TUCSON, Ariz., Dec. 6 – The U.S. Court of Appeals for the Fifth Circuit has ruled against the Texas Medical Board (TMB), allowing landmark litigation by the Association of American Physicians and Surgeon to proceed to prove wrongdoing by the Board. Continue reading ‘U.S. Court of Appeals Rules Against Texas Medical Board’
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24 Nov – Efforts to make hospitals safer for patients are falling short, researchers report in the first large study in a decade to analyze harm from medical care and to track it over time. The study, conducted from 2002 to 2007 in 10 North Carolina hospitals, found that harm to patients was common and that the number of incidents did not decrease over time. Continue reading ‘Study Finds No Progress in Safety at Hospitals’
Since 2006, Mexican cartels have killed 28,000 men, women and children in drug-related violence. As troubling as these numbers are, those deaths and injuries represent a fraction of those who are negligently killed or injured by US doctors and drug companies every year. Based upon admissions information, 3,607,000 patients suffered adverse drug reactions in 1994 alone. Continue reading ‘Nancy Banks MD Book-Signing in NYC’
31 Oct – Big companies are begging the Securities and Exchange Commission to give them first crack at whistleblowers before the tipsters be permitted to tattle to the federal watchdog. Continue reading ‘Big firms seek shield against whistleblowers’
26 Oct – Nashville - The Board of Directors is proud to announce that Dr. Richard Willner DPM, is the Semmelweis Society International “Clean Hands Award” recipient for 2010. Continue reading ‘SSI Names 2010 “Clean Hands Award” Recipient’
20 Oct – The Ohio medical board concluded that pain physician William D. Leak had performed “unnecessary” nerve tests on 20 patients and subjected some to “an excessive number of invasive procedures,” including injections of agents that destroy nerve tissue. Yet the finding, posted on the board’s public website, didn’t prevent Eli Lilly and Co. from using him Continue reading ‘Disgraced Docs Push Drugs for Big Pharma’
15 Sep - “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 doctors and hospitals immunity from damages for their peer-review actions. Sen. Ron Wyden (D- Oregon) authored the 1986 law that created the National Practitioner Data Bank (NPDB), which 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! Seventeen 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. In case you did not notice, we are in the middle of malpractice crisis once again, right now. St. Paul Insurance Company has completely closed its medical malpractice insurance business. Malpractice rates are soaring. 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? Or is it merely a smoke screen for some doctors to maintain lucrative (but short on quality of care) practices at the expense of their more conscientious colleagues who actually practice good medicine?
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, prejudices and turf-wars!
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 “favorites” 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, sharing strong motive of profiting from keeping control of the medical practice in a given community. They form the “inner sanctum” and closely guard against “outsiders” using whatever means necessary. They oftentimes have a substantial conflict of interest in doing a proper peer review.
Second, 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 golf 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?
Third, 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.
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! If I can review you and eliminate you before you even get a chance to review me, I can be way ahead in the game.
Many, if not most hospitals, place “politically correct” physicians on peer review committees, not those who are better doctors. For these reviewers to criticize other politically powerful physicians who are making medical errors would be to commit professional hara-kiri. Of course, the reviewers have to make a showing that they are doing something, because their job is to protect the public.
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 their politically vulnerable, but medically superior, colleagues for non-substantial, flimsy, clinically insignificant, bogus and fabricated reasons.
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 “understanding” 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 6 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 possible manner. They initiated a completely 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. My lawyer correctly advised me to choose to be suspended!
I 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 though the vagaries of the judicial system.
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 review in February 1997. Beyond all reason and logic, the Supreme Court stayed my almost finished external review. 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 intuitively clear for the reviewers; they were to find my charts full of “mistakes”. They did just that and justified the revocation of my privileges.
Dr. E. Albert Reece, chairman and professor at Temple University hospital’s ob-gyn department in Philadelphia, 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 in all those charts that the hospital had pointed out as problematic. 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. Not wanting to have the jury see how the performance of other ob-gyn physicians stacked up against mine, the hospital appealed this order to the 4th circuit Court of Appeals in Richmond, VA. In August 2001, the Court rendered its forceful and unanimous decision in my favor, holding that the interest in obtaining probative evidence in an action for discrimination outweighs the interest that would be furthered by recognition of a privilege for medical peer review materials. In September, 2001, the Court denied the petition by the hospital for a hearing by the full bench of the court. The hospital decided that they would not appeal to the U.S. Supreme Court. The case is in litigation now and trial is expected in 2005.
I still hold full and unrestricted licenses in North Carolina, New Jersey and Pennsylvania. I have 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 ruined.
While the hospital has used several million dollars of public money to keep me 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 without being subjected to absurdly harsh peer review and/or discipline of any kind.
ABUSE OF PEER-REVIEW IS WIDESPREAD
Mine is not an isolated case. In numerous cases, as the article in Medical Economics (Feb 7, 2000) points out, peer-review has been abused by hospitals and their “favorite” doctors to meet their own personal and economic agenda. The victims of peer review are often less well connected. 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 across the entire United States. Everybody believes that hospital must have done the right thing. Even if they think the hospital made a mistake, it is entirely too much baggage for anybody to deal with. They simply leave you on the sidelines to wither.
On December 2, 2001, reference committee G of American Medical Association held a hearing on the issue of peer-review. I personally testified about my case. Dr. Gil Mielekowsky (a physician from California), who became a victim of peer review, also presented his case in very effective and thoughtful way. Dr. Demsch, Pennsylvania delegate, stated that in his state, abuse of peer review was rampant. AMA is to study the issue of bad-faith peer reviews and bring out a report in June 2002.
However arbitrary and capricious the peer review, you can not question the process or the reviewers in the state courts. In most states, peer review enjoys near-absolute privilege and immunity; therefore not much redress is available. The courts are loathe to second-guess the hospitals’ “internal” matters. 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! They can professionally hang a physician in pubic, but the public is not allowed to see what evidence they have! The public should merely take them on their word! While the government has no difficulty getting their hands on internal documents of Firestone or Enron 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. Waite founded Semmelweis Society International. Dr. Paul Ebert, the President of American College of Surgeons, questioned whether the peer reviews could remain unbiased with the ‘corporatization’ of medicine. David W. Townsend, JD, wrote in Medical Economics(Feb 7, 2000) that solo practitioners lacking political support are frequent victims of peer review actions.
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 conducts a zealous witch-hunt to scapegoat those who do not have the clout to be part of the power structure – 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 quietly shoved under the rug! Therein lies the real source of threat to public health as well as injustice to those individual physicians, who become sacrificial lambs. The system goes to great lengths to create an illusion of public protection, while it is really protecting the establishment, by hiding medical errors of the politically powerful physicians. The concept that an elite group of physicians and the system, who are in a cozy symbiotic relationship, will demonstrate enough courage to criticize and discipline other members of their elite group, is plain ludicrous. If they did, they would threaten their own survival because their own medical errors would come to surface. (I use the word “elite” here because of their social power not because of their superior medical skills and judgment).
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 simply depends on his or her political connections. As with everything else in life, there is an extreme 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 to make you look like a monster lurking in the dark. They kill two birds with a stone, they eliminate you for reasons of their whim as well as they get a “notch” in their belt, show the public they are being guardians of public trust. Nothing is more hypocritical than that.
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. The federal General Accounting Office reported in November 2000 that NPDB contained information that is incomplete, inaccurate or both. It is well-accepted that there is a low rate of reporting of “real” problem physicians to the data bank. A report by the Inspector General of the Department of Health and Human Services said that in the last decade, 84% of HMO’S and 60% of hospitals never reported a single “adverse action” to the government. It should therefore be obvious that, the bill introduced by Rep. Bliley is not going to give the public any meaningful insight into a physician’s competence, rather a false sense of security when they do not find a doctor’s name in the bank.
The consumer groups continue to want more entries in the data bank. Sen. Ron Wyden has said that the low level of reporting was unacceptable. 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 also be concerned with the political, unjust and high-handed process by which these entries are generated to appease the public demand. And with the fact that peer-review process is controlled by the power elite in largely a mob fashion!
If five 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! There is no process of check or balance against such a sham peer review.
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 if 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. The medical profession has managed to put itself on a pedestal in public eye but the doctors are also human beings with instincts of survival and greed. They, along with the hospitals that control their behavior to control the bottom line, 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.
Although medical peer review is (or rather can be) A protector of public health, its current form, without balances, invites abuse. There is much reason to believe that peer review is practiced more in its corrupt form rather than for its original established purpose.
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 not 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 sitting in the review-committees themselves 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. Charles Silver of Dallas, TX, has therefore said that the “noble act” (HCQIA of 1986) originally intended to monitor problem physicians, has gone totally in the opposite direction and, in many cases, decimated fine careers. Such is the power of establishment, that wants to maintain the “status quo” and pays cursory lip service to quality in order to quiet the critics.
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.
The problem of bad faith peer reviews has come to the attention of the American Medical Association. However, the report (December 2001) of Board of Trustees fails to recognize and address many of the important issues as pointed out in this treatise. They need to dig deeper and more diligently in greater public interest and come up with a better report.
It is also unfortunate that the new report of Institute of Medicine (IOM) does not recognize or address the need to correct the severely flawed peer review process. The IOM report, however, abandons the “good apple, bad apple” theory and correctly blames the “system” for majority of errors. The AMA, however, completely ignores the “system’ contribution to medical errors. Thus, AMA and IOM both miss the mark in recognition of the problem and offering solutions for better health care.
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, 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:
- 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 hospital committees that control 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”. The external reviewers, when employed, should have no vested interested in the outcome of the review. This option should be available to the reviewed physician. But, some of the so-called independent “external” organizations are simply “guns for hire”, we need to watch out for them.
- 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. Some states, such as New York, have an oversight mechanism needed for the check. However, there is no mention of the “oversight committee” in the recent report of AMA.
- JCAHO and the medical boards should not just sit around in the face of calamity of justice. Conspiracies like the one in my case are far too common. They are not exceptions. Vital public health interests are 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.
- The hospitals should be required to show that they have reviewed everybody in a similar fashion and nobody is being doled out a disparate treatment.
- Some measure of judicial scrutiny is necessary for the peer review process to be honest, fair and beyond reproach. It is ludicrous to trust the administrators of hospitals with the altruism of defending the public. The job of the administrators is to make money. 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. Secretiveness invites abuse. 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.
- Finally, there is nothing in today’s regulations that forces the hospital to do effective (non-perfunctory) peer reviews. The hospital can merely make a showing that they are doing something and get away with it. This situation needs to be remedied.
- Finally, the “system effect” on medical errors should be addressed. These last two points are topics for a whole new book on the subject.
With these measures in place, 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. And to say the least, the media needs to promptly bring this matter to public attention.
Ron A. Virmani MD, F.A.C.O.G is still in litigation.
15 Aug – Central Louisiana Politics and the Rapides Parish Legal Recorder report that a $3,900,00.00 judgement was awarded to Dr. Tommie Granger against Christus Health Central. After a jury trial, the jury awarded Dr. Granger that sum for unfair or deceptive trade practises and for a negligent misrepresentation of facts to Christus’ peer review action. See the jury’s special verdict form HERE.
Dr. Granger’s attorney, Jimmy Faircloth, Jr., in the case which has been ongoing since 2003, also has requested $79,644.80 in expert fees and court reporter costs. (See: Memorandum in Support of Plaintiff’s Motion to Tax Costs).
Christus’ attorney was Ron Fiorenza or the law firm of Provosty, Sadler, deLaunay, Fiorenza & Sobel.
Dear Governor Schwarzenegger,
If the Founding Fathers of California and the United States of America who wrote the US Constitution could read AB 1235, they would jump out of their graves, because every single fundamental, sacrosanct right is blatantly violated by AB 1235.
California Medical Association’s original bill, AB 1235, morphed into a California Hospital Association, CHA, bill following all the devious amendments inserted by CHA’s attorneys.
It is impossible here to cover all the misrepresentations of that amended bill. So, I shall just cover the most offensive parts:
It violates the right to Due Process protected under the 14th Amendment.
This bill allows the hearing committee to recommend the denial the right of a physician to a hearing in certain circumstances that are left to the hospitals to determine individually through amendments of their own bylaws.
Why are America’s criminals entitled to due process, but physicians who face the capital punishment, i.e. the destruction of their medical career, not guaranteed their basic rights protected under our Constitution?
Even when an alleged criminal is a fugitive and escapes to Mexico in the middle of his trial, as did Andrew Luster, the grandson of Max Factor, he does not lose his right to a fair trial and his attorney continues to represent him in abstentia.
In absentia under United States law:
For more than 100 years, courts in the United States have held that, according to the United States Constitution, a criminal defendant’s right to appear in person at their trial, as a matter of due process is protected under the Fifth, Sixth, and Fourteenth Amendments.
However, the following exceptions are included in the Rule:
- the defendant waives his right to be present if he voluntarily leaves the trial after it has commenced,
- if he persists in disruptive conduct after being warned that such conduct will cause him to be removed from the courtroom,
- a corporation need not be present, but may be represented by counsel,
- in prosecutions for misdemeanors, the court may permit arraignment, plea, trial, and imposition of sentence in the defendant’s absence with his written consent, and
- the defendant need not be present at a conference or argument upon a question of law or at a reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure.
Indeed, several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through disruptive behavior or through his or her voluntary absence after trial has begun.
- AB 1235 violates Anti Discrimination laws.
AB 1235 creates a double standard by allowing physicians employees or contracted by the hospital to escape all scrutiny. De facto, it guarantees the protection of mediocrity and irresponsible conduct under the corporate umbrella.
- AB 1235 allows the hospital’s medical staff to be represented by an attorney even if the physician has no more legal representation, if, for instance, the physician cannot afford one. Sounds fair and reasonable, doesn’t it?
- There is no provision for the physician to exercise the equivalent of a demur, when the charges against the physician have no foundation.
- There is no provision that would mandate the exhaustion of the administrative proceeding in less than 14 days.
The mandatory deadline for the hospital to submit an 805 report to the Medical Board of California is 14 days. The deadline to submit a report to the National Practitioner Data Bank, NPDB, is 30 days from the suspension of the physician’s clinical privileges.
The above is of outmost importance as justice delayed is justice denied. The damage inflicted to the physician’s medical career is irreversible once these two reports are filed, see:
- Summarily suspend clinical privileges under false pretense of “imminent danger.
This triggers automatic reporting of physician to state medical boards, National Practitioner Data Bank, malpractice and medical insurance carriers
The association of a summary suspension with the required “exhaustion of administrative remedies,” protracted over many years, assures the demise of the physician’s career, without any possible court’s intervention. The hospital wins by attrition. (More here and here.)
- AB 1235 assumes that the physician is always the cause of protracted hearings that can last as long as 7 years or more.
This bill is not balanced at all, as it assumes that it is always the physician that is alleged to obstruct the discovery process, when in fact it is more often the hospital that obstructs and procrastinate since they often use the administrative proceedings as part of their war of attrition, particularly if the physician’s clinical privileges were summarily suspended. Very few physicians can sustain such an ordeal for over 10 years and survive, let alone prevail.
- There is no provision in this bill, in case a hospital withholds exculpatory evidence that would exonerate the physician.
- There is absolutely NO reason to require that the hearing officer in a medical peer review hearing should be an expert in healthcare law.
At the present time, in CA, there are a very limited number of attorneys that qualify. So, attorneys representing hospitals’ medical staff also serve as hearing officers at other hospitals where they do not represent their medical staff.
Some hearing officers are exclusively chosen by the same attorneys representing hospitals’ medical staffs, wherever they represent their hospitals.
A number of attorneys representing physicians also represent hospitals and receive referrals from attorneys representing hospitals.
Last but not least, some law firms representing physicians also represent attorneys of hospitals when they are sued !
Basically, we have in CA what attorney Roger Diamond characterizes as an incestuous relationship between many hospital attorneys, hearing officers and some attorneys representing physicians, who refer clients to each other.
As long as we allow this small group of attorneys to benefit financially from this most lucrative activity and act as a ” Star Chamber “, no law will ever provide us a good faith medical peer review.
The alleged requirement for a certain expertise and knowledge in healthcare law is commonly used by hospital attorneys all over the country.
In fact, this is nothing but a deception designed to assure the control of the outcome of medical peer review administrative hearings.
That argument was categorically rejected by the Supreme Court of Michigan in the case of Bruce B. Feyz, M.D. v. Mercy Memorial Hospital:
“We are not persuaded by the argument that courts are incompetent to review hospital staffing decisions as a basis for adopting the judicial nonintervention doctrine.
This claim overlooks the reality that courts routinely review complex claims of all kinds. Forgoing review of valid legal claims, simply because those claims arise from hospital staffing decisions, amounts to a grant of unfettered discretion to private hospitals to disregard the legal rights of those who are the subject of a staffing decision, even when such decisions are precluded by statute.”
In 2002, the CA Supreme Court published its opinion in Haas v. San Bernardino County:
“The ad hoc procedures used by some counties in selecting temporary administrative hearing officers violates due process by giving some officers a financial interest in the outcome of cases they are to decide; appointments must be made in a manner that does not create the risk that favorable decisions will be rewarded with future work.”
Accordingly, in 2006, CMA’s HOD approved Resolution 605-06:
“That the presiding officer may serve a peer review hearing only once in a lifetime “
That way, there is very little risk that the hearing officer shall have a financial conflict of interest based on an expectation of future work by that hospital, law firm,…
To the best of my knowledge, there are today over 10.000 unemployed attorneys in the state of CA, so we should have no difficulty finding an attorney to serve as a hearing officer in a medical peer review proceeding. See, LA Times article, March 27, 2010:
In view of all the above, you MUST VETO AB 1235, forthwith.
Respectfully submitted,Gil Mileikowsky MD President and Founder Alliance for Patient Safety
Independence MO |20 Aug – A former Independence chiropractor has won a $6.3 million judgment in his case against former members of the Missouri State Board of Chiropractic Examiners for suspending his license.By SCOTT CANON Kansas City Star
The case stems from accusations that Gary Edwards, who took his chiropractic practice to Alabama several years ago, had convinced a Mennonite farmer with AIDS that he was cured and could start a family.
The patient, Duane Troyer, died and left behind a wife and daughter with HIV infections. Edwards always has denied that he ever said Troyer had overcome HIV.
After the case came to light in stories published in The Star, the chiropractic board suspended his license for two years — although that suspension was set aside pending appeals that Edwards ultimately won in 2002. The board could have tried again to impose its penalties, but it never did, and Edwards’ departure from the state would have made disciplinary action moot.
But he filed suit against the former board members in 2005 to collect legal fees and losses to his business. That case went to trial last week. In a 9-3 verdict, the Cole County jury awarded damages of $6,284,759.
Attorney General Chris Koster’s office represented the board members, and a spokesman said the state planned to file a post-trial motion to have the verdict set aside. Edwards’ attorneys could not be reached for comment.
The case stretches back 20 years, when Troyer went to Edwards’ office several times beginning in 1990.
A member of a Mennonite sect from north-central Missouri, Troyer had hemophilia and contracted the AIDS virus from tainted blood products. He died in 1992.
At dispute in the case is whether Edwards told Troyer that the treatments cured him of AIDS. Edwards has insisted that he made no such claim. Troyer’s wife and mother-in-law have contended otherwise.
The chiropractor won his appeal in 2002 in large part because a court said he had not been given access to key pieces of evidence. One was testimony Troyer’s widow gave in an unrelated lawsuit involving tainted blood that caused Troyer’s AIDS. Edwards argued that testimony in that case would vary from the widow’s testimony that Edwards said Troyer was cured.
Edwards’ suit also contended that the chiropractic board seemed to overlook a religious anointing ceremony at Troyer’s church held in hopes of curing him and urging made by the minister at his wedding that the Troyers start a family. The chiropractor suggested those factors might have led the couple to believe Troyer was cured or to conceive a child even if he remained HIV-positive.
The jury’s verdict came against six former members of the chiropractor board — Lawrence Gerstein, Charlotte Hill, Mary Holyoke, Charles Klinginsmith, Larry Lovejoy and Lee Richardson. Ordinarily, members of such boards are immune from civil suits for their official duties. But there is an exception when a court finds they acted with gross negligence. Still, the state’s legal expense fund will ultimately cover any damages.