside of the judicial process.
Peer Review Immunity. To encourage physician participation and ensure effective peer review, entities and participants engaged in peer review activities should be immune from civil damages, injunctive or equitable relief, and criminal liability.
Your Reference Committee heard complimentary testimony on our Board’s work to establish a thorough definition of peer review in this report. Your Reference Committee also heard significant testimony asking our AMA to continue investigating several peer review issues before the report is approved. The general consensus of the testimony is that peer review should focus on quality improvement and patient safety rather than physician discipline. Specific recommendations include that: 1) the definition does not extend to physician wellness programs; 2) the report should state that a physician’s participation in peer review should not appear in a credentialing file; 3) physicians should enjoy strong due process in peer review proceedings, 4) the negative unintended consequences of a peer review system should be mitigated, including concerns that physicians can unfairly be targeted through peer review processes for reasons not related to quality, and (5) creating definitions for such terms as “unintended consequences,” “communication skills,” “professionalism,” and “system-based practice.” Therefore, your Reference Committee recommends referral of Board of Trustees Report 18.
www.ama-assn.org/ama1/pub/upload/mm/471/annotatedb.doc
I believe that the following recommendations from the American Medical Association (AMA) seem to be in the right direction:
"The general consensus of the testimony is that peer review should focus on quality improvement and patient safety rather than physician discipline. Specific recommendations include that: 1) the definition does not extend to physician wellness programs; 2) the report should state that a physician’s participation in peer review should not appear in a credentialing file; 3) physicians should enjoy strong due process in peer review proceedings, 4) the negative unintended consequences of a peer review system should be mitigated, including concerns that physicians can unfairly be targeted through peer review processes for reasons not related to quality, and (5) creating definitions for such terms as “unintended consequences,” “communication skills,” “professionalism,” and “system-based practice.” Therefore, your Reference Committee recommends referral of Board of Trustees Report 18.
------------------------------------
Here is the part of the report that pertains to the legal protections for the peer review process:
------------------------------------
DISCLAIMER
The following is a preliminary report of actions taken by the House of Delegates at its 2008 Annual Meeting and should not be considered final. Only the Official Proceedings of the House of Delegates reflect official policy of the Association.
AMERICAN MEDICAL ASSOCIATION HOUSE OF DELEGATES (A-08)
Report of Reference Committee B
Craig W. Anderson, MD, Chair
In keeping with Resolution 601 (A-96), the Reference Committee recommends the following consent calendar for acceptance:
<<<<<<<<<<< SNIPPED >>>>>>>>>>>>>>>>>>
recommended for referral
24. Board of Trustees Report 18 – Legal Protections for Medical Peer Review
<<<<<<<<<<<<<<>>>>>>>>>>>>>>>>>(24) BOARD OF TRUSTEES REPORT 18 - LEGAL PROTECTIONS FOR MEDICAL PEER REVIEW
RECOMMENDATION:
Mr. Speaker, your Reference Committee recommends that Board of Trustees Report 18 be referred.
HOD ACTION: Board of Trustees Report 18 referred.
Board of Trustees Report 18 recommends that our American Medical Association adopt the following definition of peer review including the definitions of the structural elements that support medical peer review process and the remainder of this report be filed.
Peer review is the task of self-monitoring and maintaining the administration of patient safety and quality of care, consistent with optimal standards of practice. It is the mechanism by which the medical profession fulfills its obligation to ensure that its members are able to provide safe and effective care, whereas credentialing is the process to verify practitioner qualifications at the time of initial appointment or reappointment to a health care institution. Effective peer review is an essential hallmark of the medical profession; it is the practice of medicine. Elements of medical care, which describe the knowledge, skills, attitudes, and educational experiences of physicians and provide the foundation of physician activities, are subject to peer review and its protections. Those elements include, but are not limited to the following: patient care, medical knowledge, practice-based learning and improvement, interpersonal and communication skills, professionalism, and systems-based practice.
Good faith peer review is the mechanism by which the medical profession fulfills its obligation to ensure that its members are able to provide safe and effective care; effective peer review is an essential hallmark of the medical profession. The responsibility assigned to and scope of peer review is the practice of medicine. The process of peer review is conducted by physicians who are within the same geographic area or jurisdiction and medical specialty of the physician subject to review to assure that all physicians consistently maintain optimal standards of competency to practice medicine. Physicians outside of the organization that is convening peer review may participate in that organization’s peer review of a physician if the reviewing physician is within the same geographic area or jurisdiction and medical specialty as the physician who is the subject of peer review.
Medical Peer Review Organizations. Any panel, committee, or organization that is composed of physicians or formed from a medical staff, which engages in or utilizes peer reviews concerning physician well-being (eg, fitness to practice medicine) or the care and treatment of patients for the purposes of self-monitoring and maintaining the administration of patient safety and quality of care consistent with optimal standards of practice is a medical peer review organization. The responsibility of a medical peer review organization is to assure (1) that all physicians consistently maintain optimal standards of competency to practice medicine and (2) the quality, safety, and appropriateness of patient care services. The medical peer review committee’s obligations include review of allegations of infirmity (eg, fitness to practice medicine), negligent treatment, and intentional misconduct. Peer review protections and privilege should extend to investigation and subsequent correction of negligent treatment and intentional misconduct.
Proceedings. Proceedings include all of the activities and information and records of a peer review committee. Proceedings are not subject to discovery and no person who was in attendance at a meeting of a peer review organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such organization or as to any findings, recommendations, evaluations, opinions, or other actions of such organization or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of a peer review organization, nor should any person who testifies before a peer review organization or who is a member of a peer review organization be prevented from testifying as to matters within his/her knowledge; but such witness cannot be asked about his/her testimony before a peer review organization or about opinions formed by him/her as a result of the peer review organization hearings.
Peer Review Activity. Peer review activity means the procedure by which peer review committees or quality assessment and assurance committees monitor, evaluate, and recommend actions to improve and assure the delivery and quality of services within the committees' respective facilities, agencies, and professions, including recommendations, consideration of recommendations, actions with regard to recommendations, and implementation of actions.
Peer Review Records. Peer review records mean all complaint files, investigation files, reports, and other investigative information relating to the monitoring, evaluation, and recommendation of actions to improve the delivery and quality of health care services, licensee discipline, or professional competence in the possession of a peer review committee or an employee of a peer review committee.
Privilege. The proceedings, records, findings, and recommendations of a peer review organization are not subject to discovery or use. Information gathered by a committee is protected. Purely factual information, such as the time and dates of meetings and identities of any peer review committee attendees is protected. Peer review information otherwise discoverable from “original sources” cannot be obtained from the peer review committee itself. In medical liability actions, the privilege protects reviews of the defendant physician’s specific treatment of the plaintiff and extends to reviews of treatment the physician has provided to patients other than the plaintiff.
Confidentiality. Peer review records and deliberations are confidential and may not be disclosed outside of the judicial process.
Peer Review Immunity. To encourage physician participation and ensure effective peer review, entities and participants engaged in peer review activities should be immune from civil damages, injunctive or equitable relief, and criminal liability.
Your Reference Committee heard complimentary testimony on our Board’s work to establish a thorough definition of peer review in this report. Your Reference Committee also heard significant testimony asking our AMA to continue investigating several peer review issues before the report is approved. The general consensus of the testimony is that peer review should focus on quality improvement and patient safety rather than physician discipline. Specific recommendations include that: 1) the definition does not extend to physician wellness programs; 2) the report should state that a physician’s participation in peer review should not appear in a credentialing file; 3) physicians should enjoy strong due process in peer review proceedings, 4) the negative unintended consequences of a peer review system should be mitigated, including concerns that physicians can unfairly be targeted through peer review processes for reasons not related to quality, and (5) creating definitions for such terms as “unintended consequences,” “communication skills,” “professionalism,” and “system-based practice.” Therefore, your Reference Committee recommends referral of Board of Trustees Report 18.
Sunday, October 31, 2010
How To Destroy A Physician - Part 4 - Ulterior Motives
Even though peer review processes are essential for quality care, the current system in the US is open for exploitation and corruption. As promised, here are some scenarios when a bad-faith peer review may be initiated, in no special order.
These are just examples. You never know where the smearing may come from. Remember, the peer review process can be initiated by a hearsay evidence. The system is so badly open to exploitation, that the above reasons may start a process that may end a physician's career in the USA.
- Competition with other established staff members.
- Competition against the hospital itself, since this may be easier than trying to enforce a no-compete clause.
- Professional jealousy (yes, it does exist).
- The physician may be a perfectionist, too thorough, who likes that?
- A whistle blower.
- A physician whose opinions are not conforming with the culture of the establishment in the hospital.
- A surgeon who is not liked by some OR staff who favor another surgeon
- A physician who is not liked by some connected nurses
These are just examples. You never know where the smearing may come from. Remember, the peer review process can be initiated by a hearsay evidence. The system is so badly open to exploitation, that the above reasons may start a process that may end a physician's career in the USA.
The American Medical Association (AMA) and Peer Reviews (Part 1)
I am commenting on a 2007 report of the Board of Trustees of the American Medical Association. The document itself can be pulled by clicking the following link. I have also posted it at the end of the discussion for immediate reference.
http://www.ama-assn.org/ama1/pub/upload/mm/471/bot24.doc
According to the document, during the 2007 Annual Meeting, the American Medical Association (AMA) House of Delegates adopted an amendment that directed the Board of Trustees to report on abuses of the peer review process. The resolution asked that the report consider situations in which medical staff peer review has been employed for reasons other than maintaining and improving public health, such as to be rid of a competitor or to sanction a physician who disagrees in good faith with hospital policies. The document that is discussed here was the response to that request. I will post selected statements from the report/document, and will then follow with a comment.
Statement: "While charges of peer review abuse are made with some frequency, they are difficult to prove, and there have been few confirmed cases of such abuse. Estimates of the occurrence of abuse are speculative."
Comment: It is so important to realize this fact, and I cannot state it any better than it is stated in the report. My comment is that, since it is so difficult to prove abuse of the peer review process, then one cannot make any serious or meaningful estimates as to the frequency of such abuses. In other words, any estimates whether abuses are rare or common are purely speculative. And since abusing the peer review process has extremely serious and destructive consequences, it is detrimental to the medical profession to use the argument that abuses are rare in order to keep the status quo. In my opinion, it is important to make the peer review process more efficient and well balanced, and inherently abuse-proof, rather than accepting it as it is now, and arguing that abuses are rare.
Statement: "A sanction by a peer review body can be a devastating blow to a physician, emotionally, financially, and professionally."
Comment: Again, I cannot state that any better than the AMA. To put things in perspective, the Mission of the American Medical Association is "To promote the art and science of medicine and the betterment of public health." The stated AMA Vision is: "To be an essential part of the professional life of every physician." I would expect that an AMA with such a "Vision" must have strong positions and proposals to prevent abuses and guard against sham peer reviews, since the devastating effects have clearly been acknowledged.
Statement: "The Massachusetts Medical Society surveyed Massachusetts physicians in late 2006 to ascertain their experiences with and attitude toward peer review. While 88% of the respondents perceived peer review as helpful for clinical quality improvement, 15% indicated that they were aware of peer review misuse or abuse."
Comment: I believe that it is very significant that 15% of physicians were aware of peer review misuse or abuse. How many physicians or surgeons need to be destroyed professionally before we get serious about taking some action?
Statement: "Successful peer review therefore depends on minimizing litigation over hospital peer review decisions (AMA Policy H-375.979, AMA Policy Database)."
Comment: Even though that is true, there is no balancing protection of the rights or safeguards to maintain the credibility and integrity of the process to standards that prevent abuse.
Statement: "Congress, when enacting HCQIA, found that peer review is needed to maintain and improve quality medical care. It has also found that physicians must be protected from liability for engaging in peer reviews, if they are to participate in the process (42 U.S.C. §§ 11101). For these reasons, HCQIA has erected several legal safeguards against attacks on the peer review process. One such safeguard is immunity from monetary damages for peer review bodies and those who assist in the peer review process (42 U.S.C. § 11111(a)(1)).[5] This immunity is provided so long as the peer review action has met certain minimal procedural standards and was taken “in the reasonable belief that the action was in the furtherance of quality health care” (42 U.S.C. § 11112)."
Comment: In case the reader has not noticed, such a strong protection and immunity to the participating physicians in the peer review process is provided even if the procedure standards are "minimal" and if the belief that the basis for eliminating a physician is just "reasonable". Only those low standards of evidence are enough to destroy a physician. I believe that this is wrong and I wonder if it is even constitutional.
Statement: "A fourth legal obstacle arises from the complaining physician’s inherent burden of proof. The physician claiming an inappropriate peer review may have to show more than that the peer reviewers were mistaken. He or she may also have to show that the peer reviewers were motivated by bad faith or some other discriminatory animus. It is always difficult to prove that one’s opponent acted with wrongful intent, rather than through simple error."
Comment: That burden on the physician whose professional survival is being attacked, is almost impossible to overcome. It is because of that and other legal hurdles that a hospital knows very well that it has the upper hand from the beginning. This is a recipe for abuse.
Statement: "The complaining physician must rely solely on his or her own resources to prosecute the case, while the legal defense costs are likely to be paid at least partially, if not wholly, by an insurer or by a hospital. Psychologically, the complainant stands alone, while the defendants can provide each other with moral support. Furthermore, the peer reviewed physician knows that if he or she loses a lawsuit against the peer reviewers or the peer review body, the physician could suffer public disgrace and might become ostracized from others within the medical profession."
Comment: How fair is that?
Statement: "For all of these reasons, one can expect that only an exceptional situation is likely to result in a legal finding that an adverse peer review resulted from improper motives, rather than an honest desire to further quality health care."
Comment: Another support to the position that there is no way to really be honest and in the same time say that abusing the peer review process is rare. Furthermore, I believe that even one good physician being wrongfully destroyed so fiercely, is too many.
Statement: "The AMA believes that medical peer review should be an organized effort to evaluate and analyze medical care services delivered to patients and to assure the quality and appropriateness of these services. It is primarily an ongoing, educational process, whose purpose is to maintain and improve the quality of medical care (Policy H-375.997)."
Comment: This should be the norm, the standard to which hospital peer review processes should be held. A hospital that does not have any significant constructive on-going educational peer review processes in place with the goal of maintaining and improving quality is falling to substandard levels itself. If the only peer review process that such a hospital has is to work an elaborate legally-crafted elimination process to selected providers, then there is a problem with that hospital's peer review process.
Statement: "More likely, though, is that peer review abuse is a rarity."
Comment: This is an unproven statement. How can one be comfortable taking the position that an an event is rare, if one agrees that it is hard to prove or disprove its occurrence in the first place? Furthermore, even such a perception should never be used as an excuse to not reform the current process to make it fair and just, rather than being open for corruption and abuse.
Statement: "The legal obstacles make a claim of inappropriate peer review difficult to prove; they do not make it impossible."
Comment: I hope that the statement is not trying to imploy that making the peer review process so difficult to challenge, since a challenge is not impossible, is OK. This is so tilted against the physician. Most victims do not even have the resources to legally fight, Making it near impossible is not right.
Statement: If abusive peer review were indeed “epidemic,” there would probably be a more substantial track record of definitive and proven malfeasance.
Comment: Not if the abuse of the peer review process is so hard to prove, as has been repeatedly stated in the report itself. Besides, whether rare or not, the system should not be set up in a manner that is open to abuse.
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The full report
----------------------------------------
Subject: Inappropriate Peer Review
Presented by: Edward L. Langston, MD, Chair
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At the 2007 Annual Meeting, the American Medical Association (AMA) House of Delegates adopted amended Resolution 18. Resolution 18 directed the Board of Trustees to report on abuses of the peer review process. The resolution asked that the report consider situations in which medical staff peer review has been employed for reasons other than maintaining and improving public health, such as to be rid of a competitor or to sanction a physician who disagrees in good faith with hospital policies. This informational report responds to that request.[1]
While charges of peer review abuse are made with some frequency, they are difficult to prove, and there have been few confirmed cases of such abuse. Estimates of the occurrence of abuse are speculative.
Perceptions of Peer Review Abuse
A sanction by a peer review body can be a devastating blow to a physician, emotionally, financially, and professionally.[2] Those who have been so sanctioned frequently claim to be victims of “sham” peer review.
Various organizations publicly proclaim their distaste for peer review and advocate for a reduction of the legislative protections established in the Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C. §§ 11101, et seq.[3] For example, the web sites for the Semmelweis Society, http://www.semmelweis.org/, and the Center for Peer Review, http://www.peerreview.org/, recite numerous instances of what they deem “sham” or “bad faith” peer review. Likewise, the American Association of Physicians and Surgeons (AAPS) asserts on its web site that “[s]ham peer review is not only very real, but is epidemic in this country.” AAPS characterizes HCQIA as “[t]he enabling source of this insidious and spreading evil” (http://www.aapsonline.org/peerreview/test-5-15-07.php).
AMA publications have noted the vociferous critics of peer review. In its January/February 2004 issue, AMAVoice highlighted three physicians who had spoken against hospital practices and then been threatened with or actually experienced a loss of privileges. While the article did not specifically refer to inappropriate peer review, that was the implication. The article quoted one of the featured physicians as saying: “There’s definitely a ‘kill the messenger’ mentality in medicine today.” Another said: “If you do speak up for the patient … you risk being labeled disruptive, which can lead to termination. The system has been perverted.” Subsequently, the May/June 2004 issue of AMAVoice published a letter from three other physicians on the medical staff of one of the highlighted hospitals, asserting the integrity of its credentialing process. Immediately following that letter, AMAVoice stated that its earlier article “did not intend to cast doubt on [the hospital’s] commitment to patient care.”
Similarly, the October 10, 2005 issue of AMNews published an article entitled “Peer Review Under Fire: Real Problems or Trumped-Up Accusations?” While the article quotes sources, including an AMA spokesperson, who support peer review and vouch for its integrity, it primarily repeats the charges of those who attack the process. Likewise, on August 15, 2005 Time Magazine ran an article on “Doctors Who Hurt Doctors,” suggesting that peer review abuse is widespread within the medical profession and that peer review confidentiality statutes further such misfeasance.
The Massachusetts Medical Society surveyed Massachusetts physicians in late 2006 to ascertain their experiences with and attitude toward peer review. While 88% of the respondents perceived peer review as helpful for clinical quality improvement, 15% indicated that they were aware of peer review misuse or abuse.[4]
In short, accusations of improper peer review are readily made, and those accusations can lend themselves to media coverage. By the same token, it is easy to charge that peer review manifests the medical profession’s desire to avoid scrutiny of a supposedly tainted process. Actual proof of wrongdoing, however, is a different story.
Legal and Practical Impediments to Proving Peer Review Abuse
Successful peer review depends on the cooperation of the medical profession. Physicians are very aware that a doctor who has suffered an adverse peer review outcome may have the motivation and sometimes the financial resources to challenge the action in litigation. Such awareness can potentially chill participation in the peer review process. Successful peer review therefore depends on minimizing litigation over hospital peer review decisions (AMA Policy H-375.979, AMA Policy Database).
Congress, when enacting HCQIA, found that peer review is needed to maintain and improve quality medical care. It has also found that physicians must be protected from liability for engaging in peer reviews, if they are to participate in the process (42 U.S.C. §§ 11101). For these reasons, HCQIA has erected several legal safeguards against attacks on the peer review process.
One such safeguard is immunity from monetary damages for peer review bodies and those who assist in the peer review process (42 U.S.C. § 11111(a)(1)).[5] This immunity is provided so long as the peer review action has met certain minimal procedural standards and was taken “in the reasonable belief that the action was in the furtherance of quality health care” (42 U.S.C. § 11112).[6] While a peer review action taken for reasons other than the furtherance of quality health care would necessarily fail this standard and thus not be entitled to immunity, HCQIA also states that a professional review action is presumed to have met the standard. Thus, the physician who is attacking the peer review process must overcome a presumption that those who participated in the process are entitled to immunity from damages. In a close case, this burden may cause a challenge to the peer review action to fail. In light of this barrier, those who would otherwise seek to overcome an adverse decision may be dissuaded from even mounting an attack.
A second safeguard is a provision in HCQIA that allows an award of attorneys fees against a physician who has unsuccessfully sued to contest a peer review action, if the lawsuit was brought without a reasonable basis. This provision states that:
“[T]he court shall, at the conclusion of the action, award to a substantially prevailing party defending against any such claim the cost of the suit attributable to such claim, including a reasonable attorney’s fee, if the claim, or the claimant’s conduct during the litigation of the claim, was frivolous, unreasonable, without foundation, or in bad faith” (42 U.S.C. § 11113).
The fear of incurring such a sanction may deter an otherwise meritorious case from being filed.[7]
Third, while HCQIA does not create a privilege against the disclosure of peer review documents, the laws in almost all of the states do.[8] A physician who challenges the peer review outcome has the burden of proving the impropriety of the process. Without the evidence available through the discovery of peer review information, that evidentiary burden may be more difficult to overcome.
A fourth legal obstacle arises from the complaining physician’s inherent burden of proof. The physician claiming an inappropriate peer review may have to show more than that the peer reviewers were mistaken. He or she may also have to show that the peer reviewers were motivated by bad faith or some other discriminatory animus. It is always difficult to prove that one’s opponent acted with wrongful intent, rather than through simple error.
Aside from these legal impediments against challenges to an unfavorable peer review outcome, a physician may face practical and social obstacles. The complaining physician must rely solely on his or her own resources to prosecute the case, while the legal defense costs are likely to be paid at least partially, if not wholly, by an insurer or by a hospital. Psychologically, the complainant stands alone, while the defendants can provide each other with moral support. Furthermore, the peer reviewed physician knows that if he or she loses a lawsuit against the peer reviewers or the peer review body, the physician could suffer public disgrace and might become ostracized from others within the medical profession.
For all of these reasons, one can expect that only an exceptional situation is likely to result in a legal finding that an adverse peer review resulted from improper motives, rather than an honest desire to further quality health care.
Proven Cases of Inappropriate Peer Review
In Patrick v. Burget, 486 U.S. 94 (1988), the United States Supreme Court upheld a jury verdict, based on a finding that a peer review proceeding had been conducted in bad faith and to disadvantage a competitor, rather than to improve patient care. Following Patrick, the AMA adopted Policy H-375.983, “Appropriate Peer Review Procedures,” which cautions hospitals and medical staffs to observe the HCQIA guidelines at 42 U.S.C. § 11112 in conducting peer review.[9]
In 1989, the Colorado General Assembly designated a “Committee on Anticompetitive Conduct,” which consists of certain members of the Colorado State Board of Medical Examiners. The Committee is required to investigate complaints of “unreasonable anticompetitive conduct” in medical peer reviews. C.R.S. § 12-36.5-106.[10] Pursuant to a request made under the Colorado Open Records Act, the Committee indicated that since 1990 it has found two cases of anticompetitive peer review.
In Rosenblit v. Superior Court, 282 Cal. Rptr. 819 (1991), a peer review action had been instituted against an endocrinologist who employed a different method for managing diabetes than the approach used by his colleagues on the medical staff at his hospital, and the physician’s staff privileges were revoked after an adverse finding by a hearing panel. The Court of Appeal found numerous procedural errors in the peer review, including improper notice, refusal to provide an opportunity to copy the medical records that were to be used against him, refusal to allow legal representation, and denial of an opportunity to test the members of the hearing panel for bias. In reversing the revocation of the physician’s staff privileges, the court stated: “The record demonstrates Hospital was dedicated to removing Rosenblit rather than providing a physician with a fair opportunity to defend his treatment regimen.”
Clark v. Columbia/HCA Information Services, 25 P.3d 215 (Nev. 2001), found that a physician had overcome the presumption of good faith that ordinarily attaches to a peer review action. The evidence there showed that a peer review board had found the physician “disruptive” because he had reported substandard patient care to government authorities and to the Joint Commission on Accreditation of Healthcare Organizations.
In August, 2004, a jury found a Dallas hospital and three of its physicians liable to a cardiologist for defamation, violation of contract, and intentional infliction of emotional distress for an unfair suspension of privileges, based on an allegedly faulty peer review. It entered a $366 million verdict for the aggrieved physician, an amount later reduced by the trial court. See Poliner v. Presbyterian Hospital of Dallas, 239 F.R.D. 468 (N.D.Tex. 2006) (reducing jury award). That case, however, is on appeal.
These are the only cases known to the AMA in which there has been an actual finding by an impartial government body of improperly motivated peer review. While other cases have found an abridgement of procedural rights in the peer review process, such abridgements may, but do not necessarily, prove a motivation for the peer review other than unbiased concern for public health.
Conclusion
The AMA believes that medical peer review should be an organized effort to evaluate and analyze medical care services delivered to patients and to assure the quality and appropriateness of these services. It is primarily an ongoing, educational process, whose purpose is to maintain and improve the quality of medical care (Policy H-375.997).
However, peer review can sometimes be an adversarial, fault-finding process. It then becomes complex and contentious, and procedural safeguards must be followed to protect individual rights. Witnesses’ statements can conflict, and their testimony can be motivated by selfish as well as altruistic purposes. Errors may be made, both in the procedures followed and in the substantive conclusions reached. However, the commission of a mistake is not the same thing as the perpetration of a deliberate wrongdoing.
Abuse of peer review is easy to allege but, for the reasons discussed above, can be difficult to prove. Considering the nature of the proceedings, it is to be expected that such charges will be raised by physicians who disagree with the results. In fairness, though, those who raise such claims should have the burden of proving them. Since the passage of HCQIA in 1986, the AMA is aware of only exceptional, isolated instances of peer review determinations that have resulted from improper motivations, rather than a good faith desire to improve patient care.
This may partly be explained by the difficulties in proving such a case and the legal disincentives against bringing this type of lawsuit. More likely, though, is that peer review abuse is a rarity. The legal obstacles make a claim of inappropriate peer review difficult to prove; they do not make it impossible. If abusive peer review were indeed “epidemic,” there would probably be a more substantial track record of definitive and proven malfeasance. The absence of such a record suggests that the claims of widespread or frequent “sham peer review” are speculative.
The Board believes that Policy H-375.983 provides important guidance to medical staffs of the procedural safeguards that will minimize the likelihood of inappropriate peer reviews. H-375.983 is quite detailed, and any amendments to it that might create further complexity could obscure its value as an understandable guideline. The full text of H-375.983 is attached to this informational report.
(1) Our AMA urges state medical associations to investigate applicable state law to determine if additional state agency supervision of peer review is needed to meet the active state supervision requirement set forth by the Supreme Court.
(2) Peer review procedures and actions should, at a minimum, meet the Health Care Quality Improvement Act of 1986 standards for federal immunity: (a) In any situation where it appears that a disciplinary proceeding may be instigated against a physician that could result in the substantial loss or termination of the physician’s medical staff membership and/or clinical privileges, the advice and guidance of legal counsel should be sought. The accused physician should have legal counsel separate from the health care organization or medical staff. The health care organization and the medical staff should each have separate legal counsel. The attorney of the body bringing the peer review action, be it the health care organization or the medical staff, should undertake the procedures needed to prepare for the hearing including the written notice of charges, the marshaling of evidence and the facts, and the selection of witnesses. This health care organization or medical staff attorney should be instructed that his or her role includes assuring that the proceedings are conducted fairly, bearing in mind the objectives of protecting consumers of health care and the physician involved against false or exaggerated charges. The attorney for the body which is not bringing the peer review action should work to ensure that proper peer review processes as outlined in the medical staff bylaws are followed. The role of the attorney for the accused physician is solely to defend his or her client. (b) The medical executive committee, through its attorney, may consult with the health care organization, through its attorney, regarding appointment of a hearing officer. If an attorney is sought to be the hearing officer, those solo attorneys or attorneys from a firm regularly used by the hospital, medical staff, or the involved medical staff member or applicant for membership for legal advice regarding their affairs and activities, should not be eligible to serve as hearing officers. The hearing officer shall gain no direct financial benefit from the outcome. (c) The attorney advising the medical staff or, in the limited situation where the hospital is prosecuting the correction action, the attorney advising the health care organization, and the attorney representing the physician involved should be accorded reasonable latitude in cross-examination, but acrimony should not be allowed by the hearing officer. (d) Substantial latitude should be permitted in the presentation of evidence, medical reference works and testimony, within reasonable time constraints and at the discretion of the hearing officer. (e) A court reporter should be present to make a record of the hearing proceedings, and the pre-hearing proceedings if deemed appropriate by the hearing officer. The cost of attendance of the court report shall be borne by the hospital, but the cost of the transcript, if any, shall be borne by the party requesting it. (f) Within the discretion of the hearing officer, witnesses may be requested to testify under oath. (g) The role of the hearing panel should be defined in the medical staff bylaws. The role of the hearing panel may include, without being limited to, such duties as: acting as an objective arbiter of evidence, examining witnesses, determining adherence to the standard of care, providing well-reasoned documented opinions and decisions, and other duties noted herein. The hearing panel should only consist of physicians, none of whom are direct economic competitors with the physician involved or who stand to gain through a recommendation or decision adverse to the physician. It is desirable that members of the hearing panel be physicians who have the respect of the medical community, and should include a fair representation of the same specialists/subspecialist physicians as the physician involved, whenever feasible. (h) Physicians serving on the hearing panel should receive information and training in the elements and essentials of peer review. Clinical guidelines, standards and practices used for evaluation of quality of care should be transparent and available to the extent feasible. Wherever feasible, data collection and analysis, or similar assessment instruments, and multiple reviewers should be used to increase reliability in evaluating whether peer review disciplinary proceedings are warranted. Where feasible, statistical analysis to compare with peers’ performance must be used with appropriate case mix adjustments. (i) Physicians who are direct economic competitors of the physician involved may testify as witnesses, whether they are called by the physician or the hearing panel or the health care organization, but a physician should not be deprived of his or her privileges solely on the basis of medical testimony by economic competitors. In any proceedings that result in the termination of privileges, there should be testimony from one or more physicians who are not economic competitors or who do not stand to gain economically by an adverse action, but who are knowledgeable in the treatment, patient care management and areas of medical practice or judgment upon which the adverse action is based. (j) The hearing panel should credit the evidence brought before it in a manner reflective of the specificity of the evidence and the personal or economic biases of witnesses. (k) When investigation is underway and indicates that a disciplinary proceeding is warranted for the purpose of reducing, restricting, or terminating a physician’s hospital privileges, he or she should be notified that resignation will result in a report to the National Practitioner Data Bank. (BOT Rep. MMM, A-88; Reaffirmed: Sunset Report, I-98; Reaffirmed: BOT Rep. 8, I-01; Reaffirmation A-05; Amended with change in title: BOT Action in response to referred for decision BOT Rep. 23, A-05)
________________________________________
[1] This informational report is limited to a discussion of improperly motivated physician peer reviews, a violation of both legal standards and of medical ethics. It does not address all situations in which a physician’s procedural rights may have been violated in the peer review process. That a peer review has violated a physician’s procedural rights does not ipso facto imply that the peer review was improperly motivated.
[2] Some commentators have questioned whether, in light of its burdens, peer review is even justified. E.g., Livingston, EH, Peer Review, Am. J. Surg. 2001; 182: 103-109; Scheutzow, SO, State Medical Peer Review: High Cost but no Benefit – Is It Time for a Change? Am. J. Law Med. 1999. AMA policy, however, unequivocally and properly supports peer review. See Ethical Opinion E-9.10 and Policies H-375.990, H-375.994, H-375.995, H-375.996, and H-377.998, AMA Policy Database.
[3] HCQIA is a federal law that recognizes the value of peer review as a mechanism to reduce medical errors, primarily in hospital settings. The statute encourages peer review by immunizing participants in peer review actions from potential liability on account of lawsuits that may be brought by those adversely affected by the peer reviewers. 42 U.S.C. § 11111 (discussed at greater length infra). HCQIA also establishes the National Practitioner Data Bank, which serves as a repository of peer review determinations, orders from medical licensure boards, and judgments or settlements in professional liability suits that concern physician competence. 42 U.S.C. §§ 11131, et seq.
[4] 24% of the respondents to the Massachusetts Medical Society survey indicated that they had actually been subjects of peer review. Of those who had been such subjects, a substantial percentage indicated that they felt the process was unfair and would be afraid of a future peer review and/or would be afraid to refer a colleague for peer review. Those who felt the process was unfair often complained of harassment from colleagues or hospital administrators or a lack of support from colleagues.
[5] Immunity from monetary damages is not afforded for claims based on civil rights violations, including violations arising from discrimination on account of race, color, religion, or national origin. 42 U.S.C. § 11111(a)(1).
[6] State laws may provide comparable immunities, which are also generally triggered by adherence to procedural safeguards in the hearing process. The AMA’s “Physician’s Guide to Medical Staff Organization Bylaws” (4th Ed.), at pp. 52-55, sets forth a more comprehensive explanation of the applicable procedural standards for peer review actions under HCQIA and selected state laws.
[7] In addition to 42 U.S.C. § 11113, Fed. R. Civ. P. 11 provides that a party who files a frivolous lawsuit may be required to pay the attorney’s fees and costs of the defendant. See Wei v. Bodner, 1992 U.S. Dist. LEXIS 10897 (D.N.J. 1992) (Anesthesiologist required to pay defendants’ fees and costs of over $450,000). An attorney who brings a frivolous lawsuit to challenge a peer review action may also be sanctioned under Rule 11. Smith v. Ricks, 31 F.3d 1478 (9th Cir. 1994), cert. denied, 514 U.S. 1035 (1995).
[8] However, federal law does not recognize a comparable peer review confidentiality privilege. The AMA has for years been urging passage of such a protective measure (H-375.972).
[9] Policy H-375.983 was subsequently expanded to include additional procedural protections, even beyond those required under HCQIA.
[10] The AMA was unable to find any other state law comparable to Colorado’s, in which a state agency is specifically charged with investigating improperly motivated peer reviews.
http://www.ama-assn.org/ama1/pub/upload/mm/471/bot24.doc
According to the document, during the 2007 Annual Meeting, the American Medical Association (AMA) House of Delegates adopted an amendment that directed the Board of Trustees to report on abuses of the peer review process. The resolution asked that the report consider situations in which medical staff peer review has been employed for reasons other than maintaining and improving public health, such as to be rid of a competitor or to sanction a physician who disagrees in good faith with hospital policies. The document that is discussed here was the response to that request. I will post selected statements from the report/document, and will then follow with a comment.
Statement: "While charges of peer review abuse are made with some frequency, they are difficult to prove, and there have been few confirmed cases of such abuse. Estimates of the occurrence of abuse are speculative."
Comment: It is so important to realize this fact, and I cannot state it any better than it is stated in the report. My comment is that, since it is so difficult to prove abuse of the peer review process, then one cannot make any serious or meaningful estimates as to the frequency of such abuses. In other words, any estimates whether abuses are rare or common are purely speculative. And since abusing the peer review process has extremely serious and destructive consequences, it is detrimental to the medical profession to use the argument that abuses are rare in order to keep the status quo. In my opinion, it is important to make the peer review process more efficient and well balanced, and inherently abuse-proof, rather than accepting it as it is now, and arguing that abuses are rare.
Statement: "A sanction by a peer review body can be a devastating blow to a physician, emotionally, financially, and professionally."
Comment: Again, I cannot state that any better than the AMA. To put things in perspective, the Mission of the American Medical Association is "To promote the art and science of medicine and the betterment of public health." The stated AMA Vision is: "To be an essential part of the professional life of every physician." I would expect that an AMA with such a "Vision" must have strong positions and proposals to prevent abuses and guard against sham peer reviews, since the devastating effects have clearly been acknowledged.
Statement: "The Massachusetts Medical Society surveyed Massachusetts physicians in late 2006 to ascertain their experiences with and attitude toward peer review. While 88% of the respondents perceived peer review as helpful for clinical quality improvement, 15% indicated that they were aware of peer review misuse or abuse."
Comment: I believe that it is very significant that 15% of physicians were aware of peer review misuse or abuse. How many physicians or surgeons need to be destroyed professionally before we get serious about taking some action?
Statement: "Successful peer review therefore depends on minimizing litigation over hospital peer review decisions (AMA Policy H-375.979, AMA Policy Database)."
Comment: Even though that is true, there is no balancing protection of the rights or safeguards to maintain the credibility and integrity of the process to standards that prevent abuse.
Statement: "Congress, when enacting HCQIA, found that peer review is needed to maintain and improve quality medical care. It has also found that physicians must be protected from liability for engaging in peer reviews, if they are to participate in the process (42 U.S.C. §§ 11101). For these reasons, HCQIA has erected several legal safeguards against attacks on the peer review process. One such safeguard is immunity from monetary damages for peer review bodies and those who assist in the peer review process (42 U.S.C. § 11111(a)(1)).[5] This immunity is provided so long as the peer review action has met certain minimal procedural standards and was taken “in the reasonable belief that the action was in the furtherance of quality health care” (42 U.S.C. § 11112)."
Comment: In case the reader has not noticed, such a strong protection and immunity to the participating physicians in the peer review process is provided even if the procedure standards are "minimal" and if the belief that the basis for eliminating a physician is just "reasonable". Only those low standards of evidence are enough to destroy a physician. I believe that this is wrong and I wonder if it is even constitutional.
Statement: "A fourth legal obstacle arises from the complaining physician’s inherent burden of proof. The physician claiming an inappropriate peer review may have to show more than that the peer reviewers were mistaken. He or she may also have to show that the peer reviewers were motivated by bad faith or some other discriminatory animus. It is always difficult to prove that one’s opponent acted with wrongful intent, rather than through simple error."
Comment: That burden on the physician whose professional survival is being attacked, is almost impossible to overcome. It is because of that and other legal hurdles that a hospital knows very well that it has the upper hand from the beginning. This is a recipe for abuse.
Statement: "The complaining physician must rely solely on his or her own resources to prosecute the case, while the legal defense costs are likely to be paid at least partially, if not wholly, by an insurer or by a hospital. Psychologically, the complainant stands alone, while the defendants can provide each other with moral support. Furthermore, the peer reviewed physician knows that if he or she loses a lawsuit against the peer reviewers or the peer review body, the physician could suffer public disgrace and might become ostracized from others within the medical profession."
Comment: How fair is that?
Statement: "For all of these reasons, one can expect that only an exceptional situation is likely to result in a legal finding that an adverse peer review resulted from improper motives, rather than an honest desire to further quality health care."
Comment: Another support to the position that there is no way to really be honest and in the same time say that abusing the peer review process is rare. Furthermore, I believe that even one good physician being wrongfully destroyed so fiercely, is too many.
Statement: "The AMA believes that medical peer review should be an organized effort to evaluate and analyze medical care services delivered to patients and to assure the quality and appropriateness of these services. It is primarily an ongoing, educational process, whose purpose is to maintain and improve the quality of medical care (Policy H-375.997)."
Comment: This should be the norm, the standard to which hospital peer review processes should be held. A hospital that does not have any significant constructive on-going educational peer review processes in place with the goal of maintaining and improving quality is falling to substandard levels itself. If the only peer review process that such a hospital has is to work an elaborate legally-crafted elimination process to selected providers, then there is a problem with that hospital's peer review process.
Statement: "More likely, though, is that peer review abuse is a rarity."
Comment: This is an unproven statement. How can one be comfortable taking the position that an an event is rare, if one agrees that it is hard to prove or disprove its occurrence in the first place? Furthermore, even such a perception should never be used as an excuse to not reform the current process to make it fair and just, rather than being open for corruption and abuse.
Statement: "The legal obstacles make a claim of inappropriate peer review difficult to prove; they do not make it impossible."
Comment: I hope that the statement is not trying to imploy that making the peer review process so difficult to challenge, since a challenge is not impossible, is OK. This is so tilted against the physician. Most victims do not even have the resources to legally fight, Making it near impossible is not right.
Statement: If abusive peer review were indeed “epidemic,” there would probably be a more substantial track record of definitive and proven malfeasance.
Comment: Not if the abuse of the peer review process is so hard to prove, as has been repeatedly stated in the report itself. Besides, whether rare or not, the system should not be set up in a manner that is open to abuse.
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The full report
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REPORT OF THE BOARD OF TRUSTEES
B of T Report 24 - A-08
Subject: Inappropriate Peer Review
Presented by: Edward L. Langston, MD, Chair
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At the 2007 Annual Meeting, the American Medical Association (AMA) House of Delegates adopted amended Resolution 18. Resolution 18 directed the Board of Trustees to report on abuses of the peer review process. The resolution asked that the report consider situations in which medical staff peer review has been employed for reasons other than maintaining and improving public health, such as to be rid of a competitor or to sanction a physician who disagrees in good faith with hospital policies. This informational report responds to that request.[1]
While charges of peer review abuse are made with some frequency, they are difficult to prove, and there have been few confirmed cases of such abuse. Estimates of the occurrence of abuse are speculative.
Perceptions of Peer Review Abuse
A sanction by a peer review body can be a devastating blow to a physician, emotionally, financially, and professionally.[2] Those who have been so sanctioned frequently claim to be victims of “sham” peer review.
Various organizations publicly proclaim their distaste for peer review and advocate for a reduction of the legislative protections established in the Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C. §§ 11101, et seq.[3] For example, the web sites for the Semmelweis Society, http://www.semmelweis.org/, and the Center for Peer Review, http://www.peerreview.org/, recite numerous instances of what they deem “sham” or “bad faith” peer review. Likewise, the American Association of Physicians and Surgeons (AAPS) asserts on its web site that “[s]ham peer review is not only very real, but is epidemic in this country.” AAPS characterizes HCQIA as “[t]he enabling source of this insidious and spreading evil” (http://www.aapsonline.org/peerreview/test-5-15-07.php).
AMA publications have noted the vociferous critics of peer review. In its January/February 2004 issue, AMAVoice highlighted three physicians who had spoken against hospital practices and then been threatened with or actually experienced a loss of privileges. While the article did not specifically refer to inappropriate peer review, that was the implication. The article quoted one of the featured physicians as saying: “There’s definitely a ‘kill the messenger’ mentality in medicine today.” Another said: “If you do speak up for the patient … you risk being labeled disruptive, which can lead to termination. The system has been perverted.” Subsequently, the May/June 2004 issue of AMAVoice published a letter from three other physicians on the medical staff of one of the highlighted hospitals, asserting the integrity of its credentialing process. Immediately following that letter, AMAVoice stated that its earlier article “did not intend to cast doubt on [the hospital’s] commitment to patient care.”
Similarly, the October 10, 2005 issue of AMNews published an article entitled “Peer Review Under Fire: Real Problems or Trumped-Up Accusations?” While the article quotes sources, including an AMA spokesperson, who support peer review and vouch for its integrity, it primarily repeats the charges of those who attack the process. Likewise, on August 15, 2005 Time Magazine ran an article on “Doctors Who Hurt Doctors,” suggesting that peer review abuse is widespread within the medical profession and that peer review confidentiality statutes further such misfeasance.
The Massachusetts Medical Society surveyed Massachusetts physicians in late 2006 to ascertain their experiences with and attitude toward peer review. While 88% of the respondents perceived peer review as helpful for clinical quality improvement, 15% indicated that they were aware of peer review misuse or abuse.[4]
In short, accusations of improper peer review are readily made, and those accusations can lend themselves to media coverage. By the same token, it is easy to charge that peer review manifests the medical profession’s desire to avoid scrutiny of a supposedly tainted process. Actual proof of wrongdoing, however, is a different story.
Legal and Practical Impediments to Proving Peer Review Abuse
Successful peer review depends on the cooperation of the medical profession. Physicians are very aware that a doctor who has suffered an adverse peer review outcome may have the motivation and sometimes the financial resources to challenge the action in litigation. Such awareness can potentially chill participation in the peer review process. Successful peer review therefore depends on minimizing litigation over hospital peer review decisions (AMA Policy H-375.979, AMA Policy Database).
Congress, when enacting HCQIA, found that peer review is needed to maintain and improve quality medical care. It has also found that physicians must be protected from liability for engaging in peer reviews, if they are to participate in the process (42 U.S.C. §§ 11101). For these reasons, HCQIA has erected several legal safeguards against attacks on the peer review process.
One such safeguard is immunity from monetary damages for peer review bodies and those who assist in the peer review process (42 U.S.C. § 11111(a)(1)).[5] This immunity is provided so long as the peer review action has met certain minimal procedural standards and was taken “in the reasonable belief that the action was in the furtherance of quality health care” (42 U.S.C. § 11112).[6] While a peer review action taken for reasons other than the furtherance of quality health care would necessarily fail this standard and thus not be entitled to immunity, HCQIA also states that a professional review action is presumed to have met the standard. Thus, the physician who is attacking the peer review process must overcome a presumption that those who participated in the process are entitled to immunity from damages. In a close case, this burden may cause a challenge to the peer review action to fail. In light of this barrier, those who would otherwise seek to overcome an adverse decision may be dissuaded from even mounting an attack.
A second safeguard is a provision in HCQIA that allows an award of attorneys fees against a physician who has unsuccessfully sued to contest a peer review action, if the lawsuit was brought without a reasonable basis. This provision states that:
“[T]he court shall, at the conclusion of the action, award to a substantially prevailing party defending against any such claim the cost of the suit attributable to such claim, including a reasonable attorney’s fee, if the claim, or the claimant’s conduct during the litigation of the claim, was frivolous, unreasonable, without foundation, or in bad faith” (42 U.S.C. § 11113).
The fear of incurring such a sanction may deter an otherwise meritorious case from being filed.[7]
Third, while HCQIA does not create a privilege against the disclosure of peer review documents, the laws in almost all of the states do.[8] A physician who challenges the peer review outcome has the burden of proving the impropriety of the process. Without the evidence available through the discovery of peer review information, that evidentiary burden may be more difficult to overcome.
A fourth legal obstacle arises from the complaining physician’s inherent burden of proof. The physician claiming an inappropriate peer review may have to show more than that the peer reviewers were mistaken. He or she may also have to show that the peer reviewers were motivated by bad faith or some other discriminatory animus. It is always difficult to prove that one’s opponent acted with wrongful intent, rather than through simple error.
Aside from these legal impediments against challenges to an unfavorable peer review outcome, a physician may face practical and social obstacles. The complaining physician must rely solely on his or her own resources to prosecute the case, while the legal defense costs are likely to be paid at least partially, if not wholly, by an insurer or by a hospital. Psychologically, the complainant stands alone, while the defendants can provide each other with moral support. Furthermore, the peer reviewed physician knows that if he or she loses a lawsuit against the peer reviewers or the peer review body, the physician could suffer public disgrace and might become ostracized from others within the medical profession.
For all of these reasons, one can expect that only an exceptional situation is likely to result in a legal finding that an adverse peer review resulted from improper motives, rather than an honest desire to further quality health care.
Proven Cases of Inappropriate Peer Review
In Patrick v. Burget, 486 U.S. 94 (1988), the United States Supreme Court upheld a jury verdict, based on a finding that a peer review proceeding had been conducted in bad faith and to disadvantage a competitor, rather than to improve patient care. Following Patrick, the AMA adopted Policy H-375.983, “Appropriate Peer Review Procedures,” which cautions hospitals and medical staffs to observe the HCQIA guidelines at 42 U.S.C. § 11112 in conducting peer review.[9]
In 1989, the Colorado General Assembly designated a “Committee on Anticompetitive Conduct,” which consists of certain members of the Colorado State Board of Medical Examiners. The Committee is required to investigate complaints of “unreasonable anticompetitive conduct” in medical peer reviews. C.R.S. § 12-36.5-106.[10] Pursuant to a request made under the Colorado Open Records Act, the Committee indicated that since 1990 it has found two cases of anticompetitive peer review.
In Rosenblit v. Superior Court, 282 Cal. Rptr. 819 (1991), a peer review action had been instituted against an endocrinologist who employed a different method for managing diabetes than the approach used by his colleagues on the medical staff at his hospital, and the physician’s staff privileges were revoked after an adverse finding by a hearing panel. The Court of Appeal found numerous procedural errors in the peer review, including improper notice, refusal to provide an opportunity to copy the medical records that were to be used against him, refusal to allow legal representation, and denial of an opportunity to test the members of the hearing panel for bias. In reversing the revocation of the physician’s staff privileges, the court stated: “The record demonstrates Hospital was dedicated to removing Rosenblit rather than providing a physician with a fair opportunity to defend his treatment regimen.”
Clark v. Columbia/HCA Information Services, 25 P.3d 215 (Nev. 2001), found that a physician had overcome the presumption of good faith that ordinarily attaches to a peer review action. The evidence there showed that a peer review board had found the physician “disruptive” because he had reported substandard patient care to government authorities and to the Joint Commission on Accreditation of Healthcare Organizations.
In August, 2004, a jury found a Dallas hospital and three of its physicians liable to a cardiologist for defamation, violation of contract, and intentional infliction of emotional distress for an unfair suspension of privileges, based on an allegedly faulty peer review. It entered a $366 million verdict for the aggrieved physician, an amount later reduced by the trial court. See Poliner v. Presbyterian Hospital of Dallas, 239 F.R.D. 468 (N.D.Tex. 2006) (reducing jury award). That case, however, is on appeal.
These are the only cases known to the AMA in which there has been an actual finding by an impartial government body of improperly motivated peer review. While other cases have found an abridgement of procedural rights in the peer review process, such abridgements may, but do not necessarily, prove a motivation for the peer review other than unbiased concern for public health.
Conclusion
The AMA believes that medical peer review should be an organized effort to evaluate and analyze medical care services delivered to patients and to assure the quality and appropriateness of these services. It is primarily an ongoing, educational process, whose purpose is to maintain and improve the quality of medical care (Policy H-375.997).
However, peer review can sometimes be an adversarial, fault-finding process. It then becomes complex and contentious, and procedural safeguards must be followed to protect individual rights. Witnesses’ statements can conflict, and their testimony can be motivated by selfish as well as altruistic purposes. Errors may be made, both in the procedures followed and in the substantive conclusions reached. However, the commission of a mistake is not the same thing as the perpetration of a deliberate wrongdoing.
Abuse of peer review is easy to allege but, for the reasons discussed above, can be difficult to prove. Considering the nature of the proceedings, it is to be expected that such charges will be raised by physicians who disagree with the results. In fairness, though, those who raise such claims should have the burden of proving them. Since the passage of HCQIA in 1986, the AMA is aware of only exceptional, isolated instances of peer review determinations that have resulted from improper motivations, rather than a good faith desire to improve patient care.
This may partly be explained by the difficulties in proving such a case and the legal disincentives against bringing this type of lawsuit. More likely, though, is that peer review abuse is a rarity. The legal obstacles make a claim of inappropriate peer review difficult to prove; they do not make it impossible. If abusive peer review were indeed “epidemic,” there would probably be a more substantial track record of definitive and proven malfeasance. The absence of such a record suggests that the claims of widespread or frequent “sham peer review” are speculative.
The Board believes that Policy H-375.983 provides important guidance to medical staffs of the procedural safeguards that will minimize the likelihood of inappropriate peer reviews. H-375.983 is quite detailed, and any amendments to it that might create further complexity could obscure its value as an understandable guideline. The full text of H-375.983 is attached to this informational report.
APPENDIX
H-375.983 Appropriate Peer Review Procedures
(1) Our AMA urges state medical associations to investigate applicable state law to determine if additional state agency supervision of peer review is needed to meet the active state supervision requirement set forth by the Supreme Court.
(2) Peer review procedures and actions should, at a minimum, meet the Health Care Quality Improvement Act of 1986 standards for federal immunity: (a) In any situation where it appears that a disciplinary proceeding may be instigated against a physician that could result in the substantial loss or termination of the physician’s medical staff membership and/or clinical privileges, the advice and guidance of legal counsel should be sought. The accused physician should have legal counsel separate from the health care organization or medical staff. The health care organization and the medical staff should each have separate legal counsel. The attorney of the body bringing the peer review action, be it the health care organization or the medical staff, should undertake the procedures needed to prepare for the hearing including the written notice of charges, the marshaling of evidence and the facts, and the selection of witnesses. This health care organization or medical staff attorney should be instructed that his or her role includes assuring that the proceedings are conducted fairly, bearing in mind the objectives of protecting consumers of health care and the physician involved against false or exaggerated charges. The attorney for the body which is not bringing the peer review action should work to ensure that proper peer review processes as outlined in the medical staff bylaws are followed. The role of the attorney for the accused physician is solely to defend his or her client. (b) The medical executive committee, through its attorney, may consult with the health care organization, through its attorney, regarding appointment of a hearing officer. If an attorney is sought to be the hearing officer, those solo attorneys or attorneys from a firm regularly used by the hospital, medical staff, or the involved medical staff member or applicant for membership for legal advice regarding their affairs and activities, should not be eligible to serve as hearing officers. The hearing officer shall gain no direct financial benefit from the outcome. (c) The attorney advising the medical staff or, in the limited situation where the hospital is prosecuting the correction action, the attorney advising the health care organization, and the attorney representing the physician involved should be accorded reasonable latitude in cross-examination, but acrimony should not be allowed by the hearing officer. (d) Substantial latitude should be permitted in the presentation of evidence, medical reference works and testimony, within reasonable time constraints and at the discretion of the hearing officer. (e) A court reporter should be present to make a record of the hearing proceedings, and the pre-hearing proceedings if deemed appropriate by the hearing officer. The cost of attendance of the court report shall be borne by the hospital, but the cost of the transcript, if any, shall be borne by the party requesting it. (f) Within the discretion of the hearing officer, witnesses may be requested to testify under oath. (g) The role of the hearing panel should be defined in the medical staff bylaws. The role of the hearing panel may include, without being limited to, such duties as: acting as an objective arbiter of evidence, examining witnesses, determining adherence to the standard of care, providing well-reasoned documented opinions and decisions, and other duties noted herein. The hearing panel should only consist of physicians, none of whom are direct economic competitors with the physician involved or who stand to gain through a recommendation or decision adverse to the physician. It is desirable that members of the hearing panel be physicians who have the respect of the medical community, and should include a fair representation of the same specialists/subspecialist physicians as the physician involved, whenever feasible. (h) Physicians serving on the hearing panel should receive information and training in the elements and essentials of peer review. Clinical guidelines, standards and practices used for evaluation of quality of care should be transparent and available to the extent feasible. Wherever feasible, data collection and analysis, or similar assessment instruments, and multiple reviewers should be used to increase reliability in evaluating whether peer review disciplinary proceedings are warranted. Where feasible, statistical analysis to compare with peers’ performance must be used with appropriate case mix adjustments. (i) Physicians who are direct economic competitors of the physician involved may testify as witnesses, whether they are called by the physician or the hearing panel or the health care organization, but a physician should not be deprived of his or her privileges solely on the basis of medical testimony by economic competitors. In any proceedings that result in the termination of privileges, there should be testimony from one or more physicians who are not economic competitors or who do not stand to gain economically by an adverse action, but who are knowledgeable in the treatment, patient care management and areas of medical practice or judgment upon which the adverse action is based. (j) The hearing panel should credit the evidence brought before it in a manner reflective of the specificity of the evidence and the personal or economic biases of witnesses. (k) When investigation is underway and indicates that a disciplinary proceeding is warranted for the purpose of reducing, restricting, or terminating a physician’s hospital privileges, he or she should be notified that resignation will result in a report to the National Practitioner Data Bank. (BOT Rep. MMM, A-88; Reaffirmed: Sunset Report, I-98; Reaffirmed: BOT Rep. 8, I-01; Reaffirmation A-05; Amended with change in title: BOT Action in response to referred for decision BOT Rep. 23, A-05)
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[1] This informational report is limited to a discussion of improperly motivated physician peer reviews, a violation of both legal standards and of medical ethics. It does not address all situations in which a physician’s procedural rights may have been violated in the peer review process. That a peer review has violated a physician’s procedural rights does not ipso facto imply that the peer review was improperly motivated.
[2] Some commentators have questioned whether, in light of its burdens, peer review is even justified. E.g., Livingston, EH, Peer Review, Am. J. Surg. 2001; 182: 103-109; Scheutzow, SO, State Medical Peer Review: High Cost but no Benefit – Is It Time for a Change? Am. J. Law Med. 1999. AMA policy, however, unequivocally and properly supports peer review. See Ethical Opinion E-9.10 and Policies H-375.990, H-375.994, H-375.995, H-375.996, and H-377.998, AMA Policy Database.
[3] HCQIA is a federal law that recognizes the value of peer review as a mechanism to reduce medical errors, primarily in hospital settings. The statute encourages peer review by immunizing participants in peer review actions from potential liability on account of lawsuits that may be brought by those adversely affected by the peer reviewers. 42 U.S.C. § 11111 (discussed at greater length infra). HCQIA also establishes the National Practitioner Data Bank, which serves as a repository of peer review determinations, orders from medical licensure boards, and judgments or settlements in professional liability suits that concern physician competence. 42 U.S.C. §§ 11131, et seq.
[4] 24% of the respondents to the Massachusetts Medical Society survey indicated that they had actually been subjects of peer review. Of those who had been such subjects, a substantial percentage indicated that they felt the process was unfair and would be afraid of a future peer review and/or would be afraid to refer a colleague for peer review. Those who felt the process was unfair often complained of harassment from colleagues or hospital administrators or a lack of support from colleagues.
[5] Immunity from monetary damages is not afforded for claims based on civil rights violations, including violations arising from discrimination on account of race, color, religion, or national origin. 42 U.S.C. § 11111(a)(1).
[6] State laws may provide comparable immunities, which are also generally triggered by adherence to procedural safeguards in the hearing process. The AMA’s “Physician’s Guide to Medical Staff Organization Bylaws” (4th Ed.), at pp. 52-55, sets forth a more comprehensive explanation of the applicable procedural standards for peer review actions under HCQIA and selected state laws.
[7] In addition to 42 U.S.C. § 11113, Fed. R. Civ. P. 11 provides that a party who files a frivolous lawsuit may be required to pay the attorney’s fees and costs of the defendant. See Wei v. Bodner, 1992 U.S. Dist. LEXIS 10897 (D.N.J. 1992) (Anesthesiologist required to pay defendants’ fees and costs of over $450,000). An attorney who brings a frivolous lawsuit to challenge a peer review action may also be sanctioned under Rule 11. Smith v. Ricks, 31 F.3d 1478 (9th Cir. 1994), cert. denied, 514 U.S. 1035 (1995).
[8] However, federal law does not recognize a comparable peer review confidentiality privilege. The AMA has for years been urging passage of such a protective measure (H-375.972).
[9] Policy H-375.983 was subsequently expanded to include additional procedural protections, even beyond those required under HCQIA.
[10] The AMA was unable to find any other state law comparable to Colorado’s, in which a state agency is specifically charged with investigating improperly motivated peer reviews.
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