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State Medical Board Abuse AKA Physician Peer Review Fraud
by Richard Willner on Thursday, March 15, 2012 at 2:56pm
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!!


by Richard Willner on Wednesday, February 29, 2012 at 1:39pm ·

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, 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 .

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.


by Richard Willner on Saturday, February 4, 2012 at 10:36am

Sierra Sacramento Valley Medicine Vol. 63 / No. 1 - Jan / Feb 2012

Improving Peer Review By Gerald N. Rogan, MD

CMA House of Delegates Votes for Effective Law Enforcement AT THE CALIFORNIA MEDICAL ASSOCIATION House of Delegates (“House” or HOD) meeting in October 2011, the House voted to ask the state of California to enforce current requirements by which hospital medical staffs must perform peer review. The HOD sets the policies and priorities for the California Medical Association. This article explains the significance of the vote, proposes next steps, and seeks your input. Peer review is required under Federal Medicare Condition of Participation 42CFR482.211 and related state law. In 2008, Lumetra, Inc., a Medicare-contracted California Quality Improvement Organization, was tasked by the California Medical Board to analyze hospital peer review activity. Lumetra reported peer review was not being done in many California Hospitals. 2 In 2009, the website of the California Department of Public Health, Division of Licensing and Certification3 (L&C) showed no sanctions in the most populated California counties against hospitals or medical staffs for failure to perform peer review. The finding was promptly reported in testimony before the California Business, Professions, and Economic Development Committee,4 but the California Legislature took no action to give L&C greater authority to enforce our law. Moreover, L&C did not request additional statutory authority to impose meaningful sanctions against hospitals for failure of its medical staff to comply with the law, despite urging from interested parties. The peer review laws are designed to protect patients from unconstrained risk of negligent medical care in hospitals. As a result of our collective failure to enforce our laws, physicians at Redding Medical Center, California (RMC), were not constrained from harming more than 700 patients over ten years. The hospital’s parent, Tenet Corporation, earned up to $100 million per year by thwarting peer review in order to support Dr. Chae Moon’s unnecessary cardiac services.5 The L&C, Centers for Medicare and Medicaid Services-Region 9, the Joint Commission of Hospital Accreditation, and the California Medical Association Institute of Medical Quality knew peer review was not being done at RMC, but had no power and/or collective will to compel it. As one CMS official in San Francisco explained to me in 2006, “failure to perform peer review is not sufficient to violate the entire Medicare Condition of Participation. ”The FBI filled the peer review vacuum in 2002 by hiring outside experts to analyze the case files of RMC physicians Chae Moon and Fidel Realyvasquez. The FBI uncovered the physicians’ negligence.6 Moon’s medical license was revoked.7 Realyvasquez’ license was restricted.8 Tenet Hospital Corporation paid $500 million in uninsured damages. CMS revoked RMC’s Medicare provider status.9 Reportedly, RMC’s administrators had to move to Thailand to find work. The disaster from failure of peer review is not unique to RMC. In 2009 a qui tam lawsuit exposed Dr. Mark Midei, a “star” cardiologist at St. Joseph Hospital, Towson, Maryland. He had inserted 541 intracoronary stents into patients who did not need them. The state of Maryland revoked his medical license in 2011.10 The U.S. Congress investigated the cause of the disaster.11 It found Dr. Midei was in charge of his own peer review.12 As with Moon, no physician independently verified that Midei’s interpretations of cardiac catheterization images were accurate. Midei routinely overstated the degree of coronary narrowing in order to justify placement of stents for patients who did not need them. Abbott Laboratories, the maker of the stents, rewarded Midei financially. St. Joseph Hospital encouraged Midei’s lucrative behavior with power and money, plus control over his own peer review. The preventable tragedies at RMC and St. Joseph continue to haunt the medical profession. The absence of peer review is like flying in an airplane with a broken gas gauge. Although the CMA’s House now demands our state government shall enforce our peer review law, the state has limited power to do so. Accordingly, we have more to do before these nightmares are behind us. The peer review process is typically triggered to review problem cases or aberrant physician behavior. Most of Moon’s and Midei’s patients were free of complications because they were not sick. RMC and St. Joseph bragged about their high-quality cardiac care measured by low complication rates. Peer review does not routinely examine procedures for medical necessity. However, to fulfill its mission, peer review must not be limited to examination of complications alone. Going forward, peer review must include routine audits for medical necessity, particularly for self-referred profitable cases where a conflict of interest is not mitigated, such as cardiac procedures. For example, each medical staff must routinely audit cardiac image interpretations to verify the subsequent procedures performed are medically necessary. Radiologists or outside experts must perform the audits. An audit for medical necessity would have disclosed that Moon did not know how to interpret intracoronary ultrasound images and that he incorrectly believed some patients who had a normal cardiac cath still needed CABG surgery. Realyvasquez would have learned that a surgeon is expected to verify that his patient actually does require surgery. An audit for medical necessity would have led to corrective action and probably saved the careers of Moon, Realyvasquez, and Midei. Peer review would have reduced RMC’s bottom line, but Tenet’s stock value may not have collapsed and fewer patients would have been harmed. Clearly, peer review is good for business over the long term to control unnecessary costs and to improve care quality. Each medical staff and hospital, separately and jointly, must assure that peer review is properly performed. A hospital medical staff must appoint a safety and compliance officer. Unbiased external peer review organizations must be hired when the medical staff fails in its responsibility or is hopelessly conflicted. Disciplinary hearings under peer review must be just. Logically, the process of effective peer review is a quality indicator by itself. Moreover, patients should have the right to know whether peer review is performed at their local hospital. Accordingly, the National Quality Forum should adopt a new quality indicator — the performance of peer review. The quality indicator would be posted on the CMS website, Hospital Compare,13 for patient education. When the peer review is of low quality, a measure of its performance may misleadingly assure patients that their hospital is safe. Therefore, we must find a way to measure effective peer review. What shall we do next? Do you have a recommendation for a resolution for next year’s HOD? For example, should model medical staff bylaws require that peer review include routine audits of selected physician services for medical necessity, including review of pertinent medical images when appropriate? Should our government routinely perform an analysis of hospital-based peer review whenever more than three patients are discovered by another process (e.g., a lawsuit) to have been harmed by the work of one physician? Under a federal law enacted in 2009, CMS may review the performance of hospital accrediting organizations and deny them deemed status which CMS uses to validate that Medicare Conditions of Participation are met. Are CMS’s standards for hospital accrediting organizations too low to assure effective peer review? Should a physician have a right to obtain an unbiased external peer review hearing when the physician faces an administrative sanction? If you develop a practical resolution proposal for 2012 on this issue, please share it with me.

The Center for Peer Review Justice. .

No Doctor Left Behind.

7. licenseType=A&licenseNumber=32120
11.Staff Report on Cardiac Stent Usage at St. Joseph Medical Center,
12.St. Joseph has since revised their peer review practices "to include independent, blinded review of interventional providers and has ensured that clinical heads are neither selecting nor reviewing their own cases."

A Respectful Suggestion to Improve JCAHO.

.by Richard Willner on Friday, January 20, 2012 at 12:46pm

Contrast this sentence to the first one in the JCAHO document to see which one rings more true and  which factors more "undermine a culture of safety"

"Management sociopathy, greed, health care Ponzi schemes, laziness, lack of attention to detail, inabiltiy to discern detail, dumbing down of the medical profession, silencing physicians, encouraging nurses to falsely report, maladaptive behavioral approaches to good physician behavior for not knowing what is essential, management telling physicians what to do, how to do it and when to do things, when they have no idea  which way a light bulb screws in  can all contribute to Medical errors , poor patient satisfaction, preventable adverse outcomes and increase the cost of care and cause physicians to become frustrated  and move elsewhere or get out of medicine"

The National Practitioner Data Bank (NPDB), The "Data Bank"

by Richard Willner on Sunday, January 1, 2012 at 10:13pm

I want to comment on a widespread fallacy about the NPDB that you may not be aware of. Hopefully one day a journalist will introduce this critical distinction into the body of serious journalism on the subject.

The distinction is simply this. The NPDB is not a government database that tracks incompetent or government disciplined doctors, this is a government authorized database of private corporate actions taken against private independent doctors. There is a serious moral hazard here. This is a database of "corporate discipline" with no evidentiary safeguards and no real right of appeal. The entry survives even the physician’s death.

Thousands of reported doctors who were just too ethically minded, whistleblowers and perceived whistleblowers on fraud and abuse by administrators, are in this database. If the government was serious about fraud and abuse, they just need to start properly investigating the cases of aggrieved physicians in the NPDB which they have refused to do at the administrative level. I could be blackballed for even writing this.

I know a doctor who has offered a $10,000 prize to any journalist who can find a single evidentiary safeguard in the authorizing statute (there is not one). The late Reagan era statute that created the NPDB (HCQIA 1986) was reportedly drafted by a Chief lobbyist for corporate hospital monopolies who perennially sits on the executive committee of the NPDB making sure that evidentiary safeguards never make it into the process.

The world has never seen evidence spoliation, tampering and destruction of medical records and fabrication of hearsay evidence until it has been on the inside of corporate peer review (sham peer review) where corporate doctors and hospital defense attorneys destroy and blackball an unsuspecting doctor whose only defense is that he was trying to do the right thing . It happens 100% of the time when a Doctor raises any patient issue to the corporation. American bodies are buried deep behind this unjustifiable shroud of sanctimony and the scapegoats are not killing them.

You also may not be aware that serial misdeeds by corporate bad apples never make it into to the NPDB. These are the guys who are chosen to stand in judgment. The rulemaking executive committee sees to it. The NPDB is a complete product of regulatory capture by corporate hospital and insurance lobbyists with a certain law firm at the forefront ( or should I say under deep cover) . I think it is generally true that corporate lawyers firmly see no moral hazard in the corporation standing in final judgment of its own acts through regulatory capture (google: Mr Kauffman at Brookings and others on regulatory capture in general)

You should also be aware that only malpractice payments on independent doctors make it into this database and these are most often made without consent from the independent doctor who goes undefended in court by his insurance company.

Corporate doctors enjoy lavish defenses and when settlements are made on their behalf ,which is quite often, they are made pursuant to a customized lobbyist designed loophole called the corporate shield and they are never reported to the NPDB, This has been going on for 21 years. It goes like this, the insurance company tells the plaintiff’s lawyer to drop the doctor’s name form the lawsuit and then the insurance company will settle under the corporations name. This appears to me to be a license to kill based upon one’s corporate affiliation.

Evidence for this completely unreported phenomenon is the 2000 GAO report on the NPDB which you can find online. On about page 10 and 11 you will see a glimpse of how the executive committee of the NPDB have perverted the intent of the law and browbeaten regulators during the Bush years into accepting their version of physician “discipline”.

Only independent small business doctors are dangerous to the public in this corporate model and they must be blacklisted to keep ‘em quiet on the financial and public health aspects of health care in general and of the particular hospital they are working in. Miley Cyrus might say ” pretty cool.”

Knowing this I do not feel safer with this database. I feel much less safe with it. The independent voice of doctors is being stifled and who are we to trust.

I would suggest you google “sham peer review” to see if there may be something to what I say and keep your eye out for an evidentiary safeguard. We would all love to find one. Also there is a pending house bill HR2472 that deals with evidence handling in peer review and corporate lobbyists including the AMA are dead set against its passage.

Please inform me if you have any further interest in researching this and I can point to very serious people concerned about the preservation of free speech and independent doctors for the public health who will go on the record and also source you on some of the points I have made here.

Does Hospital Physician Review Afford Physicians Full Constitutional Liberties?

by Richard Willner on Saturday, December 31, 2011 at 2:02pm ·

HR 2472: Physician Safeguards and Hospital/Corporate Peer Review

By:  America's Medical Society ( AMS)

Corporate peer review is an opaque process created by the HCQIA statute with no evidentiary safeguards. As such corporate health care attorneys use it frequently to destroy the careers of physicians they deem ‘undesirable’, ‘disruptive’, or threatening (e.g., those who report fraud or errors to outside entities). Corporate peer review differs from traditional peer review with repect to transparency and the legal, evidence-based safeguards provided by full judicial review.

Corporate peer review carries with it the obvious moral hazard of making the corporation the sole and final judge or arbiter of its own actions with respect to the public health. This allows corporate attorneys to use corporate peer review as a mechanism to conceal acts of fraud and malfeasance within the hospital system.

There should be a strict separation between legitimate physician credentialing  and corporate peer review. Self interested and subjective viewpoints arrived at through corporate peer review must not be used to impair physician careers.

AMS is opposed to corporate peer review because there are no evidentiary safeguards in the process. We oppose the National Practitioner Data Bank (NPDB) because its rules have disproportionately promoted fraud against independent physicians.  AMS supports the passage HR 2472, and any reforms that will increase procedural transparency and protect the professional rights and legitimate credentials of all physicians. . The AMA functionally opposes  evidentiary safeguards in corporate peer review by their complete silence on the matter; AMS calls on them to support our position on ethical grounds..To learn more about HR 2472:

Bill Text112th Congress (2011-2012)H.R.2472.IH

“To amend the Health Care Quality Improvement Act of 1986 to prohibit health care entities from reporting certain professional review actions against health care professionals before adequate notice and hearing procedures are afforded to such professionals, and for other purposes.”

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