By: Richard B. Willner
Center for Peer Review Justice

Medical peer review is the process by which a committee of physicians investigates the medical care rendered by a colleague in order to determine whether accepted standards of care have been met. The professional or personal conduct of a physician may also be investigated. If the committee finds that the physician departed from accepted standards, it may recommend limiting or terminating the physician’s privileges at that institution. If the physician’s privileges are restricted for more than 30 days, federal law requires the peer review committee to report that fact to the National Practitioner Data Bank.

There is no federal statute that requires peer review committees to observe due process, which the Supreme Court has defined as (1) giving written notice of the actions contemplated, (2) convening a hearing, (3) allowing both sides to present evidence at the hearing, and  (4) having an independent adjudicator (2). Prior to the Health Care Quality Improvement Act of 1986 (HCQIA) (3), the effects of an adverse peer review finding were restricted to the hospital involved. Because the HCQIA mandates the reporting of disciplinary actions of peer review committees to the National Practitioner Data Bank, such a report could harm a physician’s career throughout the nation.

Medical peer review is usually based on the screening of medical records, which places physicians with poor record-keeping skills at a disadvantage, and ignores the fact that medical records are often a poor indicator of the quality of care (5). Additionally, there is no requirement that the physician be given notice and an opportunity to be heard, and there is no requirement that members of the peer review committee be unbiased. The HCQIA recommends that the physician should get notice of the allegations, time to prepare for a hearing, a list of witnesses, the right to legal counsel, and an impartial fact finder. However, the act concludes “A professional review body’s failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of this act).” This failure of the HCQIA to require due process calls into question the fundamental fairness of the medical peer review system.

The reason that due process should be a part of any fact-finding endeavor was stated by Justice Goldberg in SILVER v NEW YORK STOCK EXCHANGE:

Experience teaches…that the affording of procedural safeguards, which by their nature serve to illuminate the underlying facts, in itself often operates to prevent erroneous decisions on the merits from occurring .

The purpose of requiring due process is to ensure that the actions taken are not arbitrary, capricious, or unreasonable. Where there is no due process, the system invites abuse.

Peer review in its current form fails to protect an investigated physician from committee members having an economic or personal bias.  Economic bias occurs when a committee member has a financial interest in the outcome. If the challenged physician is a partner or associate, any error that he may have made is likely to be considered to have been unavoidable. On the other hand, peer review has already been used to force a competing physician out of practice. Such economic bias denies due process . The United States Supreme Court struck down a decision from Ohio’s municipal court system in which the judge was partly paid from the fines he assessed. The Court found that the system gave an incentive to rule one way rather than the other.

Personal bias is inevitable when coworkers judge each other. Some people are very likable, and others illuminate the room by their absence.

Federal law prohibits a federal judge from hearing cases in which his impartiality might reasonably be questioned or in which he has a financial interest . The same standards should apply to member of a peer review committee. The potential for abuse when these suggested procedures are not followed would indicate the need for mandatory due process.

Due process, which is designed to limit these abuses, is not required by the Constitution of the United States unless there is government action that affects a liberty or property right. The case of PAUL v DAVIS illustrates the legal meaning of property rights as applied to employment. The police labeled the plaintiff as a shoplifter and advised local businesses to watch him carefully. The plaintiff sued, claiming that the government was injuring his reputation without due process. The Supreme Court ruled against the plaintiff, but stated that should there be an effect on employment, then such injury would invoke the constitutional protection .

The sole reason for reporting the results of peer reviews is to restrict the practices of incompetent physicians. Congress cited the following as the very reason for the act: ‘There is a national need to restrict the ability of incompetent physicians to move from state to state without disclosure or discovery of the physicians’. incompetent performance .’
The right to practice medicine without a governmental agency erroneously reporting that a physician has been deficient in his actions is a constitutional property right. Rights, even constitutional rights, can be waived by express agreement, or by the failure to assert those rights. State institutions, however, may not make waiver of a constitutional right a condition for employment .

In 1986, New York State enacted a system of physician discipline that includes a hearing presided over by an administrative law judge, to ensure due process. Although this system provides due process, it has the glaring problem of giving control of hospital privileges to lawyers. A far better solution is for peer review committees to be required to observe due process. Lawyers and other non-physicians may have a role as consultants, but should not be voting committee members.

The effects of an adverse peer review decision are no longer limited to the relationship between a physician and a hospital. The decision becomes part of the National Practitioner Data Bank. Medical peer review must provide physicians the protections of due process.

Tags: Health Care Quality Improvement Act, HCQIA, National Practitioner Data Bank, Data Bank, NPDB, Disruptive Physician, Sham Peer Review