Critics charge physician peer review misused
Calls growing for revisions
Physician peer review has been a galvanizing topic since the mid-1980s, when federal law imposed protections for those lodging charges against physicians; protections that, depending on your opinion, either protect the peer review process or allow it to serve as a weapon for hospitals and dishonest physicians to rid themselves of whistleblowers and competitors.
The goal of peer review, as set by the Health Care Quality Improvement Act (HCQIA) of 1986, is to improve health care by impartial review of complaints against physicians. Critics say the focus has shifted from improving health care to punishing errant — or simply troublesome — doctors.
"I don't think any reasonable person could argue that peer review, done correctly, is a necessary process," according to C. William Hinnant Jr., MD, JD, president of Medicolegal Consultants LLC in Anderson, SC. "But what we've seen occur since HCQIA was enacted is basically a clear distortion of peer review from being a process that should be aimed at quality improvement to a process that is a punitive mechanism where immunity provisions of HCQIA can be used as a sword to dismiss physicians for reasons having nothing to do with health care quality."
Guilty until proved innocent
According to the Massachusetts Medical Society (MMS), it was estimated in the 1990s that one in 20 physicians will undergo an incident-based peer review process and one in five will serve on a peer review committee to evaluate an alleged quality problem.
Misuse of HCQIA, commonly called "sham peer reviews," occur when a physician who is brought to peer review on a complaint that is either exaggerated or fabricated, Hinnant says. Frequently, the physician finds himself asked to prove his innocence; HCQIA gives peer reviewers immunity from monetary damages arising from peer review actions, provided that:
- The peer review arises from a belief that it furthers quality health care;
- Those bringing the action act in good faith to seek out the facts;
- The physician reviewed is given adequate notice and afforded due process;
- The hospital has a reasonable belief that the review action is warranted.
The trouble, as Hinnant and others see it, is that once a peer review is done and a finding of fault is returned, the appeals process affords the sanctioned physician little hope for reversal.
"Hospital attorneys can follow a cookbook easily," Hinnant says. "All [reviewers] have to do to walk away with immunity is create a pretext where something is related to health care, show that they investigated and obtained some facts, that they gave the guy a hearing commensurate with the bylaws, and show that it was reasonable."
The burden falls to the physician to demonstrate that the peer review was unreasonable, a struggle that can be protracted, expensive, and, ultimately, unsuccessful, Hinnant suggests. Making the battle more difficult is the likelihood that the physician has been suspended.
"The premise now is to simply exclude people, and there's a rampant abuse of summary suspension," he explains. "It has shifted from saying, 'Let's use peer review to get better without damaging doctors, to identify why some problems might be occurring often, to say let's figure out why and get beyond it.' Now you have doctors being suspended for events that occurred five, six, seven years earlier."
The good peer reviews, Hinnant says, are rarely heard of.
"The cases of true peer review, designed ethically and designed to improve quality of care, you don't hear about because they are being handled correctly," he says. "The problem has been confronted, remedial steps taken, with the goal being to help physician and patients. Those cases never result in litigation."
But some recent cases that doctors claim are examples of peer review used maliciously have resulted in monetary damages awarded to the sanctioned physicians and national publicity about peer reviews. The attention drawn to the peer review process by those cases and by positions taken by some health care associations against misuse of the process has heightened calls for reform.
The Association of American Physicians and Surgeons has issued a statement condemning malicious use of peer review. In a March 2002 letter to state medical association directors, hospital medical presidents, and chiefs of staff, the American Medical Association said of compliance with HCQIA:
"The potential for abuse of peer review exists. Personal agendas, competition or other reasons unrelated to quality care must not be the motivation for peer review actions. Peer review that is not fair or objective can undermine patient care, patient access, as well as a physician's reputation. Failure to adhere to a fair peer review process can erode public confidence in the ability of the medical profession to adequately monitor itself."
Society urges 'clean hands' in peer review
The Semmelweis Society was founded by a physician who spent years fighting and appealing a peer review. The society seeks to reform peer reviews in the United States and make abuse less likely.
The society takes its name from Ignaz Semmelweis, a Hungarian obstetrician, who successfully showed that having staff wash their hands reduced mortality among women in childbirth. In the process Semmelweis infuriated his supervisors, who refused to reappoint him to the hospital staff, ruining his career.
"I have represented hundreds of doctors, and there is no scenario anywhere that surprises me," says Hinnant, who serves as president of the Semmelweis Society. "I have seen doctors peer reviewed because they demanded things of the hospital administration on behalf of patients, or complained of faulty equipment. And the next thing you know, the hospital has gone to the chief medical officer, had the complaint externally reviewed, and, now, the person is suspended from staff."
At that point, the physician is in a difficult position. Suspension from staff not only can be a crippling financial blow, but a suspension that lasts longer than 30 days must, by law, be reported to the National Practitioner Data Bank (NPDB), which was created along with HCQIA. From that point, any time the physician applies for licensure or a new job, a mandated search of the NPDB will reveal suspension, and that, Hinnant says, destroys careers.
"Scores of cases go through hearings, a year of discovery, and finally go to hearings, and the judge says, 'I am constrained by HCQIA,' and grants summary judgment to the hospital," he explains. "By that time, the doctor has lost his contracts, the medical board might have investigated, some lose their licenses, and their medical careers are pretty much over. It's a pretty sad process."
A successful appeal doesn't always repair damage from an unfounded peer review, Hinnant points out. Besides the lost income and standing, there is still the matter of the NPDB listing, which doesn't go away once the charges are dropped. A physician entered into the databank stays there unless the person or institution that lodged the original complaint requests that the doctor's name be removed from the list.
A model for improvement?
Both critics and supporters of the peer review process point to the Massachusetts Medical Society (MMS) as a body that has evaluated the risks and benefits of peer review with immunity and designed a way to improve its function.
The MMS, through its committee on medical service led by S. Jay Jayasankar, MD, introduced and adopted 27 principles to adhere to in incidence-based peer review in hopes of ensuring patient safety and fair treatment of physicians.
Jayasankar is a proponent of bifurcating the peer review process into two channels. One would allow near-misses and other incidents that do not require penalty to the physician but could provide lessons to his or her peers that can improve patient safety. The second channel would be for physicians facing discipline.
In the first type of review, the process would remain confidential and the instigators of the complaint could remain anonymous. In the other, however, Jayasankar suggests the process remain confidential.
Among the 27 principles for unbiased peer review are:
- Patient safety and quality of care must be the goal;
- Relevant information should be obtained promptly from the subject physician, and early discussion with the subject physician to evaluate the "incident" and explore alternate course of action before proceeding to the formal peer review process;
- Triggers that initiate a peer review within a health care facility should be valid, transparent, and available to all member physicians and should be uniformly applied to all cases and physicians;
- Any conclusion reached or action recommended or taken should be based upon the information presented to the peer review committee and made available to the subject physician. Indefensible and vague accusations, personal bias, and rumor should be given no credence and should be carefully excluded from consideration. Any conclusion reached should be defensible under a "reasonably prudent person" standard.
- Summary suspension or restriction of clinical privileges may only be used to prevent "imminent danger to the health of any individual." Such summary actions must be followed by adequate notice and hearing procedures prior to becoming final.
- Membership on the peer review committee must be open to all physicians on the medical staff and not be restricted to one or more groups, such as those practicing exclusively at a given institution, salaried physicians only, or faculty physicians only.
"Revocation should be the last alternative," says Hinnant. "We should have a system that places remediation first, not exclusion."
Sources/Resources
For more information:
- C. William Hinnant Jr., MD, JD, Medicolegal Consultants LLC, Anderson, SC. Phone (864) 226-6132.
- Semmelweis Society, information on-line at www.semmelweis.org.
- Massachusetts Medical Society, "Model principles for incident based peer review for health care facilities." Available at www.mms.org.
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