The Hunted Physician
by Sharon Kime and Robert Sullivan
Physician discipline is a lot like hunting gazelles in Africa. Recall the wildlife movies you’ve watched. A herd of thousands of gazelles graze peacefully across vast African plain. Creeping undetected in the grass to the right are several lionesses studying the herd, waiting for the opportune moment to lunge full speed after their chosen prey. Suddenly, the chase erupts. The drama is riveting. The surprised victim, now at full alert, breaks into a run. With few exceptions, the surrounding gazelles seem undisturbed. Most continue grazing, unconcerned with the intense life-and-death struggle going on about them.
Physician discipline is very similar. The strategy and power of the hunter, the hapless innocence of the hunted, and the apathy of the group all visually represent what occurs in most cases of physician discipline. Unfortunately, the scenario is repeating with increasing frequency in California.
Social pressures for change in health care drive increased regulation. In the past, physicians were revered as a resource and friend of the community . Now, due to the increases in health care costs, they are viewed with suspicion. Current estimates of health care costs are $939.9 billion per year. Although direct physician costs account for only 18.6 percent of this figure, it is estimated that physicians spend 85 percent of the health care dollar with their pens through prescriptions for drugs, devices and hospitalizations. Because health care costs are seen as a threat to the economic health of the nation, physicians have been cast in the role of the enemy rather than cherished professional.
Expect increased regulation by federal and state agencies
These economic pressures and changes in the social status of the physician have resulted in reforms not only to decrease costs in health care but also to increase physician discipline. Responding to public perception consumer protection in medical care is lax, legislation passed in 1991 (SB2375-Presley) revamped the physician disciplinary system. The BMQA, renamed the Medical Board of California, mandated tougher actions on bad doctors, a reduction in case backlogs and slashed investigation time. Prior to this legislation, approximately 175-200 Medical Board accusations were filed per year against California physicians. Following this reform, the number of accusations rose to 1,000 the first year. At first, this was explained as a correction due to the backlog. Now, however, the continued increase has been attributed to an increased number of complaints against physicians (6,000 – 8,000 / year), and to increased force of investigators and prosecuting deputy attorneys general. The 1991 legislation created a new Attorney General Health Quality Enforcement section for the purpose of prosecuting Medical Board cases. Between approximately 50-60 full-time deputy attorneys general are employed to prosecute the approximately 60,000 practicing physicians in the state. This ratio of attorney general prosecutors to physicians exceeds the ratio of district attorneys per county population to prosecute criminals in any county in the state.
Physicians who believe the Medical Board only prosecutes the totally disreputable physician or none at all are operating with a perception that is as outdated as the horse and buggy. Cases are arising against legitimate physicians with increasing frequency. To analogize the Medical Board to a medical test, it is sensitive but no specific. While more accusations are being filed, many should never have been charged. At the same time, some truly bad physicians continue to escape discipline.
Competent physicians may become subjects of Medical Board actions
Case in point: Physician A was a model physician. He was competent, compassionate, hard-working and devoted to his patients and family. He had practiced almost 20 years in the same community. No one had ever made a malpractice claim against him. He had never been censored or disciplined. He held a record of unblemished privileges at three local hospitals. He had been Chief of the Family Practice Department at the hospital and served as Utilization Chairman of the county’s IPA. He was well-respected by his colleagues.
When we saw him in our offices, he was facing a Medical Board action to revoke his medical license. He had seen a young mother as a new patient, performed a physical exam and listened to the patient’s litany of problems, which focused on stress and insomnia. He prescribed Xanax and referred her for psychiatric help.
One problem the patient briefly mentioned among the multitude of problems was the 11-year-old neighbor boy: He had damaged her 6-year-old daughter’s bike and, just the night before, the daughter told her he had raped her some time in the past. Dr. A. told the patient that, if she believed a rape has occurred, she could report it to Child Protective Services. Dr. A. did not see the child as a patient, nor did he believe a rape had actually occurred.
The patient not only reported the incident to Child Protective Services, she complained to the Medical Board that Dr. A. failed to report child abuse. Several months later, the Medical Board sent the mother and child with a hidden tape recorder to visit Dr. A. Although Dr. A. reiterated his advice to the mother, he still did not report the rape; he still did not believe a rape had occurred. Nonetheless, the district attorney brought criminal charges against the physician for failing to report child abuse. Dr. A. did not obtain legal representation. He could have easily defended the failure to report based on his reasonable belief that no abuse had occurred. Instead, he took the advice of the district attorney to plead nolo contendere, pay the fine, take probation for a short period, and eventually have the entire incident expunged. Although the DA was aware this plea would be grounds for revocation of his medical license, the DA did not inform Dr. A. of that fact.
Subsequently, the Medical Board brought an action to revoke Dr. A.’s medical license on the basis of a conviction of a crime substantially related to the practice of medicine. The sole issue in such a case is whether or not the conviction occurred and its relation to the practice of medicine. Despite intense negotiations with the attorney general, Dr. A.’s license was revoked, stayed and he was put on probation for one year.
There are things you can do to avoid disciplinary action or minimize its impact:
A. To prevent disciplinary action, take constructive steps:
1. Denude your mind of the concept that it could never happen to you.
It could. At the current rate of enforcement, in 10 years a significant percentage of the physicians in California will have been disciplined. Considering the effort and resources expended to obtain a medical education, a little effort spent to preserve it is only rational.
2. Purchase insurance for administrative actions.
Legal representation for a Medical Board action can easily run $50,000 – $100,000. Administrative Insurance will cover disciplinary proceedings initiated by the Medical Board, a hospital medical staff, HMO, PPO, Medicare Professional Review Organization (PRO), as well as Medicare/Medicaid reimbursement disputes. This form of insurance is not usually covered by your malpractice insurance; however, with the increasing demand, a few malpractice carriers have added Administrative coverage. You should check your policy or call your agent for information. If it is available to you, it is well worth the small additional premium.
3. Maintain constructive relationships with your professional colleagues.
Poor interpersonal skills subject the physician to an increased likelihood of receiving discipline. Abusive behavior to colleagues or nurses creates enemies who will be unforgiving for any infraction in quality of care, however minor. Many disciplinary actions are the result of poor relationships with either coworkers or colleagues, not poor medical care.
4. Don’t isolate yourself from the medical community.
Stay involved in your physician organizations and participate in the hospital committees. Isolation breeds suspicion. Gone are the days of the brilliant loner physician who gains recognition on the sheer strength of his own ideas. Staying in the community with your colleagues reduces the risk of unnecessary criticism, gives evidence that your practice is compatible with others’ and offers an opportunity to exchange information and stay informed.
5. Practice within the community standard.
This may sound obvious, but there are those who think they are above the standard. Unless other physicians are persuaded this practice is superior, physicians who practice differently, no matter how pure their motivation, risk discipline.
6. Keep good medical records.
The burden is on the physician to demonstrate medical indications for treatment and prescriptions. Adequate documentation is essential evidence to demonstrate medical indication. Without it, the physician’s care may be misinterpreted by medical experts who review his records or distorted by poor memories or hostile motives of former patients.
7. Bill carefully and conservatively.
Insurance fraud is the kiss of death. Simple errors in billing by improperly supervised subordinates can balloon into enormous legal battles. Supervise well-trained staff and randomly check billing procedures to make sure they are in compliance with your requirements.
B. To survive discipline, get competent legal representation.
Generally, the sooner a cancer patient obtains competent medical care, the better the outcome. The same can be said, as a general rule, for the physician’s career once disciplinary action has been initiated. Disciplinary actions should be handled by an attorney experienced in Administrative law. The forum and procedures in administrative hearings are different from those in civil court. It is not wise to turn over an administrative case to a business or estate attorney no matter how trusted. An attorney with inadequate experience in administrative matters can ruin a physician’s career.
Obtaining representation early in the investigation may resolve the action and minimize legal costs. There’s a saying in law, “Pay me now or pay me later, and I’d prefer you pay me later.” It costs less for legal representation when the problems are small. Once the problem has grown, so have the legal expenses to resolve it.
The strategy during an investigation is to provide accurate information to the Medical Board so the investigation can be closed. However, the Medical Board should not have free access to all information they request. Only information relevant to the complaint should be provided. A physician should never speak to the Medical Board without counsel. With legal assistance, it’s important to provide an accurate, legally persuasive response to the consumer complaint for the file. This response may assist the attorney general in correctly assessing the weakness of the case before filing an accusation.
Significant consequences follow a Medical Board action.
Discipline has a domino effect on the physician’s career. This is because of the intricate web of federal and state reporting requirements and querying mandates. If the Medical Board investigates or brings an Accusation against a physician, he may have to report this to the HMOs, PPOs, etc. with whom he contracts. Depending on the terms of their contract with him, they may terminate his participation or suspend action until a resolution of the matter. Hospital applications for appointment or reappointment of privileges require disclosure of a Medical Board action. The National Practitioner Data Bank requires a report of any Adverse Licensure Actions. Malpractice carriers must be notified. All these notifications can result in further restrictions on the physician’s practice. If a physician is licensed in another state, disciplinary action will usually be initiated in that state if the Medical Board of California disciplined the physician in California.
In conclusion, physicians need to be alert to the increase in disciplinary actions brought against California physicians. Given the impact on the physician’s career, it is wise to take all means possible to prevent discipline. However, once discipline has been instituted, it is imperative to obtain competent representation as early as possible to minimize its impact.
[Sharon B. Kime practiced government and administrative law at Nossaman, Guthner, Knox and Elliot in Sacramento. Before entering law, she earned a BS in nursing, and an MA in public health.
Robert J. Sullivan, who also practices government and administrative law at Nossaman, Guthner, Knox and Elliot, is a former deputy attorney general.
Although we published this article in Sacramento Medicine in November 1994, the issues are still relevant today.]
Letters to the Editor in response to the above article:
Why do you suppose Attorneys Kime and Sullivan ruined an otherwise informative article by silly dramatization?
Depicting the disciplining of physicians as a “…life and death struggle…” against the “…hapless innocence of the hunted…” is pure theater. The analogy of the disciplinarians (read: the Medical Board) as “lionesses…creeping undetected in the grass…waiting…to lunge full speed after their chosen prey” is bizarre and distorted. In this analogy physicians are “…gazelles…who graze peacefully…” Then, they are wantonly attacked: “Suddenly, the chase erupts. The drama is riveting.” The only descriptive scene we are spared is the bloody carcass of the gazelle being consumed by the lioness, dangling parts of the gazelle’s body between her teeth. The law of survival; not the rule of law!
Then, we presume, come Attorneys Kime and Sullivan – the Stewart Grangers of the African plain – who with calm dispatch will save the innocent gazelle from the fierce, unrelenting lionesses.
Can’t you see the image: Stewart Granger with a T-shirt, complete with logo saying, “Trust in Nossaman, Guthner, Knox and Elliott. Let’s Make A Deal! We’ll scare you; you pay us for the privilege.”
Out of Africa Dixon Arnett Executive Lioness, MBC
As a member of the Medical Board of California, I was forwarded “The Hunted Physician” by Dixon Arnett. I am writing this letter to inform your readers that Mr. Arnett does not necessarily represent the views of the entire Medical Board of California. I believe that the article by Kime and Sullivan is very important and should be distributed to California physicians. In fact, I am going to forward a copy to the CMA for evaluation in regard to distribution.
The opening paragraph is dramatic, but the analogy is useful. My experience on the Medical Board indicates that the physician against whom the complaint is recorded is pursued aggressively by investigators and prosecuting deputy attorneys general. Often we receive stipulated agreements with comments that the stipulation should be accepted because there are witnesses who cannot now be found or would not now testify or that this is a penalty greater than we can expect to receive if there were a hearing before an administrative law judge. In these situations, we do not receive any argument from the defense or statements from the physician. We are to assume that because the physician signed the stipulated agreement this is an admission of guilt (without any evidence). I know that often physicians sign these agreements because of lack of funds for legal defense or because of intimidation and fear of greater penalties even for actions they do not consider to be “criminal.” Physicians commonly make mistakes in treatment of patients. This is because the treatment of patients is difficult and physicians are human beings.
Many of these mistakes could be amplified by an investigator or a prosecuting deputy attorney general to intimidate the physician into a stipulated agreement. I believe that, many times, physicians sign the stipulated agreements in the mistaken belief that this will quiet the issue.
Unfortunately, the issue then becomes public knowledge and the insurance companies often eliminate the doctor from their approved physicians list, which can cause severe economic damage to the physician. The use of the term “for protection of the public” is intimidating both to the accused physician and to the political appointee on the Medical Board who is required to approve these stipulations. Physicians in California are poorly educated on the consequences of the discipline by the Medical Board of California in regard to their public reputation and the economic consequences.
The Medical Board of California has provided means to educate California physicians. Its publication, “The Action Reporter,” is one method. A second is a team of Medical Board members who will speak at medical societies. Furthermore, the MBC has instituted the changes of cite and fine and letter of reprimand regulations to avoid stipulated agreements that require probation of the license for appropriate offenses. This results in a fairer discipline for the physician.
For the Division of Medical Quality for the Medical Board of California to become most effective in participating in the enforcement process for the discipline of physicians, I believe that the evaluation should occur on the front end of the investigation rather than the back end. This would allow evaluation of information that would sometimes prevent the costly long term investigations and hearings. To date, this change has not been seriously considered so that the California physicians continue to be “does” at risk of being “hunted.”
The recommendations by Kime and Sullivan for physicians are excellent and, hopefully, more articles such as these, in combination with MBC educational programs, will sufficiently educate California physicians. With appropriate education, the threat of inappropriate action by some physicians will diminish, as will the necessity of aggressively pursuing physicians to avoid media criticism.
The MBC is a competent group of people who have adequately responded to media criticism for several years. At this time, we must balance the importance of the protection of the public with the appropriate discipline of physicians without intimidating physicians into discipline which may be inappropriate for the complaint. Articles such as this will help to equilibrate the present situation by providing the necessary education for physicians.
Sincerely, Lawrence D. Door, MD
The penetrating article, “The Hunted Physician” by Barclay-Kime and Sullivan, in the November issue of Sacramento Medicine, paints a poignant metaphor of medical peer review, wherein the accused, hunted physician is likened to a targeted gazelle. I would like to address that metaphor describing the depicted surrounding gazelles, mostly grazing contentedly, “…unconcerned with the intense life-and-death struggle going on about them.”
I have been there, and, although ultimately totally vindicated by the peer review process, I can assure you that uncomfortable position is made indefinitely worse when one sees previously close and collegial friendships and referral patterns rapidly disintegrate into nothingness, and virtually nobody speaking up, other than in ineffective whispers.
Consider the now famous case of Patrick vs. Burget wherein the appellate court in Oregon found against Dr. Patrick on an antitrust legal technicality, and, at the same time, declared the peer review process to be “…shabby, unprincipled and unprofessional conduct,” a view that was echoed by the US Supreme Court in unanimously reversing in favor of Dr. Patrick.
It is a matter of public record that the CMA and the BMQA filed a joint amicus curiae brief against Dr. Patrick and on behalf of the subsequently discredited doctors and the involved hospital before the Supreme Court. The legal organization of medicine and the disciplinary process are well documented to be substantially identical in both California and Oregon. Was that a wise decision for the ultimate benefit of our profession? I submit it was not.
Laments from organized medicine as to the Supreme Court reversal in the Patrick decision are sufficiently innumerable to be unworthy of citation. Of interest is the front page article in the AMA News (February 26, 1988) describing in considerable detail the professional and financial ruination of the doctors involved in the Dr. Patrick peer review, the destruction of the Astoria Clinic, and disruption of patient services. One must presume by the prominence and flavor of this article the implied sympathy for the peer reviewers.
Is this sympathy deserved? Yes, for the families of the punished physicians, the unemployed staff of the defunct Astoria Clinic, and, in particular, for the many innocent patients whose medical services were disrupted. As for the physicians involved, a resounding NO vote of sympathy. They gave their names and reputations to a process that was “…shabby, unprincipled and unprofessional conduct.” Those physicians, however passive and/or innocent in the abusive peer review process that found against Dr. Patrick have disgraced the notion of nobility of peer review in our profession, and they have earned the harsh punishment that has been given them. After all is said and done, all they had to do was say NO to the abuses of that discredited peer review process.
Has organized medicine subjected the Dr. Patrick peer reviewers to medical discipline for their part in this despicable process? To the best of my knowledge, the answer to that question is NO. Should organized medicine discipline these physicians? I submit that a logical analysis requires organized medicine to take an appropriate stand, and impose discipline on these disgraced and clearly deficient physicians.
I would like to suggest that all physicians, including the silent members of organized medicine, owe a great debt of thanks to Dr. Timothy Patrick. His persistence and ultimate court decision have certainly done more to cleanse the peer review process than anything else I can think of. If one considers that peer review is the most sacred function of the medical profession, then, indeed, that debt of thanks must be great.
Returning to the hunting metaphor, it is well known that lionesses also hunt zebras. It is also known that, on occasion, a well-placed zebra kick will cripple the attacking hunter. A lioness with a broken jaw is a dead lioness.
One might presume, from a teleological point of view, that lionesses hunting zebras are rather more circumspect. Thank you, Dr. Patrick.
Deane Hillsman, MD
Mr. Arnett would prefer a dry, factual discussion of the Medical Board, sanitized of anything that might depict tragedy. However, drama and tragedy are not lacking in the real lives of physicians subject to Medical Board discipline. In fact, the analogy in our article does not adequately capture the reality. The lioness is too intelligent and hunts only for a genuine need. The gazelle is too ignorant. He has not spent years in education and service to his kind. Nor has he struggled under an increasing burden of regulations and economic pressures to practice his profession. The kindness of a quick kill does not capture the anguish of those who observe, fully conscious, the slow destruction of their careers, families, and finances and who then contemplate suicide.
The only hope is for physicians to educate themselves and become politically active. The Medical Board should be more intelligent and selective in decisions on whom to discipline. De minimus infractions or a single act of negligence should not subject a physician to license revocation. A pattern of negligent practice should exist before disciplinary proceedings are instituted. Medical controversies should not be resolved by Medical Board discipline. Until standards are clearly established in the medical community, it is impertinent for a state agency to dictate a standard. Retaliatory discipline of whistle blowers or the politically unpopular is an improper use of the powers of the state.
The Medical Board should be qualified under the same requirements of a medical laboratory test. To be effective, a medical test should be both sensitive and specific. Sensitive, in that it picks up all the potential positives. Specific, in that it picks up only the positives. It does not pick up negatives as false positives. With the new legislative impetus to discipline physicians, the Medical Board has increased its sensitivity but lost its specificity. Now some very good physicians are being subjected unjustly to disciplinary proceedings – with tragic consequences.
Mr. Arnett’s letter attacks our metaphor but ignores our message. Perhaps he cannot respond!
Sharon Barclay-Kime Robert J. Sullivan
Inquisition or Quality Control
by Sharon Kime and Robert Sullivan
Physicians in California practice under a microscope. Virtually every physician is subject to legal constraints or governmental oversight – the Medical Practice Act, the Medicare and Medi-Cal laws, as well as contractual obligations under provider agreements with health plans. For many Sacramento physicians, practicing in the “managed care capital” of America has rendered professional life particularly difficult.
Medical staff peer review, an integral part of a hospital’s operation, should be an integral part of a physician’s practice. When it leads to “corrective action” against a physician’s hospital privileges, peer review has ramifications far beyond the walls of the hospital, involving not only the Medical Board and the National Practitioners Bank but also malpractice carriers and third-party payers to whom the affected physician must self-report. Ultimately, a physician against whom corrective action is taken can lose hospital staff privileges and be faced with a Medical Board disciplinary action, loss of malpractice insurance, and loss of provider status with the very people who pay for the physician’s services to patients. Thus, it should be clear to all physicians that peer review is a serious business.
Market forces have shifted the economic power in the practice of medicine
Along with mutual necessity, a host of potential problems exist between hospitals and physicians: Non-compliance with hospital rules and regulations, medical staff politics, and economic credentialing are some of the more obvious pitfalls.
In the last 20 years, because of managed care, the economic power has shifted from physicians to hospitals, third-party payers and other health institutions. Whereas, in the past, hospitals depended on fee-for-service physicians to supply patients, now physicians are dependent upon health care institutions owned by hospitals.
What this means in the operation of hospitals’ peer review systems is that they are all too often driven by economic motives. While the law provides that physicians should be admitted to membership of medical staffs and accorded privileges based solely on their professional qualifications, any practicing physician or health care lawyer knows that admission to and termination from the staff involve issues of economic consideration, not just professional competence. In other words, hospital peer review is human; it has all of man’s imperfections in spite of the idealistic concepts found in the law and in the medical staff bylaws.
Principles for avoiding hospital corrective action
To avoid being the subject of a peer review proceeding, the physician who practices in a hospital should be guided by four principles:
Practice good medicine
First, the physician should attend to his or her patients in the hospital and practice good medicine. Sounds naive and foolish to say this as a guiding principle. However, all too often, the physicians who run afoul of peer review don’t follow this simple rule. They stretch themselves beyond reason. They do not practice good hospital medicine because of the competing demands of their office practice, multiple hospital practices, or a variety of personal reasons. They simply do not attend to their patients in the hospital. By this we mean they do not make regular rounds, are sloppy in their charting, have poor relations with the nursing staff and their physician colleagues, and, worst of all, little or no rapport with their patients. Good rapport doesn’t simply mean sitting by a patient’s bedside and being charming. It means forging a personal and professional alliance with the patients and among the nursing staff and physicians for the effective care of the patient in the hospital.
Follow the hospital medical staff rules
It is unquestionably true that the rules of the hospital and medical staff can be at times trying and occasionally downright stupid. This is particularly true in the rapidly changing health care field where equipment, therapies, and protocols are frequently changing. Rules are often quickly and foolishly enacted to deal with these rapid changes. Nonetheless, the physician must act constructively under the hospital’s rules. Nothing will get a physician in trouble quicker than practicing in the hospital as if it were his or her domain regardless of the rules.
Actively participate in medical staff duties
The third principal is that the physician should participate in medical staff duties including serving on committees and being active in the governing of the medical staff. All too often, medical staff politics is dominated by hospital-based physicians such as radiologists, pathologists, intensivists, or emergency room physicians. These physicians are either under contract with the hospital or their professional practice is centered within the hospital, thus aligning them with the hospital administration. The interests of the hospital and its physician employees do not necessarily coincide with the interests of the independent physicians who are members of the medical staff. For this reason, it is important that private practice physicians participate in medical staff affairs. If they do not, the medical staff organization may merely become an alter-ego of the hospital. The medical staff should represent the interests of the entire medical staff for there to be fair and even-handed peer review and for there to be a healthy and dynamic relationship between members of the medical staff and the hospital administration.
Insist on Fair Peer Review
Finally, every physician member of the medical staff must insist that peer review be conducted fairly and without regard to economic factors. To achieve this end, it is imperative committees meet and perform their obligations. However, they should not allow the economic forces that dominate the hospital to destroy the true focus of peer review, viz., competent medical care.
For example, competent physicians who take care of Medicare and Medi-Cal patients or patients whose care is uncompensated seem to have a higher incidence of peer review difficulties. It appears as though some hospitals, whether they will admit it or not, actively discourage the admission of patients who cannot pay for their care. Under this policy, the hospital has allies in the hospital-based physicians who likewise would not be paid by these patients for the value of their services. In our experience, physicians who admit these types of patients are subject to hostile peer review at an alarmingly higher rate than their colleagues who do not.
On the other hand, sometimes peer review unfairly strikes physicians with the most lucrative practices. In this situation, peer review can be a result of economic jealousies by colleagues in the same specialty. These are just two examples of the economic influences on peer review. It is important that peer review be conducted fairly and evenhandedly without regard to these economic factors.
Responsibility for fair peer review rests with each and every individual physician on the medical staff. He or she must insist a corrective action against a physician begin with charges that are substantive, not theoretical; that these charges are investigated by ad hoc committee members who are not related to the individuals bringing the charge nor are they enemies or antagonists of the physician being charged. If the charges are sustained and corrective action taken, each member should insist the accused physician be given a judicial review hearing before a panel of physicians who participated in neither the charging process nor the investigative process and are in no way competitors or antagonists of the subject physician. To accomplish this, it may be necessary to bring in outside experts to evaluate the cases involved. Many times, it is impossible for the charges to be fairly investigated by independent members of the medical staff. For the same reason, it may sometimes be necessary for the hospital to spend the money to bring in one or more outside physicians to serve on the judicial review committee.
When all physicians participate in the medical staff organization and in the conduct of peer review, the burden on each of them is minimal. The benefit of a fully involved, active medical staff is enormous. In our experience, such a medical staff has high morale and a sincere and abiding union with the hospital administration in providing quality medical care to patients. Without this type of involvement, the medical staff becomes fractured by internecine rivalries along department lines. It then becomes a captive of the hospital administration, who fills the leadership positions of the medical staff with its own candidates. Inevitably, such a staff at a hospital has numerous corrective actions, bitterly contested judicial review hearings that pit doctor against doctor, nurse against doctor and medical staff against administration. It is not the type of hospital where the energies of the physicians and the hospital staff are focused on the single most important objective – care of patients.
(Robert J. Sullivan is a partner in the Sacramento law firm of Nossaman Guthner, Knox & Elliott. He specializes in administrative law with emphasis on health care. Sharon Barclay Kime was an associate with the same firm, specializing in administrative and health care law.)
How to Defend Yourself in a Medical Staff Hearing
by Sharon Kime and Robert Sullivan
A doctor who is the subject of a peer review investigation for substandard care should first of all obtain the advice of an experienced health care lawyer. This is not a field for the lawyer who drafted the physician’s will or handled his divorce. Health care law has become a real specialty with its own vernacular, its own procedures, and, frankly, its own mystique. Unfortunately, too often the physician charged with a corrective action mistakenly believes that he or she can handle the judicial review hearing without a lawyer. This is a big mistake. A judicial review hearing is an adversary hearing. The involved physician has neither the objectivity nor the training to defend him or herself effectively.
With the assistance of competent counsel, the charged physician needs to take the investigative process seriously. While the investigation is ongoing, the physician needs to participate in it actively and to obtain the necessary independent evaluations of the cases under review. It is not enough for the physician to explain to the ad hoc committee that his care was appropriate. The committee needs another opinion. Sometimes, the committee has no one of the same specialty as the physician being investigated or if it does, that physician may not take the time necessary to understand the cases. Because of the high stakes of this process, the subject physician must spend the time and the money under the guidance of his lawyer to produce as strong as possible evidence that his care of his patients was competent.
The worst thing a physician can do is to try to gloss over obvious errors. However, it is equally foolish to inaccurately concede error in the hope that conciliation will solve the problem. In our experience, when a physician, in the spirit of collegiality, acknowledges error it frequently is used against him. Medicine is not an exact science. Patient care is based on a complex reasoning process that occurs with inadequate information at the time. Sometimes, looking back when all the data is available, the case looks entirely different from how it must have appeared to the practitioner in real time. In these situations, the physician should not be quick to assume guilt. However, when there is indisputable evidence the physician acted below the standard of care, it is better to deal with it constructively in the course of the investigation rather than to adamantly deny the facts. Fair-minded members of a peer review committee conducting an investigation will work with such a physician to find a solution or to remedy the physician’s deficiency.
When the investigation is concluded, the physician should make certain that he offers a constructive resolution, without the necessity of “corrective action.” When corrective action is seemingly unavoidable, the involved physician should still offer some solution that minimizes the harm of the corrective action to his practice.
Once the corrective action is taken, whether it be a restriction or termination of privileges, the subject physician has an important decision to make. The physician must decide whether or not to request a judicial review hearing. A judicial review hearing provides the potential benefit of vindicating the physician. However, the potential risk is that it may make things worse. If the restriction stands, or even if it is modified, the hearing process creates evidence that can be used by the Medical Board of California in a disciplinary action against a physician’s license. It can aggravate animosities between physicians and can destroy his or her referral base. Finally, the hearing can be both financially and emotionally expensive. Thus, a cost benefit analysis must be made by the physician with his or her lawyer to determine whether to request a judicial review hearing.
We do not recommend a quick filing of the appeal. Most medical staff bylaws provide a 30-day period within which the physician can request a judicial review hearing. This is time that is needed for the physician and his or her lawyer to explore whether they can mount a successful defense, negotiate a settlement with the medical staff executive committee, or make changes in the physician’s practice to accommodate the effect of the corrective action on the physician’s practice. It occasionally happens that an appeal must be filed if only to deliver the message to the medical executive committee that the physician is serious about defending him or herself. Some-times this message must be delivered before the medical staff will seriously discuss settlement. But for such a message to be unmistakable, the subject physician and his or her lawyer must make the commitment to go through the appeal if negotiations fail. It is impossible to successfully negotiate a favorable settlement in this or any other dispute if the physician appears weak or vulnerable. It’s like a poker player betting a hand that has been seen by one or more of the other players.
When the physician decides to fight, his defense can be broken into three distinct phases; preparation for hearing, selection of defense witnesses and presentation of evidence.
1. Preparation for Hearing
Sometimes, the case cannot be settled in the first days or weeks following the notice of corrective action and the filing of appeal. In that situation, the physician and his/her lawyer must prepare for a hearing before a judicial review committee. California law does not explicitly provide the physician with the right to counsel in such hearings, but most hospitals will grant a physician the right to be represented by counsel. If this not the case, the alternative is for the physician’s lawyer essentially to give his/her client a short course in trial lawyering and then to be available to the physician in the anteroom throughout the hearing. Fortunately, this is seldom necessary because most hospitals acknowledge that judicial review committee hearings generally go more smoothly where the parties are represented by counsel. Of course, there are horror stories where “outrageous defense lawyers” are alleged to have turned these hearings into circuses and thus cost the hospital hundreds of thousands of dollars! We doubt this has generally been the case!
In preparing for hearing, there are three important tasks for the defense: (1) selection of the judicial review panel, (2) selection of the hearing officer, and (3) obtaining discovery from the hospital. The physician wants a fair and impartial hearing panel and a hearing officer who is likewise fair and impartial and will conduct the hearing in an even-handed manner. Most medical staff bylaws provide that the hearing officer shall be an attorney who will preside over the hearing and rule on evidentiary points and other legal issues. While section 809.2 of the Business and Professions Code provides the right to “voir dire” the hearing panel and the hearing officer at the time of the hearing to determine whether they can be impartial, this process should not wait until the hearing. Most hospitals and their counsel are willing to engage in a dialogue with the physician and his/her counsel to make certain the panel and the hearing officer are fair and impartial. Hearings are expensive and an inconvenience to everyone. The composition of the panel and the selection of the hearing officer can most often be agreed to in advance of the hearing. Therefore, when the hearing convenes, the voir dire questions themselves, while important from a defense standpoint to prepare the panel for the issues of the case, should seldom disclose grounds to disqualify.
Discovery of the evidence in the possession of the medical staff or the hospital is unduly limited by section 809.2 of the Business and Professions Code. Of course, it is the objective of the hospital to limit the disclosure of hospital records to documents relevant to the charges. There is an explicit provision in section 809.2 that prevents the subject physician from obtaining “Confidential information referring solely to individually identifiable licentiates, other than the licentiate under review.” This means that the physician cannot obtain documents tending to show that other physicians on the medical staff are treated differently by the hospital when they engage in the same conduct or conduct similar to that which prompted the corrective action. This restriction on discovery is probably the single most troublesome obstacle in establishing a defense that the physician’s practice was within the standard of care at the hospital.
Discovery efforts should examine the investigative procedures utilized by the hospital in preparing the case. Often, more than one committee has looked at the cases forming the basis of the charges against the physician. Often, their evaluations of the doctor’s care conflict. Often, one committee will find the care acceptable only to have another committee condemn the doctor. This type of evidence is quite useful in the defense. A complete review of the hospital’s protocols and procedure manuals often reveals provisions that support the physician and conflict with the hospital’s position.
2. Selection of Defense Witnesses
The subject physician is the most important witness for the defense. He/she must be prepared to demonstrate superior knowledge and that his/her ability in medicine is excellent. If any mishap or errors in judgment occurred, the subject physician should put them in the appropriate context – that they were errors of a competent physician, made under the pressing demands of a hospital setting. The physician must know the charts at issue backwards and forwards and the medicine involved. The physician must be able to “teach the case” to the judicial review committee.
The other defense witnesses, likewise, must be distinguished. We prefer to have one or more academic physicians who have solid and current clinical practices. The reason for this is that the academic physician with a clinical practice invariably sees a great many cases and patients who have first been treated by other physicians. Therefore, the academic physician can testify cogently that the physician’s care in question was at or above the standard of care. We also like to have one strong witness selected from the medical staff and another one from the community who may not be on staff at the hospital, but is highly regarded in the medical community. It goes without saying that all the witnesses for the defense should be articulate and persuasive.
3. Presentation of Evidence
The physician’s case must be clear, concise and forceful. Usually the hearing occurs in the evening after the physicians on the committee have worked a full day. The documentary evidence must be well-organized with all the exhibits bound, indexed, and tabbed so that the committee, the hearing officer and witnesses who will be referring to them can use them easily. All evidence must be concise in that it should focus on the issues of the case and not wander off to ancillary issues. The testimony should be paced and follow the outline of the opening statement. We recommend utilizing demonstrative evidence wherever helpful to illustrate points. This might include the use of slides, overheads, and anatomical charts.
The order of testimony preferred is to have the physician as the first witness. The expert witnesses would then build on the physician’s testimony, with our strongest expert closing. Minor errors in testimony made by the physician are forgotten by the time the case is submitted for decision.
A cogent closing argument is critical to a successful defense. It is the culmination of the physician’s case. It is imperative that the physician’s evidence follow a theme that is established in the opening statement and that continues through the presentation of evidence.
In conclusion, given the regulatory and economic pressures on hospitals and physicians, peer review corrective action and judicial review proceedings will continue to grow in importance in both the hospital and managed care setting. Handled fairly and appropriately they can be an effective tool to improve the quality and delivery of health care and reduce health care costs. However, handled inappropriately, they can waste tens of thousands of dollars driving up health care costs, destroy working relationships within the hospital, and interfere with the delivery of quality medical care to patients.
Medicine is a Rough Playing Field
by Verner Waite and Robert Walker
It’s common in medicine that asking 10 doctors for an opinion on medical care will result in at least five different suggestions. Someone commented that if you asked the same 10 doctors a week or two later, you might get five new and different opinions. There are no universally agreed-upon indications for a number of operations, and even if there is a general agreement, the criteria change from time to time. Validated criteria are rare.
It is precisely in this environment that Peer Review occurs. With such lack of medical agreement, it is not surprising that Peer Review is often a contest of opinions. Unfortunately, it often has severe effects on a doctor’s career. An adverse Peer Review action is far more serious than a large malpractice judgment.
The process has several sources for serious bias. First, doctors on the same staff act as a jury in the case of another physician about whom they may have “heard” a great deal. Those bringing the charges often have enough influence within a hospital that finding against their view may be like committing hari-kari.
Second, the entity involved, usually the hospital or its medical staff, appoints the hearing officer. This person often does regular work for the entity, has a very warm feeling toward it, is compensated handsomely, and wants future hospital business.
Third, hearsay evidence is allowed. Opinions, operating room gossip, staff lounge hearsay, and other “facts” that cannot be substantiated, are treated as “legal” facts.
Fourth, there is no ability to overcome a hospital’s refusal to provide supporting evidence. There are no subpoena powers to compare the habits and results of colleagues (PEERS) not under review with the doctor who is.
Fifth, the reasons for the hearing do not have to be specific. The Peer Review letters may be as nonspecific as “concerns have been expressed” rather than a specific order being questioned.
In summary, one may be faced with a jury elected by one’s accuser, a judge selected by the accuser, access to data held by the accuser is denied, opinions expressed are controversial rather than validated facts, and the charges are vague. Webster defines a mock court in which principles of law and justice are perverted with irresponsible or irregular procedures as a “kangaroo court.”
This may be our best and possibly only modern example.
Contrast this process with a malpractice trial. The jury is selected by a neutral court from strangers. The judge is not selected by either party. No hearsay evidence is allowed. Both sides have a right to discovery and subpoena powers exist. There is a sincere effort to determine community standards, to compare with colleagues (PEERS). And critically, the charges are very specific.
Our forefathers formed the Constitution and Bill of Rights when this was not generally accepted throughout the world. After two centuries, the primary exception to those rights may be more than 1,000 doctors who have been expelled from a medical staff without due process, many for trivial reasons, and who were not allowed to face their accusers. In our own dealings with more than 400 doctors, we have found suspensions that were precipitated by a surgeon standing on the patient’s left doing a cholecystectomy when the Chief of Surgery favored the right, by a vascular surgeon with excellent results but doing it in a technically different manner, by doctors not doing a newly selected number of cases when their experience already exceeded the reviewer’s number of similar cases. Fortunately, the federal courts are not allowing physician immunity in bypassing standard legal procedures. In one, they reversed “143 cases of substandard care” that were found to be exemplary.
When we won our own biased Peer Review thanks to Rose Bird, who still felt doctors should have the same rights as other citizens – we set out to help our colleagues in distress by forming the Semmelweis society. Our namesake, Dr. Ignaz Philipp Semmelweis (1818-1865) has been hailed as the savior of mothers. After his MD from Vienna in 1844, he received an appointment at the obstetric clinic in Vienna. He noted maternal mortality was at 25-30%. He also noted that the first division of the clinic run by medical students had a death rate 2-3 times as high as the second division run by midwives. He also noted the medical students came from the dissecting room to the maternity ward. He ordered the students to wash their hands in a solution of chlorinated lime before each examination. The maternal mortality dropped to nearly one percent and by 1848 no women died in childbirth in his division. He lost his appointment the following year, presumably for political reasons, was unable to obtain a teaching appointment, and on appeal was granted an appointment with unacceptable restrictions. He then went to St. Rochus Hospital in the city of Pest and reduced the epidemic of puerperal fever to 0.85 percent. The rate in Vienna was still 10-15 percent. Although far ahead of his peers, he was not accepted by them.
Seeing a modem corollary to our peer review system, we named our society after Dr. Semmelweis as model. All we ask is that peer review be done with “clean hands.” We request that doctors not be second class citizens but have the same rights as found in a malpractice trial. An adverse peer review often leads to progressive expulsion from all hospital staffs. This domino effect is based on an “extended liability” concept that allows a flawed peer review at only one hospital, to be used as the sole reason for expulsion at all hospitals. Now with the National Data Bank, a flawed peer review decision will have a domino effect in every state, essentially terminating a medical career.
We’ve had experience in Sacramento when a number of doctors were facing peer review because of prior adverse action in one of the two hospitals that were merging. I understand that most of these doctors had their hospital practices terminated. In the one that I assisted in, the board member, who was playing the “judge,” opened the “trial” by stating, “We are here to affirm the decision of the medical executive committee.” There was no discernable attempt to hear both sides of the issue and render an informed opinion. I also understand the adversary physician bringing the charges was an employee of the hospital foundation. His vote was obviously in the bag.
The profession of medicine is under attack. No one is safe from peer review abuse. Currently, one in 20 doctors will be peer reviewed. One in five will serve on such a committee. In addition to our 400 members, we have had communications and conversations with more than 1,000 physicians, many serving on such a committee. They felt uncomfortable about voting separately from the vocal elements on the committee, which frequently were a minority, but which then mustered a majority. Contract physicians will often be asked to serve on the review committee for their contract are then at risk without peer review rights.
Hospitals are using peer review as the tool to serve their business interests. Ethical and excellent medical practice can be at risk. The Semmelweis is aware of improper view of physicians secure in high positions as department chairmen and chiefs of staff, with excellent credentials, who subsequently fell out of favor. In our experience, well over 50 percent of peer review is biased.
This hearing process is expensive, averaging $75-100,000 if you win. If you lose and want to take it to federal court, it will cost a third to half a million. Few can afford to clear their name. Those who can still may face financial ruin. Those who bring the charges spend no money and are given immunity even if biased. No wonder that many physicians quietly leave and some even obtain nonprofessional type of employment.
We need to draw together behind Constitutional guarantees with No Immunity for biased Peer Reviewers and establish by-laws with appropriate legal representation at all times. Splitting into warring camps plays into the hands of hospitals, insurance, and government interests attacking quality medicine and surgery. Let’s look beyond turf before it’s too late.
[From the Directors of the Semmelweis Society (www.semmelweissociety.net). A version of this article appeared in the American Journal of Surgery and in Sacramento Medicine and is used with permission. Although Dr Waite wrote this article, and we published it in November 1994, the issues may not have changed significantly.]
Physician Discipline in California – A Code Blue Emergency
by David M. Galie
On April 5, 1989 Robert Fellmeth, a professor of law and Director of the Center for Public Interest Law (CPIL) at the University of San Diego School of Law, issued a report entitled “Physician Discipline in California: A Code Blue Emergency – An Initial Report on the Physician Discipline System of the Board of Medical Quality Assurance.” Most of these recommendations have been adopted through massive legislative changes beginning in 1990, and more are coming. These changes have proven disastrous to physicians’ rights. What physicians accepted once as a necessity to remove the few “bad apples” has become an assault on the entire profession. Yes, it is a Code Blue emergency for physicians, not a Code Blue emergency for public protection as stated.
There has been a major increase to more than 100 Medical Board investigators statewide. The MBC has no policy to hire college-educated candidates who could bring with them an understanding of medical and scientific issues. Instead, the Board typically has filled its investigator positions with former street cops, who typically have little or no education beyond high school, or have the usual A.A. diploma in “police science” from a community college.
Board investigators are considered “peace officers” and have the same authority as uniformed law enforcement personnel. The individual investigators carry guns, and the Regional Medical Offices are issued shot-guns. Recently, an attorney who represents a hospital medical staff was called and told that investigators from the Medical Board were at the facility and demanding records. When this attorney arrived he asked one investigator if he had a subpoena. The ex-cop replied “No, but I have a gun.”
The specter of a para-military organization policing the medical profession is upon us. The cop mentality of the Medical Board’s investigative staff was demonstrated by the recent $60,000 purchase of a sophisticated wire transmitter and recording system. For what use? A senior investigator who was wired, using a false name and forged identity, testified under oath that her instructions going into a physician’s office were: “…to see if I could go in and get narcotics and see if I would be groped.”
Expert reviewers selected by the Medical Board’s regional medical consultants have not produced the desired numbers of disciplinary actions against physicians, and the Board has had to settle for less stringent discipline than it wanted. Dixon Arnett, Executive Director of the Medical Board, never considered that perhaps the cases themselves were weak on merit. Instead, Arnett, a defeated political officeholder, proposed the creation of a panel of expert witnesses under his control, from which he could hire by private contract, and remedy this “problem” of too little punishment.
At a recent Board meeting, Arnett made the extraordinary proposal that he be given the sole power to sign an order summarily suspending a physician from practice. This proposal is now on the Board’s legislative agenda for 1995. Also on the agenda is a provision to provide protection from liability for any witness who testifies against a physician at Board proceedings.
Arnett makes a frontal assault on the confidentiality of medical staff peer review records, heretofore believed to be protected by Evidence Code 1157. Arnett has asserted that the legislative protection for peer review proceedings simply does not apply to the MBC, notwithstanding that he proposed that very exception to the Legislature, which refused to give it to him!
If this material is open to the Medical Board, there is no way it will not find its way into the hands of plaintiffs’ medical malpractice lawyers. The Union of American Physicians and Dentists, CMA plus several other groups, have filed powerful amicus briefs challenging Arnett’s position.
The severe anti-physician sentiment is reflected in a recent case by Arnett’s statements to the media about the guilt of a physician while the trial was still in progress.
The Center for Public Interest Law recommended a “legal strike force” to prosecute physicians. In accordance with this recommendation, the health Quality Enforcement Section (HQES), headed by a Senior Assistant Attorney General, was established. This Section works almost exclusively for the Medical Board. It obtains search warrants, investigative subpoenas, supports undercover operations and prosecutes physicians. It is funded from your licensing fees.
At a time when severe budgetary restraints are limiting every other civil section in the AG’s office, the section that polices physicians is flourishing and expanding, and appears to have unlimited financial resources. Deputy AGs from all other sections of the AG’s office are drawn to work in this office and bill the MBC about twice the hourly rate they are otherwise paid. In fiscal year 1993-94, physician licensing fees were paid to the AG’s office in the amount of $5,885,971 to pay other lawyers (AG deputies), to investigate and prosecute physicians.
Even this lucrative gravy train has an upper limit from licensing fees. A new Board policy now allows the MBC to make physicians actually pay for their own investigation and prosecution. John Lancara, Arnett’s Chief of Enforcement, said at the February Board Meeting: “When licensees know they may be ordered to pay these costs (of their own investigation and prosecution) they may be much more willing to settle the case…” In cases where the physician settles rather than litigates against the MBC, the payments vary from around $2,000 to about $7,000. Doesn’t this assure that marginal cases will be prosecuted, and more vigorously than in the past?
In a humanitarian gesture, an elderly physician prescribed a narcotic for a patient who he believed in good faith had AIDS. When the patient died at home, the coroner reported the physician to the MBC. In the meantime, the physician shut down his practice and retired. He placed his license in retired status. He surrendered his DEA privileges.
One and one-half years after the physician closed his practice, the MBC filed a formal Accusation seeking to discipline him. Was cost recovery behind that Draconian action?
Unfortunately, the best advice for a physician in today’s hostile environment is to have NOTHING whatsoever to do with the Medical Board of California. NEVER voluntarily initiate contact with “your” Medical Board. If they contact you, DON’T respond except through an attorney. The MBC represents the long and intrusive arm of big government. It is not your Board and it no friend of the physician.
The next best way to protect yourselves from an unfriendly government and the branch that directly affects you, the MBC, is to take control of it. Attorneys who are in the trenches fighting the MBC on individual cases can do only so much. Physicians can and must protect themselves on the political front. There is strength in numbers. You must organize and make the financial sacrifices necessary to protect yourselves. To play on the political front requires money and votes.
You physicians pay a heavy price to obtain and keep a medical license. You work through 20-24 years of education, the last decade of which is increasingly rigorous training. You have made great personal and financial sacrifices, ending your training deeply in debt. You then proceed with expensive, continuing medical education every year. You are threatened by hospitals and their paid medical staff officers by PEER REVIEW sanctions. This then makes you subject to entombment in the National Practitioner Data Bank. You are hassled by insurance companies with incomprehensible billing procedures. You are asked to reduce your standard of care by the managed care companies but still accept the risks for this. The PPOs, HMOs, and hospital foundations treat you as an expendable commodity. The DEA punishes you severely if you transgress their arcane regulations. You put up with patient demands while making yourself available to them at all hours of the day, night, weekends, and holidays. You are subject to unrelenting attacks from lawyers.
And now your licensing board, the MBC, joins in the attack. Dixon Arnett has said that physicians as a political force in California are dead. Considering your personal, your family, and society’s investment in your license, you are now being attacked at the very foundation of society – threatening you and your family’s very existence.
You and your organization must stand up for the fight. Will it be your hospital, foundation, insurance carrier, IPA, or managed care organization? Or will it be the UAPD or the CMA? Time is of the essence. Remember, the National Practitioner Data Bank computer is a permanent tomb.
This is a revision of an address given before the 7th Triennial Convention of the California Federation of the Union of American Physicians & Dentists on September 24, 1994.
David M. Galie, Esq., a former Deputy Attorney General practices law with the firm of Freeman & Galie in San Francisco, limited to representation of physicians and other health care professionals in regulatory, licensing, medical staff, and employment matters. He may be reached at 415-885-5728.
Cooking the Books? Trillion Dollar Cover-Up? Hospitals Call it Peer Review
Are our hospitals any different from ENRON and WORLDCOM in their proclivity to hide the truth? Doctors are supposed to keep the medicine clean by performing “peer-review” on each other and taking actions where they find problems. But in many hospitals, the power elite (administrators and physicians acting in concert) simply use this system to hide the mistakes of their friends.
For a long time, the medical establishment has argued that the doctors can only review each other with honesty and candor if such reviews are protected from the public eye. Most states have bought this argument in a gullible fashion and have enacted laws that protect these reviews from being publicly questioned for accuracy and effectiveness.
Politically powerful doctors can easily do unnecessary surgery or make serious medical errors. They simply get reviewed by their colleagues in an “understanding” manner. However, if you do not have the political clout but simply practice good medicine, the same secretive process is used to blackball and eliminate you.
Abuse of peer review is more prevalent than admitted by the medical establishment. It has serious adverse effects on public health but nobody is paying any attention to this problem. The Center for Peer Review Justice is one of the concerned organizations (www.PeerReview.org).
This situation needs to be addressed quickly and effectively in order to reduce medical errors, control malpractice costs and promote public health. This nation can not afford to pay 1.4 trillion dollars per year and still spiraling, medical price tag for long.
“Reduce the medical errors”, was the public outcry in the 1970’s and 1980’s.Big malpractice awards were sounding alarm for public and politicians alike. he medical establishment took the stand that there existed a few “bad apples”, who were causing most of the problem.
“Leave it to us”, the establishment said, “We are going to establish a fine system of â€˜peer-review’. We shall review our colleagues with utmost â€˜candor’ and throw out the bad apples”. “But”, they argued, “We can only do our work with honesty and candor, if our decisions can not be challenged in a court of law and the reviews are not open to the public. Otherwise these “bad apples” will sue us.”
With a strong leap of faith in the medical establishment (i.e. hospitals and doctors entrenched in it), all states enacted stringent laws protecting peer reviews from public disclosure and scrutiny. The Congress enacted the Health Care Quality Improvement Act (HCQIA) of 1986, giving peer-reviewing doctors and hospitals immunity from damages. Sen. Ron Wyden (D- Oregon) authored the 1986 law that created the National Practitioner Data Bank (NPDB), which was established to blacklist the “bad doctors” so that after committing malpractice, they could simply not cross state lines and set up a new practice.
But the medical errors have not gone down! Fifteen years have passed since then! Institute of Medicine (IOM) reported in November 1999 that 98,000 patients die each year because of medical errors. St. Paul Insurance Company reports that the rate of malpractice claims has remained steady over between 1990 and 1999. In case you did not notice, we are in the middle of malpractice crisis once again, right now. Malpractice premiums are rising. The national medical bill is 1.4 trillion dollars and on the upswing. Where did things go wrong? Does this peer-review driven system of catching errors, educating and disciplining doctors and throwing out the “bad apples” really work as promised by the establishment? Or is it merely a smoke-screen for some doctors to maintain lucrative (but short on quality of care) practices at the expense of their more conscientious colleagues who actually practice good medicine? Is the stated objective of public good being seriously compromised?
Let’s see how the system is supposed to work. After any patient is discharged from the hospital, the quality assurance (QA) nurses check the chart to see if aberrations have occurred. If not, the chart is filed away. Otherwise the chart is flagged and goes to the “peer-review” committee of physicians. This committee checks to see if the physician attending the patient met the standard of care. If not, the attending physician is questioned, counseled, disciplined, suspended, terminated depending on the seriousness of medical error. Largely, peer-review is meant to be a learning process so that the medical error! ! s are caught and all doctors are educated in order for patients in future to get better care. But this is also where doctors can play out their personal politics of favoritism, prejudices and turf-wars!
First, who are these doctors that are reviewing their colleagues? Are they somehow tested and proven to be better qualified than those they are reviewing? Do they have the necessary integrity to judge others? Are they dispassionate? Not really, in most cases, they are simply the “favorites” of the administrators. Chances are that they are “stale, pale, male”, who bring in a lot of patients, surgery, and money to the hospital. They and the hospital lie in the same economic bed. They and the hospital share strong motive of profiting from keeping control of the medical practice in a given community. They form the “inner sanctum” and! ! closely guard against “outsiders” using whatever means necessary. They may have a substantial conflict of interest in doing a proper peer review.
Secondly, are these reviewers honest in reviewing their colleagues? Can they objectively critique their friend who is simply a part of their everyday professional and social life? Who often refers to them? Who they play golf and dine with? On the other hand, can they be fair to one who just came into town and who may be taking some of their patients away? An inadvertent competitor? How about one who has this funny accent about him? Or different shade of skin? Can these doctors rise above their personal and professional ties, prejudices and insecurities to uphold the standards of medical profession, as they assure the public?
The third factor is why should they expend time and effort on this thankless job? The reviewers can simply gloss over the charts, do a perfunctory review. In fact, the department of ob-gyn, of which I was a member at that time, at Presbyterian Hospital , Charlotte , circulated a memo in April 1995, admitting euphemistically:
Overall, our (peer-review) process has been very relaxed these past few years.
Finally, the fact is that managed care has shrunk the size of the monetary pie to be had, so it is a doc-eat-doc world out there! If I can review you and eliminate you before you even get a chance to review me, I can be way ahead in the game.
The manner in which many, if not most hospitals, set up their peer review committees is by including those physicians who have maximum political clout, not those who are better doctors. For these peer reviewers to criticize other politically powerful physicians who are making medical errors would be to commit professional hara-kiri. Of course, the reviewers can not afford to do absolutely anything either. Citizen groups are watching, they have to do something to “show” and make themselves look good in the public eye.
Given all these factors, it is very easy to see that the reviewers set up a double standard of covering up the real mistakes of their friends and exposing their politically vulnerable colleagues for non-substantial, flimsy, clinically insignificant, bogus and fabricated reasons.
If they accept you or if you are part of the “inner circle”, meaning politically powerful, they simply look the other way if you make mistakes. Chances are that your charts may never be peer-reviewed because the administration, through the “understanding” quality assurance nurses, can simply let these charts slide by. However, if you are a competitor but/or do not belong to a powerful group, gender or race, full fury of the peer-review system may be unleashed upon you.
Behind the smoke screen of every one physician targeted by sham peer-review, there are a dozen physicians whose medical errors are quietly shoved under the rug! Therein lies the real source of threat to public health as well as injustice to those individual physicians, who become sacrificial lambs. The system goes to great lengths to create an illusion of public protection, while it is really protecting the establishment, by hiding medical errors of the politically powerful physicians. The basic concept that an elite group of physicians who depend on each other and the system for their bread and butter, will demonstrate enough courage to criticize and discipline other members of their elite group, is plain ludicrous. If they did, they would threaten their own survival because their own medical errors would come to surface. (I use the word “elite” here because of their social power not because of their superior medical skills and judgment).
NATIONAL PRACTITIONER DATA BANK:
This data bank was created with much fanfare by the Congress in 1986.Public perception was created and persists to date that somehow all the bad doctors would end up in the data bank and all the good doctors outside. U.S. congress Rep. Tom Bliley (R) has now introduced a bill to open up NPDB to the public.
But as elucidated above, one’s entry into the data bank simply depends on his or her political connections. s with everything else in life, there is an extreme double standard here. If you belong to the larger subset of physicians who constitute the “country club”, you will be protected by your colleagues from being disciplined. Or that your penalty will be so chosen that it does not get reported to data bank.
However, if you belong to the other subset of physicians, who are bright, conscientious, good defender of public health but lack social connections, you may be thrown into the bank as a scapegoat for minor and non-substantial infarctions. Medical establishment has the power to make you look like a monster lurking in the dark. They kill two birds with a stone, they eliminate you for reasons of their whim as well as they get a “notch” in their belt, show the public they are being guardians of public trust. Nothing is more hypocritical than that.
I believe that the information entered into the data bank is so incomplete and biased regarding physicians in general as to be of any help in stating with much confidence whether a physician is competent or not. The federal General Accounting Office reported in November 2000 that NPDB contained information that is incomplete, inaccurate or both. It is well-accepted that there is a low rate of reporting of “real” problem physicians to the data bank. A report by the Inspector General of the Department of Health and Human Services said that in the last decade, 84% of HMO’S and 60% of hospitals never reported a single “adverse action” to the government. It should therefore be obvious that, the bill introduced by Rep. Bliley is not going to give the public any meaningful insight into a physician’s competence, rather a false sense of security when they do not find a doctor’s name in the bank.
The consumer groups continue to want more entries in the data bank. Sen. Ron Wyden has said that the low level of reporting was unacceptable. While they are rightfully concerned with the low number of the overall entries, they should also be concerned with the fact that many of these entries are “forced” upon good doctors! They should also be concerned with the political, unjust and high-handed process by which these entries are generated to appease the public demand. And with the fact that peer-review process is controlled by the power elite in largely a mob fashion!
Here is an example. If 5 doctors assert that a woman should have a hysterectomy for no medical reason but for their obvious financial reward and one doctor disagrees, the lone doctor can be branded incompetent and cast away into the data bank. From then on, he is falsely perceived by the public as a bad doctor. He is headed for oblivion! There is no process of check or balance against such a sham peer review.
The chance of finding good or bad doctors is about equal either inside or outside the data bank! While I consider myself a well-trained, competent and humanitarian physician, my paper trail in the data bank would convince any potential patient to run away at the sight of me!
Effective medical peer review is (or rather can be) the ultimate protector of public health! However, in its current secretive form, it invites abuse. There is much reason, as elucidated above, to believe that peer review is practiced more in its corrupt form rather than for its original established purpose.
The Congress had devised peer review and NPDB as the way to reduce medical errors and keep the medicine safe from the public. However, they entrusted the establishment, the hospitals and the established doctors, with the process. They thought that the system would catch its own errors and reform itself. Well, as it turns out, the system is not such a saint! The situation with medicine today is reminiscent of the days when scientists of cigarette companies did their own research and declared that cigarettes did not cause cancer!
By and large, the people sitting in the review-committees themselves are interested in the bottom line- more surgery and more hospitalization. But to make a showing that they are doing something in the direction of “reducing errors”, they hang their more conscientious colleagues and the ones who may be better guardians of public health. The “bad apples” are thus throwing out the “good apples”. Dr. Charles Silver of Dallas, TX , has therefore said that the “noble act” (HCQIA of 1986) originally intended to monitor problem physicians, has gone totally in the opposite direction and, in many cases, decimated fine careers.
Dr. Gerald Moss wrote in The American journal of Surgery” in 1994:
Our better (usually younger) surgeons increasingly are placed in jeopardy by the unchecked ignorance and/or malice of their established colleagues.
The establishment has thus thwarted the intent of Congress. As columnist James J. Kilpatrick points out in his column, their “candor” in review may be a camouflage for “cover up”. Once the hospital has thrown out the conscientious and the competent physician/s under the false label of “bad apple”, the rest of the doctors can “play while the cat is away”. They can do unnecessary surgery with impunity, hide each other’s mistakes, and generally forget about the public good.
If patient care is to reign supreme, this problem must be tackled and solved. AMA, state medical boards and societies, JCAHO and other concerned entities need to look into this matter seriously. However, it may ultimately rest with the Congress to do something about it.
In February 2000, President Clinton announced an initiative to improve patient safety and reduce the number of medical errors by 50% over the next 5 years.I believe that the following needs to happen to meet that goal:
1. The hospitals need to stop playing favorites with some doctors at the expense of others and public health. ALL members of the department should review the medical charts on a round-robin basis. That would be more democratic, would it not? No administration appointed group of physicians should tower above the rest and abuse its power. The same should go for all hospital committees that control various functions. The way some people have all the power all the time, is the root of all corrupt practices.
2. Secondly, laws need to be put in place for independent and unbiased “external review”. The external reviewers, when employed, should have no vested interested in the outcome of the review. This option should be available to the reviewed physician. But, some of the so-called independent “external” organizations are simply “guns for hire”, we need to watch out for them.
3. American Medical Association envisions an “oversight committee” in each state to prevent abuse of peer-review process. This will serve as a check for sham peer reviews, avoiding local politics and conflict of interests. Some states, such as New York, have an oversight mechanism needed for the check. However, there is no mention of the “oversight committee” in the recent report of AMA.
4. JCAHO and the medical boards should not just sit around in the face of calamity of justice. Conspiracies like the one in my case are far too common. They are not rare exceptions. Vital public health interests are at stake. If the hospitals can force physicians to review others with complete dishonesty, they can also force them to do more cesarean sections and hysterectomies. The economic interests are so powerful, mere power of suggestion from the administration will do.
5. The hospitals should be required to show that they have reviewed everybody in a similar fashion and nobody is being doled out a disparate treatment.
6. Some measure of judicial scrutiny is necessary for the peer review process to be honest, fair and beyond reproach. It is ludicrous to trust the administrators of hospitals with the altruism of defending the public. The job of the administrators is to make money. The strange concept of the need of a process to be completely hidden from public eye in order to achieve public good needs to be reexamined. Secretiveness invites abuse. The courts need to abandon their “hands-off” approach of today, public health is not just the realm of medical conglomerates, and the little man should be heard.
7. Finally, there is nothing in today’s regulations that forces the hospital to do effective (non-perfunctory) peer reviews. The hospital can merely make a showing that they are doing something and get away with it. This situation needs to be remedied.
With these measures in place, the peer-review and NPDB will have the desired effect of reducing medical errors and protecting public health. By bringing honesty into medical practice, they may well reduce unnecessary surgery, reduce medical costs and save lives. The congress and states need to take urgent steps to recognize this trillion dollar Enron and clean up the peer review process. And to say the least, the media needs to promptly bring this matter to public attention!
White Paper for Patient Safety
by Gil N. Mileikowsky, MD
In search of the “Black Box” for reliable and
cost-effective quality control of the delivery of medical care.
The reason airline transportation is the safest of all transports is due to the famous “black box” that provides the necessary first step, i.e. the accurate “diagnosis.” Without that reliable “forensic” analysis, the “blind lead the blind.”
The reason the Federal Aviation Agency (FAA) is effective is because it has jurisdiction over every aspect of the airline industry, including pilots, mechanics, flight attendants, management and manufacturers. It can prevent disasters because it has the power to act immediately, without the intervention of any other agency, e.g. the U.S. Department of Justice and its lengthy process. The FAA can ground, at once, a particular type of plane or an entire airline company, with good cause. Without it, planes would crash daily.
There is no such equivalent in the healthcare industry, however the taxpayer is spending billions of dollars on multiple layers of county, state, federal and not-for-profit agencies that are defective by design. On November 24, 2002, Dennis O’Leary, M.D., President of JCAHO (Joint Commission on Accreditation of Healthcare Organizations) said, “There are some who believe that this whole system has to be blown up and start over again, I happen to be one of those advocates.”1 In 2004, the GAO (Government Accountability Office) provided its own devastating analysis.2
Is it possible to have a “black box” in the health care industry? Absolutely, yes.
In clinical research, to evaluate new treatments we use randomized “double-blind” studies, where neither the physicians nor the patients know which pill is a placebo and which pill actually contains the drug. We can do the same when evaluating any error or complication in the health care industry, whether it’s in the hospital, the doctor’s office, the pharmacy, the manufacturer of a medical device, etc.
We have about 900,000 licensed physicians in the US and 100,000 of them are in California. That’s a terrific, diversified pool to serve in a “black box.”
Whenever any error or complication is reported, it could be submitted anonymously, i.e. without the patient’s name, the physician’s name, the hospital’s name, the city or state, to an odd number (7 to 11) licensed individuals who will also remain anonymous to the patient, physician and hospital. This anonymity will assure an unbiased, impartial opinion, void of any possible conflict of interest. Such an approach also eliminates any concern of “immunity,” as the identity of those individuals will never be known.
A “black box” method of investigation should combine multiple disciplines, i.e. physicians, pharmacists, nurses, administrators, medical device manufacturers, laboratory technicians, etc., because errors and complications in the health care sector can result from various sources in a hospital, a laboratory, a pharmacy, a doctor’s office, etc. “It’s the system stupid,” as R.M. Wachter, M.D. and K.W. Shojania, M.D., point out in Internal Bleeding – the truth behind America’s terrifying epidemic of medical mistakes.3
Such a “black box” could be consulted in lieu of “experts” by state medical boards, hospitals’ peer review, medical malpractice cases, Medicare investigations, etc., since their “experts” are at times the weak link or “Achilles tendon” of the system.
Such a “black box” could also prevent future errors and complications because the opinions of each member of such a “black box” could be reviewed and a physician, a pharmacist, a nurse, or an administrator whose professional opinion may fall below the acceptable standard of practice could be identified and educated in such a proactive “two way” analysis. Isn’t the whole purpose of peer review to learn from our colleagues’ mistakes so that we can reduce errors and complications in our industry by not repeating them.
Such a “black box” participation should be mandatory as a part of maintaining and renewing the licenses’ of physicians, nurses, pharmacists, hospitals, etc., in the same way that participation in peer review is mandatory under the bylaws of hospitals for physicians in order to maintain their “active” status. We could save the taxpayer a lot of money by merging all state boards – medical, nursing, pharmacists, tissue bank, laboratory, hospitals -, into a single state and federal oversight agencies. Thus, their investigative capabilities would be merged into one single comprehensive unit, much like our multiple intelligence agencies are coordinated through the “Homeland Security” Department. This is the only way to achieve a uniform quality control across the country. See articles in the Washington Post regarding the disparate effectiveness of various state medical boards.4
Such a multidisciplinary system will easily overcome the multiple deficiencies due to limited “jurisdiction” presently encountered by the existing agencies. Currently, an investigation by a state medical board can find wrongdoing by a hospital, yet cannot act upon such finding because it has no jurisdiction over hospitals.
On the other hand, the DHHS (county, state or federal agencies) cannot act based on a medical state board investigation. It has to proceed with its own investigation that may be limited by its own restrictions of “jurisdiction.”
This “black box” comes very cheap. The physicians could be paid the same as members of a jury in courts where physicians and nurses usually do not serve because the time required to serve on a jury could adversely impact their patients’ care. As a reward, participation in the “black box” would provide the participants CME credit with AMA or specialty organizations such as ACOG-cognates. It would pay for itself through the existing licensing fees paid by physicians, nurses, pharmacists, hospitals and taxpayers.
Since Kip Viscusi, an economist at Harvard University, estimates the value of a human life to be worth between 4 to 9 million dollars in the U.S., every life saved represents a savings of 4 to 9 million dollars to the US economy.5
In July 2004, the HealthGrades study, “Patient Safety in American Hospitals,”6 demonstrated the devastating effects of errors and complications in the health care industry and established the loss of 600,000 human lives every three years. That represents 2.4 trillion to 5.4 trillion dollars wiped out of the U.S. economy every three years, or 800 billion dollars to 1.8 trillion dollars every year, as 200,000 humans, i.e. taxpayers, consumers, productive people…, disappear from our society annually.
In 2002, our national health care cost was $1.6 trillion (about 15% of the Gross Domestic Product (GDP). If one considers the additional economic impact of health care errors and complications, the total health care cost may actually be about 30% of the United States’ GDP. Accordingly, there is no reason for the taxpayer to continue to waste public funds for obsolete and ineffective layers of organizations and agencies that are not capable of fulfilling their mission even if they wanted to.
This was convincingly illustrated by whistleblower Charles Rosen, M.D., who stated in a 7/25/2003 Street.com article that he observed at his hospital a “deliberate attempt at cover-up for financial reasons” and wondered why no agency was intervening after he reported the source of the unusually high infectious rate at his facility.7 No wonder patients are afraid of hospitals. See the Wall Street Journal, 9/11/2003, article by Laura Landro, “How to keep the Hospital from Making you Sicker.”8 That’s why alternative medicine is so popular.
Once the “black box” is operational, it will markedly reduce the number of litigations by patients and their families, victims of errors and complications, and decrease professional liability premiums. (See Figure 1 and Figure 2, The “Big Picture”)
The “black box” could assist justice, as the legal system and courts in general are intimidated by any intervention in the medical field. Judges feel they lack the necessary expertise and thus fear allowing a potentially bad physician to return to medical practice. In the name of “public interest,” judges prefer to err against the physician, even when the allegations are clearly silly, and thus assume the presumption of correctness of the process of hospitals’ “hearings”. Hospital attorneys have for many years very skillfully abused these shortcomings by courts all over the country.
Judges are also mindful not to overburden an already costly health care system. They do not realize that by protecting hospitals’ administrators and their boards, the runaway health care costs will never stop growing because errors and complications are a great source of revenues for them. In USA Today, Lucian Leape and his researchers stated on 5/18/2004.9 “We have to turn the heat up on the hospitals…” as “…there’s no economic incentive for hospital’s to reduce errors because they make more money by treating the resulting problems.” See also Professor Leape’s JAMA article.10
So far, federal prosecutors have not been able to compel any significant change in the conduct of the management of hospitals despite several multi-billion dollar settlements by the U.S. Department of Justice vs. NME, HCA, Tenet and others, as these administrators (CEOs, COOs, etc.) continue their devastating practices under their corporate umbrellas, following those settlements.
If we genuinely want America to be competitive and have a healthy workforce, we need to reduce the individual, corporate, insurance and government financial health care burden by establishing, as quickly as possible, a meaningful, credible, cost effective and reliable quality control for the health care industry. We need not forget that as our population’s age grows, its health care needs and costs will continue to rise, yet we have some of the finest physicians, nurses, pharmacists, etc. in the world and we have the most advanced technology available to us. Thus, we cannot allow this organized sabotage to persist and undermine the quality of the delivery of medical care in our country.
When Congress passed the HCQIA, it failed to establish a HCQIA Agency to assure the mission and intent of Congress because it depended on a “licentiates”-driven peer review reinforced by legislatures in Business and Professional Codes of California and other states. Alas, that wishful thinking rarely materialized.
We have to learn from the experience of years of repeated failures. As observed in “Clinical Peer Review or Competitive Hatchet Job” by William W. Parmley, MD,11 too often the physician members of the “old boys network” abuse peer review as a tool to protect each other by covering up acts of negligence or to eliminate their competitors. 12
Peer review, controlled by hospital administrators’ greed and economic interests, has totally failed to achieve the quality control that Congress and California’s legislature assigned to it., Hospital administrators are the “gate keepers” who control which medical records are submitted to the peer and chart review committees and which physicians escape scrutiny. Hence, they cover up the wrongdoings of those physicians who represent significant revenues in order to secure their stream of profits. See “Rape of the Medical Peer Review Process By Tenet Healthsystem.”13 That’s what happens in many hospitals. See Critical Condition – how US healthcare became big business and bad medicine by Donald L. Bartlett and James B. Steele14 and the outstanding “Cost of Courage” series in the Pittsburgh Post-Gazette by Steve Twedt, a comprehensive investigation of systematic failures of peer-review nationwide, published 10/26/2003 to 10/29/2003.15, 16
It is said that, “Internists know everything but see nothing, Surgeons see everything but know nothing, and Pathologists know everything and see everything but, too late.” By the time the FBI raided “Redding,” they “knew and saw everything, but too late” for the victims and people who died as a consequence of unnecessary and non-indicated cardiovascular surgeries performed at that facility. See “Unhealthy Diagnosis,” 60 Minutes, CBS, July 25, 2003.17
The matter of quality control in the health care industry cannot be limited to the agenda of a single party, Republican or Democrat. Nor is it a political ideology, i.e. capitalism or socialism. It can only be achieved by taking into consideration humans’ natural limitations, e.g. egos, bias, partiality, conflicts of interests (economic or other), discriminatory, arbitrary, capricious or malicious conducts. The “black box” circumvents all of the above human shortcomings. No laws passed by Congress or any legislature can change nature’s own biological, sociological, and psychological laws, i.e. the organic human deficiencies.
The Romans proclaimed a long time ago that, “Errare humanum est,” i.e. “To err is human” and the famous maxim, “Primum no nocere,” i.e. “First do no harm.” Isn’t it about time for us to implement this wisdom and common sense? How many more human lives will be victims before we establish a true, effective and reliable quality control of the delivery of the medical care in our country?
Don’t we say, “Where there is a will, there is a way”? Isn’t that the American way?
Contact Gil N. Mileikowsy, MD: firstname.lastname@example.org
1 O’leary D. Presentation to CMA’s 6th Annual Leadership Academy. 2004. Full text available at www.aapsonline.org/mileikowsky/oleary.pdf 2 CMS Needs Additional Authority to Adequately Oversee Patient Safety in Hospitals. United States Government Accountability Office (GAO) Report, 2004 3 Wachter, RM, Shojania, KG. Internal Bleeding – the truth behind America’s Terrifying epidemic of medical mistakes. Rugged Land, LLC; 2004 4 Thompson CW. “Disciplining Doctors” Washington Post 4/9/2005-4/11/2005 5 Viscusi, K W. “The Value of a Statistical Life: A Critical Review of Market Estimates Throughout the World.” J Risk Uncertain 2003; 27:5-76 6 Patient Safety in American Hospitals. HealthGrades, Inc., 2004 7 Davis M. “Whistleblower Wants Tenet to Come Clean” TheStreet.com 7/25/2003 8 Landro, L. “How to Keep the Hospital from Making You Sicker” Wall Street Journal 9/11/2003 9 Weise, E. “Errors Still Taking Lives – Hospitals are Urged to Take Action” USA Today 5/18/2005 10 Leape LL, Berwick DM. “Five years after To Err Is Human: what have we learned?” JAMA 2005; 293: 2384-90 11 Parmley W W. “Clinical Peer Review or Competitive Hatchet Job” J Am Coll Cardiol 2000; 36: 2347 12 Chu J. “Doctors Who Hurt Doctors” Time Magazine August 15, 2005 13 Mileikowsky GN. “The Rape of the Medical Peer Review Process By Tenet Healthsystem” 3/21/2002. Available at www.aapsonline.org/mileikowsky/rmprp.pdf. 14 Bartlett DL and Steele JB. Critical Condition – How US Healthcare Became Big Business and Bad Medicine. Doubleday; 200415 Twedt S. “The Cost of Courage” Pittsburgh Post-Gazette 10/262003-10/29/2003 16 Townend D. “Hospital Peer Review is a Kangaroo Court” Medical Economics 2/7/2000 17 “Unhealthy Diagnosis.” 60 Minutes. July 25,2003. Available at CBS.com.