Health Care Quality Improvement Act of 1986

How did Sham Peer Review come about? Dr. Patrick was a general and vascular surgeon who joined the staff at Columbia Memorial Hospital in 1972,  the only hospital in Astoria, Oregon.  Most of the staff members of the hospital were partners or employees of the Astoria Clinic.  Dr. Patrick chose to open a private practice of his own. As a result, the Clinic physicians refused to refer patients to him, instead referring patients to surgeons as far as 50 miles away. Clinic physicians were reluctant to assist Dr. Patrick in surgeries, declined to provide consultations, and refused to provide backup coverage. In 1981, one of the Astoria Clinic surgeons requested the Executive Committee of the hospital initiate a review of Dr. Patrick’s hospital privileges. It was a sham peer review, and the committee recommended that Dr. Patrick’s privileges be terminated.

Dr. Patrick went through the hospital committee hearing system. Realizing that he wouldn’t get an unbiased hearing, he resigned rather than risking termination of his privileges. He then filed suit under the Sherman Antitrust Act. His contention was that the partners of the Astoria Clinic had initiated peer review proceedings against him to reduce competition rather than to improve patient care. He was awarded a substantial jury award, which was subsequently overturned by the Ninth Circuit Court of Appeals. He appealed to the U.S. Supreme Court.

Dr. Lawrence Huntoon and the Association of American Physicians and Surgeons (AAPS) filed an amicus brief in support of Dr. Patrick. Filing briefs opposing Dr. Patrick were the American Medical Association (AMA), the American Hospital Association, and many others. The Supreme Court overturned the decision of the Court of Appeals. They concluded that the state had to actively supervise the conduct and actually have the power to review and overturn peer review decisions.

However, this decision didn’t last. The federal government passed the Health Care Quality Improvement Act (HCQIA) in 1986 under pressure from the medical industry, including the AMA, to give both hospitals and peer review panels legal immunity from lawsuits. This same law created the National Practitioner Data Bank (NPDB). HCQIA went into effect in 1990.

HCQIA was enacted to protect he public from incompetent physicians by allowing those physicians on peer review committees to communicate in an open and honest environment and theoretically weed out incompetent physicians, without a retaliatory lawsuit by the reviewed physician. However, this hasn’t happened by any stretch. Instead, it has helped promote an environment that protects those physicians on a peer review committee when they manipulate the review process by maliciously disciplining those physicians that may be in political or economic competition.

My summary suspension occurred in 2011. Every few months since then I have searched for any new information or progress on possibly modifying HCQIA. There are only a handful of articles. One is titled Twelve Signs of Sham Peer Review. (Found on Semmelweis Society International- published by admin. on 2/11/06 in Corruption, HCQIA, Healthcare, Hospital, Retaliation, Sham Peer Review and Whistleblower).

 

The 12 Signs of Sham Peer Review:

  1. A doctor with a good history and reputation suddenly deemed to have questionable performance indicators. Absent external causes such a recent substance abuse, or mental illness and unusual stress of some kind, physicians don’t suddenly turn south in terms of professional judgment and performance.
  2. The presence of “gunny sacking” issues. Gunny sacking refers to the dredging up of old issues long since resolved to demonstrate present problems.
  3. The existence of an “insider” clique of physicians who fiercely maintain control of peer review and credentials positions and pass key medical staff positions back and forth among themselves- while excluding “outsiders”.
  4. The lack of clear, definitive standards in medical staff bylaws for “disruptive conduct,” denial or non-renewal of privileges or other discipline. (In a recent conference it was mentioned that an “inappropriate look” can now be construed as “disruptive.” Years ago it was the surgeons that threw instruments in the OR that were called out for being disruptive- as they should have been.)
  5. Medical staff acting in excess of authority or violation of the medical staff bylaws. Failure to follow the letter of the procedures set forth in the investigative process frequently implies a separate agenda.
  6. The existence of a personal animus on the part of those participating in the investigative or hearing process is a clear marker of retaliatory intent.
  7. The existence of a conflict of interest on the part of those participating in the peer review proceedings can violate fundamental conflict of interest principles. This would cast doubt on the genuineness of the quality of care issues.
  8. Minor issues of quality of care magnified beyond a reasonable expectation. Every professional makes mistakes and many of us are lucky when they don’t precipitate major problems for our patients and clients. When a reviewing committee loses its perspective and elevates otherwise minor issues into major violations, judgment becomes flawed and impaired.
  9. The “piling on” of complaints. The medical staff appears to throw every thinkable transgression, real and imaged, on the part of the physician against the wall in the hope that something will stick.
  10. Disparate, discriminatory treatment. When a physician on the “outside” is treated substantially different with respect to the intensity of scrutiny than a physician on the “inside,” where it is clear that the insiders are not demanding from themselves and other insiders the same degree of practice performance as the physician under review.
  11. In the failure to seek all relevant information concerning an issue before a rush to judgment- key physicians or nursing staff members not interviewed and the charts not carefully reviewed. The sample of cases reviewed in order to reach a judgment on competence is extremely narrow.
  12. The existence of only a pretense to a sincere concern about quality or safety of patient care. The lack of consistency in concern about quality of patient care can be a tip-off of a separate agenda or ulterior motive in the proceedings.

 

In my case of Sham Peer Review, I found  that 11 of the above signs were present.

 

Due Process and the Presumption of Innocence

An accused murderer has a better chance of being acquitted and having a clean record than an accused physician under HCQIA.  In a murder case, due process is mandatory and the alleged is presumed innocent until proven guilty. However, the accused physician is guilty until proven innocent since the burden of proof has switched from accuser to accused.

If a physician is reported to the Data Bank, they are black listed for their entire career. In Texas alone, in 2004, 68% of adversely peer-reviewed doctors were adjudicated by the Texas Licensing Board, yet those affected physician’s adverse reports are still in the Data Bank. (MedGenMed. 2005; 7(4):47).  It takes time for the medical boards to review the cases. My case was in 2011. I received a letter for the Medical Board of Texas in 2013 saying the matter was closed and they didn’t feel any further disciplinary action was needed. I was relieved and assumed my name would be taken off the Data Bank. I was told no, but I could list my “side” of the story. As one can imagine, it just came across as a whining doctor who was just making excuses for her behavior. I don’t believe a single employer who interviewed me actually read the Data Bank report. Once they queried the bank and saw my name there, they washed their hands of me and my application for employment.

 

 

I predicted my own fate….

I have recently found some renewed enthusiasm for writing on my blog. I read about an exciting new center for physicians rights appropriately called CPR- Center for Physician Rights that was started by Dr. Kernan Manion. He was subjected to mistreatment by the North Carolina PHP and the medical board and subsequently lost his license in 2013. I am excited and hopeful that this organization can help stop the unfair treatment for now countless physicians. I have provided a link to his group on the sidebar.

In searching for material for my blog, I found a letter I wrote to the Chief of Staff of the hospital where I worked dated back to March 2008. First, a little background.

I left the physician I originally joined in 2002 and opened my own office in March 2005. I had no complaints or issues for three years prior. Four months after I opened my office I started getting “notices” of inadequate care of various patients or “inappropriate” comments I apparently made. My clinical decisions were constantly questioned by nursing who would call one of the other more senior physicians for clarification. The physician I originally joined, Dr. X didn’t speak to me for a year after I opened my practice. Our department consisted of  only three doctors, Dr X, Dr. Y and me- the only female.  Out of incredible frustration I requested a meeting with the Chief of Staff along with the other doctors in my department. Below is the letter  I submitted as exactly written back in 2008.

 

 

Dear Dr. Z,

Since I opened my own office there has been an obvious and palpable tension between Dr. X an myself. Although he hasn’t been openly hostile in public, his manner and inability to communicate with me in a professional and collegial manner has been apparent and has progressively accelerated. I have been told by nurses that he has made disparaging remarks on the nursing station about my patient care and I am also aware that he has asked numerous physicians about my performance in medical record keeping presumably to use as ammunition at the peer review meeting. I have read incriminating comments made by him in my patient’s chart which could be quite damaging to me in a potential lawsuit by said patient. I am also aware that the hospital peer review asked the head nurse on labor and delivery if the nurses had any problems with my performance prior to the peer review meeting, again presumably to “make a case”. This amounts to professional harassment, economic favoritism of one physician over another, abuse of power of those physicians on various committees, failure of due process and grounds for legal action.

(This was written prior to a peer review meeting regarding my delinquent medical records- I was placed on probation for not finishing my dictations in a timely fashion.)

I find it reprehensible that I have been left with a situation in which I feel my every move, patient encounter, and conversation is scrutinized and reported to an authority within the hospital . There is an obvious conflict of interest where my economic competitor is scrutinizing my patient’s charts and using hi position on various committees to report any and all perceived digressions. This is an untenable situation and no respected and clinically competent physician should be expected to work in such a hostile environment. This situation places me at a potential risk of Medical Board action should the situation escalate. My only obvious choice at this point is no longer share call with Dr. X which will again potentially result in retaliation on his part.

 

 

My summary suspension was issued in May of 2011. In retrospect, I should have started to move my practice at the point I wrote the letter. It would have been very difficult as I would have to sell my house and office building as I was in solo practice, divorced, and managing the office as well.

Hind sight is always 20/20. The writing was on the wall.

 

 

A First Generation Immigrant

I am a first generation Turkish- American woman. My father,  a Turkish Airforce cadet,  won a scholarship to study engineering at the University of Illinois at Champagne/Urbana in the early sixties.  I was born during his Master’s study.  My older brother, also a physician, was born in Turkey five years prior. My father studied English for six months at Georgetown University before beginning his Engineering studies.  After six years of study, we moved  back to Turkey so my father could  fulfill his military obligation. Back in Turkey  he witnessed a lot of corruption in his profession of Structural Engineering. More than once he was threatened or coerced into signing off on unsafe building projects. It was completely against my father’s nature to submit shoddy or unsafe work.

My father is a very disciplined and ethical man with a strong work ethic. I believe he took after his grandfather who was appointed to be senator from my father’s home town of Malatya when Turkey first formed its democratic government in 1923. My great- grandfather was politically very outspoken. He never actually  served in the senate, though.  Someone poisoned his tea and he died at the age of forty-two.

Dismayed by the corruption in Turkey, my father decided to move back to the US to pursue his career. He found a job in Detroit, Michigan. Detroit is just across the border from Windsor, Ontario, Canada. We settled in Canada until my mother and brother could secure their American visas.  Four years and two American visas later ,we moved to Southern California , when I was nine years old.

My brother was to pave my way into medicine. My father wanted him to be a doctor. I remember them sitting at the kitchen table discussing what MCAT scores he would need to get into medical school with his GPA. My father always reminded us that when he came to the US he didn’t even speak the language and he got his bachelor’s and his master’s degrees. He told us,  “I am paying for your education, you speak the language. You should be able to get at least a master’s degree,  if not better.” I can’t imagine moving to another country and studying their language for just six months and even passing a single class. My parents left their entire family in Turkey and built a life for their children. They wanted their children’s success to be proof of the value of their sacrifices.

It is in this context of my childhood that failure was just not an option. I was not as focused as my brother initially for years of sacrifice. It took my parents some pushing and prodding. As a female applicant in the late 80’s I was part of 30% of the entering class,  so I had somewhat of an advantage as a minority applicant.  I interviewed at six medical schools. I was accepted at five and an alternate in the sixth. The first two years of medical school were awful. I was living alone,  on the east coast miles away from family,  and in constant fear of failing out of school.  I thought about quitting twice but managed to hang in there. The clinical years were much better and I got my confidence back.  I cried tears of joy through our entire graduation ceremony. I couldn’t believe I actually made it.

My parents were devastated when I had to close my practice after the case of Sham Peer Review.  I was divorced at the time with minimal savings. I spent months looking for a job that was commuting distance of my ex-husband since we shared custody of our children. I was offered several jobs only to have the offers retracted when they found out I was named on the  Medical Practitioner’s Data Bank. My medical license was not suspended but because I had a summary suspension of my hospital privileges the effect was just as bad. Physicians in  surgical specialties, like Ob/Gyn, need hospitals for a significant portion of their practices. I was told that hospital committees would be hard pressed to grant me hospital privileges again. I was severely depressed, embarrassed and ashamed. I felt I had let my parents down. I am so grateful that I had my children which served as a buffer against self harm. More than once I thought I had no reason to live.

Eventually,   I found some part time work at a hormone replacement clinic and then as a wound care doctor. I worked for about a year in a small African country delivering babies but missed my kids terribly so I returned to the US.  I started taking a lot of Family Medicine CME courses and eventually found a rewarding outpatient job as an Ob/Gyn/Family Medicine physician at an FQHC- a Federally Qualified Healthcare Clinic.  It’s been seven years now and I still have PTSD from the ordeal.  Experts on Sham Peer Review cases have observed patterns around the circumstances and types of doctors that are targeted by hospital committees and State Boards. The targeted doctors are often foreign born, foreign trained and apparently those with foreign names. Small town hospitals, new grads and female physicians are also commonly targeted. My first job interviewer as I finished my residency suggested I change my first name. I thought it was ludicrous, but now I understand.  I achieved my MD with my maiden, very foreign surname. Changing any part of my name would be an insult to my parents that was beyond repair. It was never an option. I couldn’t have finished my studies without their unending support and my parents still proudly state that both their children are physicians.