11 March – One day, you receive a letter from your hospital’s medical executive committee (MEC) informing you that you’re going to be the subject of a peer review. What you do next can determine whether you’ll be exonerated at the hearing, be forced to undergo “corrective action” such as continuing medical education or proctoring, or have your hospital privileges restricted or revoked. What do you do now?by NEIL CHESANOW Medscape
Take It Seriously
For some doctors, a peer review notification letter is a dreaded event. Other doctors treat it as a minor nuisance. Says Skip Freedman, MD, an emergency physician and medical director at AllMed Healthcare Management, a Portland, Oregon-based firm that conducts independent physician reviews: “Do doctors throw notification letters in the trash?
“Physicians are often so busy that the process may start without them,” says Mark Smith, MD, MBA, a vascular surgeon in Pdm Springs, California, and an expert in peer review design. “Carefully review the case in question. Don’t just blow it off.”
Notification Letters May Be Sketchy
The notification letter should state the reason you’re being reviewed and the hearing date. lf it doesn’t, your first step should be to clarify the details.
“Sometimes the notice of the hearing omits this information,” says Robert M. Meals, JD, an attorney in Langley, Washington, and a veteran of dozens of peer reviews. “It may not be specific about the charges or when the hearing is scheduled to occur.”
lf the charges aren’t specified, request an explanation. You have a right to know what the hearing is about, and you need to know to properly prepare.
lf the notification letter doesn’t include the hearing date, request it. lf it does, and there isn’t enough time to mount a defense, request a delay. lf the hearing is months away, request an earlier date. However long you estimate it will take you to review charts and otherwise prepare, that’s when a hearing ideally should be held, not before and not too long after. An impending peer review shouldn’t be hanging over your head for months.
One Type of Review Is More Serious Than the Other
It’s important to determine what type of review is underway. The Joint Commission (formerly the Joint Commission on Accreditation of Healthcare Organizations) calls for two types of “professional practice evaluations”: “ongoing” and “focused.” Each of the nation’s 5795 hospitals is required by law to conduct both.
“Ongoing reviews are a normal part of hospital life,” says Freedman. “All doctors undergo them whether they realize it or not. In many hospitals, the surgery committee meets every fourth Friday. The medicine committee meets every third Thursday. Cases that fall out of the norm for the hospital’s standard of care are reviewed at these times. A doctor may not necessarily be informed that his charts are being reviewed in this routine context.”
Unless you make a spectacular error or have complaints lodged against you by patients or hospital personnel, ongoing review isn’t usually a cause for concern, although a case that falls out may trigger more regular monitoring to ensure it’s an isolated event, not a trend.
“lf a doctor has additional problem cases over, say, the next 6-9 months, he may then become the subject of a ‘focused review,”‘ Freedman says. A focused review is defined by the Joint Commission as “an intense assessment of a practitioner’s credentials and current competence.”
While you may be contacted about a chart that falls out during ongoing review, a formal notification letter is most likely to inform you that a focused review is in your future.
Is it a “Sham” Peer Review?
A focused peer review is supposed to be conducted in good faith, with clinical objectivity, in the interest of patient safety. Sometimes, however, a focused review may be used as a pretext to summarily suspend the privileges of whistleblowers, competitors, or doctors who aren’t liked.
Take the case of Roland F. Chalifoux, DO. ln 1995, he was an “arrogant young neurosurgeon” working at a 100-bed hospital in Dallas, Texas. He ran afoul of 3 orthopedists, partners in a well-connected group, over who did spine surgeries. They wanted to do bone fusions while Chalifoux did decompressions.
Chalifoux, trained to perform both, stubbornly refused.
Chalifoux then found himself peer-reviewed “on trumped-up charges,” he says. Continuing medical education or proctoring – corrective measures that are supposed to be initially prescribed when a doctor is deemed at fault – never came up. Instead, his hospital privileges were summarily suspended, he was reported to the National Practitioner Data Bank, and he ended up losing his Texas medical license. He now runs a pain clinic in Wheeling, West Virginia. He’s lucky he got that.
(Dr. Chalifoux is the current President of Semmelweis Society International.)
Because of this danger, on learning that you’ll be reviewed, consider your political situation. Who are your enemies at the hospital? Who stands to gain if you’re out of the way? Are you a soloist competing for patients against doctors in an entrenched group? Do you complain long and loud about what you view as substandard care? This could get you labeled a “disruptive physician,” a term intended for doctors with substance abuse, mental health, or behavior problems.
These are common motives for a “bad faith” or “sham” peer review, notes Lawrence R. Huntoon, MD, PhD, a neurologist in Derby, NY, and a director of the Association of American Physicians and Surgeons, a doctor advocacy group. In a sham review, “the outcome is predetermined,” he says. “The facts and the truth don’t necessarily matter.”
How often does this occur? In the perception of hospital consultants, not very often. However, lawyers who represent doctors in highly questionable reviews say it’s all too common.
“This is a national issue,” says Jeffrey C. Grass, JD, an attorney in Dallas, Texas, who has been defending doctors in peer review hearings for the past 20 years.
Both could be right. Compared to the total number of peer reviews held, the number of sham reviews may be relatively small. No one really knows. But that still could mean scores of doctors get railroaded each year. lf you believe you’re about to be one of them, seek legal help.
Review the Evidence Against You
lf you’re going to be peer-reviewed, you owe it to yourself to review the charts in question before to your hearing. Whether you’re exonerated, receive a wrist slap, or have the book thrown at you may well depend on how you respond to questions about facts in those charts.
Request to view all documents gathered as evidence against you. Huntoon, who mans the Association of American Physicians and Surgeons peer review crisis hotline, which he says receives calls from distraught doctors every week, has burrowed through stacks of hospital incident reports collected as evidence against doctors under review.” He found chart pulls because a patient fell out of bed, or because a nurse gave a patient the wrong medication or dosage.
He also found thank you notes from patients.
Peer reviewers may not actually check the supposedly incriminating documents, Huntoon says. The evidence is typically collected by a single individual, who may be biased against you even if other members of the committee aren’t. Nevertheless, the impressive size of an unexamined stack makes its own damning statement. You’d be wise to personally review all the evidence collected against you. You may be the only one in the hearing who gives it a close look.
Withholding charts may be a sign that you’re being set up for a sham review, or it may be that your reviewers are well meaning but inept at procedural due process. Reviewers are typically unpaid, untrained volunteers who lack sufficient experience and for whom conducting peer review isn’t a high priority, Freedman says. A lawyer can often get the charts if you can’t.
Understand How the Process Works
lf ongoing review triggers a focused review “an ad hoc committee is appointed by the MEC to investigate a physician’s professional competence or conduct,” Grass explains. “The ad hoc committee gathers witness statements, data, charts, and other evidence, as well as interviews the physician involved. The ad hoc committee then makes a recommendation to the MEC as to whether the physician should be disciplined and if so what the punishment should be.”
Find out who will conduct your evaluation – your department chair, a departmental committee, or a multispecialty committee. According to Robert J. Marder, MD, a pathologist in Chicago, lllinois, and an expert on peer review design, the peer review model your hospital uses may have a bearing on the professional bias of your reviewers. This could affect the outcome of your review. The more bias inherent in the model, the more legal representation is a good idea.
lf restriction or summary suspension of hospital privileges is recommended, you may then request an outside reviewer to evaluate the case, says Grass. A number of hospital consulting firms can provide an appropriate specialist to offer an objective evaluation. Some hospitals have reciprocal agreements to review each other’s doctors, if necessary. The request may or may not be granted – hospital policies vary (if there even is a policy) – but experts say it usually is.
“If, based on the ad hoc committee’s report, the MEC recommends limitation, suspension, or revocation of privileges, the doctor is entitled to a peer review hearing,” Grass continues. The MEC then appoints a committee to conduct the hearing. Afterward, the committee makes a further recommendation to the MEC as to whether the adverse action initially recommended is warranted.
Next, the MEC votes to approve, modify, or reject the peer review committee’s recommendation. This vote is then submitted to the hospital board, which has the last word.
lf the final decision is unfavorable, the physician, in a Hail Mary, may appeal directly to the board, but “board members commonly rubber stamp the MEC’s recommendation,” Grass says.
Review the Standard of Care
Hospital standards of care are supposed to exist in printed form. Often they don’t. But check. lf they do, compare them to the notes in your charts and your management of the cases involved.
Even when codified in a hardcopy manual, however, “the standard of care is an amorphous term,” say another attorney. “How long does an appendectomy take? On average, 45 minutes. So if you average an hour, does that mean you’re not a good doctor? What if it takes you 90 minutes? How about 2 hours? At what point does that become a fallout?
There’s a huge amount of subjectivity in determining these standards and what is and isn’t acceptable medical care.”
Given this, and given the emotional strain commonly experienced, if you don’t feel capable of requesting clarification in a calm, controlled voice, retain an attorney who can.
Read Your Medical Staff Bylaws
A hospital’s medical staff bylaws describe how peer review is supposed to work and what your rights to due process are. Review them. Some hospitals post their bylaws online.
You should have the right to a timely hearing, gather evidence, subpoena and cross-examine witnesses, have lawyer present, have a record made of the proceedings, and perhaps request an outside reviewer in cases of disagreement or potential bias. However, “each set of bylaws is somewhat different,” Meals says. Whether these rights are granted in print – and then honored in practice – are open questions. But at least you should know when to cry foul.
Not receiving due process may a sign of a sham review in progress. Then again, it may not. “Peer review is a rare event,” offers Freedman by way of perspective. “If you check every hospital within a 30-mile radius of any major city, there might be 2 that have ever had to use the corrective action procedures in their rules, regulations, and bylaws.
There may not be anyone currently at the hospital who actually knows what’s in the bylaws. The progressive-discipline steps in peer review are often performed incompetently by well-intended but inexperienced amateurs.”
Ironically, you may need legal counsel present simply to parse the hospital’s own bylaws for the edification of its own peer review committee to ensure that the hearing you receive is fair.
Know When to Hire a Lawyer
lf a chart falls out in ongoing review, it isn’t usually a cause for alarm. lf the peer review process proceeds beyond that, however, whether hiring a lawyer ultimately turns out to be overkill, better to be safe than sorry: when you receive a notification letter, lawyer up. Act quickly, and if the peer review isn’t for a legitimate reason, you may nip the process in the bud.
“A good part of the lawyering here is preventing the matter from getting to a hearing,” Grass says. “A lot of times, if a lawyer gets involved early, asking questions, requesting documents, the hospital may say, ‘It’s not worth the trouble’ and simply drop the case.”
When Meals gets a new client, “the first thing I do is send the case out to an independent reviewer, a doctor with good credentials, preferably an academic,” he says. lf a hearing is unavoidable, he also tries to influence the choice of a fair hearing officer, which hospital bylaws may allow. “If you get a good hearing officer, like a retired judge, the hearing usually runs a lot better,” he says. “l win a lot of cases because I try to ensure the panel is as fair as I can make it.”
Hire the right lawyer. A healthcare attorney isn’t synonymous with being a legal expert on peer review. A substantial body of case law on the subject exists. Choose a lawyer who knows it, who has represented other doctors in peer review hearings, and who has a track record of success.
Seek Support if You Need It
Three advocacy groups actively support doctors and nurses who are victims of sham peer review: Semmelweis Society International (SSI), the Association of American Physicians and Surgeons (AAPS) and the Center for Peer Review Justice (CPRJ). Each offers a crisis hotline, emotional support, advice, and informational resources. Each can also help you network to find experienced legal counsel.
If you become the subject of peer review, be careful about the attorney you seek.