Doctor Prevails in Sham Peer Review: How He Did It

Peer review exists to improve the state of medical care. We all want future care to be better than today’s care. But like all things, peer review is subject to human prejudice. Not infrequently peer review is parried as a sword to attack doctors disliked by those in leadership positions (or rivals) in a large practice or hospital.  

Let’s make something else clear. Not all peer reviews are shams. Most are not. But the problem is not uncommon. If you find yourself being reviewed, determine whether the claims propelling the investigation are legitimate.   

If peer review is justified, hire an attorney immediately – and retain someone who understands not only healthcare law but also the nuances of disciplinary actions that may follow an adverse decision. If you are ready to fall on a sword, your attorney will assume responsibility for several critical steps.  These include not only communicating with the hospital, but also… 

• Devising a plan of pre-emptive corrective steps (lessons learned). 
• Establishing a mutually agreed-upon end point to “the plan.” 

• Determining whether the doctor (you) satisfied the established corrective criteria. 
• Including language in the agreement limiting a potential report to the Data Bank. 

Prioritizing these challenges is tricky. If you are a victim of a sham peer review, schedule a consultation with our Founder and CEO, Jeff Segal, MD, JD to learn how we can help. 

If you believe the review is a sham, you must stop the process as quickly as possible. Most doctors know this instinctively, but let’s pause to explain exactly why you cannot drag your feet.  

If a sham peer review is allowed to complete its life cycle, you will have a difficult time convincing the courts down the road the review was unjust. The peer review process is enshrined in both Federal and state specific laws. As far as the courts are concerned, the peer review process exists to protect the public from unsafe doctors first. Put another way – in the eyes of the law, peer review is hallowed ground. So, the courts will assume the review is warranted by default.  

The HCQIA (Health Care Quality Improvement Act) grants qualified immunity to those who participate in the peer review process, further insulating them against claims of damages. That immunity is conditional, however. Under the correct circumstances, it can be pierced. 

Participants in a peer review are granted immunity (from claims of damages) IF… 

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

Those bringing the review action 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. 

On paper, this ruling seems to favor doctors by limiting peer review to cases where it was a last resort. However, the judicial precedent says otherwise. 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.”  

This 5th Circuit Opinion in Poliner was a buzzkill to the plaintiff. He prevailed at lower court to the tune of $366M (yes, that’s $366 Million). The 5th Circuit reversed and Poliner collected nothing.  

What this means for doctors: Something that was not a genuine peer review may receive “peer review immunity” simply because it is labeled as a “peer review.” It should be noted that a court may dispel that immunity if there is a dangerous public health issue in play. As we stated earlier, immunity is largely dependent on the conditions described above. 

Let’s make this real with an example: An emergency room physician propelled a lawsuit against his former employer. He claimed he was terminated for reporting that patients were transferred out of/around the hospital before they were stabilized. When the hospital attempted to play the immunity card, the court rejected the move. The court opined the doctor’s allegations of retaliatory termination were enough to rebut the notion that the peer review was based on a reasonable belief that the facts warranted firing him – a requirement for the HCQIA shield.  

It is worth mentioning that the doctor’s conduct was congruent with the enforcement of EMTALA (The Emergency Treatment and Labor Act), a public policy matter that the court favored. Likely, this aligning of interests worked in the doctor’s favor.  

But frequently, immunity is upheld. Unless there is clear evidence the doctor was a victim of foul play, the immunity granted to the proponents of the peer review will remain unchallenged.  

That’s why it is critical you are prepared to protect yourself from any corruption of the review process before forces conspiring against you invite decision-makers from outside your ecosystem. Keep things limited to your hospital/group.  

Let’s briefly repeat ourselves: As you soon as you are aware the peer review process is underway, retain an attorney who understands healthcare and disciplinary matters that will arise related to an adverse ruling.  

This kind of legal guidance is not cheap. We’ve seen many doctors dive headfirst into the scrum, determined to represent themselves and prevail. They believe that because the peer review is a sham, they will prevail, and the process will be a manageable one.  

Do not to fall into this trap.  

Those who enter the legal mire unprepared quickly find themselves in over their heads.  

And keep in mind any sanctions that limit your privileges for 30 days or more will be reportable to the National Practitioner Data Bank. Peer review findings have become increasingly discoverable in med-mal actions.  

If you are a victim of a sham peer review, schedule a consultation with our Founder and CEO, Jeff Segal, MD, JD to learn how we can help. Schedule a consultation using the link above or the tool below.

“Can Medical Justice solve my problem?” Click here to review recent consultations…

all. Here’s a sample of typical recent consultation discussions…

• Former employee stole patient list. Now a competitor…
• Patient suing doctor in small claims court…
• Just received board complaint…
• Allegations of sexual harassment by employee…
• Patient filed police complaint doctor inappropriately touched her…
• DEA showed up to my office…
• Patient “extorting” me. “Pay me or I’ll slam you online.”
• My carrier wants me to settle. My case is fully defensible…
• My patient is demanding an unwarranted refund…
• How do I safely terminate doctor-patient relationship?
• How to avoid reporting to Data Bank…
• I want my day in court. But don’t want to risk my nest egg…
• Hospital wants to fire me…
• Sham peer review inappropriately limiting privileges…
• Can I safely use stem cells in my practice?
• Patient’s results are not what was expected…
• Just received request for medical records from an attorney…
• Just received notice of intent to sue…
• Just received summons for meritless case…
• Safely responding to negative online reviews…

We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.

 

Once you’ve marshalled your legal resources, you can advance with confidence. Your chief objective? Assert appropriate due process. Take back control. We’ve listed the tenants of a proper peer review below… 

The review is supposed to be a neutral forum. 

The doctor can have legal representation.  The doctor can confront witnesses. 

A verbatim transcript must be maintained, rather than just minutes or notes. 

Your actual rights are defined in the by-laws of your hospital and the terms of your partnership with your hospital/group.  

But don’t expect these rules and terms to serve your best interests. Expect a handicap.  

For example: According to most medical staff by-laws, simply proving that the peer review committee was “in the wrong” is insufficient. The doctor must also prove the disciplinary actions taken against him were arbitrary, capricious, or unreasonable. The barrier is high. 

So, what’s the best approach? 

Your goal is to stall the advance of the “objective test.” Therefore, focus on what you are entitled to as outlined by the HCQIA. Start with the question of notification. A bona fide peer review notice is the sum of two parts – the notice of the underlying allegations and the notice of the peer review itself.  

You should be aware of the suspected problem long before the meeting is held. A last-minute notice is bad form. You should be notified of the meeting in advance so you can prepare to contest it. Access to copies of ALL complaints specific to the review should also be upheld. These documents include incident reports and formal requests for an intervention.  

When you obtain these documents, start hunting for impermissible hearsay – a statement (heard second hand) that is presented as the truth. 

Here’s an example of what to look for: “Many patients complained that Dr. Doe shouted at them.”  

This statement can be defined as impermissible hearsay because it depends on the testimony of unnamed persons. Many patients, nurses, or doctors may have complained – but who were they? If the speaker(s) are not named, they cannot be questioned – which brings us to our next point. 

Documents that have been redacted to obscure the identities of complainers are not kosher. Complainers are protected from retaliation, but their identities must be known so that they can be readily cross-examined. If these individuals have been made unreachable, that’s a foul. 

Keep in mind it is your burden to prove the review was a sham. Therefore, keep your eyes peeled for irregularities in the evidence. The most obvious examples would be complaints propelled by a competing surgeon (and his subordinates) or a complaint propelled by a politically powerful leader with whom you’ve fought in the past. A negative review propelled in isolation suggests bias.  

You’ve likely heard the phrase: “Round up the usual suspects.” Take it to heart. Identify the entities in your ecosystem who may have an axe to grind. Your rogue’s gallery may include former spouses, competing surgeons, disgruntled committee members, etc. In short, anyone who’d want to “run you out of town.” Colleagues who may be harboring a personal grudge should be identified and removed as soon as possible. If they have not extracted themselves of their own volition, make this demand in writing to recuse and memorialize it.  

And pay attention to the composition of the review committee. If the committee members are all chosen by a suspected adversary (recall the vindictive CEO), the exercise appears suspicious from the start. Conversely, a committee selected by staff members and frequently rotated is less suspicious and more likely to repel scrutiny.  

Once the case gets off the ground, embrace silence. Keep your lips sealed. Don’t discuss the case with friends. And if you suspect your hospital/group is conspiring against you, don’t use tools they’ve provided to communicate with your attorney. Assume your adversaries have access to such communications.  

Now that we’ve laid the ground rules, let’s discuss the hearing itself. First, insist that a full record is made. If your adversaries attempt to dodge (citing the cost), offer to pay for a court reporter out of pocket. If they continue to deny this request, direct a written objection to the committee head.  

When you feel the odds are stacked against you, the temptation to conceal a recording device is strong. Don’t be careless. The use of a concealed recording device is only advisable if two conditions are satisfied… 

Your state allows unilateral surreptitious taping (one-party recording states). 

Your counsel approves the strategy. 

Returning to the hearing: Any attempts to impede due process must be noted. One of your goals is to prove the peer review was rigged. If the immunity granted to your adversaries by HCQIA is a castle, these arguments are your cannonballs. If they are careless and leave behind an abundance of evidence, it is possible their immunity will crumble. 

We’ve listed a few examples of common impediments to due process… 

The withholding of charts necessary to prepare a defense… 

Not permitting cross-examinations of the witnesses… 

Not allowing your own experts to testify… 

Withholding exculpatory evidence… 

Witness intimidation… 

Interference by the rival attorney in the proceedings… 

Keep in mind that in most cases, reviewers only lost their immunity after several critical procedures were denied. You’ll need more than one cannonball to make the castle capitulate. 

To summarize: Once a peer review is in motion (sham or no sham), stopping it is difficult. And if the peer review completes its life cycle, overturning the outcome is frequently out of the question. Therefore, fight against the process as soon as you smell trouble. In addition, create a record that proves the entities propelling the review have ignored/violated the minimum standards enshrined in state and federal law. Doing so increases the chances peer review “immunity” will dissolve, which creates an opening for you to more directly dispute its efficacy. 

If you are a victim of a sham peer review, schedule a consultation with our Founder and CEO, Jeff Segal, MD, JD to learn how we can help. Schedule your consultation using the link above or the tool below. How do you feel about peer review? Let us know your thoughts in the comments.

“Can Medical Justice solve my problem?” Click here to review recent consultations…

all. Here’s a sample of typical recent consultation discussions…

• Former employee stole patient list. Now a competitor…
• Patient suing doctor in small claims court…
• Just received board complaint…
• Allegations of sexual harassment by employee…
• Patient filed police complaint doctor inappropriately touched her…
• DEA showed up to my office…
• Patient “extorting” me. “Pay me or I’ll slam you online.”
• My carrier wants me to settle. My case is fully defensible…
• My patient is demanding an unwarranted refund…
• How do I safely terminate doctor-patient relationship?
• How to avoid reporting to Data Bank…
• I want my day in court. But don’t want to risk my nest egg…
• Hospital wants to fire me…
• Sham peer review inappropriately limiting privileges…
• Can I safely use stem cells in my practice?
• Patient’s results are not what was expected…
• Just received request for medical records from an attorney…
• Just received notice of intent to sue…
• Just received summons for meritless case…
• Safely responding to negative online reviews…

We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.

 

Learn how Medical Justice can protect you from medico-legal mayhem… 

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.