The Health Care Quality Improvement Act of 1986 and Physician Peer Reviews: Success or Failure?

 The following abstract is from an article that can be retrieved from  http://www.allianceforpatientsafety.org/articles.php (website: Alliance for Patient Safety) I could not retrieve it anymore from the original site  http://www.usd.edu/elderlaw/student_papers_f2003/health_care_quality_improvement_act.htm

The Health Care Quality Improvement Act of 1986 and
Physician Peer Reviews: Success or Failure?
By: Bryan G. Hall

The Master Said to Narendra:
“Have you become an experienced physician?”
Quoting a Sanskrit verse he said, “He who has killed only
a hundred patients is a novice in medicine;
but he becomes an expert after killing a thousand.”
- Ramakrishna

Abstract

In the early 1980’s, in response to numerous newspaper articles reporting cases of physician ineptitude, the medical community increased its efforts to limit the practice of incompetent physicians through the implementation of professional peer review and credentialing procedures for a physician’s obtaining of hospital privileges and membership.  However, as the decade progressed, the success of the peer review
process became hindered by an increase in lawsuits filed by the disciplined physician against the individual review committee and hospital.  In response to this increase in litigation, the Health Care Quality
Improvement Act (HCQIA) of 1986 was passed by Congress with the expectation that it would help protect hospitals and individual’s participating on medical peer review committees from potential liability in the form of money damages after the revocation of a physician’s hospital privileges. The Act has established standards for the hospital peer review committees, provides immunity for those involved in peer review, and has created the National Practitioner Data Bank, a system for reporting physicians whose competency has been questioned or when the physician has been sanctioned.

The effect of HCQIA on many of those that have been on the receiving end of a bad faith peer review committee has been unjust and unfair. Critics argue that the HCQIA helps foster an environment in the
medical community that, instead of promoting the goal of quality health care in America, allows the peer review process to be perverted for political and economic motives. This report will analyze the current peer
review process and the importance of hospital privileges, the standards and immunity provided by the Health Care Quality Improvement Act, as well as a critique of the Act regarding its protection of bad faith or
malicious peer review committee. This report will also offer some suggested remedies in order to ensure a more equitable and just peer review system and thus help realize the primary goal of the Act, the
implementation of the best quality health care system possible.

How to destroy a physician - Part 1: A step-by-step guide utilizing the hospital peer review mechanism

(Used by some hospital administrations.  Why? We'll get to that in another posting)

 Step 1:  Do not tell the physician that there is anything wrong.  If you do, the conscientious physician my take appropriate steps to improve her/his performance, quality of care, and outcomes without any disciplinary actions.  Don't let that happen.  Make your case as solid as possible to screw the doctor.  After all, it is not about improving care, it's all about getting rid of that particular doc. Be focused and let me repeat: your goal is nothing short of destroying the career of that physician.

Step 2:  Gather as much damaging information as you can, behind the scenes.  Most doctors are not entirely perfect.  You, of course, should demand no less than perfection from the target physician.  After all, you're the good guys.

Step 3: Set up a "peer review committee" as per your hospital Bylaws.  Point out that there are concerns about that physician's performance or patient care or disruptive behavior, whatever.  You don't have to produce specific documented evidence. Just set the tone for the process to take the desired direction.  Even though the initiating hint may be just a hearsay thing, believe it or not, hearsay is good enough to initiate the process.  Don't worry, the standards of the process are low enough to allow for that.

Step 4:  A professional performance committee, if that is what you have in your Bylaws, is then to be involved.  You may very well have same people sharing both committees, to maintain the desired direction. Makes it easier for everyone.

Step 5: Get an external reviewer who is inclined to be harsh.  If the reviewer thinks that she/he is asked to be critical in order to improve the quality of the care, the reviewer will feel an obligation to be as critical as possible. Don't admit that you are considering to terminate a physician's privileges and destroy a career.  The reviewer will do the job and wouldn't want to know that.  Doctors, particularly surgeons, tend to be really hard on each other.

Step 6:  If you are lucky, and you mostly will be, to get some negative reviews, you won.  Start an investigation.  The physician is now on the path of no return to career destruction.  From now on, whatever the physician says to defend himself/herself will appear meaningless.  After all, the "experts" have said their saying.  I have to remind you that you are not using any criticisms in a constructive manner, you are using criticisms as an evidence in a destructive process. It is that simple.

Note:  If at any point, before starting an investigation, a physician indicates the slightest intent to not stay on staff for whatever reason, don't let that happen.  Don't respond to such a request.  Wait till an investigation is started first.  If a physician resigns while under investigation, such has to be reported to the National Practitioner's Data Bank (NPDB), which would be just fantastic to compromise that physician's chances to be employed anywhere in the USA or anywhere in many other countries.  You've trapped your target.  Play chess?  Like a check-mate?

 Step 7:  Proceed as per the Bylaws.  You've done your homework very well.  No member of any committee, past that step, will do much due diligence to turn down your extensive efforts to keep up the quality of care.  You've got a peer review, external reviewers, the professional performance people, and the investigating committee, all done their parts.  The sheer volume of the generated material is much more than what most members of a Medical Executive Committee are willing to thoroughly read.  They will trust that you did your due diligence. Try to hide any positive comments or reviews that may have come up during the investigation.  The MEC, most likely, will be inclined to accept your recommendations if you have a role in addressing the MEC.  If you won't have the chance yourself to present the "facts" and the desired outcome to the MEC, don't worry too much.  Tremendous damage has already been inflicted.  If you chose your target wisely, no one will take an action other than your desired end result.

Step 8:  If the physician asks for a "fair hearing", sure, why not?  If your lawyers did a good job in drafting the Bylaws, which the lambs (I mean the physicians) have already known and (yeah, right!) accepted, then you really are in good shape.  The "fair hearing" panel probably is not required to test the merits of your Medical Executive Committee's recommendations (that is, an adversarial action against your target).  All they have to determine is whether the recommendation is a reasonable conclusion based on a factual basis.  With all the committees involved, and the hundreds of pages of documents, a hearing panel will have hard time saying that you do not have a factual basis.  You just have to be "reasonable".  That is all the standard that you need to destroy a physician's career.  The only way really your target can win in a fair hearing is to have a high level of evidence (not just reasonable .. double standard .. wink, wink!) that the recommendation of your Medical Executive Committee has been pretextual.  Slim chance to produce such an evidence, of course.

You've succeeded in sealing a decision to impose an adversarial disciplinary action.  How that would lead to the destruction of the doctor's career? --- To Follow ....

Dear Patient Series (1)

Dear Patient (USA),

If you have a condition that can be well treated by a risky surgery, and if your surgeon is willing to do the surgery and he/she is a capable experienced surgeon, he/she may get punished harshly to the extent of threatening the surgeon's career if the surgery is done, and resulted in a complication.  Surprised?  Well, physicians, particularly surgeons in community hospitals, are under tremendous pressure to avoid complications.  Complications cost the hospitals money, sometimes lots of it. Your chronic pain, despair, etc, if you do not undergo surgery, will not cost the hospital a dime, and will not show in any of the "quality" measures that hospitals use.  Some hospitals use quality measures not to discuss improving quality in a constructive manner, but mainly as a tool to get rid of certain doctors.  Remember, the immunity extended to the peer review process does not differentiate a good-faith from a bad-faith process.  All are just as protected.

Yours,
Shammed Doc

Video: Dr. Huntoon - Tactics of Sham Peer Review

I am certain that anyone who has been subjected to, or victimized in, a hospital bad-faith peer review process, will find that Dr. Huntoon's lecture is straight to the point.  If you have spare 20 minutes or so, you may want to open the must-watch YouTube video  clip on the following website:
http://www.aapsonline.org/peerreview/epidemic.php

 Please notice that I am not connected to the AAPS, but I am genuinely interested in their advocacy against the corrupt practice of sham peer reviews.

Psychology of the Sham Peer Review

Does the medical staff/hospital peer review process have psychological influences and effects?  You bet! An excellent article that dissects out the psychology of a sham peer review is available online in a PDF form.  Without getting into the psychology of reasoning, let's go to the article written by Dr. Lawrence R. Huntoon, a Neurologist practicing in New York according to the article dated 2007, as an Editorial in the Journal of American Physicians and Surgeons in 2007. The items covered in this excellent article are:

• Psychology of the Sham Review Process
• Psychology of the Attackers
• Psychology of the Enablers
• Psychology of the Physician Victim

Here is the link:  http://www.jpands.org/vol12no1/huntoon.pdf

Signs of a Sham Peer Review

As you may realize, the hospital peer review process is not perfect, and it tends to tilt against the physician.  This in and by itself is not the end of the story.  Once a physician is subjected to a disciplinary action, such is reported to the National Practitioner Data Bank.  The physician's career will be in great jeopardy, and may very well end.  Of course, you would think that, if a hospital, Medical Executive Committee, has such huge powers, there should be firm checks and balances.  Unfortunately, the process has serious shortcomings, and physicians have been victimized by it.  I read a very interesting article titled "Twelve Signs of Sham Peer Review" (I have no connection with the law firm)

TWELVE SIGNS OF SHAM PEER REVIEW
http://www.hollandharthealthcare.com/healthcare/2006/05/twelve_signs_of.html#more

In Summary

In the USA, hospital peer review processes have been given protections and powers that are meant to be used for the patients' safety and best interests.  The problem is that the process is not balanced, and it amounts to considering the physician, once targeted, to be guilty till otherwise .. well, there is not necessarily an "otherwise".  Once the process is initiated, in certain environments, it can certainly eliminate any physician.  The process does not have any guarantees that it will truly identify the good or the bad.  It is mostly a set of rules of an elimination game, allowing someone to be voted out, supposing the medical community in a hospital has no motives other than patients' best interests.  As it turned out, (surprise!) physicians and hospital administrations are humans and can abuse a wonderful tool like this one.  Let me clarify: 

1.  There is no due process.
2.  The law provides strong protection to the members of the peer review committee.

Such a process that tilts heavily against a targeted physician is definitely open to corruption, and exploitation of the process for reasons other than quality improvement.