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    Is peer review worth saving?

    An increasingly vocal group of physicians says the hospital peer review process is misused to strike down competitors and outliers.

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    Of the following statements, which best describes hospital peer review?

    • It's an impartial means of identifying and dealing with errant physicians.
    • It has been transformed into a weapon that enables established physicians and hospital administrators to dispatch mavericks, whistleblowers, rivals, and other nonconformists.

    Your answer might depend on whether or not you're a hospital insider. Like other supercharged topics, such as malpractice litigation and tort reform, hospital peer review rarely elicits a neutral shrug from members of the medical community.

    Now that some physicians who claim they've been unfairly reviewed and disciplined have been awarded millions of dollars in damages (see "Dr. Ulrich's battle," of this issue), organized medicine, long a supporter of hospital peer review, is taking a second look. The Pennsylvania Medical Society and the Association of American Physicians and Surgeons, for example, recently passed resolutions condemning what both groups call "bad faith peer review."

    How is it that measures ostensibly taken to promote quality care by encouraging doctors to report incompetent, unethical, or impaired colleagues have earned the distrust of so many physicians? First, some background.

    The launch of HCQIA and the NPDB In the 1980s, when the medical community revved up its efforts to identify negligent physicians via peer review and credentialing procedures, one targeted doctor—general surgeon Timothy Patrick, who then practiced in Astoria, OR—sued his accusers on the grounds that the review was designed to drive him out of business so competitors could co-opt his practice.

    A jury found in Patrick's favor and awarded him $650,000, which the court trebled. Organized medicine, concerned that the Patrick case would chill efforts to identify problem doctors, pushed for national legislation providing liability protection to physicians who file complaints against colleagues and serve on peer review panels. The resulting measure, the Health Care Quality Improvement Act of 1986, also established the National Practitioner Data Bank.

    HCQIA gives peer reviewers near-complete immunity from claims for monetary damages arising from peer review actions, provided that several prerequisites are met:

    • The peer review was done in the belief that such action furthered quality healthcare.
    • Those bringing the action made a good-faith effort to obtain the facts.
    • The physician reviewed was given adequate notice and afforded due process.
    • The hospital had a reasonable belief that peer review action was warranted.

    Although physicians brought before a peer review panel are entitled to legal representation and have the right to cross-examine witnesses, present evidence, and receive a written report of the final decision, the peer review system affords the accused little opportunity to appeal. A physician who feels he has been wronged can file a lawsuit claiming that the HCQIA standards weren't met. But proving bad faith is very difficult—and very expensive.

    Moreover, many hospitals have made it extremely hard for physicians to defend themselves against malicious allegations. "It's often a guilty-until-proven-innocent scenario," says Steven I. Kern, a health law attorney in Bridgewater, NJ. "Medical staff bylaws often indicate that if you're summarily suspended pending a hearing or just charged with wrongdoing, the burden is on you to prove, with clear and convincing evidence, that the suspension or charges were arbitrary, capricious, or unreasonable. It doesn't matter if the suspension or charges were wrong. As long as the decision to suspend or charge wasn't made arbitrarily, you're removed from the medical staff."

    One side: Peer review is misused "In the 30 years that I've been a health law attorney," says Kern, "I've never seen anyone who admits a lot of patients and is well-liked have a problem with the hospital disciplinary mechanism. On the other hand, if you're competing with such a doctor, especially if you're new to the hospital or on the wrong side of hospital politics, you're a potential target."

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