May 15, 2011 Recent News




Peer Review


So far the quality bonuses for physicians have not gone to about half.  Of the 200,000 that attempted to qualify, only have received any bonus.  The bonus was about $2000 per physician.  The physicians that failed to earn any money usually got frustrated by the lack of feedback from the program or some small thing making it so they would receive no money.  The program is too complicated for physicians to do it on their own.  They need to hire someone to do the coding, which reduces the amount of money they get to keep.   

An article in the Archives of Internal Medicine again iterates the failure of med students doing into primary care. The authors conclude that better residency experiences won't cut it, only better payments and practice reform will help. 

The AMA belittles the government for their inability to get biographical things correct on their web sites.  This leads to the conclusion that since they can not get the simple things correct they certainly have and will get it wrong when they put up Physician Compare. 

Disruptive physicians and other health professionals may cause problems in hospitals by interfering with good medical care.  A Harvard student's article in the Boston Globe states a way to get rid or at least reduce the problem.  She suggests that medical schools teach how to talk to other members of the health care team.  She states that Harvard now teaches how to talk to patients via role play with volunteer patients.  Not a bad idea.  

California physicians are going to EMRs.  That is, all but the small practices.  Only 20% of solo practices and 40% of small groups are using EMRs.  The physicians are using computers to bill and to visualize radiographs and lab results.  Less than a third of the physicians in the state use computers to communicate with patients. 

Physicians at the California Association of Physician Groups which represent large groups are worried that their cap payments will be reduced under ACOs. These groups believe they will have to add more hospitalists to make sure about competency.  If the HHS does not change their rules there may not be any ACOs to worry about.        Top


People new to Medicare are eligible for a "Welcome to Medicare" wellness exam.  The problem is physicians aren't doing them since they are fairly useless.  They entail a history, BP, Ht., Wt., Waist measurement, cognitive screening, depression screening, level of safety screening and outgoing schedules for preventative tests.  One may notice that there is no laying of hands on the patient and all can be done without a physician. 

The feds are warning states regarding marijuana.  The warnings left those governors with no spine like Washington's Gregoire to veto a law creating licensed dispensaries.  Gregoire now wants to work to change the culture of the feds who are flip flopping on the issue.  

CNN Money has a long article on how special interest medical groups are pushing CMS to get their medical flavor of the month covered as a healthcare mandate.  The more of these mandates that are included, the higher the costs of the insurance will be.  Remember, Obamacare does nothing to control costs only allows all to be insured.  If these get through, small business will have no choice but not cover their employees and allow them to be covered by state exchanges driving up those premiums.  Plans can not be both generous and affordable.  Sebelius is solely responsible for what goes into the mandates.  It will be interesting to see where the rationing goes, if at all. 

The GOP is pulling back on its attempt to get rid of Obamacare.  They are now interested in continuing to rein in the growing costs and not let it get more out of hand.  They have already passed the budget and gotten people to commit to votes that are open and can be made part of the 2012 election. 

In a story or perhaps a fairy tale, the USA Today reports the HHS believes Obamacare will keep those without insurance from becoming bankrupt or keep hospitals from losing money on the uninsured.  As all know Obamacare does nothing about the cost of healthcare, it just allows all to purchase insurance for whatever the price will be.  The story states that hospitals are not being paid $49 Billion per year due to the uninsured.  Again, this is an exaggeration.  They use costs which are never the true costs.  They never use what they actually get from Medicare, Medicaid or insurers.  The article goes on to say that some without insurance have the means to purchase it but choose not to.

The Hill reports that consumer advocates are awaiting HHS regs on how they will review insurance rates.  They have the power to review but no power to block any increases.

Obamacare was debased by the American Medical Group Association.  They represent the large group practices such as Mayo Clinic.  The organization states that their groups can not deal with the proposed ACOs as the regs are so complex as to be unworkable. The CMS said it will take the rebuke into consideration when they come out with the final rules.

The Hill reports that the administration claims Obamacare will save Medicare $120 billion over five years.  They want to strengthen the Board so more money will be taken from physicians and less physicians will see Medicare patients.

Who's closer to the truth?  The CMS states that setting up an ACO will cost about $1.8 million.  In a study commissioned by the AHA, McManis Consulting says it will cost $11-$26 million to set one up.  If it is anything over several million dollars there will be no ACOs.

CMS has announced that it will run out of money years prior than previously thought.  This also is true for Social Security and especially Disability Social Security.  The new projections for the exhaustion of the trust funds are Medicare in 2024, Social Security 2038 and Disability 2018.  There are now three choices: (1) borrow to pay, (2) reduce benefits and (3) raise the taxes.  The law state if something is not done and the funds are exhausted benefits would still be paid but at a 75% decrease of current benefits.  Someone in Washington must wake up and do the unpopular thing to address the soon to occur disaster.  The Ryan plan is a proposal that can be modified but should not be just put on the trash can by the Senate.

This is coming to your state.  The Boston Globe states that waits to see primary care or specialists for non emergent items has ballooned to an average of 48 days for an internist and 24 days for a pediatrician.  The specialist waits have increased significantly as well.      Top


Again, Dallas' Parkland Hospital is in trouble with CMS.  They have found rape, amputations and death at the hospital.  Parkland had no formal supervision for residents.  

The San Francisco Business Times reported UCSF is starting up its new EMR system.  It is $100 million over budget and costing $160 million.  UCSF decided on Epic, the same one the University of Iowa is having problems with.  Epic is also used by Kaiser, Sutter Health, UCSD and UCD.  

The San Francisco Business Times also reported that Catholic Healthcare West and its CIO have parted company over the problems with getting Meditech EMR into its hospitals.  CHW is spending over $1 Billion on the EMR projects in its hospitals.  It seems like a large waste of money. 

New York City public hospitals have a long wait for mammograms according to the City comptroller.  As is usual for government, their records are not up to date.  The hospitals do not have the 148 day wait that was supposed by the comptroller.  Their waits are hours for emergency or very urgent exams and about a month for routine mammograms.      Top

Peer Review


If you are aware of a hospital that ignores safety and uses its bylaws to benefit and shield corporate doctors and nurses and retaliates against independent doctors please call the Innocence Project.

If you are an independent doctor who has suffered an unjust report to the National Practitioner's Data bank ( NPDB) from a malpractice settlement or professional review please call the Innocence Project.

If you have been the subject of a Sham Peer Review, a Bad Faith Peer Review or any abuse of the Health Care Quality Improvement Act of 1986  (HCQIA), we would like to know.

We want to shine the light on hospital fraud, clear the names of the good guys and bring the bad guys to justice ! Call the Innocence Project.

Your call will be confidential and you are protected from retaliation by the Patient Safety and Quality Improvement Act of 2005 (1)



Another article by Dr. Wilner is as follows:


Richard B. Willner, president of The Center for Peer Review Justice is not shocked to see such a sharp uptick in “Physician Brownout’ sham peer review cases. Physician Brownout is a term he coined to describe a special kind of peer review or professional retaliation which involves liability shifting for nursing error or any of a number of events where a hospitals has liability for its agents.

“After 11 years and hundreds of cases, you get to be a bit of an epidemiologist on sham peer review. And I have broken it into 3 major patterns of shamming:
There is the straightforward economic or competitive peer sham which everyone knows about.

Next is the disruptive physician sham which has become the epidemic gravy train for health care lawyers churning hundreds of thousands of physician dollars on mostly nonsense. While the disruptive physician is the fastest growing type, the most pernicious type is certainly “physician brownout.” It is a flagrant display of corporate hubris and cynicism and the corporations doing are really sick and probably just as dangerous. It has taken sham peer review to the next
level. It is a public health disaster and it goes on right under the nose of the National Practitioners Databank with the sanction of HRSA and HHS..”

“Physician brownout” is corporate liability shifting to independent doctors. It is designed by the hospital attorney with involvement from the CEO to keep the public and most of all, the plaintiff’s attorneys in the dark on hospital error
by using all of the shadowy techniques of sham peer review. I chose the name from the California brownouts of the 1990’s during the Enron scandal. It is essentially Enron accounting for hospital error. California is also the state where I saw my first case which fortunately we were successful at averting.

Physician Brownout is precisely that. When the hospital goes way over the top to restrict or censure a surgeon and the medical facts indicate hospital wrongdoing this is not only a sham peer review it is outright fraud on the public health. The public loses in 2 ways first an ethical and good doctor’s career is destroyed for the negligent acts of others and secondly the hospital gets away with not properly accounting for its own negligence. Hospitals get ranked on sentinel events and other patient safety snafus they are supposed to do proper root cause analyses but a physician brownout makes it all go away and keeps the hospital looking good. The plaintiffs lawyers pursue the scapegoated doctor with a vengeance. I have seen as many as 8 lawsuits filed in succession on a surgeon who had never been sued before. The usual amount filed is 3 or 4. Because medical records can be withheld in a peer review and there is no requirement for sworn testimony or rules of evidence, the records can be tampered with by the hospital to mislead plaintiffs away from the real cause of the patient’s damages.

Hospitals that sham independent doctors have not learned that people who live in glass houses should not throw stones. I predict that physician brownout is an epidemic that will finally end up destroying them because here the public health implications from sham peer review are crystal clear.

The attorneys and executives that do it are callous and ethically indifferent. They feign detachment while they allow their designated medical staff or outside reviewer to get carried away by the sanctimony of ritual physician sacrifice. It
is really twisted to witness. The panel stays well away from any implication that the hospital may have liability. They have not learned the lesson that people who live in glass houses should not throw stones.

Much of sham peer review has been directed preferentially against surgeons. In disruptive cases I think it is because sometimes they take strong ethical stances which are perceived as defiance in the face of corporate directives. Non surgeons can drive much of the sham process and are generally more passive personality types. Also, the myth of the dangerous surgeon has become a very powerful tool to obfuscate the real issues in a sham review. In a brownout case, every plaintiff’s lawyer wants to take a surgeon down while they may completely miss the issue of proximate cause and hospital liability.

Shamming surgeons is on the rise. Most of my referrals come from other surgeons. I have helped work on their cases to resolve them in the best way possible. I will work with their attorney. I will work with a medical board but sometimes
this becomes a really dirty business and you uncover very real corruption which is difficult to overcome. These cases are just so unreasonable.

Sham peer review started with economic competition between doctors when the health care pie began to shrink under managed care and fee for service medicine began to evaporate. The Health Lawyers association, mostly driven by hospital
lawyers and organized medicine, was there to train doctors exactly how to get rid of doctors for economic reasons but in the name of protecting the public health.

Typically, the doctor’s career is completely destroyed in the process when his name is entered into the National Practitioner’s Data Bank. Some physicians actually killed themselves over losing the right to practice medicine but
according to the rules of the NPDB the entries survive their death.

Organized medicine persisted in proclaiming the virtues of economic credentialing and for the longest time the AMA denied that sham peer review existed when they knew the NPDB was riddled with it.

The disruptive physician would be a joke if it were not so real. This is where hospital committees are trained by outside groups to paint doctors as troublemakers or potential threats to quality when they speak to issues of hospital management and patient care. This has now become a large portion of my
referrals and quite often these cases can be worked through but the doctor is left feeling helpless to address any issue in the hospital when an organization attempts to shift liability to an independent doctor for the mistakes of nurses, anesthesiologists and other hospital related incidents.

Under Obamacare and the environment of stepped up enforcement we essentially have something similar to the Patriot Act and guess who the terrorists will be, independent doctors. Organized medicine and large hospitals have a way of
shielding themselves from liability that is not quite legitimate or in the interest of the public health.

NPDB is corporate blacklist riddled with cases of sham peer review and now Physician Brownout. It has been so since its inception when it was hijacked by corporate interests to immediately create a shield for corporate doctors particularly in the settlement of malpractice cases and a presumption against independent doctors.

Richard B. Willner is the President of The Center for Peer Review Justice.        Top



  DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.