Preparing for a Rotten Day – or Year – at Peer Review

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Guest Post by Dr. Michael Rosenblatt

For many doctors, they will experience peer review as a benign process. Cases are presented. Lessons learned. The beat goes on.

Some “unlucky” physicians experience a different reality. Over the years we have been “trained” to try to avoid malpractice suits. But “peer review emergencies” are no less dangerous because they can result in loss of hospital privileges, income and even your professional license. You are required to report any action(s) against you by boards or hospitals when you apply for a new medical job, purchase/renew malpractice insurance and apply/renew hospital privileges. You are correct in assuming that this could poison your ability to practice. If you don’t disclose this detail, and it is subsequently discovered, you could lose your license.

Are you “Ripe” for a tough Peer Review? Let’s review what can lead to a challenging peer review. Not the bread and butter type.

1. A hostile disagreement with your department head.
2. An unusual cluster of deaths under your care.
3. A nasty disagreement between you and the nurse who runs quality assurance. Remember they have a turf to protect too, and you are walking on it.
4. An argument with a non-professional employee, with or without cause.
5. A pattern of “risk taking” with borderline justification for surgeries.
6. A financial disagreement with your employer.
7. A contractual argument with previous partners.
8. An incident (or more) of anger in the OR or ER against hospital employees.
9. A “dramatic and disruptive” home life that spills over into your professional activities.
10. A long, recent stream of expensive malpractice suits.
11. Obvious jealousy from an entrenched financial adversary. This is especially common in competing anesthesia groups who share hospitals. You need to be aware of others’ turf.
12. If you are a very large “producer” it might seem ironic to see that as a risk, because your employer loves that. But your co-professional employees might see that as a “risk” to their position.

Yikes.

Peer Review: The “new pathway” to fire Physicians

Many physicians decide to work for hospitals and corporations. No need to open an office, secure a practice-loan or manage employees. There are excellent retirement plans, paid vacations and large salaries. We have stars in our eyes when we see the employment contract that was “printed in heaven.” But there are also trade-offs:

Are you aware of their hidden agendas? Corporate medicine has its own rules. Most physicians don’t understand corporate culture. Peer review can not only “fire” you, but also “flatten” you. If it gets ugly, it can…

1. Take-up enormous amounts of your time, effort and energy.
2. Forces you to spend very large amounts of cash for legal defense.
3. Tarnish your reputation making it impossible to sue for wrongful discharge.
4. Destroy your career, which permanently prevents you from attempting redress.
5. Gets you fired or persuade you to quit.

You get the picture.

The process starts-out with farming through your recent charts to select “episodes and occurrences” of potential violations of standard of care.  This may be their first message to you: “Resign.” The end result is Data-Banking you. Threats you make will just spur them on to find other opportunities to Data-Bank you. Medicine is full of natural controversies. All they have to do is just pick some that are part of your specialty. It’s easy.

Some members of the review committee may be sympathetic. But they are under threat too. If they refuse to cooperate, will they be next?

Being Aware of Your Corporate Culture…An Example

You work as an oncologist for a large academic medical center. The center pulls in millions in Government and private grants for original research. As a department head you are expected to organize, obtain grants and publish. You were not hired to just see patients. If you no longer bring in grants, you are not justifying your salary. Look out. Nobody is immune.

“Reading” the signals of your employment status also has an enormous unexpressed advantage: You can leave your present employer BEFORE a paper-trail emerges against your job performance. Once a paper trail has been created, it becomes difficult to refute it. However, you can arrange an “unofficial” talk with a mid-level boss and “agree” that you will separate for “private, family” reasons. That would go on your permanent record instead and you would be able to apply for a new job immediately without fear. Unfortunately the attorney you hire will not likely “reveal” that option. During any negotiation with the peer-review committee that should always be considered an option, before sides and positions are entrenched.

Civil Rights for Peer Review Targets?

You have NO Constitutional right to practice medicine. It is a privilege granted you by the State. You have limited protections regarding any hearings or actions against you. Peer review board members are granted special “immunity” by the state and Federal Government. The only “rights” you have are “procedural,” meaning that you dare not exceed the time limit for any of their demands. Every Board has their own rules. I know because I have written them for my own clients. But attorneys are important, especially at the beginning, because they can prevent you from digging your practice grave with your own shovel.  Slitting the tires of your chief adversaries’ Bentley may feel great, but it does not contribute to your professional survival.

Alternative Medical Employment?

Most physicians believe that even with worst case scenario, they have future employment options. Those “opportunities” consisted of family practice in rural communities, reading and coding charts, professional testimony, insurance company consultation, teaching at medical schools, etc. The problem is that now the regulatory environment for physicians has expanded exponentially. Openings in previous professional work categories now also require reporting of board actions and data banking against you. For example, if you apply for privileges at a small rural hospital, if they take Medicare patients, they are under the same reporting constraints as the hospital that just revoked your privileges. The discouraging message here is that most of those previous opportunities are now closed. A strange upshot of hyper-regulation is that a large number of previously experienced physicians are facing job loss and exclusion from medicine. That could be you. The epidemic of over-regulation has swung so far that our country may now be seeing a large number of competent unemployed physicians who simply cannot get back to practice. Like all over-regulation, untoward side effects occur.

Planning

The best way to fight for your professional life is to have a plan. Most of you have life insurance. Nobody feels cheated if they purchase life insurance and they don’t die.

If you never need to rely on your plan, great. But, have a plan. Let’s start with cash reserves. This means under-spending and saving.  As a minimum, plan on saving at least $100k to pay for legal expenses and another $150k to fund your time when you are no longer (hopefully temporarily) employable as a physician. You can live on that.  Most Americans live on far less. These are just estimates. Many physicians who go through this process spend FAR more. They may laugh at my estimates! But you have to start somewhere.

Plan to go through your legal budget in 6-12 months. By then you will have a clearer idea if you will be able to continue practicing as a doctor. It will also prevent you from going into your retirement accounts (assuming you have any) before age 55 and paying enormous tax penalties to raise money to pay your lawyer.  No money=no lawyer. Your lawyer will not take you through a lawsuit unless you have the money up-front. I am usually against spending $500k dollars to fund a lawsuit against a hospital or your previous employer. They hold all the cards. The odds are against your getting a settlement.

Whom do you hire to defend?

There are attorneys who specialize in peer review. It’s not easy to find the right counsel. You can contact Medical Justice, for example. You can do online research long before you get hit. That way, you will be prepared to make the call immediately. Timing IS important. Your local bar association may have suggestions. Your own family lawyer just won’t do, but they might be able to refer you. Naturally your first thought is to sue. But that’s usually the very last option, because that decision will more likely get you Bata-Banked. That’s how your adversaries fight back.

Alternative Defense

There are non-attorneys who do peer review defense. I worked with one for years, but in the interest of neutrality I will not disclose. It is still essential for you to hire an attorney or spokesperson when you’re notified, because you need someone to speak for you. You may still be the voice, but you want professional and experienced advice. If you try to do everything yourself, you can cause huge damage to your case.  By the time you are officially notified, it is too late to “self-treat.” Most non-attorney peer review consultants also work closely with attorneys. During the early stages, they will speak for you. This may offer you the best of both worlds. There are very few of these consultants, but some have a long record of successful results. Call up some previous clients and ask.

Discuss Saving Money with your Spouse

Your spouse is used to your income. Saving more requires cut-backs. This is more easily said than done. A great way to start is by down-sizing your home. There is no reason to replace your car every year. If you have children in college, encourage them to transfer to state universities. If you are divorced and maintaining two households, you are under enormous pressure. You may have very angry teenage children who expect you to be their credit card. There are no easy solutions, other than trying to avoid it in the first place.  Just remember: Your income can be cut off at any point. There are no guarantees.

Taking Unnecessary Risks

You cannot separate personal finances from your practice. If you are under great financial pressure, (divorce, maintaining two households with college kids) there is a tendency to take on risky medicine and surgery. If you are exhausted you might make more mistakes and be “disruptive” with hospital staff.

Hospital employees now have the power to report you to practice committees. If someone on the peer review committee is your financial competitor, they may be more than willing to take-on your “case.”

The rule on gossip is simple: “When you fart in the change room, they hear it in the Boardroom.” The person whose skills you disparage today will never forget what you said about her. Even if she is not present, your comments WILL get back to her. Five years from now she WILL remember you when she is chair of the peer review committee adjudicating your status.

Some victims of peer review have left medicine to start restaurants, drive trucks and teach at community colleges. In most cases that was not their goal but that was what was left. You have these choices:

1. Save and plan for extended unemployment and be financially prepared for peer review
2. Retire immediately if you have the cash
3. Join the employment ranks of the rest of America

Data-Banking

No article about sham peer review can be complete without discussing data-banked physicians, and how they “get back” into medicine. But there is not enough room here. We will present an article about that later.  Contrary to popular belief, it IS possible.

Be “aware” and watch what is going on around you.  It’s a jungle out there.

Michael M. Rosenblatt, DPM

Disclaimer: The author of this article is not an attorney. If you have legal questions you should consult a licensed attorney who has expertise in the area(s) of your concerns. The purpose of this article is for entertainment and to produce discussion.  It may contain inaccuracies.

[Medical Justice Comments: This is an excellent article on a topic that typically blindsides doctors. Doctors are unprepared for a hostile peer review action. Peer review done right is generally about a single incident. What can we learn from it? How do we prevent such incidents down the road? But, sometimes, the incidents are a convenient excuse to remove a doctor from employment or staff. Sure this makes sense if a doctor is an imminent danger to the public. But, human behavior is tricky and sometimes peer review is abused for less than noble purposes. The good news is most of you will never experience hostile peer review. For those of you who are unfairly challenged, be aware of the risk factors that make it more likely you will experience a kangaroo court. Also, have a plan to survive. A failure to plan is a plan for failure. This past year, I spoke with two physicians who were beaten up pretty badly in a hostile peer review process. But, they both survived and are now thriving. Two reasons they succeeded is because they hired competent counsel and they did NOT go to war.]