|
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.
----------
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.
---------
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.
----------
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.
----------
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
----------
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
----------
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. |
