Law and Medicine So What Is a Sham Peer Review?

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From _Medscape General Medicineâ„¢_

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Law and Medicine

So What Is a Sham Peer Review?

Posted 11/15/2005

Roland Chalifoux, Jr, DO

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. , 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 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_

(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.

Immunity

Once a determination has been made that a challenged peer-review action is a

professional review action, immunity under HCQIA is available if the 4 safe

harbor provisions set out in 42 U.S.C. §11112(a) are met. These 4 provisions

stipulate that the professional review action was taken:

1. in the reasonable belief that the action was in furtherance of

quality healthcare,

2. after a reasonable effort to obtain the facts of the matter,

3. after adequate notice and hearing procedures are afforded to the

physician involved or after such other procedures as are fair to the physician

under the circumstances, and

4. in the reasonable belief that the action was warranted by the facts

known after such reasonable effort to obtain facts and after meeting the

requirements of paragraph (3).

1. Reasonable Belief

The first statutory requirement or safe harbor for immunity -- reasonable

belief that the action was in furtherance of quality healthcare -- has been

interpreted broadly. Without exception, courts have held that this provision is

judged by an objective, not subjective, standard.[1] Claims that those

credentialing decision makers have been motivated by personal animus or biases

are insufficient by themselves to defeat immunity under HCQIA. Allegations that

business peers acted for improper competitive reasons also have been

roundly rejected. In Austin v. McNamara, a California federal district court

noted

that Congress initially considered and rejected a " good faith " standard for

professional review actions. Without exception, allegations of a defendant's

bad faith will not defeat immunity.

2. Reasonable Effort

The second requirement -- reasonable effort to obtain the facts -- has been

satisfied in the great majority of published cases by a showing that a

representative portion of a physician's practice had been examined and that the

examiners had satisfactory expertise in the involved specialty area.

Among the facts cited by the courts affirming reasonable efforts to obtain

facts in peer review are broad practice reviews (that is, a large number of

cases extending over a reasonably long period of time), review by committees

whose members include at least 1 specialist in the involved area of medicine

and whose members do not include a significant number of economic

competitors, the involvement of outside consultants (preferably with teaching

experience

or experience in heading a department of the involved specialty at another

institution), and multiple levels of review of the peer-review decision.

A rare published opinion concluding that immunity was not available because

of the defendant's failure to make a reasonable effort to obtain the facts

is Brown v. Presbyterian Healthcare Services, from the 10th Circuit. A

hospital terminated a staff physician's privileges after another staff member

reviewed 3 cases handled by the credentialed physician, and a 3-physician

panel

reviewed 2 of her cases. The termination was based not on quality-of-care

reasons but on the physician's failure to comply with a second-opinion

requirement. The hospital also advised another physician that if he affiliated

with the

credentialed physician, the hospital would not recruit him for a position.

Holding that a reasonable jury could conclude that the panel's review was

unreasonably restrictive and not established after a reasonable effort to

obtain the facts, the court rejected the defendant's assertion of immunity.

3. Notice and Fair Hearing

HCQIA sets forth in detail at 42 U.S.C. §11112( and © the specific

procedural requirements of a peer-review process that will be entitled to

immunity under the third requirement. In a nutshell, the statute requires that

a

physician be notified of a proposed adverse action and the reasons for the

action; the notice must indicate that the physician has a right to a hearing,

which may be requested within not less than 30 days; and the physician must be

advised of the hearing procedure, including which witnesses will be called.

The statute also specifies who can be the decision maker at the hearing, that

the physician may be represented by counsel at the hearing, that the hearing

will be recorded, and that the physician may call and cross-examine

witnesses and present evidence. The statute also requires a written report of

the

result of the hearing.

It is peculiar that the notice and fair-hearing requirements of HCQIA are

less stringent than those of the Joint Commission on Accreditation of

Healthcare Organizations (JCAHO) and, therefore, than most hospital medical

staff

bylaws. JCAHO requires, among other things, a fair-hearing procedure and an

appeal process. All JCAHO-accredited institutions include an appeal process in

their medical staff bylaws. HCQIA, on the other hand, has no appeal process

requirement.

This could give rise to the anomalous situation wherein a hospital might

violate its own bylaws but still be entitled to HCQIA immunity. In fact, this

situation was commented on in v. Greater Southeast Community Hospital

Corp.[2] As a practical matter, if a hospital complies with HCQIA but

violates its own bylaws, a cause of action for breach of contract may arise,

and

this could entitle the credentialed physician to injunctive relief.

Although HCQIA's notice and fair-hearing requirements are straightforward

and less rigorous than those of JCAHO, there have been several credentialing

cases in which hospitals were denied the immunity defense prior to trial for

failing to comply with this HCQIA requirement. For example, in Islami v.

Covenant Medical Center, Inc.,[3] the federal district court found that a

peer-review proceeding did not comply with either the hospital's bylaws or

HCQIA in

that evidence was presented in the credentialing hearing without the

physician being present and without a record being made. In Brader v. Alleghany

General Hospital,[4] the Third Circuit ruled that HCQIA immunity would not be

available to a defendant hospital if it had denied the plaintiff physician an

opportunity to cross-examine witnesses that testified against him, as he had

alleged.

Although HCQIA does not require significant advance notice of a proposed

credentialing action, summary actions are permitted under the statute in the

case of emergencies involving " imminent danger to the health of any

individual, " and none of the notice and hearing provisions apply to privileges

or

restrictions shorter than 14 days (42 U.S.C. §11112©).

4. Reasonable Belief Action Warranted by Facts

The final safe harbor for HCQIA immunity is that there be a reasonable

belief that the action taken was warranted by the facts known. Again, an

objective standard is applied. Bad faith is immaterial, with the sole

consideration

being the sufficiency of the basis for the hospital's actions.[5]

Generally, as long as the other 3 safe harbors have been met and the final

action is supported by the majority opinion of the reviewers, the courts will

conclude that the credentialing action was reasonably warranted by the

facts. The courts do not view their role as being one to substitute their

judgment for that of the hospital's governing board or to reweigh the evidence

regarding the termination of medical staff privileges.[6]

Due Process and Presumption of Innocence

An accused murderer has a better chance of being acquitted and having a

clean record than an accused physician under HCQIA. Why? In the case of the

murderer, due process is mandatory and the alleged is presumed innocent until

proven guilty. This is not the case of the accused physician involved with

hospital peer review. The accused physician is guilty until proven innocent

since

the burden of proof has switched from accuser to accused.

Who Is Involved in the Process?

Unlike the murderer who is arrested by an independent branch (the police)

and tried by a different independent branch (the district attorney) before an

independent judge in front of a jury of peers selected by the prosecutor and

the defense attorney, the accused physician under HCQIA is at the mercy of

the hospital.

The arresting body is often a group of competitors, usually in collusion

with the hospital administrators. These two groups serve as prosecutors and, in

many cases, will act as judge, jury, and executioner.

Is Immunity Warranted?

Yes and no.

A peer review truly done in good faith should be immune; however, too many

are not being done in good faith. Therefore, immunity should be taken away or

at least modified to deter any bad-faith use of the law.

Stronger Requirements to Obtain Immunity Are Required

Currently, the hospital and physicians (especially the physicians) are

largely immune from a sham peer review. And what better way to get rid of a

financial competitor than to accuse him of being incompetent and having the

hospital foot the bill for a costly review? " Reasonable effort " and " reasonable

belief " are vague enough that merely stating " I felt.... " or " I thought... " or

" I was concerned... " accomplishes this requirement.

While JCAHO guidelines recommend use of the literature and relevant clinical

practice guidelines (JCAHO Hospital Accreditation Standards 2003 MS 8 to MS

8.4), there is no such requirement for the hospital under HCQIA. The

definition of " peer " also is so open to broad interpretation that essentially

anyone

with an advanced degree can qualify. For example, a family practitioner can

review a trauma case. The sole qualification at one hospital was that he had

taken Advanced Trauma Life Support. He had not completed a surgical

residency and therefore was obviously not boarded in General Surgery. In

another

case, a nurse - who testified she knew nothing of abdominal compartment

syndrome

- testified on a case of abdominal compartment syndrome.

Our forefathers constructed a form of governance whereby all citizens would

be allowed true " due process " if and when allegations were directed towards

them. That seems to be the case for those Americans who are fortunate enough

to not have pursued a professional " license " of some sort. Unfortunately, for

those of us who have spent additional years of training in medicine, these

rules don't apply to us.

HCQIA has become antiquated and used unfairly by some hospitals to

effectively ruin as well as run a competent doctor out of town. The notion of

fairness

in the medical community will never be achieved unless HCQIA is revamped

and 3 areas of the law changed, primarily (1) that the burden of proof be

placed on the accusers(s),(2) that " absolute immunity " not be given to those

members of any committee who try to adversely affect a doctor and that the

affected doctor can demonstrate malice, or fraud, and (3) that a hospital must

remove any adverse disciplinary action if a state medical board (which usually

reviews all adverse actions of a physician) adjudicates the action.

Currently, this system places the burden of proof on the accused physician,

is immune from any fraud or abuse by the accuser(s) -- which can destroy a

physician's practice in his home town as well as nationally because of the

Data Bank, and, regardless of being adjudicated by a state licensing board,

hospitals don't have to remove their adverse action from the Data Bank on the

practitioner. In Texas alone, in 2004, 68% of adversely peer-reviewed doctors

were adjudicated by the Texas Licensing Board, yet those affected physicians'

adverse reports are still in the Data Bank. They were removed from the

hospital staffs, yet those responsible for initiating the adverse decisions are

immune and in many situations used the peer review to rid themselves of

competition. This scenario has happened to many " good doctors " because of the

actions of their direct competitors who were later adjudicated by state

licensing

boards, yet the competitors continue to practice while those " shammed "

continue to explain the consequences to patients, insurance companies, and

other

practitioners.