Dear Senator,

I have read about recent stumping to force medical boards to increase physician sanctions, similar to advocacy for the past several years by the "medical board watch" of Ralph Nader's consumer group Public Citizen. According to assertions of this group, physicians conduct criminal and negligent acts at the same proportion as the rest of society (and equally in all states across the US). They theorize that Medical Boards in each state therefore ought to have a proportionately high sanction rate. This underlying assumption is fallacious.

 Crime rates in cities across the country are not evenly distributed: some cities have far higher crime rates than others. Similarly, there is no reason to believe that rates of physician misconduct across the country must be evenly distributed. Further, the practice of medicine by licensed physicians is the most heavily scrutinized and regulated of any profession in the US. It requires the longest period of training of any profession, and its practitioners (especially in some surgical disciplines) work more hours than in any other profession. It does not stand to reason that the rates of misconduct in this highly selected group would be the same as the general population..

When pressure is put on a Medical Board to meet a quota of sanctions, itis pushed into abusive tactics to meet that quota. Medical Board sanctions are conducted under a system known as medical peer review. By the very definition of a peer group, this ought to be carried out only by other highly-trained and knowledgeable physicians.   In some states (such as California), due to agitation for greater physician sanctions, physicians have been removed from their investigation and sanctioning roles in medical peer review, which has then been turned over to attorneys from the state Attorney General's office. The ongoing employment and reputation of these Deputy Attorneys General then becomes linked to their "win" rate in sanctioning physicians, which can lead to abuse of the peer review system in pursuit of this goal. 

According to a 2007 AMA Board of Trustees Report, 15% of physicians have seen or experienced medical peer review abuse. It is so highly protected by law (specifically the federal Health Care Quality Improvement Act of1986, 42 U.S.C. 11112(a)), however, that there has never been a successful award to my knowledge anywhere in the US for such an occurrence.  Despite a jury finding of hospital peer review misconduct in the case of a Texas cardiologist (Poliner) and an award for $366 million (later reduced to $33.5 million), the Fifth Circuit Appeal court upheld in 2009 that, according to the wording of the federal Health Care Quality Improvement Act, ANY PEER REVIEW ACTION IS PRESUMED TO BE CORRECT UNLESS PROVEN OTHERWISE BY A PREPONDERANCE OF THE EVIDENCE and therefore overturned the monetary damage award, noting that HCQIA does not allow for money damages unless ALL of the following conditions have been violated."  

Under HCQIA a professional peer review action must be taken:

(1) in the reasonable belief that the action was in the furtherance of quality health care,

(2) after a reasonable effort to obtain the facts of the matter,

(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3)."This has given an overwhelming assumption of correctness to any initial peer review accusation (and sanctioning action) that is impossible to overcome. The U.S. Supreme Court has declined to hear the appeal to this decision.  The law firm that helped write and pass the Health Care Quality Improvement Act, has routinely given seminars to hospitals and their physician executives in methods  of conducting such legally-protected peer review. This law firm, one that specializes in racketeering law, has also served as legal consultant to the Federal Trade Commission (and has been a consultant in high-profile cases involving charges of racketeering and trade disputes between physician sand physician groups in locations like Oregon, Washington state, and Alaska). It is well-positioned to aid physician clients trying to influence hospital politics for the purpose of trade-restraint of competitors (and other financial reasons) through peer review. If your premise is that the peer review mechanisms of medical boards, like every other regulatory body, require oversight and the ability to redress abuse when it is uncovered, then I applaud that outlook.   If your goal is merely to increase the number of physician sanctioned, then I don't.

It is startling that your focus is not on the medical peer review system itself (in which there has never been a successful award in redressing abuse); it is inconceivable that a system that exists in every state has never had a successful challenge to an uncovered abuse. No system is that perfect.  It matters not whether a Medical Board is run by physicians (as in Minnesota) or a mix of politicians, attorneys, doctors, and others (as in California, where only 8 of the 15 executive members are physicians-- politicians, lawyers, nurses, and members of the public comprise the rest).

The real question is the independence and qualifications of a medical peer review judicial body that is used by a Medical Board to determine whether physician misconduct has actually occurred. Many of the medical issues, especially when the original accusation has not risen to the level needed for a civil malpractice action, are too complex and subtle for an administrative law judge (who does not have medical experience or a grounding in the medical literature) to be" persuaded" to reach a decision during the highly adversarial legal process. Such a process is able to be perverted by representatives with motives other than the maintenance of high medical standards (which was the original goal of the Health Care Quality Improvement Act).   

I am attaching a letter to the Medical Board of California's Executive Staff asking it to rectify the irregularities and abuses in the administrative decision that ended a physician's hospital career in April 2011. (The pre-determined sanction was to have been a 3 month suspension, but no effective start date for this has been set by that Medical Board so the physician has not practiced in any hospital since April 2011. His DEA license was not renewed, he was removed from the employment of a company providing Medicare services, and his medical career has therefore been ended.)

If your goal is to set up an independent federal system of review panels consisting of highly knowledgeable physicians to be used for oversight of Medical Board (and other peer review) decisions, as an avenue of redress for similar abuses, then I applaud that effort enthusiastically.   This would be an important step to nationally formalizing medical standards from a regulatory standpoint (since the medical system already has a well-developed system of developing medical standards through peer-reviewed scientific journals). Merely asking for an increase in the number of physician sanctions has the opposite effect -- of encouraging peer review abuse.

Let's stop this insanity!!

SAN DIEGO, February 1, 2012 - Multiple physician groups have come out in strong opposition to the Obamacare legislation and to the under-handed, self-serving fashion in which the American Medical Association (AMA) gave its support for the law. The AMA sought to curry favor with the government to preserve their lucrative royalty monopoly on the medical billing codes that must be used to file all medical claims in the United States. These codes netted the AMA 72 million in the year 2010 alone, and evidently provided enough incentive that the AMA all but ignored the will of the majority of doctors in the country in their Obamacare endorsement.

"There is a reason that most doctors are not members of the AMA,” says Richard Willner, executive VP of America’s Medical Society (AMS), an AMA competitor. “Only 15% of doctors practicing in the community are members of the AMA because the AMA has ignored them, disregarded their ideas, and chosen money over principle in the battle to preserve the doctor-patient relationship.”

From the oldest, most consistently conservative medical group in the nation, the Association of American Physicians and Surgeons (AAPS), to America’s Medical Society, to the American Academy of Private Physicians (AAPP), to the group Doctors for Patient Care (Docs4PC), to the online physician forum SERMO and the new healthcare start-up group, Par80, and so many others, doctors all across the country have been clamoring for legitimacy to allow their rightful majority to be heard on the subject of healthcare reform. Other groups, such as Stop Taxing Us, co-founded by physician Gary Gonsalves, M.D., are also concerned about the fiscal and patient care pitfalls in the new healthcare legislation.

The following draft of ‘Ten Commandments for Healthcare Reform’ was authored by Marcy Zwelling-Aamot, M.D., Chairman of the Board and former President of AAPP; along with AMS President/Founder, Adam F. Dorin, M.D., MBA, Doctor Zwelling-Aamot is spearheading the 2012 doctors coalition meeting later this Spring in San Diego:

I. The patient/doctor relationship is confidential and personal.  It should never be regulated by outside agencies.

II. Our patients’ privacy cannot be compromised.

III. Patients should always be free to choose their own doctor, hospital, and treatment plan.  The patient and physician working together in trusted collaboration should make decisions about their medical care.

IV. Patients have the right to privately contract with any physician, provider, healthcare facility, or vendor that provides health related materials.  Fee schedules and price lists should be readily available.

V. Actuarial risk is the business of payers, not health care providers.  Insurers should assume the actuarial risk of those with pre-existing conditions by setting up high-risk pools.  Insurers should make basic catastrophic, hospital only insurance available for individuals to purchase and own.

VI. Payment of benefits is between the payer (either private or public) and the insured.  Payment for services should be between the patient and the doctor, hospital or other provider of care.  The two should not be mixed.

VII. Any tax benefit provided for the purchase of health care or health insurance should accrue to the individual patient/insured.  Employers may contribute to their employee’s health benefit without tax implications.  Insurance contracts should remain under the jurisdiction of contract law in the state where the insurance is purchased and insurance should be able to be purchased across state lines.

VIII. There shall be no mandates.

IX: The right for justice must be secured for patients injured in the medical system.  Doctors and caregivers should be protected from negligent abuse of the system.

X. The patient should determine quality of healthcare.  Standards of care are the discretion of specialty organizations and should be published and available to all patients.  Physicians within that specialty network should do peer review exclusively and confidentially.

One of the purposes of the physician coalition group meeting is to further clarify, perhaps modify, and expand upon the principles set forth in the healthcare ‘ten commandments’. The events organizers believe that true physician representation was lacking in the creation of the ‘Affordable Care Act’, and they seek to influence the discussion in a constructive manner as heated legal and political challenges to Obamacare are underway.

According to a recent Deloitte Center for Health Solutions study, and others since the passage of the 'Act', the combination of more low-paying health insurance patients and fewer doctors to care for them will be a "recipe for disaster." Only one in three consumers still support the Obamacare law, and, according to President Mike Dillon of InstantHealthInsuranceQuotes.com, an increasing number of physicians who originally supported the AMA and the new law are changing their minds. Estimates are that the country will be 160,000 physicians short by the year 2025. With the AMA losing a known 12,000 members in the year 2010 alone because of their support for Obamacare, and an undisclosed number of additional membership defectors suspected to have impacted the AMA in the year 2011, it is clear that doctors are very concerned about the quality, fiscal, and practice management implications of healthcare reform in its current form.

The coalition of non-AMA doctor groups is concerned not only with patient access and the preservation of the sacred doctor-patient relationship, but also with the onerous rules that will be created and controlled by local, Obamacare-mandated Accountable Care Organizations (ACOs). These mini-HMOs will deprive patients of the right to a full-range of pharmaceutical options and will restrict treatment choices and locations.  ACOs will further expand confusing and often dangerous layers of bureaucracy in the form of  specialty-tier drug pricing, ‘prior authorization’ requirements for medical visits and procedures, and opaque ‘medical necessity’ restrictions.

The coalition group of physicians, physician groups, medical leaders, politicians, and citizens will be assembling in San Diego this Spring. The conference event will be charged with producing a white paper on physician-driven healthcare reform necessities.  As with prior challenges issued by America’s Medical Society, the San Diego event is offering an open debate challenge to the AMA and the White House to enter into a televised panel discussion on the merits and pitfalls of the Patient Protection and Affordable Care Act legislation from the physician’s perspective.

The name of the upcoming physician meeting is The Coalition Summit of Independent Physicians©--Protecting the Doctor-Patient Relationship in an Era of Government Mandates. The exact date and details on participating medical groups are pending; registration will be required, but attendance will be free. For initial details, see www.AmericasMedicalSociety.com .

Doctor Dorin is a Hopkins-trained, board-certified anesthesiologist, practicing in a large group in San   Diego. He is a small business owner, a Commander in the US Navy Reserves, and the Founder/President of America's Medical Society, Inc., (AMS) a non-profit corporation created to serve and educate physicians and the general public in matters of national health-care reform and medical politics.