Dealing With a Sham Peer Review

We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. In this article, the author addresses “Dealing with a sham peer review.” This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

The purpose of peer review is to improve medical care.  However, all too often this process is corrupted to carry out vendettas against disfavored physicians under the guise of improving the quality.

This is not to say all such reviews are shams.  Therefore, if you find out you are being reviewed, the first issue is whether there is any validity to the alleged claims.

If so, hire an attorney knowledgeable in the healthcare disciplinary domain. He can engage the hospital or group on your behalf to formulate a plan of corrective agreed-upon steps, a specified end-point, and objective criteria for evaluating whether you met the required standards. The plan should also specify that even if your privileges are limited as a result of the agreement, that no report will be made to the Data Bank (NPDB) during the period of correction and re-evaluation. Alternatively, if such a report must be made because of NPDB regulations, see if an agreement will allow the report to be withdrawn or amended if you successfully complete the program.

If you determine there is no valid basis for the review, your goal must be to stop the process.

The reason is that in cases arising from sham peer review, courts start from the judicial doctrine of non-review. The peer review process is well-institutionalized under Federal (HCQIA) and state law. The process is interpreted as a necessary element of safeguarding the public health. It is given great presumptive credence.

HCQIA confers immunity on those who participate in the peer review process, preventing a claim for damages against them, if:

The peer review was done in the reasonable belief that such action furthered quality healthcare…

Those bringing the review action already made a good-faith effort to obtain the facts…

The physician was given adequate notice and was afforded due process or “such other procedures as are fair to the physician under the circumstances”…

The reviewers had a reasonable belief that peer review action was warranted…

This would, on its face, seem to favor physicians by limiting peer review only to where it was not just required but actually the last resort.

However, courts have exonerated peer review that did not even meet a minimum good faith standard.

In a line of cases beginning with Austin v. McNamara (9th Cir. 1992) HCQIA has been interpreted to permit immunity – that is to say, exclusion of evidence of bad faith from lawsuits alleging sham peer review –  for a hospital regardless of its “animosity,” “hostility,” or “bad faith” in the peer review process.

In a 2008 case (Poliner v. Presbyterian Hospital of Dallas), the 5th Circuit Court of Appeals ruled that even if the reviewers had improper motives for initiating the peer review process, they were immune under HCQIA.  Applying the “objective test” from Austin, the Court ruled that the “good or bad faith of the peer reviewers is irrelevant” and that it was not even required “that the professional review result in actual improvement of the quality of health care.”

In essence, what was never a true peer review may be granted “peer review immunity” because it is called “peer review”.

A court, though, may strike immunity if there is a countervailing public health issue.

For example, a federal district court refused to dismiss a lawsuit by an emergency room physician who claimed he was fired for reporting patients were being transferred without being stabilized. The court rejected the hospital’s claim of immunity, finding that the doctor’s allegations of retaliatory termination were sufficient to rebut the presumption that the peer review was based on a reasonable belief that the facts warranted firing him- a requirement for the HCQIA shield. Underlying this, however, was the more important fact that the doctor’s conduct supported the enforcement of EMTALA, a public policy matter that the court favored.

By contrast- when the harm is solely to the doctor – immunity is rarely pierced  unless involving circumstances extremely egregious and obviously violative of HCQIA, such as a review of only two charts before the doctor’s privileges were revoked and a false report was sent to the NPDB.

You therefore want to defend against a corruption of the review process while it is still localized to your hospital or group.

First – hire a lawyer.

From the moment you become aware you are being evaluated by a peer review committee you must engage an attorney experienced in disciplinary matters to advise and represent you.

This sort of legal help is costly. Many physicians are also certain the claims are nonsense so they charge forward on their own – angry and upset – and only dig themselves in deeper.

This must be avoided.

There is an increasing trend to discoverability of peer review committee findings in medical malpractice actions and any sanction that limits you for 30 days or more will also be reportable to the NPDB, so the matter may not stop at the doorway of the conference room if the result goes against you.

Getting the best guidance that you can is an investment in your future.

Now, you are ready to proceed.

Your primary concern must be to assert appropriate due process.

The basic design of a peer review hearing is largely dictated by the Administrative Procedure Act of 1948, but that is not prescriptive for due process issues beyond the facts (a) the review is supposed to be a neutral forum; (b) the doctor can have legal representation, and can confront witnesses; (c) and a verbatim transcript should be maintained rather than just minutes or notes. What define the actual rights you have will be the by-laws of your hospital, the terms of your partnership agreement or your contract with your group.

You should not expect those rules to be the defendant-protecting type that underlie Constitutional due process. In fact, you should expect the opposite.

For example, medical staff by-laws often state that the physician carries their burden of proof at the “clear and convincing” level (about 75%) and that it is not sufficient to prove that the committee was actually wrong. The doctor must also prove at that high level that the disciplinary action or charges were arbitrary, capricious, or unreasonable.

So, knowing that the barrier in front of you is high, how can you approach the facts to make your case?

The answer is to remember that you want to beat back the “objective test” and so need to follow what HCQIA says that you are entitled to.

Begin with the issue of notice. This has two components – notice of the underlying allegations and notice of the review itself.

You are not a member of Delta House under “double secret probation” – the fact that the committee is meeting about you should not be the first time that you are made aware of a claimed problem. Any issue about your personal or professional conduct that was not so egregious to have warranted immediate intervention should be one that was previously addressed with you to permit you to refute it or to correct it.

You should have also received notice that the meeting will take place with sufficient time to allow you to contest it and to prepare for it.

You should also be afforded copies of all complaints, including incident reports as well as formal requests for intervention.

When you get these, look for impermissible hearsay, a second-hand statement being presented for its own truth. An example includes “Many patients told me that Dr. A yelled at them” but without the claimed speaker(s) available to be examined as to whether they actually said what is claimed.

Documents redacted to hide the identities of the complainers are also inadequate.  Those who come forward to inform a peer review committee of what they believe to be a problem are protected from retaliation for having done so, but they are supposed to be available for cross-examination.

Since you will be the one with the burden of proof of demonstrating that the review is a sham, you will next want to look for elements in the evidence against you that seem irregular on their face.

The most obvious of these would include claims made only by one individual or only those who work under them, such as only a competing surgeon and his two PA’s or only the CEO of your hospital with whom you have clashed over ER staffing limits but no one from the medical or nursing staff.

A review based on allegations from an isolated source would presumptively violate the Joint Commission standard (3.10) that the process for addressing disruptive physician conduct by must “solicit and integrate substantial input from an inter-professional team including representation of medical and nursing staff, administrators and other employees.”

You will also want to look for professional rivals or physicians with a personal grudge, such as the ex of your spouse, being committee members. Such individuals should voluntarily recuse themselves or be removed. If they have not, make this demand in writing to create a record.

In a related matter, you can address how the peer review committee members are themselves chosen. If they are, for example, all appointed by the hospital CEO, the process is inherently suspect. But if they are elected by the medical staff or rotate periodically then collusion is less likely.

Be very circumspect while your case is ongoing.  Do not discuss the case – even with those you perceive as friends – while ongoing. Also, make sure not to communicate with your attorney on any hospital/group device or using any hospital/group e-mail account.

When the hearing is actually held you want a full record made.  If the hospital will not comply, then offer to pay for a court reporter yourself. If that is denied, file a written objection with the committee head.

If your state laws specifically permit unilateral surreptitious taping then you may consider bringing a concealed recording device into the meeting, but this should be a last resort and done ONLY on approval of your counsel.

At the hearing, any limitations of due process (withholding charts that you needed to prepare a defense, not permitting cross-examination of witnesses, not permitting your own experts to testify, withholding exculpatory evidence, witness intimidation, interference by the hospital attorney in the proceedings, etc.) should be noted on the record. Bear in mind that the cases that found reviewers to lose their immunity were based on serious procedural denials.

 In summary: It is very difficult to sue for the adverse results of a sham peer review. A targeted physician’s objective should be fighting back against the process at its initial level while establishing a record to demonstrate sufficient violations of minimum standards to support a piercing of immunity.