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MEDICAL ERRORS, PEER-REVIEW &

THE NATIONAL PRACTITIONER DATA-BANK

By RON A. VIRMANI, M.D.

"Reduce the medical errors", was the public outcry in the 1970’s and 1980’s. Big malpractice awards were sounding alarm for public and politicians alike. The medical establishment took the stand that there existed a few "bad apples", who were causing most of the problem.

"Leave it to us", the establishment said, "We are going to establish a fine system of ‘peer-review’. We shall review our colleagues with utmost ‘candor’ and throw out the bad apples". "But", they argued, "we can only do our work with honesty and candor, if our decisions can not be challenged in a court of law and the reviews are not open to the public. Otherwise these "bad apples" will sue us."

With a strong leap of faith in the medical establishment (i.e. hospitals and doctors entrenched in it), all states enacted stringent laws protecting peer reviews from public disclosure and scrutiny. The Congress enacted the Health Care Quality Improvement Act (HCQIA) of 1986, giving peer-reviewing doctors and hospitals immunity from damages. National Practitioner Data Bank (NPDB) was established to blacklist the "bad doctors" so that after committing malpractice, they could simply not cross state lines and set up a new practice.

But the medical errors have not gone down! Fifteen years have passed since then! Institute of Medicine (IOM) reported in November 1999 that 98,000 patients die each year because of medical errors. St. Paul Insurance Company reports that the rate of malpractice claims has remained steady over between 1990 and 1999. Where did things go wrong? Does this peer-review driven system of catching errors, educating and disciplining doctors and throwing out the "bad apples" really work as promised by the establishment?

Let’s see how the system is supposed to work. After any patient is discharged from the hospital, the quality assurance (QA) nurses check the chart to see if aberrations have occurred. If not, the chart is filed away. Otherwise the chart is flagged and goes to the "peer-review" committee of physicians. This committee checks to see if the physician attending the patient met the standard of care. If not, the attending physician is questioned, counseled, disciplined, suspended, terminated depending on the seriousness of medical error. Largely, peer-review is meant to be a learning process so that the medical errors are caught and all doctors are educated in order for patients in future to get better care. But this is also where doctors can play out their personal politics of favoritism and vendetta!

First, who are these doctors that are reviewing their colleagues? Are they somehow tested and proven to be better qualified than those they are reviewing? Do they have the necessary integrity to judge others? Are they dispassionate? Not really, in most cases, they are simply the "buddies" of the administrators. Chances are that they are "stale, pale, male", who bring in a lot of patients, surgery, and money to the hospital. They and the hospital lie in the same economic bed. They and the hospital share strong motive of profiting from surgery, admissions and keeping control of the medical practice in a given community. They form the "inner sanctum" and closely guard against "outsiders" using whatever means necessary.

Secondly, are these reviewers honest in reviewing their colleagues? Can they objectively critique their friend who is simply a part of their everyday professional and social life? Who often refers to them? Who they play and dine with? On the other hand, can they be fair to one who just came into town and who may be taking some of their patients away? An inadvertent competitor? How about one who has this funny accent about him? Or different shade of skin? Can these doctors rise above their personal and professional ties, prejudices and insecurities to uphold the standards of medical profession, as they assure the public?

The third factor is, why should they expend time and effort on this thankless job? The reviewers can simply gloss over the charts, do a perfunctory review. In fact, the department of ob-gyn, of which I was a member at that time, at Presbyterian Hospital, Charlotte, circulated a memo in April 1995, admitting euphemistically:

Overall, our (peer-review) process has been very relaxed these past few years.

 

Of course, the reviewers can not afford to do absolutely anything either. Citizen groups are watching, they have to show some places where care was not optimal.

Finally, the fact is that managed care has shrunk the size of the monetary pie to be had, so it is a doc-eat-doc world out there!

Given all these factors, it is very easy to see that the reviewers set up a double standard of covering up the real mistakes of their friends and exposing others for not even a valid reason.

If they accept you or if you are part of the "inner circle", meaning politically powerful, they simply look the other way if you make mistakes. Chances are that your charts may never be peer-reviewed because the administration, through the quality assurance nurses, can simply let these charts slide by. However, if you are a competitor but/or do not belong to a powerful group, gender or race, full fury of the peer-review system may be unleashed upon you. That is what happened in my case 5 years ago.

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MY PERSONAL EXPERIENCE

When I received my M.D. from New Jersey Medical School, Newark in 1985, I decided to take up the happy specialty of delivering babies. In 1989, I finished my ob-gyn residency from Temple University Hospital, Philadelphia. I graduated in the top 20% of my senior class. I moved down to Charlotte and started ob-gyn practice, first with a group then solo. I became board certified in ob-gyn.

On December 1, 1994, I scheduled a laser-laparoscopy on a patient to alleviate pelvic pain. At the time of surgery, I inadvertently punctured an artery in her abdomen. I recognized the injury immediately and performed open surgery with the help of a general and a vascular surgeon. The patient went home after a few days stay in the hospital. Many experts later reviewed my case and found that I met the standard of care.

But the Presbyterian hospital used this incident to target me in the worst manner. They initiated a secretive peer-review of all my cases. On September 1, 1995, the CEO of Presbyterian Hospital, Charlotte and chief of the ob-gyn department summoned me to the imposing boardroom of the hospital. They told me that the hospital had peer-reviewed my 102 charts and found 24 of them to be ‘problematic". They would not identify these 24 charts or what the "problems" were with each of them. They told me that I was summarily suspended from the hospital from that very day!

I was the first physician to be suspended from the hospital in 20 years! The reviewers were either my competitors or employees of the hospital or both!

This was truly a stab in the back, because I was never given a chance to defend any of those 24 cases. According to the hospital’s own by-laws, I should have been given written query for each of those charts. If that were done, they would simply not have been able to suspend me, since there was nothing wrong with the charts. They simply wanted to hush up the matter. In fact, the secretary in the medical staff office offered me the "friendly" advice that I should resign. Had I done that, there would have been no legal recourse.

I hired a lawyer and went through the "fair hearing" process in the hospital, which was a laughable exercise in corporate rubber-stamping. There was nothing "fair" about it. The hospital handpicked the members of the "hearing panel". None of the members of the panel was even an ob-gyn physician. Even though two eminent ob-gyn experts testified in my favor, doctors on the panel voted me down. They were not going to destroy their long-standing relationship with the hospital! Yet, they had enough conscience to write in their opinion:

"The sequence of events as presented leaves the distinct impression that this physician was intimidated. That impression damages the entire community."

I took the hospital to the state court in Mecklenburg county in January 1996. The court determined that the hospital had violated its by-laws and ordered the hospital to perform a new peer-review of my charts. Meanwhile North Carolina Medical Board reviewed my "24 problematic charts" and found them to be satisfactory. Sadly, the Board decided to stay on the sidelines while the hospital continued to decimate my career and drag me from court to court.

The hospital initiated a new review of my charts using two external reviewers but they knew that I would be vindicated. Therefore, they simultaneously appealed to the Court of Appeals in Raleigh, North Carolina against having to do the review. They also went to the State Supreme Court asking for a stay of the ongoing and almost finished external review in February 1997. Beyond all reason and logic, the Supreme Court allowed that to happen. The Court of Appeals ordered in August 1997 that the hospital should indeed give me a new review in accordance with its by-laws.

American Medical Association and North Carolina Medical Society, in fact all medical people and entities in this country support an "external" review of a physician. The by-laws of the hospital allow for an external review of a physician. But the hospital chose to abandon the external review that had been going on. For the second time, the hospital selected internal physicians, employed and otherwise controlled by the hospital, to review my cases. The marching orders were clear for the reviewers; they were to find my charts full of "mistakes". They did and justified the revocation of my privileges.

Dr. E. Albert Reece, chairman and professor at Temple University hospital ob-gyn department reviewed these cases at my request. He and another board certified ob-gyn physician personally testified at a hearing in the hospital in January 1999 that I met the standard of care. Still the hospital would not listen!

I was the first ob-gyn physician of Asian-Indian heritage in the city of Charlotte. I felt that discrimination was the real reason for my exclusion from the hospital. I filed a civil rights suit against the hospital in January 1999. In June 2000, the federal judge ordered the hospital to produce to me all the records of ob-gyn physicians to compare with mine. The hospital is appealing this order to the 4th circuit Court of Appeals in Richmond, VA.

I still hold full and unrestricted licenses in North Carolina, New Jersey and Pennsylvania. I have full attending privileges at Carolinas Medical Center, Charlotte. But because of my suspension from the hospital and entry of this information in the NPDB, I have been unable to do ob-gyn work for several years. I had to close my practice in May 1997. My skills have doubtlessly gone down. My career and social life have been devastated.

While the hospital has used a million dollars of public money to keep a good doctor from serving the public, blatantly violated its own by-laws, the Joint Commission for Accreditation of Healthcare Organizations (JCAHO) has not questioned the hospital to my knowledge. Many doctors, who have committed much bigger "errors", have continued to practice there in perfect comfort.

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ABUSE OF PEER-REVIEW IS WIDESPREAD

Mine is not an isolated case.

In numerous cases, peer-review has been abused by hospitals and their "favorite" doctors to meet their own personal and economic agenda. Hospitals and doctors use peer review as a potent weapon to attack competition, achieve racial profiling and simply getting rid of those they do not like. Once a physician gets a bad peer review, there is "domino effect" in that, other hospitals would not give you privileges, HMO’s would not put you on their panels and potential employers will turn you down. The physician’s career is finished. You get branded as a social and professional outcast.

Because of the near-absolute privileged nature and immunity of the peer-review process, there is not much redress available in the courts. As Dr. Jane Orient, executive director of American Association of Physicians and Surgeons (AAPS), points out, even the most egregious of peer-reviews prevails. There is something wrong here, peer-reviewers can get away with murder, and nobody can question them! While the government has no difficulty getting their hands on internal documents of Firestone for public to view, the medical establishment simply hides its skeletons under the guise of "public good"! How long is the public going to swallow that?

Robert Meals, Esq. has compiled a long list of physicians victimized by peer-review. Dr. Verner Waite and Robert Walker, Esq. have termed the process "kangaroo court". Dr. Edwin Dey has established a web-site to help other victims of sham peer-reviews: www.semmelweissociety.org. Dr. Paul Ebert, the President of American College of Surgeons, in his editorial in January 1997, questioned whether the peer reviews could remain unbiased with the ‘corporatization of medicine.

On the other hand, the establishment uses the peer review process to hide the mistakes of their own. When you belong to the "inner circle" at a hospital, you do not get reviewed or get reviewed/disciplined less harshly. The same goes for reporting to NPDB. Even if your outcome is bad, it is brushed aside as "these things happen". Sometimes, you can make a sweet deal with the administrators, so as to avoid any reporting to NPDB. But, as mentioned before, the establishment works hard to scapegoat those who do not have the clout to be in the "inner circle" &endash; less well connected, solo and minority physicians.

Behind the smoke-screen of every one physician targeted by sham peer-review, there are a dozen physicians whose medical errors are shoved under the rug! Therein lies the real source of threat to public health and injustice to those individual physicians, who become sacrificial lambs.

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NATIONAL PRACTITIONER DATA BANK

This data bank was created with much fanfare by the Congress in 1986. Public perception was created and persists to date that somehow all the bad doctors would end up in the data bank and all the good doctors outside. U.S. congress Rep. Tom Bliley (R) has now introduced a bill to open up NPDB to the public.

But as elucidated above, one’s entry into the data bank may well depend on his or her political connections. As with everything else in life, there is a double standard here. If you belong to the larger subset of physicians who constitute the "country club", you will be protected by your colleagues from being disciplined. Or that your penalty will be so chosen that it does not get reported to data bank.

However, if you belong to the other subset of physicians, who are bright, conscientious, good defender of public health but lack social connections, you may be thrown into the bank as a scapegoat for minor and non-substantial infarctions. Medical establishment has the power make you look like a monster lurking in the dark.

I believe that the information entered into the data bank is so incomplete and biased regarding physicians in general as to be of any help in stating with much confidence whether a physician is competent or not. It is a well-accepted fact that there is a low rate of reporting of "real" problem physicians to the data bank. Therefore, the bill introduced by Rep. Bliley is not going to give the public any meaningful insight into a physician’s competence. On the other hand, it is going to give public a false sense of security when they do not find a doctor’s name in the data bank.

The consumer groups continue to want more entries in the data bank. While they are rightfully concerned with the low number of the overall entries, they should also be concerned with the fact that many of these entries are "forced" upon good doctors! They should be concerned with the political, unjust and high-handed process by which these entries are generated to appease the public demand for more data-bank entries. They should be concerned with the fact that peer-review process is controlled by the power elite in largely a mob fashion.

Here is an example. If 5 doctors assert that a woman should have a hysterectomy for no medical reason but for their obvious financial reward and one doctor disagrees, the lone doctor can be branded incompetent and cast away into the data bank. From then on, he is falsely perceived by the public as a bad doctor. He is headed for oblivion!

Let me give you another example. A surgeon is operating on a patient while the anesthesiologist is keeping the patient asleep. The surgery takes an unexpected turn and blood transfusion is needed. The anesthesiologist does not give patient blood in time. The patient suffers some damage. Now the surgeon is not a good old boy but the anesthesiologist is employed by the hospital. Who do you think the hospital is going to hold responsible for the damage? And who do you think is going to end up in the data bank? This is exactly what happened in my case.

The chance of finding good or bad doctors is about equal either inside or outside the data bank!

While I consider myself a well-trained, competent and humanitarian physician, my paper trail in the data bank would convince any potential patient to run away at the sight of me!

There are many other significant flaws in the system of reporting errors. For example, you will find multiple entries regarding the same factual issue concerning a physician. While the factual issue may be minor, substantial amount of public money is spent to generate these entries in the name of public good. Also, a frenzy of activity is created to give an impression that the system is doing its best trying to find the "bad apples". With this adequate "distraction" created, the system merrily goes on with "business as usual".

I have been called to task by my senior colleagues for doing the equivalent of an extra pap smear while I know full well that these gentlemen themselves have filled their coffers with hundreds of unnecessary surgeries! Suddenly they pretend to be paragon of virtues and upholding every pillar of medical ethics! They exhibit "holier than thou" attitude for the simple reason that they are the establishment, I am the Johnny come lately.

It is difficult to go into all the details due to space considerations here. Doctors have managed to put themselves on a pedestal in public eye but they are also human beings with instincts of survival and greed. They should be answerable to the society in general. There truly needs to be an independent study of the whole process of catching errors, disciplining the guilty and seeing that the process and data bank are more than a dog and pony show.

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SUMMARY

Effective medical peer review is the ultimate protector of public health!

The Congress had devised peer review and NPDB as the way to reduce medical errors and keep the medicine safe from the public. However, they entrusted the establishment, the hospitals and the established doctors, with the process. They thought that the system would catch its own errors and reform itself. Well, as it turns out, the system is very far from being such a saint! The situation with medicine today is reminiscent of the days when scientists of cigarette companies did their own research and declared that cigarettes did not cause cancer!

By and large, the people involved here are interested in the bottom line- more surgery and more hospitalization. But to make a showing that they are doing something in the direction of "reducing errors", they hang their more conscientious colleagues and the ones who may be better guardians of public health. The "bad apples" are thus throwing out the "good apples".

Dr. Gerald Moss wrote in The American journal of Surgery" in 1994:

Our better (usually younger) surgeons increasingly are placed in jeopardy by the unchecked ignorance and/or malice of their established colleagues.

The establishment has thus thwarted the intent of Congress. As columnist James J. Kilpatrick points out in his column, their "candor" in review may be a camouflage for "cover up". Once the hospital has thrown out the conscientious and the competent physician/s under the false label of "bad apple", the rest of the doctors can "play while the cat is away". They can do unnecessary surgery with impunity, hide each other’s mistakes, and generally forget about the public good.

American Medical Association has studied the problem of bad-faith peer reviews. It still has an ongoing investigation into the matter. This issue affects the public health down the line. A significant number of physicians are affected by this problem. However, majority of physicians is able to exploit and benefit from the system. Hence there is not a strong political will in the medical establishment to correct its own flaws.

If patient care is to reign supreme, this problem must be tackled and solved. AMA, state medical boards and societies, JCAHO and other concerned entities need to look into this matter seriously. However, given the weak will of many of these organizations for the reasons stated above, it may ultimately rest with the Congress to do something about it.

In February 2000, President Clinton announced an initiative to improve patient safety and reduce the number of medical errors by 50% over the next 5 years. I believe that the following needs to happen to meet that goal:

First, the hospitals need to stop playing favorites with some doctors at the expense of others and public health. ALL members of the department should review the medical charts on a round-robin basis. That would be more democratic, would it not? No administration appointed group of physicians should tower above the rest and abuse its power. The same should go for all other hospital committees that hold power over various functions. The way some people have all the power all the time, is the root of all corrupt practices.

Secondly, laws need to be put in place for independent and unbiased "external review". This option should be available to the reviewed physician. The hospitals already have this option. They can pretty much do what they feel like. American Medical Association envisions an "oversight committee" in each state to prevent abuse of peer-review process. This will serve as a check for sham peer reviews, avoiding local politics and conflict of interests. However, some of the so-called independent "external" organizations are shady, they are simply "guns for hire", we need to watch out for them.

Thirdly, JCAHO and the medical boards should not just sit around in the face of calamity of justice. Conspiracies like the one in my case is far too obvious for them to close their eyes and pretend that public health is not at stake. If the hospitals can force physicians to review others with complete dishonesty, they can also force them to do more cesarean sections and hysterectomies. The economic interests are so powerful, mere power of suggestion from the administration will do.

Finally, some measure of judicial scrutiny is necessary for the peer review process to be honest, fair and beyond reproach. The strange concept of the need of a process to be completely hidden from public eye in order to achieve public good needs to be reexamined. The courts need to abandon their "hands-off" approach of today, public health is not just the realm of medical conglomerates, and the little man should be heard.

With these measures, the peer-review and NPDB will have the desired effect of reducing medical errors and protecting public health. By bringing honesty into medical practice, they may well reduce unnecessary surgery, reduce medical costs and save lives. The congress and states need to take urgent steps to clean up the peer review process.

Ron A. Virmani, M.D., FACOG

Board Certified Obstetrician and Gynecologist

4626 Charlestown Manor Drive

Charlotte NC 28211

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JUST REMEMBER...

....that if a hospital cannot get one of their own internal stooges to trash a doctor's reputation.....

... they can always hire hitmen from the outside.

Here is a STORY of a hospital who kept hiring hitman after hitman independent of the hospital's approved peer review plan, even though the courts ruled that every one of them was in violation of state laws and medical staff bylaws! In fact, even members of the Medical Executive Committee write letters on behalf of the doctors, and STILL the hospital pursues eir (illegal) agenda!

Wait, you say. Maybe the hospital's agenda is really on the up and up -- maybe they have OTHER great doctors on staff there, and these guys are really just extras, making a fuss for naught. Well, think again. The type of doctors on staff are simply part of the "good ole boy" network, replete with legal "immunity" and the whole works. They can even speed under the influence of alcohol and thumb their noses at the cops! (Reported in the local newspaper online, but their link has expired...) It's not WHAT you know, but WHO you know!

But, hey, it's Florida... they're much too busy counting dimples and "hanging chad" to pay attention to medical care and patients' and doctor's rights! Instead of using the "sunlight test" on punch cards, maybe they should shine some sunlight on the stuff that goes on in the dark in healthcare circles...

Dr. John Minarcik

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The Story of David Odom, M.D.

The Doctor Is In:

Doctor David Odom tells the story that he is a 58 year old, board certified anesthesiologist with almost thirty years experience. Dr. Odom began to practice in Fairbanks, Alaska in 1988. Fairbanks is a geographically isolated metropolitan area serving as the economic center of a population of some 80,000 people. The main campus of the University of Alaska is located there. Two large military bases are situated in the immediate area. The Fairbanks "International" Airport serves the refueling needs of transpolar airline routes to Europe. The Trans-Alaska oil pipeline runs through Fairbanks on its way from the Arctic Ocean to Valdez on the gulf coast.

The Hospital is REALLY in:

Fairbanks was founded in the early years of the last century. History books describe this founding by con-artists and prostitutes as being for the express purpose of cheating the miners and Indians after gold was discovered in the area. Much of the same mentality is evident in how the city is run today. A large outside hospital chain is contracted to manage the hospital. Although currently going under the name of "Banner Health", they have variously been known as "Western Health Network" and "Lutheran Health Services". Although LHS was not affiliated with the Lutheran Church, Fairbanksans have erroneously thought that the Lutheran Church runs their hospital, which is the only hospital for 400 miles in any direction. However, even though the hospital's tax status is "non-profit", the hospital is no charity. As with all monopolies, the prices are as high as the captive audience will bear, and then some. An estimated 30% of potential surgical patients leave town, many of these escapees of the high price of surgery.

A Dedicated Doctor, trying to do good:

In 1992, after 4 years of listening to surgeons complain about the poor quality service offered them by FMH's operating room suite -- poor scheduling, equipment, help -- Dr. Odom decided to be the lead physician to start a free-standing, outpatient surgery center. To that end, after some planning, and upon the advice of an attorney, on December 15, 1992, Dr. Odom contacted the FMH administrator and told him of the plans.

Quality "Assurance" raises it's ugly head:

One month later, after 5 years (his total time there) of no quality complaints, Dr. Odom was called before the Surgery Department QA Committee to "present" three cases occurring many months earlier. He was told that there were concerns about one of the cases, but he was not given any specific concerns that he could address. He simply was told that this would be resolved informally.

As one would suspect, the other anesthesiologists at FMH have a monopoly on anesthesia services as long as the hospital has a monopoly on operating room services. Of course, Dr. Odom's project threatened this monopoly. After the surgery center announcement, the other 4 anesthesiologists became distant and uncommunicative, according to Dr. Odom. He continued his surgery center activities.

Some nine months later, the other anesthesiologists, with the cooperation of the hospital administrator, used a minor event (Dr. Odom's complaint about the lack of cooperation of a nurse anesthetist) to remove him from the operating room schedule. Thereafter, Dr. Odom was allowed to practice in the hospital only upon the specific request of a surgeon or patient. Dr. Odom filed suit against the other anesthesiologists. The hospital hired an attorney for them.

There's ALWAYS an attorney in there somewhere:

Under this attorney's direction, the boycott against Dr. Odom was dropped, but the other anesthesiologists immediately began to do a focused review of his charts. Eventually, they wrote 5 critical essays on 5 cases occurring over the previous year, and packaged them up with a request to the Executive Committee for Formal Corrective Action. They also threw in the first case that had been criticized but that had already been informally resolved. None of these cases involved death, injury, nor bad outcome. One of them was an unnecessary epidural for pain which Dr. Odom had actually declined to do.

The attorney bird-dogged this peer review initiative, personally attending the requisite medical staff committee meetings, explaining to the various physicians that he wore two hats: that of attorney for the anesthesiologists in the present lawsuit, and attorney for the FMH medical staff. The medical staff uncritically accepted his claim that he had no conflict of interest.

It's not the capabilities, Stupid!:

On June 2, 1994, Dr. Odom's privileges to practice at FMH were suspended pending "retraining". This occurred regardless of the fact that he had no malpractice complaints, no evidence of injured patients, nor patient deaths, and not even any patient complaints.

In August, 1994, Dr. Odom was accepted for formal evaluation and retraining at Loma Linda University Medical Center in the Southern California area. While attending this course, the Governing Board of the Hospital (Banner Health) permanently revoked his FMH privileges and medical staff membership.

On December 23, 1994, Dr. Odom returned to Fairbanks with a letter from Loma Linda stating that that, "we feel that after his 4 rigorous months here at LLUMC, Dr. David Odom is a safe, up-to-date, and capable anesthesiologist and would be an asset to any hospital medical staff." Further, the letter stated that "[Odom] was probably a safe anesthesiologist even on arrival here."

In January, 1995 Dr. Odom reapplied for privileges at FMH, and 4 months later was notified that his application was denied. He requested an appeal hearing with the medical staff, which occurred in July of 1995. He lost this appeal, even after the head of the anesthesia department at LLUMC testified on his behalf in person.

Dr. Odom's last allowed administrative appeal was to the FMH Governing Board, made up of Banner Health executives. Not surprisingly, he lost that appeal, too. And because of the reporting requirements of the Health Care Quality Improvement Act, Dr. Odom was reported to the National Practitioner Data Bank and is essentially now unable to practice anesthesiology anywhere in North America.

We always wind up in court:

Dr. Odom filed a lawsuit in December, 1995, which included all events occurring after the initial lawsuit was filed in December, 1993. The first suit was dismissed in Summary Judgment by a local Superior Court judge. The second suit was dismissed a year after it was filed, by another Alaska 4th Judicial District judge.

Both suits were appealed to the Alaska Supreme Court on a timely basis, a year apart. However, since they are related, they were both reviewed extensively by the same Supreme Court Justice, and decisions came down on the same day, March 17, 2000. In both cases Dr. Odom won on every point appealed. The decisions were unanimous on every point appealed except that one Justice dissented concerning the one point of defamation. (These cases are listed on the Pacific Reporter as 5250 S-7547 Odom v. Lee, 999 P2d 755 & 5251 S-8007 Odom v. Fairbanks Memorial Hospital, 999 P2d 123)

In October, 2000, the opposition filed a Motion for Summary Judgment based on the immunity provisions of the HCQIA. On Dec. 6, 2000, Dr. Odom filed his opposition. After oral argument, the judge's decision was in Dr. Odom's favor. However, saying the law was so confusing, he invited the other side to appeal to the AK Supreme Court. They have done so. Dr. Odom has not yet put in his reply. Then all parties await the Supreme Court's decision. See an update!

One interesting point is that Dr. Odom's initial lawyer promptly abandoned him after he ran out of money in 1995. Therefore, all subsequent filings had to be done pro se. It has been a struggle all the way for Dr. Odom and his wife. It was not until just before the recent hearing on the matter of the Motion for Summary Judgment based on HCQIA immunity that Dr. Odom finally was able to retain an attorney.

And do patients get a better facility?:

As for Dr. Odom's project, Fairbanks Surgery Center Inc. -- in September, 1995, he won a Certificate Of Need from the State of Alaska to develop a surgery center in Fairbanks. After almost 2 years of false starts, and trying to get financing amid rancorous opposition from the hospital, Dr. Odom finally put together a consortium of ColumbiaCare and two Alaska Native Corporations to do the surgery center.

Unfortunately, the CON was to expire on December 31, 1997. Dr. Odom applied for the necessary extension. Predictably, FMH took this very seriously, protecting its $35,000,000+ outpatient market by politically interfering with the CON process entirely outside the bounds of mandated procedure. Without money, Dr. Odom's appeal to renew the CON got nowhere.

And so it goes:

As anyone can see, FMH is still a monopoly. Prices in Fairbanks are still outrageously high, and there is still no choice in facilities. Of course, there is also one less anesthesiologist in the world. However, as a telling postscript, upon the recommendation of Floyd Brauer, M.D., the head of the anesthesia department at Loma Linda, Dr. Odom sat for the American Board of Anesthesiology re-certification exam in May, 1997, and passed.

 

Odom v. Fairbanks et. al. 4FA-93-2901 Civil

Superior Court for the State of Alaska

Fourth Judicial District at Fairbanks

 

Memorandum, Opinion and Order of Superior Court Judge Pengilly, reversing the grant of summary judgment against Dr. Odom by the lower court. Notice Judge Pengilly's telling discussion of the bizarre interpretations of the U.S. Health Care Quality Improvement Act of 1986.

Dear Joe:

As Judge Pengilly invited them to do within the 6 pages of his opinion, the hospital made an "interlocutory" appeal to the Alaska Supreme Court on the matter of HCQIA applicability. They actually filed their brief on April 16th and my side is preparing a response at this time.

We will demonstrate, by a preponderance of evidence, that FMH did not adhere to the 4 prongs of the HCQIA, thus failing to acquire immunity under provisions of the doctrine.

The interesting procedural posture of this case is this: The other side never brought up HCQIA previously! They simply asked for dismissal in 1996, and the Superior Court judge gave it to them. In answering my Supreme Court appeal, Justice Compton opined that: "Odom's complaint alleges facts which if proven are sufficient to state a claim for unreasonable restraint of trade, group boycott, attempted monopolization, defamation, breach of oral contract, unfair trade practices, interference with a prospective economic advantage, and intentional infliction of emotional distress. Accordingly, we reverse the superior court's dismissal of these claims and its awards of attorney's fees to FMH and to the doctors and anesthesia Associates, Inc."

So now, after the Alaska Supreme Court has already spent a great deal of time dealing with this case, we are expecting it to let Judge Pengilly's ruling to stand and allow this case to go before a jury.

Of course, I will keep you posted. -D.O.-

Odom v. Fairbanks et. al. 4FA-93-2901 Civil

 

Memorandum, Opinion and Order of Superior Court Judge Pengilly, reversing the grant of summary judgment against Dr. Odom by the lower court. Notice Judge Pengilly's telling discussion of the bizarre interpretations of the U.S. Health Care Quality Improvement Act of 1986.

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