Peer review has the benefit of doctors being evaluators. However, it can have wide-ranging effects on a doctor’s career at their institution, through the National Practitioner Data Bank (NPDB), and (increasingly) in malpractice actions. Doctors, working with legal counsel, should therefore ensure that they get their full due process rights.
Below, we provide a detailed primer on the peer review process, followed by a discussion of how to protect your license and survive a sham peer review.
I. The Basics of Peer Review
Doctors are often angered by the knowledge that 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.
Chief Executive Officer & Founder
Jeffrey Segal, MD, JD is a board-certified neurosurgeon and lawyer. 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.
II. Recognizing When Peer Review is Improper, and How to Fight Back
The general rule is that peer review is an immunized process under federal and state law. A subject doctor should never assume that they will be able to bring a lawsuit later. Instead, they and their lawyer should challenge every improper step along the way to either correct the process or create a record that will persuade a later court to pierce the immunity shield.
As we explained above, the peer review process has the benefit of doctors being the evaluators. However, it can be done incorrectly or misused either as a personal grievance or a business gambit, all while enjoying a presumption of being proper. Doctors, therefore, need to be aware of how to safeguard their interests.
Are peer reviewers immune for their actions?
When peer review became common in the 1980s, subject doctors often responded by filing lawsuits against facilities and reviewers. A ruling by the Supreme Court (Patrick v. Burget) allowed a doctor who lost his privileges to prevail against competitors abusing the peer review process. The legal theory was state anti-trust law. At the time, the outcome predicted a chilling effect on the willingness of doctors to serve on peer review committees.
The Health Care Quality Improvement Act (HCQIA) addressed this concern by establishing qualified immunity for peer reviewers.
Under this statute, a reviewer or entity could get a legal case against them dismissed if they could show:
- Good faith, meaning that the review was undertaken in a reasonable belief that it was to further health care quality, and only after a reasonable effort to actually obtain the facts, and that those facts warranted a review.
- The procedures were fair to the subject doctor.
HCQIA presumes a process to be fair if five elements are met:
- Notice
- A hearing with a record or transcript
- The right to an attorney
- The right to call and cross-examine witnesses
- The right to submit written argument after the hearing
States have also created such “safe harbors” in their own laws.
As a matter of public policy, peer reviewers are provided significant protections.
This also applies to cases with summary limitations or removal of privileges during the review. In that regard, courts look to the principle of patient protection that underpins the peer review process.
A reviewer can therefore expect to win on an immunity defense if:
- their actions were part of a standardized professional review (even if it is not specifically called “peer review”),
- the facts at the time made that review objectively reasonable (even if later proven wrong), and
- the subject doctor received due process within the parameters of patient safety.
Can the doctor sue if the peer review is just a sham?…
The doctor can bring their case only if they can defeat the immunity shield.
In this setting “sham” has a precise meaning. It doesn’t mean that the subject doctor disagrees with the review or that the review turned out to be unfounded after all the evidence was presented – it means that the review was unfair, that it targeted the doctor without merit, likely prompted by personal or business reasons.
…which should be provable, right?Well, only if the doctor can even bring their case.
How the Courts Have Interpreted HCQIA
Courts start from the doctrine of non-review in evaluating the substance of these investigations. The peer review process is firmly institutionalized under federal (HCQIA) and state law as a necessary safeguard of public health and is afforded great presumptive credence.
The “business judgment rule” also factors as relevant. That rule holds that the governing board of a private entity has the right to determine and direct its internal business affairs. In the case of a hospital, those business affairs include defining medical standards. So, courts will err on the side of the self-policing that the peer review process allows.
Courts also tend to view hospitals as virtuous entities solely focused on safety and quality. They will start with the assumption that the goal of any investigation is to uncover and prevent problems in care.
The result is that HCQIA has been interpreted to permit immunity for a hospital’s peer review regardless of “animosity,” “hostility,” or “bad faith.”
Mixed-Motive Peer Review Processes
Even a mixed motive will not defeat a court upholding immunity for the review. The prototypical example of a mixed motive case was Poliner, where the doctor’s care was considered questionable, but there was also a well-argued business competition overlay.
Cases Where Peer Review Process Has Been Considered Improper
Courts found the peer review process to be sufficiently improper when it involved other important public health policies. For example, when a doctor was sham reviewed for revealing the hospital’s breaches of EMTALA. Or the case where only two charts were eyeballed before the doctor’s privileges were revoked and a false report was sent to NPDB for review. This was considered well outside HCQIA’s good faith requirements. There, immunity for peer reviewers was lost.
Challenge Any Corruption of the Process in Real Time—Not Later
Still, a doctor should not sit idly by pinning one’s hopes on a lawsuit down the road. Instead, they should challenge any corruption of the process while it is occurring.
However, not all poorly conducted peer reviews are shams. Some are just procedurally sloppy, with poor record keeping and a lack of formality, and others are based on mistakes, with reviewers acting outside their authority. However, even if there is an intention to be fair to the subject doctor, those lapses in process can also deny them their due process rights in a practical sense.
Each step in the process should be independently reviewed by the subject doctor and their lawyer to determine if it should be challenged.
The nature of the reviewing body itself is a threshold issue. Remember that only a formalized review with due process and an appeal option qualifies for immunity. The reason for this is obvious: a hospital or group should not be able to convene a kangaroo court to go after the doctor. However, that a committee is a standing entity does not make it appropriate if its procedures lack the required protections. A stand-alone committee set up just for the particular complaint and not even titled as “peer review” may still pass muster if it meets the due process and appeal criteria.
How can the subject doctor push back on an improper peer review process?
The next step for the subject doctor is to assert the entitled due process at every step.
Notice is a critical issue. Substantively, the doctor is entitled to know if a review has started and what the allegations are. Importantly, while the bylaws may mandate that doctors be informed (provided notice) of a pending investigation, the Data Bank requires no such condition. However, the procedural aspect matters as well. Notice must be given by the timing and specific method (for example, in writing by certified mail) that the bylaws require. If the notice is procedurally defective, it should be challenged even though the defect will likely just be corrected – the challenge puts the committee on, well, notice, that the subject doctor is aware of their rights and is paying attention.
Notice also goes back to the right to correct a problem under a contract, privileges agreement, partnership agreement, or the bylaws. Any issue about a doctor’s professional or personal conduct sufficient to warrant a peer review was likely identified earlier. Suppose their association document or bylaws include a right to be notified of a problem contemporaneously and to allow such a problem to be remedied within a specified time. In that case, bringing an onerous summary proceeding instead is a breach at best and a marker of essential bad faith at worst.
The reviewers are then responsible for keeping a record of copies of every document that was reviewed. The failure to do so suggests that the review is not being conducted with the required formality. It also suggests a lack of a basis for the review. In other words, if it is just a sham, then formal foundational documentation will be missing. This can serve as another real-time challenge.
Ask for the Records in Writing
Complaints, Incident Reports, or Formal Requests for Intervention
If the subject doctor is not furnished with all complaints, including incident reports and any formal requests for intervention, they should demand those in writing. The failure to supply them also goes to a lack of due process or possible evidence of a sham proceeding.
Such statements should then be reviewed for their actual substance. The doctor and their lawyer should be looking for (a) anonymous reporters, (b) uncredited hearsay (“Lots of nurses have told me that Dr. A is very rushed when he closes episiotomies”), and (c) allegations by competitors or solely by administrators on medical matters without medical staff back-up. All such statements should be challenged in writing.
Committee Proceeding Records
A legitimate peer review committee will also maintain appropriate records of its proceedings. A qualified individual, such as a medical staff secretary, should be taking the notes and transcribing them into formal minutes the committee approves. In particular, which committee member reviewed what document or what aspect of the case should be noted. Records should also include specific comments and concerns and any responsive discussion by the other committee members. Failure to do so and just making conclusory notes or keeping vague minutes undermines due process—and may support a thesis that the process is about something other than actual correction of a specific care or conduct problem.
(Again, challenges should be submitted in writing.)
Actual pre-judging of the matter would, of course, make any subsequent procedure a sham by definition. However, such language will not likely be stated in the minutes. Nevertheless, the subject doctor and their attorney should also be on the lookout for evidence that rubberstamping of a pre-ordained conclusion is what really happened.
Pay attention to the presence on the committee of professional rivals or anyone with a personal grudge. A committee hand-picked by the hospital CEO is also suspect. The subject doctor can demand appropriate recusals. The Patrick case focused on peer review as a cudgel against a competitor. Courts will take this issue very seriously. So, the subject doctor wants to get their objection into the record, even if the request for recusal of the conflicted member is refused.
If there is a hearing, a transcript should follow. If the hospital committee refuses, then the subject doctor should offer to pay for a court reporter. And file a written objection if that offer is refused. Any of the following actions should be noted in that record, such as (a) withholding needed charts, (b) not permitting cross-examination of witnesses, (c) not permitting the subject doctor’s expert to testify, (d) withholding exculpatory evidence, (e) witness intimidation, and (f) inappropriate behavior by committee members during the hearing. (In a state that allows it, surreptitious taping should only be done with the lawyer’s knowledge and permission.)
The committee’s final action may demonstrate that the process was a sham if it is arbitrary or punitive without a nexus to the allegations. For example, requiring psychiatric clearance for a subject doctor whose mental state was not an issue. If the committee’s power is exceeded, this can serve as evidence of a fundamental error in the process or an intentional sham. For example, a committee concluding the subject doctor’s privileges are revoked when the peer reviewers can only recommend such action to the Medical Executive Committee.
Look Out for Unethical Commentary Outside the Official Proceedings
The subject doctor should also keep their ears open for anything outside the room where the committee meets. As discussed above, the subject doctor should not discuss the process. The same goes for the committee members. While ongoing, the peer review process is supposed to be kept confidential. Comments in the doctor’s lounge or at a party may also provide evidence the process was always a sham. Finally, talking outside the process can strip a reviewer of their status as an agent of the hospital or group. As an “individual” without immunity, the reviewer may be vulnerable to an allegation of conspiring with other doctors or with the facility to “get” the subject doctor.
These points may not stop the improper process. But successful legal challenges have been based on stripping immunity related to procedural defects and denials of the entitled due process. Challenging the process will ideally correct the problem. Regardless, it critically preserves the facts that suggest impropriety for a later lawsuit.
Encountering a sham peer review can be a daunting experience, but you don’t have to face it alone. Join Medical Justice today to gain access to a wealth of resources and benefits, including our hotline where you can speak directly with Dr. Segal and our medico-legal experts.
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