The healthcare system in America today has come under attack for a multitude of
reasons, including charges that the system has become corrupt due to the advent
of HMOs, PPOs, and other “managed” care systems. Many of the criticisms leveled
against our system are grounded in the manner in which citizens are afforded
treatment by physicians who try to function in the best possible way in today’s
healthcare system. The actions of some physicians may warrant the criticism
they receive for overutilization of health care or providing inadequate health
care. Others, on the other hand, clearly do not deserve the abuse and
maltreatment visited on them by the current Peer Review system utilized in
virtually every hospital in America today.
Ask most physicians about the Health Care Quality Improvement Act of 1986, and
the majority will have no clue whatsoever. They may start to
understand this Act better after they receive a letter from the
Quality Assurance Department of the local hospital and/or the
Medical Executives Committee reviewing a case from that physician.
One of the interesting things about that letter they receive will be
that somewhere in the letter, the term “privileged and confidential”
will be either typewritten or stamped. The original intent of the HCQIA and the
peer review system was a shield: The principal legislation which created the
“peer review system” in America today is the Health Care Quality Improvement Act
of 1986 (HCQIA), which was enacted under the Reagan Administration to reduce the
number of medical malpractice suits hospitals faced with by eliminating
incompetent physicians. Unfortunately, it has now been transformed into a
sword. Since the advent of managed health care in this country, physicians are
now motivated by everything from the accumulation of vast numbers of patients to
the formation of large medical groups whose sole purpose is to monopolize the
health care market in a single geographic area. These large medical groups
often possess a significant number of physicians who either dominate powerful
committees or control the fate of economic competitors by using a hospital peer
review system to deny other physicians medical staff privileges. By exerting
enough influence on the existing hospital power structure, many excellent
physicians – approximately 500 per year – are being professionally destroyed,
with their careers maliciously ruined by most allegations regarding the quality
of patient care through the abuse of the peer review system. As a result, a
once well-intentioned principle of physicians monitoring other physicians has
been transformed into a means of assassinating one’s economic and political
rival.
Similarly problematic is the National Practitioner Data Bank (NPDB) which was
also promulgated by the HCQIA of 1986. The NPDB was intended to serve as a
repository for the names of physicians who had reported instances of true
negligence and malpractice. The NPDB, however, has now operated in such a way
as to deprive physicians of basic rights afforded even to criminals. A
reporting agency such as a hospital controlled by a dominant medical group can
report a physician for little more than “concerns regarding patient care and/or
questionable technical abilities.” Such a report remains within the NPDB, even
if a physician is exonerated of any and all wrongdoing. Even the local state
medical board is unable to remove an adverse report from the NPDB. The only
parties that can request a physician’s name be removed from the NPDB are the
reporting entities themselves. Needless to say, this almost never happens.
The peer review system and the NPDB once served a useful purpose. However, that
purpose and its original intent, unfortunately, have been lost and forgotten
over the past years. This once noble intention could be recaptured if changes
were made in the peer review system and the NPDB. Currently peer review panels
are manned by physicians from the same entity seeking to suspend or terminate a
physician’s medical staff privileges. The hearing is frequently called in
response to a summary suspension, a frequently used and abused maneuver of
tagging the target physician and bringing his practice to a sudden halt.
Often, this physician knows nothing about the basis for his suspension and has
very little time to respond to the allegations. The physicians sitting on these
committees are from completely different medical specialties. The physicians
have little or no familiarity with the standards of patient care from the
physician’s area of practice; any more than a neurosurgeon would know a
dentist’s practice. The unfortunate result of this scenario is that the peer
review committee, rather than conducting an independent investigation, simply
rubber-stamps the findings of the physician’s accusers, who often are their
direct competitors. Most physicians are not against peer review, so long as it
is a fair panel that is composed of workable, impartial, and unbiased
participants—as opposed to insiders who merely promote and perpetuate the
injustices of the system, making the judge, jury, and accusers all the same.
This problem can be corrected if the peer review committee were to employ the
services of outside experts to advice as to the proper evaluation and treatment
of the accused physician. However, this effort is for the most part never
made. As a result, the peer review hearings are often simply kangaroo courts
that pay lip service to due process. Once these committees rubber-stamp the
predetermined outcomes of the peer review hearing, the physician’s name is
provided by that entity to the NPDB. Regardless of the merits, the physician is
effectively barred from any other hospital because he or she has been the
subject of an adverse recommendation that is reported and thus appears on the
NPDB – even when there is no rational basis. Furthermore, if a physician
applies for privileges at another facility and the application is denied, the
new entity once again reports to the NPDB because it has denied the physician’s
application. The worst-case scenario, which has occurred in several areas of
this country, is when one hospital conducts a sham peer review and reports the
practitioner to the NPDB. The next hospital, controlled by a dominant medical
group, will cite the previous hospital’s decision and the NPDB report without
conducting its own independent investigation. Eventually, as one sees, a domino
effect is achieved and the physician is unable to obtain privileges or practice
medicine anywhere in this country.
The media has chronicled true stories of physicians who have gone astray before
being disciplined; in any profession there are “bad apples” that have fooled the
system. However, many more innocent doctors are currently being victimized for
clinical differences of opinion which are equally acceptable in mainstream
medicine. The fact is alarming, given the rapidly changing practice of medicine
and new techniques associated with different surgical procedures. Unless a
physician is a member of the “old guard,” he or she is in peril of losing their
livelihood. This reality is borne out by the fact that approximately 80% of
hospital peer review hearings are politically or economically motivated. The
offending hospitals and physicians perpetuating these heinous acts on their
colleagues are beyond reproach, because those who make such accusations and
abuse the peer review hearing process claim that these actions and
communications, no matter how egregious, are immune from formal traditional
legal recourse. These individuals act with impunity and receive complete
protection under state and federal law. Federal courts, however, are currently
deciding the extent to which members of these committees will enjoy full
immunity. The status of the federal HCQIA currently is in question and the
legitimacy of such extreme treatment of healthcare professionals today is in
serious jeopardy.
One of the issues currently being brought up regarding the HCQIA is that the
hospitals’ actions can be factually wrong, yet still be completely immune from
liability. This appears to completely contradict the training of practitioners,
who were taught during medical school that the truth should prevail and that
their ability to practice medicine should be based on fact, not fiction.
Several organizations have made note of improvements desperately needed in
connection with the Health Care Quality Improvement Act. Most recently, the
American Medical Association delivered a statement on March 2, 2002. The AMA
discourages involvement in peer review proceedings by physician panel members
who are economic competitors of the peer review physician, and discourages
medical testimony by economic competitors when the proceedings may result in
termination of the affected physician’s privileges. Additionally, the AMA
strongly recommends that to qualify for immunity, peer review action must meet
specific criteria – in fact, the AMA has stated that the potential for abuse of
peer review exists. They have publicly stated that personal agendas,
competition or other reasons unrelated to quality care must not be the
motivation for peer review actions. Furthermore, the AMA states that peer
review that is not fair or objective can undermine the patient care for which it
was initially developed, and that as a result, patient access as well as the
physician’s reputation are at risk. More importantly, failure to adhere to fair
review process can erode the public confidence in the ability of the medical
profession to adequately monitor itself. The AMA further urges all medical
staffs to adopt and implement medical staff bylaws that comply with AMA policy
II.375-983 as well as the HCQIA.
The following is a list of recommendations to improve upon the Health Care
Quality Act of 1986:
- The local state medical associations should stop bogus reviews of one
physician by others who are compelled to find faults because of anti competitive
motives.
- State medical associations should provide advocacy to physicians and
patients who are being victimized by sham peer review.
- Both state and federal governments should support changes in hospital
bylaws to rotate committee members, thereby lessening the chance of politicizing
the positions on these hospital committees.
- We should support changes in hospitals to equalize the playing field
by placing “the burden of proof” on the hospital attempting to remove a
physician, except in cases of drug and alcohol abuse. In the current system,
the practitioner is considered guilty and has the burden to prove him/herself
innocent.
- Immunity should not be afforded to those physicians and
administrators who attempt to maliciously injure a physician in a peer review
hearing.
- Hospitals and the accusers should be forced by the state medical
boards to accept physicians who have been reported by these accusers and their
peer review committees, particularly if they have been exonerated by the state.
The proper treating of patients should supersede political agendas.
- Hospitals should be required to do external peer review critique
regarding any ad hoc committee meetings and/or questionable summary suspensions
of a physician, except again those with obvious drug or alcohol problems.
Additionally, hospital bylaws should be amended to give the final say of a peer
review hearing to the hearing panel and not back to hospital administrators,
trustees, or medical executive committees who include the principal accusers.
Again, most hospital bylaws, do not give the hearing panel the final say, but
instead the final say is given to your accuser. Again, the goal here is to have
true due process and not a kangaroo court. Additionally, if one is to have a
hearing, then all privileged information needs to be submitted and reviewed by
the hearing panel at the time of any peer review hearing. Since the hearing
itself is privileged and confidential, any privileged and confidential
information should be allowed to be voiced and evaluated at that hearing.
- The individual state licensing boards should be the only bodies
authorized to submit physicians’ name to the National Practitioners Data Bank.
Again, if one truly feels that the State Board of Medical Examiners is the
licensing body, then they should be the only ones that decide whether or not a
physician’s license should be in peril.
- The state licensing boards should also require a hospital to remove
any adverse decision from the National Practitioner Data Bank, particularly if
the physician is exonerated by their state medical board.
The Health Care Quality Improvement Act of 1986 was initially intended to help
physicians who care for their patients. As one can see, the original intent was
valiant, but has unfortunately been abused over the past decade. The intended
effect of achieving a decrease in malpractice claims on hospitals has not
improved whatsoever, as witnessed by the malpractice crisis we are now currently
experiencing. Additionally, if one reviews the peer review process and the
malpractice cases overall, it is interesting to note that in a majority of peer
review cases, the accused have actually had less of a malpractice history than
his accusers. As a result, is the Act truly protecting patients from bad
doctors, or are we just perpetuating a myth? The American public would be
appalled to find out that when they enter a hospital thinking they are getting
the best doctors around, they may in fact, be getting only those doctors whom
the “inner core” has allowed to practice. Once again, this is not to say that
all hospitals are practicing this way. There are many good hospitals that truly
attempt to utilize peer review as it was originally intended. This article is
being written in order to wake up the physicians out there who feel that their
actions will always be dealt with appropriately. There are obviously abuses
that can occur under the current provisions of the Health Care Quality
Improvement Act of 1986. It is up to us as physicians to level the playing
field, so that if ever any of us are in this situation, we can feel comfortable
knowing that due process is truly observed and we are not involved in a sham
situation. Let us not perpetuate a system that is being abused. The Health
Care Quality Improvement Act of 1986 was a good intention and a good start. It
is now time for legislative action to be promoted by our local and state medical
associations, as well as on the national scale, to beef up Health Care Quality
Improvement Act to actually make it fair for everyone. Lawsuits have not
decreased – this is obvious. Let’s not protect those individuals who are
currently protected by peer review and who are in the majority of cases, the
perpetrators of this malpractice crisis at the expense of other physicians who
unfortunately have been involved in the politics of the healthcare system at
their hospital.