Physician Brownouts and Hospital Liability
Shifting Up Due to Obama Care
by Richard Willner, CEO
The Center for Peer Review Justice
I am not shocked to see such a sharp uptick
in “Physician Brownout’ sham peer review cases.
Physician Brownout is a term he coined to
describe a special kind of peer review or professional
retaliation which involves liability shifting for nursing error
or any of a number of events where a hospitals has liability for
“After 11 years and hundreds of cases, you
get to be a bit of an epidemiologist on sham peer review. And I
have broken it into 3 major patterns of shamming: There is the
straightforward economic or competitive peer sham which everyone
Next is the disruptive physician sham which
has become the epidemic gravy train for health care lawyers
churning hundreds of thousands of physician dollars on mostly
While the disruptive physician is the fastest
growing type, the most pernicious type is certainly “physician
brownout.” It is a flagrant display of corporate hubris and
cynicism and the corporations doing are really sick and probably
just as dangerous.
It has taken sham peer review to the next
level. It is a public health disaster and it goes on right under
the nose of the National Practitioners Databank with the
sanction of HRSA and HHS.”
“Physician brownout” is corporate liability
shifting to independent doctors. It is designed by the hospital
attorney with involvement from the CEO to keep the public and
most of all, the plaintiff’s attorneys in the dark on hospital
error by using all of the shadowy techniques of sham peer
I chose the name from the California
brownouts of the 1990’s during the Enron scandal. It is
essentially Enron accounting for hospital error.
California is also the state where I saw my
first case which fortunately we were successful at averting.
Physician Brownout is precisely that. When
the hospital goes way over the top to restrict or censure a
surgeon and the medical facts indicate hospital wrongdoing this
is not only a sham peer review it is outright fraud on the
The public loses in 2 ways first an ethical
and good doctor’s career is destroyed for the negligent acts of
others and secondly the hospital gets away with not properly
accounting for its own negligence.
Hospitals get ranked on sentinel events and
other patient safety snafus they are supposed to do proper root
cause analyses but a physician brownout makes it all go away and
keeps the hospital looking good. The plaintiff’s lawyers pursue
the scapegoat doctor with a vengeance.
I have seen as many as 8 lawsuits filed in
succession on a surgeon who had never been sued before. 3 or 4
are normal. Because medical records can be withheld in a peer
review and there is no requirement for sworn testimony or rules
of evidence, the records can be tampered with by the hospital to
mislead plaintiffs away from the real cause of the patient’s
Hospitals that sham independent doctors have
not learned that people who live in glass houses should not
I predict that physician brownout is an
epidemic that will finally end up destroying them because here
the public health implications from sham peer review are crystal
The attorneys and executives that do it are
callous and ethically indifferent. They feign detachment while
they allow their designated medical staff or outside reviewer to
get carried away by the sanctimony of ritual physician
sacrifice. It is really twisted to witness.
The panel stays well away from any
implication that the hospital may have liability. They have not
learned the lesson that people who live in glass houses should
not throw stones.
Much of sham peer review has been directed
preferentially against surgeons. In disruptive cases I think it
is because sometimes they take strong ethical stances which are
perceived as defiance in the face of corporate directives.
Non surgeons can drive much of the sham
process and are generally more passive personality types.
Also, the myth of the dangerous surgeon has
become a very powerful tool to obfuscate the real issues in a
sham review. In a brownout case, every plaintiff’s lawyer wants
to take a surgeon down while they may completely miss the issue
of proximate cause and hospital liability.
Shamming surgeons is on the rise. Most of my
referrals come from other surgeons. I have helped work on their
cases to resolve them in the best way possible. I will work with
I will work with a medical board but
sometimes this becomes a really dirty business and you uncover
very real corruption which is difficult to overcome. These cases
are just so unreasonable.
Sham peer review started with economic
competition between doctors when the health care pie began to
shrink under managed care and fee for service medicine began to
The Health Lawyers association, mostly driven
by hospital lawyers and organized medicine, was there to train
doctors exactly how to get rid of doctors for economic reasons
but in the name of protecting the public health.
Typically, the doctor’s career is completely
destroyed in the process when his name is entered into the
National Practitioner’s Data Bank.
Some physicians actually killed themselves
over losing the right to practice medicine but according to the
rules of the NPDB the entries survive their death.
Organized medicine persisted in proclaiming
the virtues of economic credentialing and for the longest time
the AMA denied that sham peer review existed when they knew the
NPDB was riddled with it.
The disruptive physician would be a joke if
it were not so real. This is where hospital committees are
trained by outside groups to paint doctors as troublemakers or
potential threats to quality when they speak to issues of
hospital management and patient care.
This has now become a large portion of my
referrals and quite often these cases can be worked through but
the doctor is left feeling helpless to address any issue in the
hospital when an organization attempts to shift liability to an
independent doctor for the mistakes of nurses, anesthesiologists
and other hospital related incidents.
Under Obama care and the environment of
stepped up enforcement we essentially have something similar to
the Patriot Act and guess who the terrorists will be,
Organized medicine and large hospitals have a
way of shielding themselves from liability that is not quite
legitimate or in the interest of the public health.
NPDB is corporate blacklist riddled with
cases of sham peer review and now Physician Brownout.
It as been so since its inception when it
was hijacked by corporate interests to immediately create a
shield for corporate doctors