Author: CLIVE SINOFF (firstname.lastname@example.org)
Subject: Peer Review- changes.
GOOD FAITH PEER REVIEW:
A. SPECIFICITY OF ALLEGATIONS, OPPORTUNITY FOR DEFENSE.
B. FAIRNESS AND TRANSPARENCY
C. OBLIGATIONS OF THE PEER REVIEW COMMITTEE AND SUPERVISING HEALTH CARE ENTITY.
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
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:
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
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:
current peer review problems
Date: December 11, 2002 03:49 PM
Author: J Swift (email@example.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?
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