Sham Peer Review: No Evidentiary Standards.
BY RICHARD B WILLNER
The Center for Peer Review Justice
August 27, 2014
Legal positivism seems to me how the
courts have arrived at the "the
facts don't matter" or the
"accusation is sufficient proof"
evidential standard regarding "Sham
Peer Review" under the Health Care
Quality Improvement Act of 1986 (
HCQIA ) as long as the process is
identifiable and seems reasonable
purely as a process and there is
some identifiable concern, however
divorced from the facts.
Legal positivists make some
distinctive claims about what
constitutes legal validity. It is
difficult to improve on the
following introduction offered by
Leslie Green:
What is the relevance of the medical
record under this "accusation is
final proof standard"? HCQIA
obviously does not authorize fraud
in the tampering and redaction of
medical records intended to guide a
decision or conceal hospital agent
liability in front of a physician
review panel, but, in my experience
over 14 years, this is the norm.
Commonly, only certain parts of the
medical record is send out for
medical review. So, obviously, the
report comes back damning the
surgeon under peer review.
Spoliation that is in the normal
practice of corporate peer review is
the normal but indefensible on moral
if not legal grounds.
A Peer Review defense lawyer one
told me that "100% of cases" he has
taken to the Peer Review Hearing
there had been significant record
spoliation and even if by some
miracle if these cases would have
judicial review at a later date, the
judges being lawyers and not
physicians tend to support the
evaluation of doctors without
reviewing the facts de novo.
Does this judge make the "twist on
the burden of proof" and the absence
of any evidentiary standard in "the
standards section of the law" thus
authorize actual fraud on the
medical record when it comes to the
"corporate" peer review process
under HCQIA? This would be the
essential difference between
"corporate peer review" and
traditional or non-corporate peer
review.
Corporate peer review even though it
confirms to the process laid out in
HCQIA and the catechism of
corporate defense work should be
void against public policy for its
lack of evidentiary standards.
Even the almost inevitable
submission of the doctor's name to
the National Practitioner's Data
Bank ( The Data Bank) does not
require an evidentiary standard.
The unique public-private
partnership of the NPDB takes it's
marching orders to the will of the
corporate interests of the Executive
Board, full of corporate types in
the private sector, which is hidden
from the public.
I understand the jurisdictional
issues between state and federal,
but I think it is interesting when a
state court interprets federal law
differently from how it's own
federal court has interpreted it.
Congressional House Bill HR 2472
that was retired by the last
Congress would have added
substantive due process to
accompany the HCQIA guaranteed
procedural due process rights, a
hearing ( chance of the doctor
prevailing less than 5%) of
physicians ( MDs, DOs, DPMs, and
DDSs ) as well as to add evidentiary
safeguards in the quest to curtail
the spoliation of evidence in the
Medical Record and in the Expert's
reviews. It got only 15
co-sponsors, all Congressmen -physicians.
No Procedural Due Process...
No Evidentiary Standards... Looks
like Physicians and Surgeons, under
the Health Care Quality Improvement
Act of 1986 ( HCQIA ) remain the
only group without their Civil
Rights.
Shocking, isn't
it?
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