SACRAMENTO 6 Apr 09 – The California Supreme Court issued a major victory to Dr. Gil Mileikowsky and healthcare professionals throughout the US today, issuing a decision regarding the conduct of his medical peer review hearing in 2003.  The Court wrote:

We conclude the hearing officer lacks authority to prevent a reviewing panel from reviewing the case by dismissing it on his or her own initiative before the hearing has been convened, and also lacks authority to terminate the hearing after it has been convened without first securing the approval of the reviewing panel. We therefore will affirm the judgment of the Court of Appeal. 

Dr. Mileikowsky (“Dr. Gil”) is a champion and advocate in the nationwide effort to end “sham peer review” (SPR) – a corrupt practice in which hospitals retaliate against physicians and nurses who report dangerous physicians, hospital conditions, or who successfully compete against hospitals by delivering superior service. By rigging a medical peer review board that cherry picks ordinarily insignificant mistakes, hospitals use SPR to intimidate and silence physicians who are sworn to improve healthcare and protect patients. Those targeted face a financially crippling fight to retain their clinical privileges. Sadly, many physicians endure financial ruin and the loss of their medical careers. Some lose hope and end their lives in suicide.

Hospitals accused of SPR have included Kaiser, Tenet, and non-profits like Adventist. Because hospitals have profited from harming patients, the Supreme Court’s decision could have a positive impact on patient safety throughout the US healthcare industry.

Dr. Mileikowsky is the President and founder of the Alliance for Patient Safety and a member of Semmelweis Society International (SSI), which supported Mileikowsky throughout his appeal.  Attorneys Jeffrey White and Georgetown Law Professor Alan Ullberg assisted SSI in the preparation of its amicus brief.

Health Leaders Media recently named Dr. Mileikowsky as one of America’s top healthcare leaders.

For more information, see the California Supreme Court opinion.

Whistleblowers often pay a high price for exposing flaws in the healthcare system. Like a lot of physicians who have been in his situation, Gil Mileikowsky, MD, essentially lost his livelihood. It started in 2000 when he was approached by a lawyer representing a patient whose Fallopian tubes were removed without consent. He hadn’t heard of the case, even though it happened in his own department, and he began to suspect that other patient safety incidents weren’t being reviewed through the proper channels. He agreed to serve as an expert witness against Tarzana Regional Medical Center, a joint venture of HCA and Tenet HealthSystem, and four days later the hospital CEO informed him that he would be escorted by security while on hospital grounds. A few months later he was suspended.

That was just the beginning of a long legal battle that is still ongoing. The American Medical Association, the California Medical Association, and other physician and consumer organizations—including a partnership between doctors and trial lawyers spearheaded by attorney Alan Dershowitz—filed amicus briefs on Mileikowsky’s behalf. For many of his supporters, the central issue is peer review and whether hospitals should have authority to remove a physician without due process. His case recently led to a new California law that extends whistleblower protection to all physicians, and he has campaigned for similar protections on the federal level.

But in Mileikowsky’s eyes, he is locked in a much grander struggle to improve the quality of the healthcare system. He founded the Alliance for Patient Safety to document his case and push for safety reforms, and he has developed what he believes is a solution to poor quality control—a “black box” for physicians. Hospital errors should be reviewed in double-blind studies by randomly selected specialists to remove bias or potential conflict of interest, he argues. Although he never intended to become a whistleblower, he says his goal is now to expose flaws in the entire system, not just one hospital.

Whistleblowers like Mileikowsky play an important role in an industry that is often unsuccessful at policing itself; they now initiate nine out of 10 fraud cases for the Department of Justice. Although in some situations they stand to receive up to 25% of any amount recovered, that wasn’t the case for Mileikowsky. “I didn’t wake up one day and say, ‘I want to become a whistleblower,’” he says. “A whistleblower is just someone who tries to sound the alarm about a wrong situation.

(more here)

Peer review is a process by which members of a hospital’s medical staff review the qualifications, medical outcomes and professional conduct of other physician members and medical staff applicants to determine whether the reviewed physicians may practice in the hospital and, if so, to determine the parameters of their practice.

To encourage peer review, almost all states have granted immunity to participants in the peer review process from certain actions and have made the deliberations and records of medical peer review privileged from judicial disclosure. These laws protect peer review participants from liability for their participation in the peer review process and keep medical peer review information privileged even if such information is relevant and probative to a judicial proceeding. In granting these protections, legislatures have determined that limiting the rights of physicians to seek damages for peer review actions and denying malpractice plaintiffs and other litigants information relevant to their lawsuits are justified in order to encourage effective peer review.

In 1986, congress enacted the Health Care Quality Improvement Act (HCQIA), a federal law that provides protection from liability to healthcare institutions and physicians involved in peer review, as long as certain conditions are met during the peer review process. The law also established the National Practitioner Data Bank, a repository of actions taken against physicians, to which healthcare institutions must report those actions. The purpose was to prevent incompetent physicians from moving between states without being detected. An entry against a physician in the Data Bank can be equivalent to a death sentence, since it makes it very difficult for a physician to obtain privileges at any other hospital, since the latter verify applicants’ credentials with the Bank prior to granting or renewing privileges. The physicians are often left with no choice but to abandon their profession and obtain unrelated jobs.

Since HCQIA went into effect in 1989, thousands of adverse reports have been filed with the Data Bank. Unfortunately, a large number of the actions reported have been taken maliciously by hospitals and their medical staff against the physicians subjects of the peer review. The motives are usually economic in nature, but also include retaliation against whistleblowers, personal spite, and even disputes over a parking space. This process has been dubbed sham peer review, has now become a powerful weapon in the hands of hospitals and those physicians who hold the political power in hospitals, and is being misused nationwide. Many lawsuits against the perpetrators have been filed by the victims, but very few of them survived a summary judgment because of the immunity provided by HCQIA and because the conditions that need to be fulfilled for a peer review to be considered adequate, as defined by HCQIA, are very vague.

The award in August 2004 of $366 million to a physician by a Federal Jury in Texas for a single bad faith peer review highlights that this practice is adding tremendous cost to healthcare.

The use of bad faith peer review as an instrument to further widespread political corruption in Georgia shows the destructive nature of bad faith peer review, and the potential terrible consequences on the public. Georgia Senator Charles Walker has been indicted on 142 felony counts for stealing from Georgia hospitals. His scheme used bad-faith peer review to silence any staff member who spoke out. The effects of this corruption on Georgia are widespread.

No one can seriously believe that bad faith peer review affects only doctors. All of society is badly harmed when huge hospitals rip off the public, silence their doctors, impair medical care and essentially destroy the system designed to protect patients.

A review of 1000 cases conducted by Verner Waite, MD, FACS, founder of the Semmelweis Society, shows that at least 80% of peer reviews are initiated for economic reasons, and are not done in good faith. This is the most comprehensive review currently known. Upon review of these cases, the officers of Semmelweis find that due process in peer review is the exception, rather than the rule. It is rare to find any hospital that uniformly applies standards of peer review to the members of their hospital staff. As a result, thousands of physicians have lost their careers without any due process.

Bad faith peer review against one physician can silence hundreds of physicians and place physicians’ livelihoods at extreme risk. It is estimated that 9 out of 10 physicians exposed to bad faith peer review never work again as physicians. It is also estimated based on extensive experience and review of the literature that 1 out of 5 physicians exposed to bad faith peer review commit suicide. Bad faith peer review is a greater challenge to the practice of ethical medicine than the malpractice crisis.

The State Boards of Medicine, which oversee physicians’ licensure, have uniformly refused to interfere or take action against the perpetrators for puzzling reasons, not considering this practice a breach of the ethics of Medicine.

Many voices have condemned this abuse of the system and have called for reforms of the HCQIA to no avail. The most prominent of those are the Semmelweis Society International, the Center for Peer Review Justice and the Association of American Physicians and Surgeons. In October 2004, both the Pennsylvania Medical Society and the Association of American Physicians and Surgeons have separately passed resolutions to investigate bad faith peer review. The two physician groups said they plan to independently look into the misuse of hospital peer review proceedings as a way to retaliate against doctors who advocate too loudly or too persistently for better patient care. In both cases, the resolutions were passed by acclamation.

The resolution of the Pennsylvania Medical Society calls on the medical society to “explore all aspects of sham (bad faith) peer review and explore ways to prevent the misuse of peer review” including looking into “applicable laws and steps that can be taken to protect physicians’ rights to advocate for quality patient care.”

Being represented by a bad attorney is often worse than not being represented at all. This is especially true for physicians who are the victims of sham peer review. Although the idea of being represented by Marcus Welby MD/JD might seem like a good idea, in most cases a doctor would be better served by a career attorney with significant experience in administrative, credentialing and regulatory matters. (more)

The Yakima Herald-Republic reports that a local obstetrician is accusing Yakima Valley Memorial Hospital, its chief executive and two doctors of trying to drive her out of business by ruining her reputation with “spurious” inquiries about the way she practices medicine.

Dr. Diana Smigaj, 60, who has practiced obstetrics and gynecology in Yakima since 1995, alleges in a lawsuit filed in November that the hospital has targeted her over the years because she is a woman and “a serious competitive threat” to its control over birth and maternity care in Yakima County. (more here )

SHAM PEER REVIEW is a “corrective action” proceeding commenced by a hospital medical staff against a physician to discipline the physician motivated by other concerns than the quality of patient concerns – such as hospital politics, competitive advantage or retaliation.  There are twelve telltale signs that individually and collectively may indicate a situation of malicious peer review. Continue reading ‘TWELVE SIGNS OF SHAM PEER REVIEW’