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.