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.]