Does The Law Necessarily Protect Good Medicine?

I believe that the following paragraphs are worth reading and pondering.  They are from an article "How to Protect Physician Whistleblower-Patient Advocates - From Retaliation to Benefit Patients" - October 2007
by Gil N. Mileikowsky, MD, Encino, CA, and Bartholomew Lee , Spiegel Liao & Kagay, San Francisco, CA.  The link is: http://www.allianceforpatientsafety.org/protect.php

The Law Today Favors Bad Medicine:

Once a hospital hearing to test a summary suspension commences, the administrative process controls the suspended physician. Due to the "doctrine of exhaustion of administrative remedies" no court will intervene to prevent administrative dissemination of the defamation of the report of the summary suspension, even though there has been no adverse finding or adjudication. "Exhaustion of administrative remedies" usually means exhaustion of physician resources, in litigation and its antecedents, especially inasmuch as the physician cannot (on interim suspension) practice medicine.

Furthermore, due to the abuse by hospitals of that doctrine, hospitals can prolong that administrative process with many delays, e.g., by an ostensibly favorable ruling of the hospital's appeal board granting yet another, new "hearing" to the still suspended physician. That is a most effective strategy, at worst malicious prosecution, at best "good intentions gone awry," to exhaust the physician as an adversary emotionally, financially and physically. Hence, the hospital wins by attrition before any litigation is even possible. In the end, the physician's "exhaustion of administrative remedies" may be futile. It all too often ends up with a final blow by the governing board of the hospital (even if members of that board may believe that this physician is innocent). This is so, because a ruling by the governing board in favor of the physician, would open the door to claims for monetary damages for the physician against the hospital. The board in its perceived fiduciary responsibility will wish to prevent such a financial loss.
The hospital simply must bury its mistake, and take advantage of the reluctance of judges to substitute judgment for medical professionals in staff matters.
Moreover, a physician who can get to court generally at most wins a remand to the administering hospital, for yet another round of hearings.
When it is understood that hospitals' attorneys drafted the amended federal Health Care Quality Improvement Act (HCQIA 1989), the insertion of a quasi-judicial immunity provision can also be explained. The effect if not the object was not so much protection of physician participants in good faith peer review; rather it was the perhaps unintended consequence of protection of hospitals that sponsor bad faith peer review. Hence, only very few injured physicians in the last 20 years have been able to get past the twin peaks of judicial deference to medical prosecutors and administrators and immunity for the complicit as well as the innocent.
As if this were not enough, the HCQIA also provides that a peer review body's failure to meet the conditions described in the law does not constitute failure to meet the applicable standards. In other words, failure to comply with this particular law is not a violation of this particular law. Such a caveat sacrifices the health care quality improvement spirit of the law by gutting the letter of the law. In effect, the hospitals' lawyers' lobbying has loaded the dice. The public cannot expect this process to be either fair or reasonable. An objective observer could join advocates in concluding that at this time, the "peer review" disciplinary hearing process is rigged to a point way beyond any "stacked deck" of cards. Even without malicious intent, physicians from the same hospital are frequently too close to the personalities to avoid bias one way or the other (unlike, for example, a jury of one's peers in court, who are strangers to the parties). Hospital administrators face economic incentives to maximize income, but not to minimize complications.

Ironically, bad physicians are rarely subject to such malicious prosecution. This is so because they are often significant income providers to the hospital and thus enjoy the protection of a hospital more concerned with revenues than patient well-being. This was the case in Redding, California for two heart doctors who did hundreds of sometimes fatal heart procedures, utterly unneeded, and full of risk. All monitoring and inspection by several agencies failed to detect this enormity. When hospital managements, closest to the problems, are compensated only in proportion to revenue growth, patient safety suffers. Often bad physicians, without the leverage of big revenue, simply agree to leave the hospital, provided the hospital does not report them to the state medical board, thereby minimizing its own exposures. They thus evade the "radar screen" of mandatory reporting.
The public is not protected. The reporting system tells of summary suspensions of even outstanding physicians without adjudications, but cannot report cover-ups.

Physicians and Surgeons: You're Guilty Until Proven Innocent

The title may sound an exaggeration, or an attempt to attract the attention.  Unfortunately, it is 100% accurate, if you see how the consequences of being guilty will be suffered from early on.  Let's say you are an excellent doctor.  Let's say your patients love you.  Let's say you have great bedside manners.  Let's say you keep yourself well-informed of new medical literature.  Let's say you treat your patients as if they were your own family.  Let's say your results are better than your peers.  Then something happens.  Somehow, a peer review is initiated against you.  While you ponder what's happening, and you start putting a lot of hours and effort to respond to the allegations, the powers decide that, allegedly because of "concerns", and to protect the patients from you, you are placed on suspension.  Believe it or not, you will, from now on, suffer the consequences as if you were actually "guilty", even though it is all unproven. Here is how it works.  The hospital has to report to the National Practitioner Data Band (NPDB) that you are suspended, and such a report should be filed within thirty days (in California, only 15 days and electronic filing is being implemented).  Hold on, what are we reporting here?  The doctor has not been proven guilty of anything.  It gets worse, and still the physician is not proven to deserve any restriction of their practice.  An investigation by the hospital may be initiated, and may take for ever, while the physician is unable to earn a living, being on suspension.  The doctor cannot work elsewhere either, because the NPDB report effectively made the physician not employable.  Bad .. eh?  It gets even worse.  There is no high-standard "due process".  The entire process is allowed to be driven and directed by the very people who are being hostile to the doctor.  The peer review process may very well end with a verdict that revokes the doctor's privileges in that hospital, which is the death sentence to the physician's career.  Throughout the process, the doctor has been enduring the consequences of being guilty (losing ability to practice medicine, having a negative report to the NPDB, being unable to find a job, being labeled as incompetent) before any fair process has ever started.  For many physicians, the process will never be fair, since the laws are extremely biased against the physicians, and will be completed with the definitive destruction of the career.  Even though the title says "You're guilty until proven innocent", it is quite possible that you'll never be able to clear your name with the current state of affairs.  If you can afford litigation, that is probably your only chance to defend your reputation. 
Those who aspire to be physicians need to know those very true facts about practicing medicine in the USA. You will be under the mercy of others.  You may be lucky to practice in a good environment.  Or, you may be not ......

Stressed out doctor will close her clinic

Source: http://www.yakima-herald.com/stories/2010/11/10/stressed-out-by-legal-fight-doctor-will-close-her-clinic
From the Yakima Herald-Republic Online News.

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Posted on Wednesday, November 10, 2010

Stressed out by legal fight, doctor will close her clinic
By Erin Snelgrove
Yakima Herald-Republic

YAKIMA -- Citing exhaustion from a two-year legal battle that she launched against Yakima Valley Memorial Hospital, obstetrician Dr. Diana Smigaj said she will close her practice -- Cascade Women's Healthcare Associates in Yakima -- by the end of the year.
Smigaj, who accuses the hospital of trying to drive her out of business, lost the case earlier this fall on summary judgment in Yakima County Superior Court.
"I've been under incredible pressure and stress," from Memorial, said 62-year-old Smigaj. "I'm getting to a point where I feel so threatened and so much of a target that I can't practice."

To read the full article, go to:
http://www.yakima-herald.com/stories/2010/11/10/stressed-out-by-legal-fight-doctor-will-close-her-clinic
At the end of the article,
"Smigaj said she's spent two years trying to clear her name.
"With the way the law is interpreted, a medical staff member who's being targeted does not have the legal rights of a common criminal to due process," she said.Linneweh said the hospital is seeking to recover its legal fees from Smigaj, which he estimated at $500,000."

This is sad!

California Dreaming - Senate Bill 700 (SB 700) - Peer Reviews

With great interest, I read the new provisions in California law.  The article that is the subject of today's discussion is an excellent article that can be reached at the following link:

http://www.dwt.com/LearningCenter/Advisories?find=353875

The article of interest is  a publication of Davis Wright Tremaine LLP. They state that their purpose in publishing that advisory is to inform their clients and friends of recent legal developments. They also state that it is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

On Sept. 29, 2010, California Gov. Arnold Schwarzenegger signed Senate Bill 700 (SB 700) into state law. The amendments and new provisions will go into effect on Jan. 1, 2011.  According to a Senate analysis of SB 700, the bill was needed to address various criticisms of the peer review process.

Criticisms of the peer review process: 

(1)  A perceived reluctance among physicians to serve on peer review committees due to the risk of involvement in related future litigation  

(2)  A rising concern about “sham peer review” (defined as the use of the peer review system to discredit, harass, discipline, or otherwise negatively affect a physician's ability to practice medicine or exercise professional judgment for a nonmedical or patient safety related reason).

(3) The “over legalization of the process, lack of transparency in the system, and [the] burdensome human and financial toll” on both the hospital and the physician. The article noticed that, SB 700's additional requirements appear more likely to increase the over-legalization and burdensome nature of peer review than to alleviate its perceived problems.

The article reported, "B&P Code Sections 800 and 805(f) also allow a physician to supplement the 805 Report segment of the physician’s Central File with “additional exculpatory or explanatory statements” and add any finding of bad faith by a court regarding a peer review proceeding that resulted in an 805 Report. The licensee has the burden of notifying his or her licensing board about such a bad-faith finding." 

My Comment:  I believe that this will not help the majority of physicians while asserting the "guilty till proven otherwise" attitude.  We know that only a minority of sham peer review cases can be proven, considering the required insurmountable burden.  This reporting provision does not remedy the situation for the vast majority of cases.

Comment on the 805 Report requirements: 

An 805 must be submitted after any of the following events occurs for a medical disciplinary cause or reason:

• “Denial or rejection of an application for membership or privileges.”  What if the decision to deny or reject an application was improper?  Are there any safeguards before defaming the physician?
• “Summary suspension of a licensee’s membership, privileges, or employment that remains in effect for more than 14 days”.  Why so quick to destroy?  What if the suspension was improper?  How to prevent bad faith actions from turning into a total disaster?

 “SB 700 provides, in newly enacted B&P Code Section 805.01, for an additional report, distinct from the 805 Report (the 805.01 Report), which must be made within 15 days after a peer review body—e.g., the Medical Executive Committee (MEC)—makes a final decision or recommendation—not 15 days after a licensee is informed of the proposed action, or after the decision becomes effective—regarding a disciplinary action (as specified in Section 805(b)) against a licensee based upon a formal investigation. In this context, the term “formal investigation” is defined to mean “an investigation performed by a peer review body based on an allegation that any of the acts listed in [Section 805.01] have occurred.” Why should an adversarial recommendation be reported while the physician did not have a chance yet to defend himself against a process that does not provide the constitutional right of “due process”?  And why so quick to destroy the physician?  Is such a physician, who is guilty and before being given a chance to prove innocent, considered an enemy of the state?

The article comments: “One of the most basic questions, which inevitably will spark lively debate, is when a "final decision or recommendation of a peer review body" has occurred to trigger the new 805.01 reporting requirement. For example, if the MEC adopts a recommendation to terminate a practitioner's privileges, is that a reportable event, or does it not become a "final recommendation ... of the peer review body" (which is defined by Section 805 as "the medical or professional staff") until it is ripe for consideration and action by the governing body?  That might be after the physician has either waived his hearing rights or pursued them unsuccessfully.”

Practicing medicine while under the threat of the current hostile environment should make one wonder, is it really worth it?  Something is not right here.

Dear Patient Series (2) - You May Help Your Doctor Survive

Dear Patient (USA):

In some locations, there is a fierce competition among surgeons and physicians.  If you want to support your physician or surgeon who you felt gave you exceptional treatment, or whose services you believe are valuable to the community, do not hesitate to write a letter of support to the hospital's CEO, Director of Quality Assurance, and Chief of Staff.  Make sure that you send a copy to your doctor for her/his records.  You never know, that may help keeping the doctor in practice to service you and your community. This is your chance to "vote" for those whom you want to stay in practice.   Just a thought!