Members Suggest Changes
 to Peer Review Process


Author: CLIVE SINOFF (sinoffbisprof@yahoo.com)
Subject: Peer Review- changes.

GOOD FAITH PEER REVIEW:

Summary:

1) A committee and health care entity undertaking peer review must undertake such a review only if it provides due process according to the HCQIA.
2) In view of the tremendous power such committees and health care entities have, the process must be transparent to the reviewed physician.
3) A malicious review, or failure to provide due process will AUTOMATICALLY remove any claim to immunity.
4) Transgression of the good faith and peer review requirements will be considered a grave breach of professional ethics, resulting in reporting of the reviewers to the appropriate professional and governmental agencies. Deceit and malice will no longer be tolerated or condoned.

A. SPECIFICITY OF ALLEGATIONS, OPPORTUNITY FOR DEFENSE.

Allegations of professional wrongdoing must be in writing, specific as to the patient, date time and nature of the event, and must be supported by documentation. The adverse outcome of each patient must be specified. In the investigation the reviewing body must ensure:
 
1) The nature of the transgression is egregious. Where a patient has a good outcome, failure to follow any specific "guideline" is not grounds for action.
2) More than one episode of a serious nature has occurred and been brought to the physician's attention, without reform.
3) The physician has had adequate opportunity to review the specific allegations and the opportunity to defend himself. He should be given full and unfettered access to the clinical records needed to formulate a defense.

B. FAIRNESS AND TRANSPARENCY
         The peer review committee must declare:

1) The origin of the cases selected for review.
2) Malpractice cases over the past 5 years, the nature and the outcomes.
3) Peer review of other physicians conducted over the past 5 years, the nature of the adverse events and the actions of the peer review board.
4) That no economic competitor or physician hostile to the reviewed physician should be member of the peer review committee.
5) Where a hostile physician or economic competitor has promoted the review by submission of cases, correspondence or conversation regarding the reviewed cases, such involvement must be made explicit.
6) Expert witnesses and reviewers must not have any association with the reviewing entity.

C. OBLIGATIONS OF THE PEER REVIEW COMMITTEE AND SUPERVISING HEALTH CARE ENTITY.

The committee and health care entity must follow the guidelines set forth in the HCQIA. It is unacceptable for such bodies to claim immunity if the due process guidelines are not carefully followed. Because of the devastation that an adverse finding will have on the livelihood, career and well being of a physician, the committee must be held to a high standard of ethics and performance. Accompanying such power is a strong obligation to ensure that the review is in good faith, is professionally and fairly conducted, and provides, at a minimum, due process following the guidelines set forth in the HCQIA Performance of a peer review that is not in good faith, or biased should be regarded as a grave, ethical transgression. Such malice will be reported to the Hospital Credentialing Board, the State Licensing Board, University Disciplinary Committee and other appropriate body. Similarly, an incompetent review will also be reported.


J Swift, MD's Thoughts at Midnight

By J. Swift, MD

Peer review statutes are purchased by loose institutional cooperatives at the state level. Everyone needs to understand why.

After these statutes are put in place the state court decisions that strengthen them are also paid for by these loose cooperatives. Settlements are always made to keep any morally insightful case law from being developed. Claims where they know a particular judge will give them the proper interpretation roll on through.

Healthcare law is no different from corporate law. PHYSICIANS ARE NOT A SPECIAL CLASS OF INDIVIDUALS, they are just made to feel special because they just naturally control something that corporations really want to control.

This is why just about any member of the Health Care Lawyers association will not try a winning peer review case. It would go against his institutional market and there is no other pond for him to swim in. He would not be hired again. NEVER UNDERESTIMATE THIS REALITY. There are tremendous opportunities for graft here if an attorney was to lose the right case.

Unfortunately, the other group of attorneys that might try peer review cases are plaintiffs lawyers who besides being sworn enemies of our collective are certainly never looking to go toe to toe with defense lawyers in order to make new law that might protect Doctors. They look for settlements. Most of them live up to their reputations.

Then I suppose there are civil liberties lawyers. These are the source we should align with strategically at every opportunity.

When one contemplates the DISCRETIONARY destruction of a human being's life and property there should be at least four constitutional issues involved

1) FREE SPEECH

2) PROPERTY RIGHTS

3) SUBSTANTIVE DUE PROCESS and

4) EQUAL PROTECTION.

I refuse to accept any authoritative view to the contrary. Peer review laws provide both the motive and opportunity to infringe on all four of these areas.

Free speech from intellectuals but particularly from physicians is especially noxious to healthcare policy makers. A property right to practice that is not collateralized to a healthcare policy maker arouses every superstition known to the human race, however, a property right to patient data in a database collected surreptitiously does not trouble them at all. Substantive due process has particularly dangerous implications to anyone who favors regulated markets for either profit motives or philosophical reasons and they will fight to the end to avoid it.

A word on venue:

STATE COURTS DO NOT CARE ABOUT CONSTITUTIONAL RIGHTS. The only one they become pugilistic over is STATE'S RIGHTS.

Just about every healthcare lawyer therefore will AUTHORITATIVELY tell you that peer review is a state issue. Why? because STATE COURT'S DO NOT CARE ABOUT CONSTITUTIONAL RIGHTS. Regulatory agencies similarly do not care about constitutional issues and therefore will tell you that peer review is a state issue as well or an administrative law process. IF you fight there you lose, and you waste your time and money and opportunity and your life.

This represents the entire playing field as defined by peer review advocates. We are told to believe by our collective that anything else is beyond the edge of the world

Our strategy must highlight the anti-constitutional sentiment of plantation peer review law at the fore. IF it is the only thing people remember they must connect the two seminal ideas of plantation peer review and anti- constitution simultaneously. THIS CONNECTION WILL THEN BEGIN TO ENGAGE THE SYNAPSES. WE MUST GROW THIS THOUGHT PROCESS FIRST.

Clinton and our opponents are very good at his kind of thing. Any real reform strategy must contemplate a ready remedy in federal court and be organized around the four principles above SIMULTANEOUSLY. If it does not, then it will be a wasted effort. PEOPLE WILL UNITE AROUND THIS PRINCIPLE, OUR PR SHOULD ALWAYS INCLUDE THESE FOUR PRINCIPLES UNFRACTIONATED BY FALSE PRETENSES TO AUTHORITATIVE LAW.

THE NPDB: (National Practitioner Data Bank)

The constitutionality of the NPDB as far as I know has never been challenged. The statute may seem constitutionally correct but the method by which it has been put into practice raises real equal protection constitutional issues when you think in the above terms.

In effect, the NPDB is the primary origin of the corporate "Plantation" practice of medicine. As an aside, keep in mind that if a physician incorporates this is not what I am referring to as the corporate "plantation" practice of medicine.

The corporate "plantation" practice of medicine I am referring to includes safe harbors and immunity from liabilities incurred by the direct practice of medicine. It thoroughly dictates how medicine is practiced by any physician who is compelled to collateralize his license to it through contracts of adhesion, unforeseeable circumstances, unenforceable regulations etc.

More detrimentally, it dictates who does and does not practice medicine. Its power relies on two abominations

 1)politically controlled certificates of need and

2) the NPDB domino theory.

 CON's are of course another discussion but the domino theory is the real power behind sham peer review.

The problem with the NPDB is the method of accounting for error. In effect it contemplates a system by which the disaffecting entities INTERPRET AND CHARACTERIZE THE DATA. This accounting system is loose and self serving and cannot be audited.

Therefore, it represents BY DEFINITION a discretionary assault on certain physicians and a discretionary pass on others. IN SUM, it is a completely corrupt source of data that has been sold as a means of insuring better public health.

If you accept this, and many don't if it is in their best interest not to, then you must also agree that allowing corporate concerns to influence in any way the interpretation or characterization of any public health database actually disaffects the public. It is no different than relying on tobacco companies to tell us cigarettes cause cancer.

It most likely deprives the public of at least as many good physicians as it does supply them with poor yet cooperative physicians. It is a failed REAL TIME experiment and should be abandoned before more people fall into the hands of Physicians who are only fit for plantation practice.

It should be punctuated that these unfortunate patients who now must pay exorbitant rates dictated by the plantation to get on the plantation are more likely to be harmed by the plantation and less likely to have the root cause of this harm ferreted out and addressed as they would in the traditional MMR conference which focused on one patient not one doctor. MMR Conferences, which served the only legitimate purpose of institutional review are another casualty of plantation credentialing.

The undisciplined interpretation and characterization of reportable events is not remedied by the physicians right to respond in 600 words or less or his right of appeal to the HHS secretary. The fact that he responds at all is enough to create the domino effect. Therefore the first peer review reform we should disallow is any report that describes an overturned suspension or expulsion. The physician must have the right to not report any such incident to anyone. FURTHERMORE, THE HOSPITAL LEGAL COUNSEL OR ADMINISTRATION SHOULD BE RESTRICTED FROM MENTIONING ANYTHING TO ANYONE IN THESE CIRCUMSTANCES.

Furthermore, if the hospital and the physician agree to part company this should not be a reportable event because this too creates the Domino effect with the lingering presumption that the physician did something wrong. This provision of the law is particularly applied unequally and IS USED TO GAME THE SYSTEM.

The pseudo-science of discretionary interpretation and characterization of data used by reporting entities to the NPDB is ample reason to attack it on the basis that it actually hides errors and amplifies non errors while silencing honest practitioners who fear its discretionary power of destruction. IT FREEZES FREE SPEECH. Free speech protects patients from the ineptitude of plantation practitioners by encouraging practice outside of its corrosive influence as a competitor to a particular plantation.

Adhesion contracts that bind physicians to these entities should be completely unenforceable. A physician simply must not be expected to collateralize his license in order to practice medicine under an insurance plan or a hospital in order to practice.

The overwhelming reason for this is that under our legal system anyone can be bankrupted if they are sued by people with deep enough pockets with complete disregard for the truth.

This simple fact is the root cause of immunized attack on extraneous multiple fronts which include as many broad mischaracterizations as possible.

Often Physicians are peer reviewed just so the reporting plantation can run up the physicians expense in time and money, thus disallowing a challenge in court. This has the effect of depriving them of substantive due process by overwhelming one's legal budget with procedural anti-due process.

Even without plantation peer review, a physician can be legally attacked by a multitude of methods. ENOUGH IS ENOUGH.

By sitting at the table and participating in the development of the NPDB the AMA has not only caused the destruction of solo practitioners in this country, but also gave plantations free license to destroy physicians at will. This same model, with the help of the AMA is now being used to set up a mechanism to destroy patients at will.

Now out of all of this destruction the phoenix will either rise or it won't. It certainly will not unless we get rid of plantation credentialing. Lets stop calling it peer review and refer to it by its real name, PLANTATION CREDENTIALING.

In Sum, the problem with most proposals is that corporations with deep pockets (never forget who you are dealing with and what you want to take back from them) who will be exposed to greater liability in the event that real reform occurs, will never agree with any proposal unless they know they can still game the system. So sitting down at the table with them is as fruitless as sitting in a plantation credentialing hearing.

We need a wholly separate strategy that includes the right buzzwords, contemplates the land beyond the edge of the world, leads with an unfractionalized view of the constitution and attacks the very foundation of the plantation medicine, THE NPDB and CON's, that promote unsafe, unsound and expensive healthcare for the public.

SOME OTHER SUGGESTIONS:

Plantation credentialing practices must have a very high burden of proof.
NO HEARSAY!
Plantation credentialing decisions must not impact licensure or FUTURE EMPLOYABILITY WITHOUT POTENTIAL BIG LIABILITY TO THE REVIEWER because of the Domino effect.
Institutions must be prevented from misappropriating error to the wrong physician and ignoring it when the "right" physician commits it.
PHYSICIANS MUST HAVE CERTIFIED COPIES OF THE RECORD PAID FOR BY THE HOSPITAL AND UNFETTERED ACCESS TO ALL LAB REPORTS, X-RAYS, AND CONSULTING PHYSICIAN NOTES etc. PRETENTIOUS HOSPITAL STATISTICS ARE MEANINGLESS IF A PHYSICIAN CAN DEFEND HIS CARE ON EACH PATIENT IN THE PRESENCE OF A NEUTRAL PARTY. THE WHOLE CANNOT ADD UP TO MORE THAN THE SUM OF THE PARTS!!!
Physician licensure should never be subject to institutional concepts of "team play" (one of the main provisions in the of the model state medical practice act)
State licensure should not be politicized or subjective. Institutions have clear guidelines to follow and continue business when they flagrantly violate them, why the double standard for physicians?
Certificate of need laws should be abolished.
No one with an actual or POTENTIAL gain from an adverse outcome should be allowed to participate at any level without full disclosure of his relationship with the reviewing party and full assumption of legal risk.
Hospitals should be liable for treble damages.
Institutional attorneys should not have preemptive powers over an attacked physician's attorney

Remedy for current peer review problems

By: Ron Virmani, M.D


I suggest inclusion of 5 concepts into the review process:

  1. External, independent and unbiased peer review option available to the reviewed physician and the hospital.

  2. Every member of the department have equal opportunity to participate in the review process e.g. round-robin review.

  3. Oversight/grievance committee at the state level

  4. The hospital be required to show that all members of the department have been treated by the same standards, e.g. no disparate treatment.

  5. Availability of judicial recourse as a last resort. This would be rarely necessary if the other 4 remedies are in place.
     


Date: December 11, 2002 03:49 PM
Author: J Swift (medosurce@mindspring.com)
Subject: Think about it this way

If you take two good things like ham and eggs and put them together you get a nice breakfast. Basic Algebra.

When you take two good things like science and due process and put them together you get a medieval inquisition.

How is that?

Heil healthcare.

(http://aaps.forums.commentary.net/forums/Index.cfm?Message_ID=58431)


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