Hospitals have broad protections under federal laws that make it highly improbable that a shammed physician can vindicate himself in court. There is no federal statute that requires peer review committees to observe due process, which the Supreme Court has defined as giving written notice of the actions contemplated, convening a hearing, allowing both sides to present evidence at the hearing and having an independent adjudicator. “The law immunizes false statements. It allows gossip to be converted into testimony,” said Verner S. Waite, MD, a retired surgeon in Lynwood, Calif., who was himself the target of sham peer review in the late ’70s. “The accused physician is often ruined financially. The victim must pay his own legal fees, whereas his accusers are not responsible for any legal fees. The hospital pays them.”
And because the 1986 Health Care Quality Improvement Act (HCQIA) mandates the reporting of disciplinary actions of peer review committees to the National Practitioner Data Bank, an unjustly targeted physician can be prevented from obtaining privileges at another hospital in the United States.
Some states, including Pennsylvania, do have laws that grant a physician the right to sue if he can show that a negative peer review was motivated by malicious intent. But the burden of proof is on the accused, and even physicians who prevail in court can spend years of their professional lives and thousands of dollars attempting to regain their credentials. Moreover, a summary suspension resulting from a disciplinary action will have triggered an automatic delisting of a physician by insurers before the physician has an opportunity to exercise his due process rights.
Mounting a Counteroffensive
The cards were not always stacked against physicians victimized by the peer review process, however. Before the HCQIA went into effect, physicians who could demonstrate that they were harmed by malicious disciplinary actions were able to seek redress in court. In 1984, for example, Dr. Waite received a $550,000 settlement in a lawsuit against a hospital review panel that had suspended him after alleging that his patients had the highest mortality and morbidity rates at the facility. “The hospital’s own records showed the exact opposite,” Dr. Waite said. “In some of the cases they cited in the review, I wasn’t even the physician of record. My accusers simply took offense at the number of cases I was handling compared to them. It was really an instance of medical colleagues attempting to eliminate an economic competitor.”
Physicians facing the fight of their life are less isolated today than they were when Dr. Waite was targeted by his colleagues, however. Dr. Waite used a portion of the settlement he received to found the Semmelweis Society, a 2,000-member organization committed to ending unfair peer reviews through legislative change. The society is named for a 19th-century Viennese physician who faced reprisals by colleagues after suggesting that hand-washing could reduce infections among new mothers and their infants.
Likewise, the CPRJ run by Dr. Willner offers consulting and other services to physicians who believe they have been subjected to unfair reviews and assists them in rebuilding their medical practice.
“We are a resource center and support organization for any medical professional who finds him- or herself in the midst of an unfair and bad faith attack during a so-called peer review,” says Dr. Willner. “When someone is victimized by a sham review, they are often abandoned by their former colleagues. They are isolated, and fighting for their career against a larger, well-financed opponent that has the law on its side. But they aren’t alone. The Center for Peer Review Justice has one principal goal–to salvage the careers of those who’ve been shammed, and allow them to practice medicine again.”
Although the CPRJ provides legal consulting and referral services, the center specializes in providing the shammed physician with extralegal services. “These are necessary services that your lawyer does not offer, such as working with the media to get the truth out,” said Dr. Willner. The group also gives regular lectures on physician peer review and state medical board abuse to healthcare organizations and professional societies, and can assist the shammed physician to start over. “We now have a joint-venture partner who can offer headhunting services to physicians who have been data-banked to help them find a new position.”
Stopping the Snowball Effect
Given the stakes involved, lawyers defending physicians subjected to peer review proceedings–whether legitimate or not–argue that the best way to minimize the potential harm of a disciplinary action by a hospital is to halt the process at the earliest possible stage.
“As a lawyer, I prefer to be contacted as early as possible,” said Thomas R. Bradford, JD, an attorney with Bonne Bridges Mueller O’Keefe & Nichols, in Los Angeles. “There are more avenues available to the physician in the earlier stages, when it is still possible for them to avoid running the full gamut of administrative hearings and appeals. As events proceed, the consequences increase while the physician’s options narrow.”
Although procedural rules often prevent legal counsel from taking a direct role in a case until a disciplinary action has been formally taken, an attorney can offer valuable guidance to the physician before reaching that stage, explained Mr. Bradford, who has defended physicians in disciplinary matters for a decade. “The biggest mistake physicians make when they face peer review is underestimating the problems that can develop with regard to their privileges and medical staff membership or with insurance payers. As soon as a physician has reason to believe that he is not facing a routine peer review, the physician should be seeking the advice of an attorney.”
Another reason to seek legal counsel early on is to prevent the situation in which the physician facing possible disciplinary action from supplying his accusers with the rope to hang him. If there is written communication between the physician and the hospital in the period before an actual disciplinary action, the physician should have his lawyer draft the documents, Mr. Bradford advised. “That way, if there are any misstatements, the attorney can take responsibility for that,” he said. “It is also more difficult to use a lawyer’s letter against a physician in an administrative proceeding, as opposed to a letter drafted by the practitioner against whom the disciplinary matter is pending. These communications can be as detailed or succinct as warranted, but the physician should always guard against making any statements of admission in writing.”
Mr. Bradford offers simple advice with regard to allowing any hearing conducted to be tape-recorded: refuse to allow it. “I do not allow them to tape-record the proceedings. If it requires me to walk out of the interview, I walk out,” he said. “It is easier to defend yourself against what it is believed someone said than a verbatim transcription.”
Other provisions in law can also assist the physician in increasing the potential of receiving a fair hearing. “If the medical staff conducting the peer review had prior involvement in the disciplinary proceedings, or have a financial motive, that may draw their objectivity into question,” Mr. Bradford explained. “And I can find that out by questioning on voir dire, to determine if there is any bias or prejudice that makes a person unsuitable to sit in a position of a trier of fact.”
In proceeding before either fellow medical staff or state boards, the successful defense rests with achieving a preponderance of evidence in your favor, Mr. Bradford said. “The physician sitting in the accused position has the duty and the obligation to come forward with evidence that counters the charges that are being brought against him. In peer review proceedings, it is the simple preponderance of evidence regarding the matters being addressed, and that can sometimes be one grain of sand that tips the balance in your favor.”
Mr. Bradford acknowledges that hearsay can and often does enter the record in peer review process, and that this is unlikely ever to change. “The justification for this–at least in theory–is that physicians sitting on a peer review panel have the ability to appreciate the nature of the evidence and can give it the weight it is due,” he said. “It is assumed that physicians understand the medical issues of a case being studied and the nuances of patient care.”
Defending oneself from an adverse outcome of a peer review does not necessarily involve a lot of hours or expenses if the physician attacks the situation early on, Mr. Bradford reiterated, and it can prevent the escalation of the proceedings to the next level or even allow them to be resolved. “Sometimes, this might involve the physician agreeing to take continuing medical education courses, a handwriting course or a class on improving interpersonal skills. In other words, the physician demonstrates a willingness to address the concerns that initiated the review process in the first place, without making any admissions.”
Although Mr. Bradford argues that the vast majority of peer reviews serve the purpose of protecting the quality of patient care (he was a hospital administrator for 20 years), he concedes that personality issues do come into play in initiating the process in many cases. “Some physicians don’t treat the hospital staff with an appropriate amount of respect, or engage in bouts of anger or other actions that are seen as inappropriate apart from quality-of-care issues,” he said. “These otherwise excellent physicians are also likely to view themselves as being under attack and unfairly targeted by peer review. They become belligerent and uncooperative.” Indeed, Mr. Bradford argues that many, if not most, cases of “sham” peer review are a legitimate reaction to physicians with interpersonal issues to start with, and that they succeed because physicians not only fail to defend themselves but then make matters worse by becoming hostile to hospital staff and colleagues. “That’s why, when a physician facing a disciplinary reaction comes to me, I always try to determine what personality issues may be driving the process, and who the principal opponents might be, and then I try to diffuse that. The goal again is to cut off the peer review process at the earliest possible stage.”
Dr. Willner concedes that not every peer review motivated by reasons other than medical competence is a sham review. “There are other, legitimate reasons for a hospital to want to remove a member of staff,” he said. “Some people just failed kindergarten. They have lousy personalities, and nobody wants to work with them.” But Dr. Willner takes a less sanguine view regarding how common sham peer review is. “It’s widespread and on the rise, most definitely,” he asserted. “Sham peer review has become a profitable tactic for HMOs and insurance companies to coerce physicians into refunding payments for procedures they have deemed medically unnecessary. This is backed by threats of reporting the physician for providing substandard and inappropriate care. It’s extortion, and it’s becoming institutionalized,” Dr. Willner added. “I expect to be busy.”
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