Peer Review Problems & Solutions

by Dr. Richard B. Willner, Executive Director, Center for Peer Review Justice

Due Process Rights

 Medical peer review is the process by which a committee of physicians investigates the medical care rendered by a colleague in order to determine whether accepted standards of care have been met. The professional or personal conduct of a physician may also be investigated. If the committee finds that the physician departed from accepted standards, it may recommend limiting or terminating the physician’s privileges at that institution. If the physician’s privileges are restricted for more than 30 days, federal law requires the peer review committee to report that fact to the National Practitioner Data Bank.

There is no federal statute that requires peer review committees to observe due process, which the Supreme Court has defined as (1) giving written notice of the actions contemplated, (2) convening a hearing, (3) allowing both sides to present evidence at the hearing, and (4) having an independent adjudicator (2). Prior to the Health Care Quality Improvement Act of 1986 (HCQIA) (3), the effects of an adverse peer review finding were restricted to the hospital involved. Because the HCQIA mandates the reporting of disciplinary actions of peer review committees to the National Practitioner Data Bank, such a report could harm a physician’s career throughout the nation.

Medical peer review is usually based on the screening of medical records, which places physicians with poor record-keeping skills at a disadvantage, and ignores the fact that medical records are often a poor indicator of the quality of care (5). Additionally, there is no requirement that the physician be given notice and an opportunity to be heard, and there is no requirement that members of the peer review committee be unbiased. The HCQIA recommends that the physician should get notice of the allegations, time to prepare for a hearing, a list of witnesses, the right to legal counsel, and an impartial fact finder. However, the act concludes “A professional review body’s failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of this act).” This failure of the HCQIA to require due process calls into question the fundamental fairness of the medical peer review system.

The reason that due process should be a part of any fact-finding endeavor was stated by Justice Goldberg in SILVER v NEW YORK STOCK EXCHANGE:

‘Experience teaches…that the affording of procedural safeguards, which by their nature serve to illuminate the underlying facts, in itself often operates to prevent erroneous decisions on the merits from occurring .’
 

The purpose of requiring due process is to ensure that the actions taken are not arbitrary, capricious, or unreasonable. Where there is no due process, the system invites abuse.

Peer review in its current form fails to protect an investigated physician from committee members having an economic or personal bias. Economic bias occurs when a committee member has a financial interest in the outcome. If the challenged physician is a partner or associate, any error that he may have made is likely to be considered to have been unavoidable. On the other hand, peer review has already been used to force a competing physician out of practice. Such economic bias denies due process . The United States Supreme Court struck down a decision from Ohio’s municipal court system in which the judge was partly paid from the fines he assessed. The Court found that the system gave an incentive to rule one way rather than the other.

Personal bias is inevitable when coworkers judge each other. Some people are very likable, and others illuminate the room by their absence.

Federal law prohibits a federal judge from hearing cases in which his impartiality might reasonably be questioned or in which he has a financial interest . The same standards should apply to member of a peer review committee. The potential for abuse when these suggested procedures are not followed would indicate the need for mandatory due process.
Due process, which is designed to limit these abuses, is not required by the Constitution of the United States unless there is government action that affects a liberty or property right. The case of PAUL v DAVIS illustrates the legal meaning of property rights as applied to employment. The police labeled the plaintiff as a shoplifter and advised local businesses to watch him carefully. The plaintiff sued, claiming that the government was injuring his reputation without due process. The Supreme Court ruled against the plaintiff, but stated that should there be an effect on employment, then such injury would invoke the constitutional protection .

The sole reason for reporting the results of peer reviews is to restrict the practices of incompetent physicians. Congress cited the following as the very reason for the act: ‘There is a national need to restrict the ability of incompetent physicians to move from state to state without disclosure or discovery of the physicians’. incompetent performance .’

The right to practice medicine without a governmental agency erroneously reporting that a physician has been deficient in his actions is a constitutional property right. Rights, even constitutional rights, can be waived by express agreement, or by the failure to assert those rights. State institutions, however, may not make waiver of a constitutional right a condition for employment .

In 1986, New York State enacted a system of physician discipline that includes a hearing presided over by an administrative law judge, to ensure due process. Although this system provides due process, it has the glaring problem of giving control of hospital privileges to lawyers. A far better solution is for peer review committees to be required to observe due process. Lawyers and other non-physicians may have a role as consultants, but should not be voting committee members.

The effects of an adverse peer review decision are no longer limited to the relationship between a physician and a hospital. The decision becomes part of the National Practitioner Data Bank. Medical peer review must provide physicians the protections of due process.

Terrifying Results of “Physician Peer Review Fraud” (Sham Peer Review)

Regarding “Suspended Physician’s Hearing Put on Hold”  ( AMNews ):  The concept of a patent’s alleged “imminent danger” coupled with legal immunities guaranteed by the federal Health Care Quality Improvement Act of 1986 ( “HCQIA”) and similar state laws, followed by the Courts’ reluctance it second guess physicians’ “professional” opinions, can lead to terrifying results for the physician under fire.   Both medical institutions ( e.g. hospitals) and state medical boards can play the “summary suspension” trump card on a hapless victim without fear of significant legal liability or effective judicial review.  The physician being so attacked has little recourse, and he or she may suffer terrible and irreparable monetary loss, even if demonstrably  “not guilty”.

Suppose, for example, a hospital and/or members of its staff want to get rid of a “difficult” doctor, or one who is just too successful (too competitive).   Clandestine collection of numerous “questionable” cases, sometimes spanning a number of years (as in the case of Dr Gil Mileikowsky detailed in the AMNews story) can be performed as a “quality assurance” function and the physician’s credential’s summarily suspended “pending due process hearings” which take literally months or even years.  During that time, the physician is forced to use other facilities, if available, or begin the (long) application process to move to a different facility.  Remember, however, that their other hospitals or clinics ( and other states) must be informed of the summary suspension at the index institution, often precluding the practitioner’s ability to practice anywhere.  After all, a summary suspension only occurs if the doctor is thought to be “dangerous” to patients.  This is especially damaging to a surgeon, ob-gyn, or other practitioner who is dependent upon hospitals for practice.   And if the doctor does NOT inform other institutions of the suspension, that in itself is grounds for denial, suspension or expulsion from a medical staff.  Also note that any suspension which lasts longer than 30 days is reportable to the National Practitioner Data Bank ( “NPDB”), The snowball effect is incredible!

Another scenario: A “good ole boy” clique or a hospital administrator takes offense at a target doctor and sends a few select anonymous complaints to the state medical board.  Perhaps someone also had a chat with a buddy on the board itself (with no discernible paper trail, though).  If the board can be convinced that the doctor is enough of a threat to someone, or that he or she can be made to LOOK like a threat, at least on paper, the upshot might be summary suspension of the victim’s license, pending “investigation and due process hearings” which, again, takes months.  In the meantime, the physician is without a license – i.e. without a means to earn a living.  Often, the only way to avoid bankruptcy and closure of a practice is to plea bargain with the medical board, in effect pleading “guilty” to some aspect of the charges (called a “consent order” in some states).  The physician is then under the magnifying glass of the board for the rest of his or her medical career, an entry is made into the National Practitioner Data Bank ( “NPDB” or “Data Bank”), and all future dealings with hospitals or other entities are shrouded in the taint of a data bank entry and an action against the license by a medical board.  These days, you cannot even easily run to another state.  And since it is a consent order, it is VOLUNTARY.  When you gripe about it to your friends or colleagues, they remind you :  “Well, didn’t you sign that thing voluntarily?”  Wrong -doing is basically admitted.  And admitted wrong-doers are not the objects of much sympathy.

What recourse does the victim physicians have?  If you think you are right, stand and fight.  Then you pay for lawyers, your practice ( i.e. income) declines, and your reputation0n suffers.  In fact, if one fights TOO hard, and alleges that the allegations are spurious and defamatory, a physician runs the risk of “offending” the original accusers and their friends.  After all, they are acting in “good faith”, aren’t they?  Well, maybe yes, maybe no.    In  Dr Gil Mileikowsky’s case, dredging up 10 year old incidents to make the case for “imminent” patient danger seems a bit suspicious.  AMNews has previously reported on a case from New Orleans wherein one or more of the committee doctors acting in “good faith” apparently purposefully lied or hid important information during the administrative process.

In any case, it is clear that this type of action is a very suitable weapon for professional assassination.  And if the assassins are “caught”?  They hide behind the Health Care Quality Improvement Act of 1986 ( “HCQIA”)and claim peer review immunity.  The mantra is:  “Well we were just concerned about the safety of the patients.  We’re sorry we got the facts wrong.  We really meant well…”  In such a situation, unless the victim really has a believable “smoking gun”, the perpetrators get off with no fine or penalty, and the victim physician, who many have lost months or years of practice, not to mention attorney fees and other costs, simply gets to go back to work with a bloodied and battered reputation.  In court, the judge will defer to the doctors.  After all, HE did not attend medical school, THEY did.  If they were scared for patient safety, well, they are professionals and we should trust them.  The court will not substitute its judgment for the judgment of the medical professionals.  And doctors ARE supposed to police themselves, aren’t they?

But, hey!  Are these scenarios common?  After all, we ARE professionals.  How often does assassination by peer review actually occur?  The reader is directed to the Center for Peer Review Justice ( www.PeerReview.org) and other organizations to read about hundreds of hair-raising stories of physicians and surgeons who have had their reputations and livelihoods destroyed by Physician Peer Review Fraud ( Sham Peer Review), done by some of our more unscrupulous colleagues.  One of the best defenses against winding up a victim like Dr Gil Mileikowsky is to first be aware of the magnitude of this problem and the danger that this could happen to you!  The next step:  Make good friends with the Center for Peer Review Justice and their independent lawyers who know HCQIA and Healthcare law.

The AMANews article that I referenced was written on June 18, 2001.  Today is  September 7, 2011, ten (10) years later.  Physician Peer Review Fraud ( Sham Peer Review) has become far more popular and far more destructive to a doctor’s career!

This is America!!   Why no Justice for Physicians and Surgeons?

 

Richard Willner is the Executive Director of the Center for Peer Review Justice, www.PeerReview.org .   Email is:  info@PeerReview.org   .  504-621-1670

Heart Felt Gratitude

Sent: Monday, November 7, 2011 2:52 PM
 Dr. Willner,
 
I just want to express my heart felt gratitude towards you. I truly believe God put you in my life as a guardian angel. When I first contacted you, I felt relieved just to have someone to talk to who believed in me and offered me guidance throughout this whole process. I had no idea what a huge role you would play in helping me get my license. Throughout the months, I have not always known exactly what your plans would be or what you were doing behind the scenes, but now in looking back, it all makes sense. I know I say this a lot, but I definitely feel as though you were made for doing what you do. You have the knowledge and experience to correct the wrongs of the medical field, but above all, you have the heart. You have a heart of gold and truly care about people, and that is why you are so successful.
 
 The past few weeks leading up to the medical board hearing were so stressful and I could not have gotten through it without you. I can never express enough to you my gratitude for you driving all the way down here to be at my side during the hearing. Without you, I would not have a license or a career in medicine. You have made a friend for life. Please let me know if there is anything I can ever do for you…
 
 KMS, MD

I was in danger of losing my career

 Sent: Tuesday, November 15, 2011 12:48 PM
 Subject: thank you
 Rich,
 
 Just under a year ago, I was in danger of losing my career. I was thrown into an experience which was horrifying, stressful, expensive, and downright degrading. I was being attacked. When I first spoke with you, I was afraid you would think I was a horrible person (as those shammers would have one believe.)
 You listened and saw the truth and helped me; you stuck with me and we ended up victorious. I wanted to thank you for all your help. that sounds so trite in comparison to all you did for me. You truly are a saint. You even took the time to speak with me late at night when I would call terrified about keeping my career. You are intelligent, committed, energetic, and innovative; and you have many good friends in many places. You are dedicated to your work and to doing the right thing whatever it takes. I commend you.
 You are probably responsible for many lives being saved that you don’t even know of. Why? Because you save the practices of those physicians who are the good ones, who get wrongly accused by the bad ones. You really should be sainted or knighted or something like that. Words do not do justice to express my heartfelt appreciation to you!
 
 Sincerely,
 L.G., MD

The Exemplary Project

THE EXEMPLARY PROJECT OF THE CENTER FOR PEER REVIEW JUSTICE

 
If you are aware of a hospital that ignores safety and uses its bylaws to benefit and shield corporate doctors and nurses and retaliates against independent doctors please call the Exemplary Project.
If you are an independent doctor who has suffered an unjust report to the National Practitioner’s Data bank (NPDB) from a malpractice settlement or professional review please call the Exemplary Project.
If you have been the subject of a Sham Peer Review, a Bad Faith Peer Review, Physician Peer Review Fraudor any abuse of the Health Care Quality Improvement Act of 1986 ( HCQIA), or have problems with your State Medical Board, we would like to know. We want to shine the light on hospital fraud, clear the names of the good guys and bring the bad guys to justice ! Call the Exemplary Project.
Your call will be confidential and you are protected from retaliation by the Patient Safety and Quality Improvement Act of 2005.   info@PeerReview.org     504-621-1670


Richard Willner addresses peer review problems and possible solutions in Washington

Richard Willner addresses peer review problems and possible solutions in Washington

Civil Liberties and Medical Students

The question before the legislature is should young people be required to sacrifice their civil liberties just to become a physician.

Or should these young people choose another course with less irrational legal constraint, like finance for example.

Should they be required to sacrifice family life and hundreds of thousands of dollars just to work for the momentary pleasure of some corporate hospital huckster?

Depending upon how the legislature comes down on the immunity question, the answer is pretty obvious isn’t it?

A bright future for medicine depends on creating a safe environment to practice medicine.

They take this all consuming journey to learn to take care of human beings. This is not an act of Revolt against society.

This is an act of optimism and love and dedication to the well being of our country and to the human race.

Medical education is not undertaken to take orders from the AMA or the hospital industry or to sanctify any substitute agenda besides the doctor patient relationship PERIOD.

Doctors do not become doctors to get into a battle with lawyers or corporations or insurance companies or the legislature.

Their fatal flaw is that they think that the rules of evidence that apply to medicine, the natural law, should apply to the legal environment of medical practice.

They also have the reasonable expectation that they will be judged with fairness and equanimity in the law just like any other citizen.

Currently nothing could be further from the truth. Doctors have no civil liberties.

Working as a Doctor is best compared to living in Russia under communism.

While the practice of medicine has its own politics, there is nothing sacred about medical politics. There is nothing sanctified about medical politics.

So here we see in 2 extremes of medicine the good and the bad. The sanctified and the profane.

About 10% of doctors belong to the AMA; close to 90% do not. Does that mean that 90% of doctors are suspect?

Hardly.

So what should the legislature do to ensure a bright future for healthcare?

According to the principles of the natural law, they should sanctify optimism and idealism of those who are thinking about becoming doctors by refusing to rob them of the full rights of American citizenship, as the peer review process implies, just because they become doctors.

Alternatively they can choose to sanctify the peer review process over the rights of independent physicians, the agenda of medical politics and screw every doctor who chooses to practice in the state.

The answer will determine the future of health care. It is also simple and time tested.

Source: The Center for Peer Review Justice

Editor’s Note: Richard Willner can be reach at Legal@PeerReview.org, SurgeonsConsultant@yahoo.com

Physician Brownouts and Hospital Liability Shifting Up Due to Obama Care

I am not shocked to see such a sharp uptick in “Physician Brownout’ sham peer review cases.

Physician Brownout is a term he coined to describe a special kind of peer review or professional retaliation which involves liability shifting for nursing error or any of a number of events where a hospitals has liability for its agents.

“After 11 years and hundreds of cases, you get to be a bit of an epidemiologist on sham peer review. And I have broken it into 3 major patterns of shamming: There is the straightforward economic or competitive peer sham which everyone knows about.

Next is the disruptive physician sham which has become the epidemic gravy train for health care lawyers churning hundreds of thousands of physician dollars on mostly nonsense.

While the disruptive physician is the fastest growing type, the most pernicious type is certainly “physician brownout.” It is a flagrant display of corporate hubris and cynicism and the corporations doing are really sick and probably just as dangerous.

It has taken sham peer review to the next level. It is a public health disaster and it goes on right under the nose of the National Practitioners Databank with the sanction of HRSA and HHS.”

“Physician brownout” is corporate liability shifting to independent doctors. It is designed by the hospital attorney with involvement from the CEO to keep the public and most of all, the plaintiff’s attorneys in the dark on hospital error by using all of the shadowy techniques of sham peer review.

I chose the name from the California brownouts of the 1990’s during the Enron scandal. It is essentially Enron accounting for hospital error.

California is also the state where I saw my first case which fortunately we were successful at averting.

Physician Brownout is precisely that. When the hospital goes way over the top to restrict or censure a surgeon and the medical facts indicate hospital wrongdoing this is not only a sham peer review it is outright fraud on the public health.

The public loses in 2 ways first an ethical and good doctor’s career is destroyed for the negligent acts of others and secondly the hospital gets away with not properly accounting for its own negligence.

Hospitals get ranked on sentinel events and other patient safety snafus they are supposed to do proper root cause analyses but a physician brownout makes it all go away and keeps the hospital looking good. The plaintiff’s lawyers pursue the scapegoat doctor with a vengeance.

I have seen as many as 8 lawsuits filed in succession on a surgeon who had never been sued before. 3 or 4 are normal. Because medical records can be withheld in a peer review and there is no requirement for sworn testimony or rules of evidence, the records can be tampered with by the hospital to mislead plaintiffs away from the real cause of the patient’s damages.

Hospitals that sham independent doctors have not learned that people who live in glass houses should not throw stones.

I predict that physician brownout is an epidemic that will finally end up destroying them because here the public health implications from sham peer review are crystal clear.

The attorneys and executives that do it are callous and ethically indifferent. They feign detachment while they allow their designated medical staff or outside reviewer to get carried away by the sanctimony of ritual physician sacrifice. It is really twisted to witness.

The panel stays well away from any implication that the hospital may have liability. They have not learned the lesson that people who live in glass houses should not throw stones.

Much of sham peer review has been directed preferentially against surgeons. In disruptive cases I think it is because sometimes they take strong ethical stances which are perceived as defiance in the face of corporate directives.

Non surgeons can drive much of the sham process and are generally more passive personality types.

Also, the myth of the dangerous surgeon has become a very powerful tool to obfuscate the real issues in a sham review. In a brownout case, every plaintiff’s lawyer wants to take a surgeon down while they may completely miss the issue of proximate cause and hospital liability.

Shamming surgeons is on the rise. Most of my referrals come from other surgeons. I have helped work on their cases to resolve them in the best way possible. I will work with their attorney.

I will work with a medical board but sometimes this becomes a really dirty business and you uncover very real corruption which is difficult to overcome. These cases are just so unreasonable.

Sham peer review started with economic competition between doctors when the health care pie began to shrink under managed care and fee for service medicine began to evaporate.

The Health Lawyers association, mostly driven by hospital lawyers and organized medicine, was there to train doctors exactly how to get rid of doctors for economic reasons but in the name of protecting the public health.

Typically, the doctor’s career is completely destroyed in the process when his name is entered into the National Practitioner’s Data Bank.

Some physicians actually killed themselves over losing the right to practice medicine but according to the rules of the NPDB the entries survive their death.

Organized medicine persisted in proclaiming the virtues of economic credentialing and for the longest time the AMA denied that sham peer review existed when they knew the NPDB was riddled with it.

The disruptive physician would be a joke if it were not so real. This is where hospital committees are trained by outside groups to paint doctors as troublemakers or potential threats to quality when they speak to issues of hospital management and patient care.

This has now become a large portion of my referrals and quite often these cases can be worked through but the doctor is left feeling helpless to address any issue in the hospital when an organization attempts to shift liability to an independent doctor for the mistakes of nurses, anesthesiologists and other hospital related incidents.

Under Obama care and the environment of stepped up enforcement we essentially have something similar to the Patriot Act and guess who the terrorists will be, independent doctors.

Organized medicine and large hospitals have a way of shielding themselves from liability that is not quite legitimate or in the interest of the public health.

NPDB is corporate blacklist riddled with cases of sham peer review and now Physician Brownout.

It has been so since its inception when it was hijacked by corporate interests to immediately create a shield for corporate doctors particularly in the settlement of malpractice cases and a presumption against independent doctors.

Editor’s Note:  Richard Willner is President of the Exemplary Project of the Center for Peer Review Justice http://www.peerreview.org/ or at info@PeerReview.org 504-621-1670

Health Care Fraud and Accrual Based Accounting

Let’s be truthful.  “Sham Peer Review” is really ”Physician Peer Review Fraud”.

Health care fraud is a double entry system of accounting. We must discipline our thinking to reflect that of the accountant and lawyer so engaged in order to find the crooks and gather evidence of their misdeeds.

It is pointless to completely focus on the all too necessary whining and sniveling and cross examination of our self worth that the system forces us to do. We eventually only bail water into our own boats and vomit on our friends.

Every time you hear about sham peer review of independent doctors, ask yourself what is on the credit side of each equation. Richard Willner is the chief epidemiologist of this. Is it in the thousands?

Perhaps it is in a number of smaller accounts. All corporately shielded by immunity from HCQIA and added onto our national debt.

This s the real Healthcare Fraud.  The Fraud done to the individual doctors who are destroyed under a well meaning Federal Law  along with the National Practitioner Data Bank which leads to a Fair Hearing which is not “fair” and hardly a hearing.

Almost every doctor tattooed with this “Bad Doctor” has NEVER had a malpractice suit.  How can this be?  This leads to being tossed from the Hospital like week old fish and Loss of the Medical License.

You don’t have to wait to Obama Care.  It started in 1986 and, what is shocking about these “BAD Doctors” is that these doctors who no malpractice suits have way less than their accusers.  What else stinks like day old fish?

But, after 11 years of study, there is HOPE.  The CPRJ has developed ideas to help the Physician and Surgeon.

Congressman West. What a guy!! Note on his right label the Israeli/American flags.

The congressman is in the center.

The Congressman from Michigan

This guy is so much fun. He is the former President of the Harris County Medical Society. He is Real Texas. Look closely at his tie and shirt.

Miss Arkansas BEGGED me for a picture. I could not refuse her.

Editor’s Note:  Richard Willner is President of the Exemplary Project of the Center for Peer Review Justice http://www.peerreview.org/  or at info@PeerReview.org  504-621-1670

Natural Born Citizens

You, who worry about democrats versus republicans–relax, here is our real problem.

In a Florida State University classroom, they were discussing the qualifications to be President of the United States.

It was pretty simple. The candidate must be a natural born citizen of at least 35 years of age.

However, one girl in the class immediately started in on how unfair was the requirement to be a natural born citizen. In short, her opinion was that this requirement prevented many capable individuals from becoming president.

The class was taking it in and letting her rant, and not many jaws hit the floor when she wrapped up her argument by stating “What makes a natural born citizen any more qualified to lead this country than one born by C-section?”

Yep, these are the same kinds of 18-year-olds that are now voting in our elections!

They breed and they walk Among US…

Editor’s Note:  Richard Willner is President of the Exemplary Project of the Center for Peer Review Justice http://www.peerreview.org/  or at info@PeerReview.org  504-621-1670

Center for Peer Review Justice Supports Coalition to Preserve Patient Choice

Revision of the Any Willing Provider law continues to be the most important statewide legislative issue we face.

It is critical that we maintain our support for legislative action that will return the original law to its original intent to protect the private practice of medicine in Idaho.

The current law has been interpreted to allow closed physician hospital networks to grow and thrive. If allowed to continue unabated, this network mania could have the sobering effect of putting most of us out of business.

Our efforts to introduce legislation this past session to “fix” the Any Willing Provider statute were unsuccessful. This must not happen again.

Our second concern is the threat of re-introduction of the Hospital Immunity Bill. This Bill would have given hospitals the unprecedented ability to singlehandedly terminates physician’s privileges without recourse.

We thought we had successfully modified this bill at the IMA meeting last summer. Unfortunately the revisions that were passed at the annual meeting were not included in the final bill. This must not happen again.

The undersigned have elected to call a special meeting of independent physicians to discuss our legislative agenda for next year.