Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below. The information presented on this site is for general educational purposes only. It is not specific medical or legal advice. Nothing on this site should be construed as establishing a doctor-patient or attorney-client relationship.

Doctors are often angered by the knowledge they are judged in a medical malpractice case by a jury of laypersons, not by “their peers.” These individuals are not doctors, nor do they have any substantive medical knowledge. Even in a Medical Board hearing, some lay members will participate. A peer review, though, is just that: doctors evaluating doctors.

So, it should be fairer, right?

Perhaps…or perhaps not. Doctors must understand the process to avoid the traps and achieve the best outcome.

What is peer review?

Peer review is best understood operationally as a performance evaluation, but unlike a periodic assessment, it is typically initiated by a “triggering” event.

That event doesn’t have to be negative. For example, it’s possible the doctor just wants to expand the scope of his privileges. However, more often, there is a complaint (or complication). This situation is the one that concerns doctors the most. Let’s dig in.

What’s the purpose of peer review?

Medical malpractice actions are designed to compensate a medically harmed individual. In contrast, peer review is conducted to ensure general patient and staff safety and quality of care. The idealized version of peer review is grounded on a reasonable difference of opinion on standards of care that can be resolved inter-professionally.

But the more sobering reality is the subject doctor is being evaluated as to whether they represent a threat to their patients or co-workers.

A peer review may begin with a summary restriction of privileges or employment while the investigation proceeds. In most cases, though, the process will continue while the doctor continues to practice normally.

Who does peer review?

Peer review is conducted by a committee established solely for this purpose or even an external committee contracted by the facility or group. The second option is more common with smaller groups that lack the staff to support a separate committee or when the group wants to maintain a neutral distance from the process, eliminating a perceived conflict of interest.

The nature of the triggering event may also determine who does the review. A credentialing committee would handle a review for advancing privileges, an ethics committee would handle a conduct issue, and a clinical committee would handle a matter of medical standards.

Any committee member with a real or perceived conflict of interest with the doctor in the crosshairs should recuse themselves. A failure to take this reasonable step opens the hospital or group to a lawsuit for conducting a sham review, and, as we will see in Part 2, this is one of the few issues that a court will consider.

Will the doctor be informed that they are under review?

Generally, yes. But not always. Regardless, there needs to be a contemporaneous record of some type of investigation; meaning a hospital cannot retroactively argue that the doctor was under investigation and because the matter was serious, no notice was given (unless its internal records truly reflect that). If and when a doctor’s privileges are curtailed, he will be informed. Obviously.

What should the subject doctor’s first steps be?

A doctor notified that a peer review process has started must contact his insurer immediately. This will satisfy any notification requirements and will get the doctor assigned to counsel.

If they are not covered for this (every doctor should check their policy to make sure they have coverage and that coverage is adequate!) then the doctor should hire independent counsel experienced in disciplinary actions as soon as possible. The most significant error that a doctor can make is to assume because this is a process run by other doctors, they can just “explain themselves” and put an end to it. That will be that.

Peer review may not be conducted in a court, but it has legal underpinnings that are foreign to most doctors. The process can have dire consequences. And so one is well advised not to just wing it.

Then comes the step that many doctors will find difficult: Stop talking.

Following this advice will be challenging. Unlike the defendant in a malpractice case – conducted in deposition rooms and courtrooms – or as the subject of a Medical Board hearing at the Board’s offices, a doctor under peer review will feel that they are on familiar turf.

They will lower their restraint. They will likely see their accuser and evaluators in the hallway or the cafeteria. However, friends and colleagues receiving the doctor’s vents may become witnesses.

Trying to talk to staff about the situation may be misinterpreted as intimidation. Any attempt to discuss the matter with a committee member will be viewed as trying to obstruct the process. Silence except as to counsel – where the communication is privileged – is unequivocally the safest route.

And any conversation with counsel should never use any hospital/group device or any hospital/group email account. Because doing so can be held to have waived that privilege.

To be safe, set up a dedicated email account (or use your personal email account) for the case and use a temporary phone (or a phone not connected to the hospital in any way).

How should a subject doctor prepare for a peer review?

The best first step is to do an honest review, objectively considering the records and the facts the committee is investigating.

If the allegation concerns the quality of care, the subject doctor should compile citations from texts and journals to support what they did and why. If the issue is a matter of conduct, they should be prepared to explain the behavior in context.

Then review those facts with the lawyer. This is protected communication. So this must be an honest discussion. Don’t hold back. If the lawyer can craft a soft landing, then this is the point to start that effort.

What are the steps in the peer review process?

The practical steps derive from ethical requirements the peer review committee should follow. For the review to be fair and objective, the alleged wrongdoing must be specified. And the committee must investigate all relevant facts. No cherry-picking. The subject doctor must receive adequate notice of the process and their right to a hearing.

The committee will gather and review documents and may conduct interviews with complainants and witnesses. The subject doctor will be allowed to see what was considered and may provide their own explanations in writing or at a hearing.

The reviewers will assign a score to their findings. This can range from “nothing to see here” to extreme severity.

For example, in a clinical practice matter, the finding may range from “no error” to “catastrophic error,” with multiple intermediate levels. The perceived severity level determines whether a subsequent action is warranted and, if yes, whether it will be corrective (such as training or monitoring) or punitive (privilege restriction or loss, referral to Medical Board or prosecutor).

The subject doctor may also request a hearing, where they can be represented by counsel, for appeal after a negative review. Still, this will occur within the peer review system, not in court. The time frame for exercising the hearing is strict. Failure to meet deadlines will be treated as having waived the option.

Is there due process for the subject doctor?

Peer review hearings come under the Administrative Procedure Act of 1948, but that statute only deals with generalities; for example, the review is supposed to be in a neutral forum, and the subject is entitled to counsel and confront witnesses.

Constitutional due process, which is very protective of the defense side, may or may not apply.

If the hospital is governmental, or if the review is covered by state laws that impose due process requirements, then those will apply. But in an entirely private setting, the facility’s regulations will control. What then determines a subject doctor’s rights in this critical process are their employment contract, their partnership agreement, and/or very importantly, the bylaws of the facility or group.

A more modern stature, the Health Care Quality Improvement Act (HCQIA), which we’ll discuss in more detail in Part 2, requires private entities to provide due process as the quid pro quo for conditional immunity from lawsuits over peer review activities.

However, HCQIA doesn’t enumerate specific protections, and due process can be overridden in critical circumstances without losing HCQIA protections.

Most cases, though, will not require emergency curtailing of the subject doctor’s activities or status, and most bylaws and contract terms will be facially fair. So, the primary issue will be whether the due process protections were actually applied.

In that context, the subject doctor should request a copy of the most recent version of the bylaws. That document, and any contracts or agreements with the hospital/group, should be sent to counsel.

What if the subject doctor is put under duress by the peer reviewers?

Sometimes the subject doctor is presented with this Hobbesian choice. If they don’t agree to a partial or complete restriction of their privileges while the review proceeds, or if they do not immediately resign, the hospital will initiate peer review that will be reportable to the state and the National Practitioner Data Bank (NPDB).

A subject doctor faced with such a situation should keep two facts in mind:

• If the bylaws permit such, the committee already has the inherent power to summarily limit or remove a doctor deemed too dangerous to patients or too disruptive to staff while the peer review process is carried out. A demand the doctor sign off on this is designed either to get a veneer of consent as protection for the hospital/group or to have the doctor agree to a condition the committee actually lacks the bylaw authority to impose on its own.

• As we will see below, accepting a practice limitation, or resigning, to avoid a peer review will itself be reportable. Ugh.

The subject doctor should instead immediately call their malpractice carrier to receive representation and let the lawyer interface with the facility on their behalf.

As we will see in Part 2,  suing after the fact is challenging for the doctor. So, no doctor should just sign away their privileges or employment in the belief they will be able to claim duress later.

What if the subject doctor is summarily restricted while the peer review process proceeds?

If the lawyer can’t work this out with the committee, it may be necessary to seek equitable relief from a court. This may seem confusing since the peer review is not a legal proceeding. However, peer reviews only take place because the relationships that underpin it – employment or facility bylaws, contracts, partnership agreements, etc. – are legally enforceable and a court can adjudicate claims that arise from them.

The subject doctor can seek a declaratory judgment to state their rights. If their privileges are neutered, they can seek an injunction compelling reinstatement while the review process plays out. Such action is not futile.

How does the NPDB fit into the peer review process?

Only those entities with formal peer review, which includes due process and appeal rights, whether in-house or by a free-standing committee, may report the results of a peer review to the NPDB.

Adverse actions by a peer review committee that affect the doctor’s privileges and/or ability to practice for more than 30 days are reportable to the NPDB. These include individual restrictions on performing specific procedures or a requirement for monitoring, suspension of privileges, and revocation of privileges. If one cannot independently exercise privileges, that’s a restriction. If restricted for more than 30 days, that’s reportable to the NPDB.

Voluntary submission to a restriction or loss of privileges is also reportable (if lasting more than 30 days or is expected to last more than 30 days) if done while the doctor is under investigation by the peer review committee or to avoid an investigation.

Although the doctor should receive notice that the review exists, dates can overlap. So if there is any ambiguity and the doctor wants to leave, they should first get a written statement from the facility that there is no investigation going on or planned at that time. Read this sentence again. The toothpaste can’t be put back in the tube.

However, a report to the NPDB cannot be submitted before a final determination, which includes hearings and appeals. Pre-emptive reporting by a facility before a matter is fully adjudicated is a serious violation. If the case goes against the subject doctor but is not yet closed, they should request copies of their file from the NPDB, keeping tabs on the date of any report, and should inform the NPDB of any premature reporting.

The NPDB’s dispute resolution process doesn’t look at the underlying reasons for the report, such as the merit of a complaint, or whether the reporting entity treated the subject doctor fairly. It only considers whether the report conforms to its regulations, such as timing, as just discussed.

If a report is upheld and the doctor still believes it does not reflect essential context and facts, they should supplement the report with a personal statement drafted with their lawyer. The NPDB will publish this in its database and send this update to any recipients who previously received the report.

Can the result of peer review be used in a malpractice case?

Peer reviews have traditionally been kept confidential. However, the opinion of a peer review committee, perceived by jurors to be acting for public health, will likely carry more weight than a hired expert, and will not be subject to cross-examination.

Courts have become more willing to order the release of information that may bear liability in a malpractice action. This is because they do not fear a chilling effect on the process itself. After all, peer review will still be mandated by applicable law and by regulatory and professional organizations.

A plaintiff seeking the release of a negative review will argue that HCQIA and state immunity will protect the reviewers themselves but that the results of the review should be available, as a matter of public policy, to a medically-harmed individual seeking compensation.

A defendant doctor seeking the release of a positive review would either have to get the committee to waive confidentiality or move to have it released. Of course, they can waive their own confidentiality and testify about the results of their own review.

In Part II, we will look at situations where the peer review system is abused.

In summary:

Peer review has the benefit of doctors being evaluators. However, it can have wide-ranging effects on a doctor’s career at their institution and through the NPDB and, increasingly, in malpractice actions. Doctors, working with counsel, should therefore ensure that they get their full due process rights.

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.