Sham peer review
Encyclopedia
Sham peer review or malicious peer review is a name given to the abuse of a medical peer review
process to attack a doctor
for personal or other non-medical reasons. The American Medical Association
conducted an investigation of medical peer review in 2007 and concluded that while it is easy to allege misconduct and 15% of surveyed physicians indicated that they were aware of peer review misuse or abuse, cases of malicious peer review able to be proven through the legal system are rare.
(HCQIA) of 1986 allows sham reviews by granting significant immunity from liability to doctors and others who participate in peer reviews. This immunity extends to investigative activities as well as to any associated peer review hearing, whether or not it leads to a disciplinary (or other) action.
The definition of a peer review body can be broad, including not only individuals but also (for example, in Oregon
), "tissue committees, governing bodies or committees including medical staff committees of a [licensed] health care facility...or any other medical group in connection with bona fide medical research, quality assurance, utilization review, credentialing, education, training, supervision or discipline of physicians or other health care providers."
The California legislature
framed its statutes so as to allow "aggrieved physicians the opportunity to prove that the peer review to which they were subject was in fact carried out for improper purposes, i.e., for purposes unrelated to assuring quality care or patient safety". These statutes allow that a peer review can be found in court to have been improper due to bad faith or malice, in which case the peer reviewers' immunities from civil liability "fall by the wayside".
Those who practice sham peer review could draw out the process by legal maneuvering, and the fairness of a peer review that has been unduly delayed has been called into question. Many medical staff laws specify guidelines for the timeliness of peer review, in compliance with JCAHO standards.
system is a quasi-judicial one. It is modeled in some ways on the grand jury
/ petit jury system. After a complainant asks for an investigation, a review body is assembled for fact-finding. This fact-finding body, called an ad hoc committee, is appointed by the medical Chief of Staff and is composed of other physician staff members chosen at the Chief of Staff's discretion. This ad hoc committee then conducts an investigation in the manner it feels is appropriate. This may include a review of the literature or an outside expert. Thus, there is no standard for impartiality and specifically no standard for due process in the "peer-review 'process' ."
Once the physician has been indicted (and sanctioned) he or she then has the right to request a hearing. At the hearing, counsel
is allowed. A second independent panel of physicians is chosen as the petit jury, and a hearing officer is chosen. The accused physician has the option to demonstrate conflicts of interest and attempt to disqualify jurors based on reasonable suspicions of bias or conflicts of interest in a voir dire
process.
Although some medical staff bodies utilize the hospital attorney and accept hospital funds to try peer review cases, the California Medical Association
discourages this practice. California has enacted legislation formally requiring the separation of the hospital and medical staff.
, disagreed with a surgeon over the appropriateness of cataract surgery for a patient and refused to attend during the procedure. Khajavi was subsequently terminated from his anesthesia group. He sued for wrongful termination under California Business & Professions' Code Section 2053, and the suit was allowed by the California Court of Appeals. In 2000, the court held that Khajavi was not protected from termination on the basis of advocating for what he felt was medically appropriate care. The court did not rule on the merits of the dispute.
brief to emphasize legal protections meant to prevent physicians being arbitrarily excluded from access to healthcare facilities based on mechanisms such as summary suspension without a speedy hearing. This case was decided on April 18, 2005. The court ruled that the hearing officer in the case could indeed terminate the physician's peer review hearing based on grounds that the physician refused to cooperate on procedural and other matters necessary for the good conduct of the proceedings. Thus, the physician lost his membership and privileges at the hospital. Ironically, the same physician was brought into a peer review hearing at another facility a short time later. The hearing officer in that case also terminated the proceedings, this time due to the physician's failure to turn over certain evidence for use in the hearing. The physician challenged the termination through the court system arguing, contrary to the Tenet appellate court ruling, that California's peer review statutes never intended the hearing officer in peer review hearings to have such powers of termination. The California Supreme Court reviewed the case and agreed in April 2009. The High Court ruled, among other things, that peer review hearing officers must defer the question of termination to the panel of physicians who sit in judgment of each peer review hearing.
, and alleges that the Texas board's actions constitute sham peer review.
In PSOs, root cause analysis
and "near misses" are evaluated in an attempt to avert major errors. Participants in PSOs are immune from prosecution in civil, criminal, and administrative hearings.
Medical peer review
Medical peer review is the process by which a committee of physicians examines the work of a peer and determines whether the physician under review has met accepted standards of care in rendering medical services. Depending on the specific institution, a medical peer review may be initiated at the...
process to attack a doctor
Physician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
for personal or other non-medical reasons. The American Medical Association
American Medical Association
The American Medical Association , founded in 1847 and incorporated in 1897, is the largest association of medical doctors and medical students in the United States.-Scope and operations:...
conducted an investigation of medical peer review in 2007 and concluded that while it is easy to allege misconduct and 15% of surveyed physicians indicated that they were aware of peer review misuse or abuse, cases of malicious peer review able to be proven through the legal system are rare.
Legal basis for sham peer review
Those who maintain that sham peer review is a pervasive problem suggest that the Healthcare Quality Improvement ActHealthcare Quality Improvement Act
The Healthcare Quality Improvement Act of 1986 was introduced by Congressman Ron Wyden from Oregon....
(HCQIA) of 1986 allows sham reviews by granting significant immunity from liability to doctors and others who participate in peer reviews. This immunity extends to investigative activities as well as to any associated peer review hearing, whether or not it leads to a disciplinary (or other) action.
The definition of a peer review body can be broad, including not only individuals but also (for example, in Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
), "tissue committees, governing bodies or committees including medical staff committees of a [licensed] health care facility...or any other medical group in connection with bona fide medical research, quality assurance, utilization review, credentialing, education, training, supervision or discipline of physicians or other health care providers."
The California legislature
California State Legislature
The California State Legislature is the state legislature of the U.S. state of California. It is a bicameral body consisting of the lower house, the California State Assembly, with 80 members, and the upper house, the California State Senate, with 40 members...
framed its statutes so as to allow "aggrieved physicians the opportunity to prove that the peer review to which they were subject was in fact carried out for improper purposes, i.e., for purposes unrelated to assuring quality care or patient safety". These statutes allow that a peer review can be found in court to have been improper due to bad faith or malice, in which case the peer reviewers' immunities from civil liability "fall by the wayside".
Those who practice sham peer review could draw out the process by legal maneuvering, and the fairness of a peer review that has been unduly delayed has been called into question. Many medical staff laws specify guidelines for the timeliness of peer review, in compliance with JCAHO standards.
The medical peer review process
The medical peer reviewMedical peer review
Medical peer review is the process by which a committee of physicians examines the work of a peer and determines whether the physician under review has met accepted standards of care in rendering medical services. Depending on the specific institution, a medical peer review may be initiated at the...
system is a quasi-judicial one. It is modeled in some ways on the grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
/ petit jury system. After a complainant asks for an investigation, a review body is assembled for fact-finding. This fact-finding body, called an ad hoc committee, is appointed by the medical Chief of Staff and is composed of other physician staff members chosen at the Chief of Staff's discretion. This ad hoc committee then conducts an investigation in the manner it feels is appropriate. This may include a review of the literature or an outside expert. Thus, there is no standard for impartiality and specifically no standard for due process in the "peer-review 'process' ."
Once the physician has been indicted (and sanctioned) he or she then has the right to request a hearing. At the hearing, counsel
Counsel
A counsel or a counselor gives advice, more particularly in legal matters.-U.K. and Ireland:The legal system in England uses the term counsel as an approximate synonym for a barrister-at-law, and may apply it to mean either a single person who pleads a cause, or collectively, the body of barristers...
is allowed. A second independent panel of physicians is chosen as the petit jury, and a hearing officer is chosen. The accused physician has the option to demonstrate conflicts of interest and attempt to disqualify jurors based on reasonable suspicions of bias or conflicts of interest in a voir dire
Voir dire
Voir dire is a phrase in law which comes from the Anglo-Norman language. In origin it refers to an oath to tell the truth , i.e., to say what is true, what is objectively accurate or subjectively honest, or both....
process.
Although some medical staff bodies utilize the hospital attorney and accept hospital funds to try peer review cases, the California Medical Association
California Medical Association
The California Medical Association is a professional organization representing more than 35,000 physicians in the state of California. The organization was founded in 1856 and is a member of the American Medical Association.-Audio-Digest Foundation:...
discourages this practice. California has enacted legislation formally requiring the separation of the hospital and medical staff.
Cases of alleged sham peer review
Some physicians allege that sham peer review is routinely conducted in retaliation for whistleblowing, although a study of the phenomenon did not support this charge.Khajavi v. Feather River Anesthesiology Medical Group
Those who disagree with the AMA point to the case of Nosrat Khajavi. In 1996, Khajavi, an anesthesiologist in Yuba City, CaliforniaCalifornia
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, disagreed with a surgeon over the appropriateness of cataract surgery for a patient and refused to attend during the procedure. Khajavi was subsequently terminated from his anesthesia group. He sued for wrongful termination under California Business & Professions' Code Section 2053, and the suit was allowed by the California Court of Appeals. In 2000, the court held that Khajavi was not protected from termination on the basis of advocating for what he felt was medically appropriate care. The court did not rule on the merits of the dispute.
Mileikowsky v. Tenet
A doctor was allegedly subject to multiple hearings for the same charges, and his rights to an expedited hearing were allegedly denied while a suspension was in place. On May 15, 2001, the California Medical Association filed an amicus curiaeAmicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief to emphasize legal protections meant to prevent physicians being arbitrarily excluded from access to healthcare facilities based on mechanisms such as summary suspension without a speedy hearing. This case was decided on April 18, 2005. The court ruled that the hearing officer in the case could indeed terminate the physician's peer review hearing based on grounds that the physician refused to cooperate on procedural and other matters necessary for the good conduct of the proceedings. Thus, the physician lost his membership and privileges at the hospital. Ironically, the same physician was brought into a peer review hearing at another facility a short time later. The hearing officer in that case also terminated the proceedings, this time due to the physician's failure to turn over certain evidence for use in the hearing. The physician challenged the termination through the court system arguing, contrary to the Tenet appellate court ruling, that California's peer review statutes never intended the hearing officer in peer review hearings to have such powers of termination. The California Supreme Court reviewed the case and agreed in April 2009. The High Court ruled, among other things, that peer review hearing officers must defer the question of termination to the panel of physicians who sit in judgment of each peer review hearing.
Roland Chalifoux
Roland Chalifoux, member of an advocacy organisation called the Semmelweis Society, had his medical license revoked in Texas in 2004 after numerous incidents including the death of a patient. The Texas State Board of Medical Examiners stated that Chalifoux's practices "constitute such a deviation from the standard of care that revocation of his license is the only sanction that will adequately protect the public". Chalifoux subsequently secured permission to practice in West VirginiaWest Virginia
West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east...
, and alleges that the Texas board's actions constitute sham peer review.
The development of the Patient Safety Organization (PSO)
The Patient Safety and Quality Improvement Act of 2005 (Public Law 109-41) allows for the creation of Patient Safety Organizations, quality of care committees that can act in parallel with peer review boards. PSOs were authorized to gather information to be analyzed by hospital administrators, nurses, and physicians as a tool for systems failure analysis. They may be used by any healthcare entity except insurance companies, but must be registered with the AHRQ wing of the US Department of Health and Human Services.In PSOs, root cause analysis
Root cause analysis
Root cause analysis is a class of problem solving methods aimed at identifying the root causes of problems or events.Root Cause Analysis is any structured approach to identifying the factors that resulted in the nature, the magnitude, the location, and the timing of the harmful outcomes of one...
and "near misses" are evaluated in an attempt to avert major errors. Participants in PSOs are immune from prosecution in civil, criminal, and administrative hearings.