Article: How Courts Protect Unjustified Hospital Peer Review Actions

I have recently read a very inetersting article that I wanted to share with you, and you can reach at: http://www.jpands.org/vol16no1/kadar.pdf
Published in the Journal of American Physicians and Surgeons - Volume 16 Number 1. Spring 2011.

How Courts Are Protecting Unjustified Peer Review Actions Against Physicians by Hospitals
The author: Nicholas Kadar, M.D., J.D.

"Nevertheless, courts have consistently misinterpreted the legal effect of HCQIA’s presumption of immunity as increasing the physician’s burden of proof, and as creating an almost insurmountable obstacle to prove that the hospital’s actions did not meet the standards of § 11112(a). For example, a panel of the Third Circuit, which included future Supreme Court Justice Samuel Alito, declared: “The HCQIA places a high burden on physicians to demonstrate that a professional review action should not be afforded immunity.” This is simply not true. A physician’s burden to rebut the presumption of immunity is the lowest known to the civil law -

For the full article, go to: http://www.jpands.org/vol16no1/kadar.pdf

Nicholas Kadar, M.D., J.D., LL.M. is a gynecologic oncologist and member of the New Jersey Bar.

More Suicides Among Surgeons Aged 45 and Older

On April 4 I tweeted: Depression and suicide among physicians — Current Psychiatry Online http://t.co/yZ9q4Yk

Now a new article on the website of Physician's Weekly reports on a recent study from the Archives of Surgery. 

The members of the American College of Surgeons were sent an anonymous cross-sectional survey in June 2008. The survey included questions regarding SI and use of mental health resources, a validated depression screening tool, and standardized assessments of burnout and quality of life.

“We know the lifetime risk of depression among physicians is similar to that of the general population, which suggests factors other than depression may be contributing to increased risk of suicide among physicians,” Tait D. Shanafelt, MD, tells Physician’s Weekly. “The influence of professional characteristics in forms of distress and depression, such as burnout, has been largely unexplored.”

Physician's Weekly reported that "According to Dr. Shanafelt, in addition to burnout, there appear to be occupational risks for having suicidal thoughts: A three-fold increased risk for suicidal thoughts was reported for surgeons who made a recent major medical error."

Rules of Commenting on Shammed Doc Blog

I am receiving comments that I need to moderate, in order to publish in my blog comments' section.  I value everyone's input and am particulary grateful for the interest in my blog and taking the time to comment.  I think this is time for me to make some observations.  Also, I thought I should post some general rules for comments, which will keep evolving as time goes by:

Preamble: I am not a member of, I am not affiliated with, and I am not friends with, any , society, center, association, or organization.  The only reason I publish here articles that are authored by others who belong to societies, centers, or organizations is that I found the content to be worthwhile, and adding value to the readership.

Using the "Blogger" platform, I cannot edit a comment before publishing.  A comment has to be rejected in its entirity if only one sentence does not conform.  A comment that is rejected will have to be re-submitted after complying with the rules and spirit if the interested individual desires to do so.

1.  The "Comments"section is meant to educate and increase awareness with the issue of the abuse of the current hospital peer review system, provisions, and immunity afforded.

2.  The "Comments" section would achieve the above through being an open forum for discussions focused on this issue, with freedom to be anonymous if needed.

3.  The blog, and the "Comments" section, are not to be exploited to advertise any business, whether directly or by making claims of achievements or favorable results in helping peer review victims.  If any entity has solid data to publish, including substantiating their own claims of achieving results in helping peer review victims, I am always looking for value content and will be willing to publish those data only if they meet a high standard of credibility and only under the full responsibility of the person who authors the article or data.  The Shammed Doc blog is not a platform for advertising, even under the name of helping shammed peer review victims.

4.  Any personal attacks against any individual person will lead to an automatic rejection of a comment. This does not limit whatsoever the pure discussion of ideas, thoughts, concepts and innovative approaches.

Enforcing the above rules for posting on the "Comments" section will start immediately with the new submissions which I will review, and I apologize in advance for any rejected comment.  All comments have great elements in them, but it is the elements that violate those common sense rules that lead to rejection of an entire comment. When I have the time, I will go back in retrospect and remove any previous comments that do not follow the same rules.

I have quoted articles from elsewhere and other websites. I have also posted articles that were submitted to me and the author was given a limited privilege of being a guest for that one submission.  I am not affiliated with, nor am I a member of any organization, society, center, support group, or any similar entity, that is connected with any of those whose articles have been posted on my blog.  I do not have any "friendship" (even if on facebook every connection is called "friend") with any member of those entities. I am not a member of the Center for Peer Review Justice, the Semmelweis Society, the Alliance for Patient Safety , AAPS (Association of American Physicians and Surgeons), or of any society whatsoever, nor am I known to any member of those or any other societies or individuals.  I do not support any causes or values advocated by any of those entities to any extent beyond the limited scope of the peer review process and closely related topics.

So What Is a Sham Peer Review? A MedGenMed Article

Source: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1681729/

So What Is a Sham Peer Review?

Roland Chalifoux, Jr, DO, Neurosurgeon; Clinical Instructor; West Virginia University Visiting Professor

Roland Chalifoux, Jr, private practice; West Virginia School of Osteopathic Medicine.

History

One of the first notable sham peer reviews took place in Oregon in the early 1980s. The physician who took it up with the courts was Dr. Patrick, and the Supreme Court ruled in his favor. As a result of the publicity surrounding this case, the Healthcare Quality Improvement Act (HCQIA) was enacted in 1986. One of the concerns that arose from the Patrick case was a fear that no physician would want to participate in peer review if he or she could be potentially liable for a bad report. The HCQIA gave immunity to hospitals and reviewers participating in peer review.

This immunity has been abused by hospitals and physicians to harm “disruptive” physicians (ie, whistleblowers) or financial competitors. All one must say is: “Dr. Joe Blow is a bad doctor, which is my professional opinion in this peer review, and this hospital should get rid of him.” And poof! Dr. Joe Blow, patient advocate, financial competitor, is gone! And the accusing physician is immune!

A wonderful series has recently been written by Steve Twedt of the Pittsburgh Post-Gazette called the “Cost of Courage,” detailing a number of physicians who have suffered from sham peer review and the consequences they have had to pay (http://www.post-gazette.com/pg/03299/234499.stm).

So What Is a Sham Peer Review?

A sham peer review exists when a practitioner undergoes chart review during which “serious” deficiencies are determined to exist and, therefore, “the practitioner must be prevented from being a risk to the public safety.” This conclusion is obtained by either:

• Declaring that the practitioner does not practice within the guidelines of the standard of care – regardless of whether that is true. (Several examples include the panel rejecting literature to support a position and being told, “We don't care what the literature shows” and “That institution doesn't know what they are doing.” In essence, a new standard of care is established – because that is not what the victim does.)
• Commissioning an outside review with prearranged outcomes. There are peer-review firms with dubious reputations who will perform a review that reflects the desired outcome of the employer.

For the full text of this article, go to http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1681729/

MedGenMed. 2005; 7(4): 47.

Published online 2005 November 15.

Copyright ©2005 Medscape

What the Future Holds in Health Care

By Richard Willner

 The question before the legislature is should young people be required to sacrifice their civil liberties just to become a physician.

Or should these young people choose another course with …less irrational legal constraint like finance for example.

Should they be required to sacrifice family life and hundreds of thousands of dollars just to work for the momentary pleasure of some corporate hospital huckster.

Depending upon how the legislature comes down on the immunity question , The answer is pretty obvious isn’t it?

A bright future for medicine depends on creating a safe environment to practice medicine.

They take this all consuming journey to learn to take care of human beings. This is not an act of Revolt against society.

This is an act of optimism and love and dedication to the well being of our country and to the human race.

Medical education is not undertaken to take orders from the AMA or the hospital industry or to sanctify any substitute agenda besides the doctor patient relationship PERIOD.

Doctors do not become doctors to get into a battle with lawyers or corporations or insurance companies or the legislature.

Their fatal flaw is that they think that the rules of evidence that apply to medicine, the natural law, should apply to the legal environment of medical practice.

They also have the reasonable expectation that they will be judged with fairness and equanimity in the law just like any other citizen.

Currently nothing could be further from the truth. Doctors have no civil liberties.

Working as a Doctor us best compared to living in Russia under communism.

While the practice of medicine has its own politics there is nothing sacred about medical politics. There is nothing sanctified about medical politics.

So here we see in 2 extremes of medicine the good and the bad. The sanctified and the profane.

About 10% of doctors belong to the AMA close to 90% do not. Does that mean that 90% of doctors are suspect. Hardly.

So what should the legislature do to insure a bright future for healthcare.

According to the principles of the natural law they should sanctify optimism and idealism of those who are thinking about becoming doctors by refusing to rob them of the full rights of American citizenship, as the peer review process implies, just because they become doctors.

Alternatively they can choose to sanctify the peer review process over the rights of independent physicians, the agenda of medical politics and screw every doctor who chooses to practice in the state.

The answer will determine the future of health care. It is also simple and time tested.

Richard Willner directs the The Center for Peer Review Justice
http://www.peerreview.org/.
He can be reached at e-mail:   Legal@PeerReview.org

We Cause Complications

This is one of the most distressing elements of our profession.  Even when we keep our knowledge up to the highest levels, even if we use the knowledge and the skills we have with a high level of competence, we will cause a complication.  Since many aspects of applying medical knowledge are subject to different opinions and controversies, it is not difficult to locate a physician who would honestly be of the opinion that (in retrospect, of course, and with 20/20 hind-vision) a certain treatment that led to a complication is worth criticism.  For God's sake, it does not take an expert to determine that.  Everyone of us, when we think back, we can identify ways of doing things a little bit, or much, better.  Isn't this what we do everyday, no matter how experienced we are?  Otherwise, how do we improve? Is there any point in one's career that one can claim that she/he reached the level of perfection that there is nothing more to be learned, and no more need to learn from bad experiences?

One problem is that the current healthcare environment in the United States is fiercely suppressing this healthy attitude.  A complication may result in a malpractice claim, in a peer review process, in an investigation, and every one of those events can have a detrimental impact on a physician's career and livelihood.  There is no single incentive to stimulate an open and healthy learning and accumulation of more experience in most hospitals.  The current punitive environment gives a clear message: every complication may and will be used against you, possibly to the fullest extent.

Ask any well-experienced and skilled physician or surgeon if the medical school and residency taught her/him every contingency that can be faced and that no complications will occur whatsoever.  This is impossible.  The best doctors are the ones who were allowed to grow and accumulate experience and wisdom with time and hard work.  In doing so, inadvertent complications do happen, and they add to the wealth of knowledge, experience and wisdom and help more and more patients.  Give me a doctor who never ever caused a complication, and I tell you, she/he either is too early in the career, has no experience yet, or avoids treating other than the most straight-forward cases.  Worse still, a surgeon who never saw a complication will probably be not as good in managing a complex situation after a complication arises.  The bottom-line, an environment that rewards perfection and punishes the normal occurrences of complications is inherently against patients' best interests.

Where to draw the line when complications are acceptable products of a healthy process, and when they are the products of an individual person's poor practice or a system error?  Only if a fair and an impartial/neutral auditing process is in place that such a differentiation may be made.  Most hospitals in the US simply do not have access to a process like that, nor do they have any provisions in their Bylaws to mandate such a thing.  Constructive auditing and constructive peer review does not exist in the majority of hospitals in the US.  The only available mechanisms are judicial or quasi-judicial, adversarial, and their outcomes are often punitive and destructive. The process is very arbitrary.

I have not read Dr. Atul Gawande's book, "Complications".  So, I have no idea how this posting will agree or disagree with that new classic.  Patients and their physicians are the victims of an environment that is obsessed with senseless finger-pointing, punishment, elimination and revenge, and shows very little desire to truly address quality issues in a constructive manner.

Recruitment to Hospital Hell

Here is a hypothetical scenario, and a possible one.  A brilliant surgeon, trained in a subspecialty on the very high tech from the best surgical residency training program in the state.  She is approached by recruiters.  Every recruitment firm gives her a list of the most attractive positions and practice opportunities.  Some are so with income guarantee to open her own practice.  Some are employed positions with a hospital.  Some are employments with a group, with the possibility of partnership in 2-3 years.  Recruiters are quite excited for her.  One recruiter spots for her the dream practice opportunity.  A nice community hospital in a small town that is a bedroom community to a city that consistently ranks high as to the quality of life.  Outdoors, indoors, you name it, it's there.  Schools, colleges, an international airport, arts, museums, galleries,concerts, a symphony orchestra, all there.  Ocean beeches, there too.  What else?  A very supportive community.  A collegial atmosphere.  The opportunity is to start own practice as a solo surgeon.  The hospital believes that reintroducing that specialty to the hospital will capture so many patients who had to be sent away.  Now they will be treated in the hospital, boosting the revenues and serving the community locally.  There are others on staff who belong to the specialty, but not very active in this hospital anymore.  So, they will not be competing.  And the financial package is competitive.  Site visit is warm and very encouraging.  The young fellow accepts.  Life is good. Then a shock: within a year her career is totally ruined.  She loses her livelihood.  All the long hours of medical school.  The loans.  The ruthless internship.  The long residency training for a full general surgery program of five years.  The two years of fellowship training.  The qualification for two specialty board exams.  All gone, just like that.  Is that possible? What happened?  Read on.

 

The hospital CEO's entire plan to recruit a surgeon with that high level of training but very little independent experience was simply that, recruit her and give her a referral basis, or at least, ED calls to start building her practice.  The young fellow in her entire training had been in the fully supported environment of a university hospital.  There are highly qualified residents, faculty, nurses, technicians, etc.  An environment where things just go so smoothly.  Being a tertiary center, the most challenging cases are treated well, and they do as well as could be.  The young fellow was realistic that such a level of support would not be duplicated in a small community hospital.  But, with a great attitude from the administration, and lots of hard work and determination, and confidence in her abilities, her practice will be the best in the small town.  She has not yet felt her way as to which cases should or should not be done in that hospital.  Being a solo surgeon, no senior partners to guide her.  She does some cases with great success.  She becomes confident of her abilities and the abilities of the hospital to support her professional needs.  She becomes somewhat arrogant and rude, just a little bit.  But that does not sit too well with the OR supervisor/director, who will from now on put that fellow under the microscope.  Also being all by herself building the new specialty service, she becomes chronically tired.  The after midnight ED calls make her chronically sleep-deprived.

 

The young surgeon takes a challenging case to surgery, to find that she is given a technician that is not used to work with her, and is not familiar with some of the details of those types of surgeries.  She complains to the OR supervisor, but with a vicious smile she is told that she should be able to work with that technician if she was competent enough.  Though uncomfortable, she decides to go ahead with the scheduled surgery.  She gets into a technical difficulty, but there is no back-up surgeon in that specialty in this hospital.  Working the best she could with the inexperienced technician results in the patient bleeding, suffering an injury, re-bleeding, then dying.  The exhausted surgeon is devastated.  She talks to the family and feels their pain, and she has to live herself the pain.  She manages the paper-work including calling the coroner and explaining.  Then she has to see her other patients on the floor.  She comes back to see if the grieving family have any unanswered questions, then totally drained-out she finally goes home near midnight.  Life and work in this hospital is becoming hell, but that is just the beginning.  The OR director, who herself is an unpleasant grumpy person, keeps questioning the competence of the surgeon.  She does not make it easy for her to be assigned the best technicians.  The surgeon learned a lesson about real life outside the university medical center.  She decides to be more selective accepting that her skills and professional abilities cannot grow in this hospital.  She decides that she should move to another hospital.  Read on ....

 

In the meanwhile, the OR director voices "serious concerns" about that surgeon's competence to the Quality Improvement Director.  The case is sent to an external reviewer.  The external reviewer decides that the care of that case was substandard, that is, below the standard of care.  The surgeon gets suspended from practice and an immediate investigation is started.  The surgeon is stuck.  She cannot go to another hospital now, being under investigation.  If she resigns her privileges while under investigation, she will have to be reported to the National Practitioner Data Bank (NPDB).  If the suspension remains for more than 30 days, she also has to be reported to the NPDB.  If the hospital decides to put any limitations or restrictions on her scope of privileges because of medical concerns, she has to be reported to the NPDB.  A report to the NPDB may result in the surgeon losing her career, since it will be very hard for her to be employed.  The collegial medical executive committee, being hammered by quality concerns from the OR director, fearing they lose reputation as being lax about patient safety, become hawks.  They have to protect the public.  This is what the OR director keeps reminding the key players from behind the scenes.  She also throws in, just for good measure, several other insignificant events to draw a bigger picture of alarm.  Now everyone is scared.  The potential liability to the hospital becomes the biggest anxiety of all.  They ask their lawyer, can we revoke that surgeon's privileges to be on the safe side?  Of course the lawyer tells them it is possible, and he is confident that the law is on his side.  There is immunity for the peer review process.  The young surgeon, who has barely started her career, is delivered the death sentence to that career.  All her privileges in this hospital are revoked.  Story ends.