Despite these lofty words, medical boards are typically stacked with healthcare and pharmaceutical industry shills who use their administrative positions to retaliate against doctors who deviate from what drug and healthcare corporations call the medical “standard of care.”

While this standard theoretically helps “good” doctors to identify, discipline and weed out “bad” ones, medical boards and the “peer review” process are often used as a weapon against conscientious physicians who deviate from the healthcare industry’s comparatively low “standard of care.”

This means that if 10,000 doctors receive kickbacks from companies like Bristol-Myers Squibb (BMS) and Gilead Sciences for prescribing drugs like Zidovudine to pregnant women, and an honest doctor (who understands cell biology and has read the medical and scientific literature) thinks that nutritional supplements are better, the 10,000 can allege that the “disruptive” doctor is dangerous to patients and order a review of his patient charts. 

Although the process occasionally works, it is typically abused.  If the peer review or state medical boards successfully suspend the targeted physician’s clinical privileges for one month or longer, his name is sent to the National Physician Database (NPDB), effectively ending his career. 

For this reason, state medical boards have become one of the primary mechanisms used to enforce corruption that permeates the healthcare and pharmaceutical industries.  Sometimes, however, the targeted physicians publicly criticize the corrupt practices and conflicts of interest that permeate these boards. 

One of those rare “man bites dog” cases was recently reported in the Journal of American Physicians and Surgeons (AAPS) by peer review expert Lawrence R. Huntoon, M.D., Ph.D., who reminds us of our right to criticize the performance and/or conduct of public officials like Keith E. Miller MD, without fear of punishment or retaliation: 

“On Jan 11, 2012, an Appeals Court in Texas upheld this right in its decision in the case involving an AAPS member, Dr. Steven F. Hotze… In reviewing the facts of the case, the Court noted (that) Miller is a physician and, from 2003 until 2007, he served on the Texas Medical Board (TMB). He was the chairman of the TMB’s Disciplinary Process Review Committee…. Hotze became aware of Miller’s alleged conduct on the TMB and that Miller had testified as an expert against physicians in over forty medical malpractice cases while on the TMB.  Hotze wrote an editorial in a community newspaper complaining about the TMB, without mentioning Miller.  He wrote additional editorials describing the alleged denial of constitutional rights of physicians who appeared before Miller and the TMB.  Hotze invited Pigott [Dr. Shirley P. Pigott] to be a guest on his radio program to share her experiences with TMB and to describe her investigation into Miller’s dual roles as a TMB member and an expert witness against physicians in medical malpractice cases. Pigott also complained that Miller’s position on an advisory board for Blue Cross Blue Shield created a conflict of interest.  After Miller resigned from the TMB, Hotze wrote an article saying that Miller was forced off the board.  He published the article on his website, FANS. The same letter was also published on the website for the AAPS…”

Miller sued doctors Hotze and Pigott and the court correctly ruled against him.  For more information about the case and problems with TMB and other boards, see Dr. Huntoon’s editorial.

“I recently read the press release dated 12/9/2008 in which Semmelweis endorses scientist’ call for Science to RETRACT fraudulent reports on HIV. I also read the letter sent to Science sent in Dec. 2008. I am new to this topic I didn’t know it was all based upon a fraud that has maintained for 30 years and I totally support the request to withdraw all the fraudulent papers from the journal.  Nonetheless, up to this date, has it been any response to that letter from Science?  Is it ever expected?” 

SSI’s answer is “NO – and one is not expected.”  Here’s why:

Shortly after HIV co-discoverer Luc Montagnier MD accepted a Nobel Prize that Robert Gallo MD didn’t receive, Semmelweis Society International (SSI) endorsed a demand by 37 scientists and researchers for the journal Science to retract Gallo’s four original reports.

Unlike the pharmaceutically-funded activists who pressured UC Berkeley and the journals Medical Hypothesis and Nature to attack cancer researcher Peter Duesberg Ph.D., the signatories of this letter are credible academics and researchers.

Although retractions are not broken down by political or scientific reasons, mathematician John Ioannidis Ph.D. reported in 2005 that 80 percent of all non-randomized studies (the most common) turn out to be wrong, as do 25 percent of supposedly “gold-standard” randomized trials, and as much as 10 percent of the “platinum-standard” large randomized trials.  When he looked at 49 of the most highly regarded research findings in medicine over the previous 13 years, he found that 41 percent had been proven wrong or significantly exaggerated.

If between a third and a half of the most acclaimed research in medicine is untrustworthy, the scope and impact of the problem are undeniable – especially when the number of papers that reference these studies are extrapolated. 

For example, when Prof. Depak Das’ claims about a grape extract were recently proven false, the news caused some embarrassment at the University of Connecticut and damaged the sales and marketing of a few products. 

But according to Retraction Watch:

Das’ work has been influential.  Thirty of his papers have been cited more than 100 times, according to Thomson Scientific’s Web of Knowledge.  One, in Toxicology, has been cited 349 times, while another, in Free Radical Biology, has been cited 230.

While Das’ “influential work” may have irreparably harmed the work and reputations of a few researchers and journals, one can only begin to imagine the global impact when Dr. Gallo’s fraud is fully understood.

Despite much fanfare, Gallo’s four original reports (1, 2, 3, 4) never explained how he isolated HIV and never proved that HIV attacks cells or causes AIDS.  And when then-HHS Secretary Margaret Heckler and Gallo claimed to have discovered “the probable cause of AIDS” (video min:11:00), no one ever bothered to check.  While ”probable cause” allows policemen to question a man waiting near a bank, it doesn’t allow them to arrest him for bank robbery.  And while HIV might be present among sick people, it doesn’t mean that HIV makes people sick anymore than fire trucks parked at structure fires caused the fire.

Those who built their careers on Gallo’s assumptions received millions in research funding, while those who questioned it suffered retaliation. 

Like Capt. Renault’s discovery of gambling at Rick’s casino, the editors at journals like Nature and Science seem to think that self-flagellation, hand-wringing and teeth-gnashing among scientists like Jennifer Crocker and M. Lynne Cooper is sufficient – and maybe it is, for now.  After all, as long as politicians profit from pharmaceutical kickbacks and insider trading, it’s unlikely that Rick’s casino will hear from the Justice Department anytime soon.

The court denied Cedars-Sinai’s request to strike down the arbitrated award of $4,691,774 to Hrayr K. Shahinian, MD, for economic, emotional and punitive damages, noting that the Los Angeles hospital “agreed to “‘final and binding’ arbitration” after years of legal wrangling with the surgeon, “and that is what it got.”

According to court records, Cedars-Sinai recruited Dr. Shahinian to establish and direct its skull-base surgery program in 1996.  His tenure, however, was marred by controversy. The hospital’s neurosurgeons doubted his qualifications for the task, and even the chairman who had recruited him noted that he’d alienated hospital management. His remarks in August 2002 that the hospital’s lack of support for the program compromised patient care were met a month later by a notification that his position as a faculty physician and the program’s director would end in a year’s time.

In the meantime, Dr. Shahinian registered complaints over the unavailability, malfunctioning and inadequate reprocessing of surgical instruments. Court records report that a hospital investigation bore out Dr. Shahinian’s protests and revealed that certain instruments, which had been routinely flash sterilized, were contaminated with bioburden.

After his termination, Dr. Shahinian sued Cedars-Sinai for tortious discharge in violation of public policy, a suit that was settled in June 2005. Under the settlement, the hospital agreed to extend Dr. Shahinian operating privileges in a non-retaliatory manner and to properly maintain its supply of surgical instruments.

The disputes continued, though: First over “custom” instruments the hospital hadn’t agreed to maintain; then over a 90-day moratorium on Dr. Shahinian performing any surgeries at the center (issued, the hospital said, while it investigated the surgeon’s safety concerns); then over the conditions he’d have to meet in order to perform surgeries there. These conditions included providing his own sets of instruments, having his own employee clean them prior to sterilization and personally inspecting the instruments before use, or agreeing that the hospital’s instrument handling process was satisfactory.

Dr. Shahinian sued the hospital again in December 2006, arguing that the hospital had restricted his privileges (and damaged his career) without a fair hearing process. The surgeon and the hospital agreed to arbitrate the matter.

In November 2009, the arbitrator concluded that the hospital’s moratorium on Dr. Shahinian’s surgeries was unlawfully retaliatory, since no other surgeon was barred from operating or burdened with conditions because of concerns over the safety of the hospital’s practices, and since it was conducted without a peer review or hearing process. Dr. Shahinian was awarded $508,124 in economic damages for breach of contract and interference with his practice, $1,603,650 in emotional distress damages and $2,580,000 in punitive damages. For his part, Dr. Shahinian gave up his staff privileges at Cedars-Sinai.

After agreeing to the arbitrated award, the hospital took it to court, arguing that it exceeded the arbitrator’s powers and violated public policy. The trial court rejected this claim, and the appeals court upheld that ruling on April 27.

“Defendant may be unhappy with the result, but defendant agreed to “‘final and binding’ arbitration, and that is what it got,” the court wrote in its decision. “None of these rules of law or public policies is implicated when a hospital becomes embroiled in a dispute with a doctor that has nothing to do with the doctor’s competence or the doctor’s professional conduct that puts patient care and safety at risk.”

Attorney Robert C. Baker, who represented Dr. Shahinian, was even more direct, describing the hospital’s continuing litigation as “an attempt to destroy a physician.”

“They were just playing with the legal system,” says Mr. Baker. “It was a premeditated effort to kill someone’s career.”

Attorneys for Cedars-Sinai did not immediately return calls seeking comment.

“There was a period of time where he was homeless, living in his car, trying to preserve the documents related to this case so that he could clear his name,” attorney Jacob Hafter said.

Williams, 55, received his vindication Thursday when a federal jury awarded him $8.8 million in a case against the county-run hospital and Dr. John Ellerton, its former chief of staff.

Hafter argued that UMC’s medical staff destroyed the anesthesiologist’s career when it suspended his privileges in 2005 and labeled him a drug user without any proof.

Attorney Lynn Hansen, who represented the defendants, declined to comment after the verdict was announced.

Despite the large jury award, Williams was somber as he left the Lloyd George U.S. Courthouse on Thursday.

“The damage is done, and the time is gone,” he said.

In his 2009 lawsuit, Williams accused UMC and Ellerton of violating his due process rights by suspending him without giving him adequate notice of the allegations against him, including the substance abuse claims.

The suspension stemmed from complications that occurred during a kidney transplant that was performed by Dr. Gary Shen on March 5, 2005. Williams, the anesthesiologist for the surgery, was suspended two days later.

“They put all the blame on Dr. Williams,” Hafter said.

The attorney claimed Ellerton and the medical staff trumped up the drug abuse allegations to protect the hospital’s transplant program.

“They threw the anesthesiologist under the bus so that no one would look at the surgical complications that occurred,” Hafter said.

He said Williams presented numerous drug screens that showed no evidence of substance abuse, but “they didn’t listen to him.”

Hafter said the parties reached an agreement before the trial ended that reduces the judgment to $6.5 million. The defendants agreed to pay that amount within 14 days and to forgo an appeal.

UMC also agreed to void entries in the National Practitioner Data Bank that describe Williams as a threat to the health and safety of patients.

“It really does clear his name,” Hafter said. “It’s vindication for his reputation. It also sends a message to the Las Vegas medical community that you can’t destroy a physician’s career because you want to use them as a scapegoat.”

Before the trial, which began May 16, U.S. District Judge Philip Pro made a finding that Ellerton and UMC’s medical staff had violated Williams’ due process rights.  That left only the question of damages for the jury.

Hafter had asked jurors to award his client $24 million in compensatory damages, plus punitive damages. The jury awarded no punitive damages.

Jurors, who deliberated for about eight hours, wouldn’t comment after returning their verdict.

According to the defendants’ trial brief, Williams’ lack of insight and clinical skills “ultimately led to the end of his practice of medicine.”

“No less than twenty-five independent, objective physicians, who had never met (Williams) before, told him that he had clinical and behavioral problems that needed to be addressed,” the defendants’ lawyers wrote. “He refused to hear their advice. He refused to engage in any kind of self-evaluation. Every concern that was brought to his attention was blamed on someone else.”

According to the document, the defendants wanted to determine why Williams, after having his privileges at UMC for five months, had “mismanaged the airways of three patients, leaving one brain damaged” and “acted unprofessionally and aggressively with his colleagues and other staff at UMC.”

Hafter said the Nevada State Board of Medical Examiners investigated Williams for two years and took no action. The doctor’s Nevada license, which he obtained in 2004, remains active.

The lawyer said Williams’ insurance company forced him to settle the malpractice case related to the kidney transplant for $775,000.

When asked about the level of brain damage suffered by the patient, Hafter said, “The patient walked out of the hospital.”

Hafter said Williams, who is licensed in six states, has been living with friends in Arizona.

“Right now he’s unemployed,” the lawyer said. “Nobody will touch him.”

Williams received his medical degree in 1982 from Howard University in Washington, D.C.

UMC has struggled with financial troubles and other controversies in recent years. Last year, the hospital lost more than $70 million, mainly because it treats a large segment of uninsured and indigent patients.

In 2008, the Centers for Medicare and Medicaid Services notified UMC that its certification for the kidney transplant program would be revoked because it had not met required patient survival outcomes. The program was recertified the following year.

Semmelweis Society International (SSI), OMSJ, and the American Association of Physicians & Surgeons AAPS provide non-profit support to medical practitioners who are targeted by “sham peer review.”

During this legislative session Rep. Kolkhorst diligently pursued crafting HB 1013 that passed the Texas House by an incredible margin of 147-0. This is a reflection of her leadership on the Public Health Committee. 

After serious reflection, it was decided not to press HB 1013 in the Senate. Just as in the last session, Senator Jane Nelson has provided us with a vehicle, SB 190, which has passed the Senate and has been sent to the House, on to which we can easily attach the provisions of HB 1013. 

During the 2009 Legislative Session, Rep. Kolkhorst adroitly accomplished this same maneuver when she attached the provisions of HB 3816 to Sen. Nelson’s SB 2397. Unfortunately, when Voter ID was filibustered during the last session, time ran out on consideration of SB 2397. This is simply the same song, 2nd verse. 

SB 190 is in the Local and Consent Committee. In order to be amended it must be sent to the Calendars Committee and Rep. Kolkhorst has made arrangements for that to happen this Thursday, May 19th. 

Once in Calendars Committee, Rep. Todd Hunter, Chairman, a good friend and strong supporter of TMB reform, has told me that he will make sure that SB 190 is scheduled for a House vote before the deadline for senate bills to be passed by the House, which is next Tuesday, May 24th. 

Once passed by the House, SB 190 will go to a conference committee made up of 5 legislators from the House and 5 from the Senate to iron out the differences between the Senate and House versions. The conference committee version will then have to be passed by both the House and Senate before it goes to the Governor for his signature. 

Please e-mail Rep. Kolkhorst now and thank her for support and leadership on this issue. She needs to hear from you today because the Texas Medical Association is applying pressure to get her to kill this bill. You may contact Rep. Kolkhorst through her Chief of Staff, Chris Steinbach.  

Be sure that you will be notified promptly when SB 190 is set for a vote by the Texas House.

Working together, I am confident that we can achieve the goals for which we have worked so hard.

Let’s press the battle!

Sincerely yours for liberty,

The investigation, which officials have already attempted to suppress, was conducted by the Elizabeth Birt Center for Autism Law and Advocacy (EBCALA) and Pace Law School.  They found that a substantial number of children compensated for vaccine injury also have autism.  The evidence indicates that autism is at least three times more prevalent among the compensated vaccine-injured children than the already epidemic level among children in the general population. 

For over 15 years, Dr. Andrew Wakefield, the British gastroenterologist who first described the now widely acknowledged intestinal disease [1] in children with autism, has fought for recognition of the vaccine link to this disorder.  He has done so in the face of relentless government and industry sponsored attacks, intended to destroy his reputation and his career.  This study confirms what he and a growing number of doctors and scientists [2] have suspected all along – vaccines cause autism.

The new findings come at the same time that at least 4 federal agencies have reversed their position on the vaccine-autism link and acknowledged the urgent need for further research.[3]  The latest study endorses the concerns of the 89% of US parents who put vaccine safety as their number one medical research priority.[4]  It also supports the recognition of the vaccine-autism link by some senior US scientists and officials.[5]

The culpability of VCIP needs wide-ranging investigation. This program was charged with looking at long term outcome of vaccine-injured children.  It failed to do this.  Had VCIP officials done their job properly, the vaccine-autism link would have been picked up much sooner and tens of thousands of children might have avoided these catastrophic injuries.

EBCALA’s findings were revealed at the US Claims Court in Washington DC.

The Office of Medical & Scientific Justice (OMSJ) initiated an investigation into the Wakefield controvery in January, after the journal Lancet retracted Dr. Wakefield’s original 1998 report.  A preliminary examination of the retraction, Brian Deer’s investigation, and previously-undisclosed conflicts of interest between vaccine manufacturers and the British Medical Journal (BMJ), raises serious questions about the financial interests of drug makers, medical journals, the British Government and the General Medical Counsel that revoked Dr. Wakefield’s medical license.  Although OMSJ’s investigation is ongoing, their investigators have found sufficient probable cause to proceed with a more thorough and transparent investigation – free from the customary “blue-ribbon” panels that are routinely assembled to suppress evidence.  Based upon initial evidence, it appears that Dr. Wakefield may be one of the latest victims of “sham peer review.”

For this reason, SSI joins OMSJ, EBCALA; the Alliance for Patient Safety, autism community, and physicians like Dr. Wakefield for Congress to investigate the VICP for its failure to adequately monitor vaccine injury.  In comment, Dr Wakefield said, “What is required in nothing less than an overhaul of the entire vaccine program.”

The Pace Environmental Law Review report is posted here.

Rep. Fred Brown, who has advocated for reform of the TMB for the past 6 years, authored HB 1013 and provided the leadership required to overcome the fierce opposition of the Texas Medical Association.  Rep. Brown has been a stalwart in the struggle to ensure transparency in the actions of the TMB, that all complaints filed against physicians would be revealed and that the physicians would be allowed to know and confront their accusers.

Texas physicians have been denied basic legal due process rights by the TMB.  The Sixth Amendment guarantees that those accused of crimes have the right to confront their accusers, the charges against them, the witnesses against them and the right to have witnesses in their own behalf.  These fundamental rights are routinely denied physicians in the TMB’s complaint process. 

The passage of HB 1013 is only the first step.  The next step requires that the Senate pass this legislation and send it to Governor for his signature.  

HB 1013 requires that the TMB grant physicians the same legal due process which is given to those accused of criminal activity, and to lawyers, accountants, dentists, veterinarians and politicians who are subject to complaints.

For too long the conventional medical establishment has used the confidential/anonymous complaint process to intimidate and harass doctors who offer patients natural approaches to their health problems.

Unless there is reform at the Texas Medical Board (“TMB”), confidential/anonymous complaints against physicians will continue to be made in bad faith without any accountability. Racist complaints hide behind a cloak of secrecy.  The self serving complaints of competitors, insurance and pharmaceutical companies, hospitals disgruntled employees and nurses cause physicians to spend tens of thousands of dollars or more in legal fees to defend themselves. These complaints often interfere with patients’ access to care.

It’s long overdue to shine a light on this process.

Now, HB 1013 has move to the Texas Senate where it is critical that it be passed in order that Governor Perry can sign it into law.  

HB 1013 would end the abusive actions of the TMB.

1. Elimination of confidential and/or anonymous complaints; the accused physician shall receive a copy of the complaint; exempted are patients, their legal representatives and nurses
2. No more anonymous and/or confidential complaints from pharmaceutical, insurance companies, competitors, disgruntled employees or angry ex-spouses
3. Prohibition of conflict of interests by TMB members
4. The TMB can use as experts only actively practicing physicians, who review the record with the name of the accused physician withheld
5. If requested by the physician and at his expense, the TMB shall record the Informal Settlement Conference and maintain the recording as part of the record but may not release it to any third parties. The physician may retain a copy of the audio recording.
6. The assignment of ISC panel members shall be done randomly unless there is a board member in the same or similar practice that is available to participate.
7. A reasonable 30 day period for physicians to respond to complaints.
8. A statute of limitations of 7 years with respect to filing complaints.
9. The board shall dispose of a contested case by issuing a final order based on an administrative judge’s findings of fact and conclusions of law.

SSI applauds the decision.  The full text of the bill is posted here.

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?

You bet.”

“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. 

In a nutshell, a conflict is now in about its 8th year. The conflict arose after Dr. Rao questioned administrative proceedings in the hospital and indicated that conflicts of interest may exist between optimal medical care and profitability.  Doctor Rao reported his findings to appropriate official agencies. The agencies found fault with the hospital and reportedly told the hospital that Rao had complained. Rao’s confidential cover as a whistleblower was blown.  This scenario set the stage for on-going conflict. At a judicial review hearing called “JRC1″ or “Rao I” Doctor Rao was involuntarily terminated from the Washington Hospital medical staff. Eventually, there was a second peer review proceeding called “JRC2″ or “Rao II.”

The court document, # HG10540985, refers to the hearing as “JRC2″ and “Rao II.” Respondent Washington Hospital wanted “to strike portions of the Petition pertaining to the second peer review proceeding.” The court document states that “the motion is DENIED.”

The document stated that “the motion of Respondent Washington Township Health Care District to strike portions of the Petition of Petitioner R.V. Rao for Writ of Mandamus is DENIED in part and GRANTED in part.”

The petition then indicates that a “second judicial review committee … completed proceedings into charges made June 4, 2007 on June 5, 2010.” The court document refers to “the first judicial review committee … to terminate Petitioner’s medical staff membership.”

In reference to the second hearing, Washington Hospital sought to “strike portions of the Petition pertaining to the second peer review proceeding.” This motion was denied. What is the material that the hospital wanted to strike?

We know that Dr. Rao appeared as a discussant in the movie, Life For Sale, available on DVD and on-line as www.lifeforsalemovie.com.

I am personally on record about this movie, having stated that it “explores dangerous nooks and crannies of healthcare that until now have remained hidden from public view.”

Rao appears in the movie as a discussant about peer review. Although he does not mention any hospital by name or present himself as any hospital’s spokesperson, his comments have been taken as critical of Washington Hospital.  The movie has had public viewing including 13 minutes of the movie shown at a Continuing Medical Education seminar on Sham Peer Review sponsored by the Union of American Physicians and Dentists and the University of California at Irvine.

In general the movie suggests that conflicts of interest may exist between optimal medical care and optimal financial gain. Some critics feel that Rao’s participation in this movie solidified opposition against him.

In the meantime, Washington Hospital has made spectacular financial progress despite miserable economic times. The San Jose Mercury News‘ report by Matthew Artz, 12/27/10, states that the hospital’s CEO, Nancy Farber, would get a salary increase from $614,000 per year to $632,000 with total compensation set at about $857,000 ($245,502 in performance bonuses). Washington Township health care district board member Bernard Stewart was quoted as saying “in my opinion it is hard to describe our CEO’s performance this year as anything other than outstanding.”

Meanwhile, in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, Anthony Colantonio, respondent, versus Mercy Medical Center, we have language stating that “the defendants were not entitled to immunity under 42 USC 11112 (a)…”

Doctor Colantonio was asked why his hospital was taking him on. Colantonio replied “I spent seven months writing letters about patient care issues that needed to be corrected. This was after two years of complaining verbally. I could no longer look the other way while patients were dying. They found my conduct ‘disruptive.’ ”

Peer Review privacy, for which I personally have testified in the California legislature, is now under the gun and, regrettably, perhaps with good reason if it can be shown that the process is being subverted.  The doctors in the Colantonio case are now subject to civil lawsuits since providing false testimony is not protected under the Health Care Quality Improvement Act.

At the same time, doctors who take on hospital administrations or who are felt to be too vigorous in their protests run the risk of being called “disruptive,” which in turn can lead to hospital discipline and adverse reports to state medical boards (these reports are known as 805s in California).

In Rao’s case, the court is being asked to undertake judicial review in order to overturn the termination order from the Washington Township Health Care District Board of Directors.

My opinion was stated at one of the hearings where I testified at Washington Hospital on behalf of Dr. Rao. I pointed out that had the doctors in Redding spoken out and questioned the administration as well as their own colleagues, the catastrophic conduct reported to have occurred there — including unnecessary operations — would have been nipped in the bud.

Doctor Rao acted honorably. He should be exonerated and restored to full privileges at Washington Hospital.

California patient advocate Robert L. Weinmann, MD writes  on subjects related to healthcare issues and policy.  He blogs at Politics of Healthcare.

25 Dec/AHRP – Between 1978 and 1999, 2.5 million American men, women and children died preventable deaths in US hospitals and 17 million suffered preventable injuries.  Two recent reports confirm that American hospitals continue to cause serious preventable harm to patients.

The question, that Michael Millenson asks in HealthAffairs is, WHY?  Why has the medical profession failed to take proven corrective safety measures to prevent the killing of patients?

In 2009, this JAMA commentary noted that “Clinicians have labeled virtually all harm as inevitable for decades.”  However, there are numerous examples of preventable harm that refute the “inevitability” defense.

1. Letting children die:

Children’s hospitals refused to join a collaborative to learn what steps are needed to slash catheter-associated blood infections which kill a quarter of children infected.

At the 2009 AcademyHealth meeting, Dr. Richard Brilli of Nationwide Children’s Hospital presented data showing how a collaborative backed by some of the most respected organizations in pediatric care had slashed the rate of catheter-associated bloodstream infections (CA-BSIs). CA-BSIs are relatively common, very expensive and can be quite deadly (up to one quarter of victims die). Brilli said his collaborative had tried to recruit 330 pediatric intensive care units to join the initial participants, but after three years, just sixty had accepted. The reasons Brilli said he’s been given indicated to me that few had taken the time to examine the collaborative’s methodology or results. Instead, respondents asserted that their patients were sicker, their hospital was busier than the others in the study, that joining would make them look bad to others, or that the mortality reduction didn’t apply because “I am in a world famous center.

2. Hospital providers fail to wash their hands:

According to a Joint Commission project, 8 hospitals that volunteered to participate had a baseline hand hygiene rate typical of hospitals nationwide:

… only 48% follow hand-washing guidelines: that is worse than the worst rate at the worst big public men’s room in the U.S.

Compare:  “ Hand Washing, a Key Anti-Flu Strategy, Often Neglected by Health Care Workers,“ JAMA,2009; 302: 1850-1851 with NYC Train Station Bathroom Yields Cleaner Hands than Hospitals

But, as Millenson correctly notes, “rather than giving providers an ultimatum, we launch campaigns to ask patients to ask providers to please wash up…”

The profession is quick to absolve itself from professional responsibility and culpability for contributing, if not causing, preventable patient deaths and injuries.

Indeed, the authors of this NEJM/Harvard study acknowledged as much in carefully couched language:

The absence of large-scale improvement is not evidence that current efforts to improve safety are futile. On the contrary, data have shown that focused efforts to reduce discrete harms, such as nosocomial infections and surgical complications, can significantly improve safety.

But the real reason that the killing continues unabated is professional inertia, patients’ invisibility, and added income for hospitals.

This is a shocking confirmation about the prevailing culture of arrogance: contrary to the rhetoric, for America’s medical professionals, patient safety is simply not a priority.

Absent public or peer pressure, doctors and hospitals are reluctant to adopt interventions whose efficacy they mistrust to prevent an epidemic they really don’t see and which is profoundly discomfiting to confront.

Michael Millenson is a nationally recognized expert on improving the quality of the American health and the author of the book “Demanding Medical Excellence: Doctors and Accountability in the Information Age.”