Sham Peer Review:  No Evidentiary Standards.

The Center for Peer Review Justice

August 27, 2014

Legal positivism seems to me how the courts have arrived at the “the facts don’t matter” or the “accusation is sufficient proof” evidential standard regarding “Sham Peer Review” under the Health Care Quality Improvement Act of 1986 ( HCQIA ) as long as the process is identifiable and seems reasonable purely as a process and there is some identifiable concern, however divorced from the facts.

Legal positivists make some distinctive claims about what constitutes legal validity. It is difficult to improve on the following introduction offered by Leslie Green:

“Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.”

What is the relevance of the medical record under this “accusation is final proof standard”?   HCQIA obviously does not  authorize fraud in the tampering and redaction of medical records intended to guide a decision or conceal hospital agent liability in front of a physician review panel,  but, in my experience over 14 years, this is the norm.  Commonly, only certain parts of the medical record is send out for medical review.  So, obviously, the report comes back damning the surgeon under peer review.   Spoliation that is in the normal practice of corporate peer review is the normal but indefensible on moral if not legal grounds.

A Peer Review defense lawyer one told me that “100% of cases” he has taken to the Peer Review Hearing there had been significant record spoliation  and even if by some miracle if these cases would have judicial review at a later date, the judges being lawyers and not physicians tend to support the evaluation of doctors without reviewing the facts de novo.

Does this judge make the “twist on the burden of proof” and the absence of any evidentially standard in “the standards section of the law” thus authorize actual fraud on the medical record when it  comes to the “corporate” peer review process under HCQIA?  This would be the essential difference between “corporate peer review” and traditional or non-corporate peer review.

Corporate peer review even though it confirms to the process laid out in HCQIA and the catechism  of corporate defense work should be void against public policy for its lack of evidentiary standards.

Even the almost inevitable submission of the doctor’s name to the National Practitioner’s Data Bank ( The Data Bank) does not require an evidentiary standard.   The unique public-private partnership of the NPDB surcombs to the will of the corporate interest of the Executive Board, which is hidden from the public.

I understand  the jurisdictional issues between state and federal, but I think it is interesting when a state court interprets federal law differently from how it’s own federal court has interpreted it.

Congressional House Bill  HR 2472 that was retired by the last Congress would have added substantive due process  to accompany the HCQIA guaranteed procedural due process rights, a hearing ( chance of the doctor prevailing less than 5%)  of physicians  ( MDs, DOs, DPMs, and DDSs ) as well as to add evidentiary safeguards in the quest to curtail the spoliation of evidence in the Medical Record and in the Expert’s reviews.   It got only 15 co-sponsors, all Congresssmen-physicians.

No Procedural Due Process…  No Evidentiary Standards… Looks like Physicians and Surgeons, under the Health Care Quality Improvement Act of 1986 ( HCQIA ) remain the only group without their Civil Rights.

Shocking, isn’t it?