Peer review has long been established by organized medicine to scrutinize professional conduct. The goal of good peer review is to evaluate and improve the ongoing professional practice of individual practitioners with clinical privileges.
The Joint Commission on the Accreditation of Hospitals requires hospitals through their medical boards, to conduct peer reviews to retain accreditation. Despite the intended purpose of improving quality medical care, the peer review process has suffered several setbacks throughout its tenure. In the 1980’s abuse of peer review for personal economic interests led to a highly publicized multi-million dollar verdict, upheld by the US Supreme Court, against the perpetrating physicians and hospital. The verdict led to decreased physician participation in peer review for fear of litigation. Believing that peer review was critical to quality medical care, Congress subsequently enacted the Health Care Quality Improvement Act (“HCQIA”) granting comprehensive legal immunity for peer reviewers to increase participation. While serving its intended goal, HCQIA has also granted peer reviewers significant immunity likely emboldening abuses resulting in “sham peer reviews.”
The HCQIA does not grant absolute immunity to hospitals and peer reviewers. Rather, only good faith peer review qualifies for HCQIA protection. To be considered good faith peer review, the peer review must:
- Be carried out with the reasonable belief that the action was taken to further quality health care;
- Follow a reasonable effort, through investigation and review, to obtain the facts;
- Meet adequate notice and fair hearing procedures afforded to the physician;
- Have been conducted in the reasonable belief that the action was warranted by the facts.
In determining whether the Hospital or the peer reviewers are immune under HCQIA, the proper inquiry is whether the aggrieved physician has provided sufficient evidence to overcome by a preponderance of the evidence (greater than 50%), any of the above four elements required for immunity.
Not all peer review actions are undertaken with the reasonable belief that they are in furtherance of quality health care. Some have nothing to do with the promotion of quality health care at all. A good example of this is a recent case where I represented a surgeon who was bizarrely charged with collecting cash from a patient at the point of care, rather than going through his office’s normal billing practice. For this infraction the surgeon was threatened with termination of his surgical privileges and removal from the medical staff of the academic medical center, and non-reappointment to the faculty During the investigation, required by HCQIA in order for the peer reviewers to claim immunity, no evidence was collected bearing on quality of care (e.g., no incident report, no departmental quality assurance committee review, no morbidity and mortality conference review, etc.). Indeed, I discovered that one of my client’s economic competitors was on the ad hoc investigating committee – a clear conflict of interest. Further, we discovered that with respect to threatened non-reappointment to the faculty, my client was not even up for re-appointment for another year, and had favorable reviews. The real reason for the peer review was the surgeon’s refusal of an offer to join the hospital’s employed staff. The end result of my defense was that my client was not removed from the medical staff, nor was his faculty appointment terminated.
If a peer review proceeds through investigation to hearing, the notice and hearing requirements of HCQIA are very specific and detailed. The hospital and medical staff must meet all of the notice and hearing requirements, and overcome proof that the peer review action was undertaken for reasons other than quality health care, such as small “p” political reasons; discriminatory reasons (violations of Title VII of the Civil Rights Act or the Americans with Disabilities Act); or to force out a physician who refused to join the ranks of hospital employed physicians.
The foregoing aside, these are challenging cases, and the burden of proof is on the aggrieved physician to prove by the preponderance of the evidence that the hospital and peer reviewers failed to meet one or more of the elements to establish immunity. Once the medical peer review process has begun, it can be extraordinarily difficult to put a halt to it, and avoid professional injury to the physician. At the earliest hint of a peer review action, the target physician should seek a capable peer review attorney. Concierge Healthcare Attorneys, LLC, has years of experience handling peer review matters from both the hospital’s perspective and the physician’s perspective.
Reporting to the National Practitioner Data Bank
Hospitals are required to report peer review actions affecting a physician’s clinical privileges for longer than 30 days to the National Practitioner Data Bank. Further, hospitals must report a physician’s voluntary surrender or restriction of clinical privileges while under a peer review investigation, or to avoid an investigation, prior to a disciplinary action.
Sham Peer Review
“Sham Peer Review” is an abuse of the peer review process, taken in bad faith, and disguised to look like legitimate peer review. There are a host of pre-sham peer review tactics used by hospitals including: wrongfully singling out a physician in morbidity and mortality conferences, creating a hostile work environment (i.e., constant scrutiny of the physician’s cases), co-management policies whereby a less qualified physicians are allowed to overrule the attending specialist, and wrongfully labeling a physician as a “disruptive physician.” A “sham peer review” process often follows these tactics. Physicians need to take appropriate steps when these tactics are taken against them, including hiring an attorney experienced in the handling of “sham peer review” cases. “(https://think-gen.com/barney-cohen-healthcare-attorney/ ) Sham peer review” is typically about hospital politics disguised as patient care concerns. Frequently, “sham peer review” occurs when a hospital is conducting a purge of independent practicing physicians in favor of hospital employed physicians.
Two physician organizations have sham peer review hotlines. The Center for Peer Review Justice may be contacted at info@PeerReviewjustice.org or telephone (504-621-1670). The Association of American Physicians and Surgeons’ Sham Peer Review hotline (a free benefit to AAPS members), operated by Lawrence Huntoon, MD, a nationally acclaimed physician’s advocate, can be contacted by calling: (800) 635-1196 or writing to: firstname.lastname@example.org for an attorney referral.