February 2003 Newsletter  

The Shamming of Physicians and Other Providers  

This newsletter will be critical of the peer review process and the state licensing boards for the sometimes unfair treatment of physicians and other providers.  It will discuss shamming.  Shamming is the word used by Richard Willner, President of the Center for Peer Review Justice in Metairie, Louisiana, www.peerreview.org.  He uses shamming as the metaphor for unfair peer review and licensing decisions.   

Peer review is designed to be a fair process to both the hospital and the practitioner.  It is to be utilized when the medical staff finds or perceives problems with the care rendered by a practitioner.  Almost all states have adopted the Federal Health Care Quality Improvement Act (HCQIA) verbatim.  Several states, including California, opted out and have their own version of the law.    

The law was enacted by Congress to prevent people sitting on peer review committees from having to defend themselves for their actions. It states that if the peer review is done in the reasonable belief of the furtherance of quality health care, that the people involved have made a reasonable inquiry into the facts and that the action taken was reasonable based on the facts, the committee members would be protected from monetary damages.  The quid pro quo for this protection is the reporting requirement to a national data bank of all peer review actions and the checking of this bank by the reporting institutions at the time of appointment or re-appointment to an approved institution. The law states that no monetary damages can be obtained if the rules are followed and the only remedy is return to the medical staff.  This seems straightforward and fair, but only if the rules are truly followed.  The problem comes when the system is used by CEOs and medical staff members to get back at providers who have been a thorn in their side as either competitors, whistleblowers or for other political reasons not affecting the quality of care.   

A case in point is a CEO of a hospital that belongs to a large religious chain.  He wanted to bring a new surgical specialist into the small town in a central western state.  The new surgeon did not do well since the area had an excellent surgeon already on the staff.  Consequently the old surgeon had to go so the new one could make a living.  The CEO utilized the medical Chief of Staff who had strong financial ties with the hospital as his dupe.  She had the surgeon charged as a disruptive physician because he was over protective of his patients.  He made rounds several times a day and sometimes at night.  When he called to check on his patients he would only speak to the nurse.  The hospital hired a well known, highly paid hospital attorney from out of state.  They stated that the surgeon had problems with quality of care and disruption.  There were thirty three charges.  The hospital physicians would not serve on the voluntary peer review committee against the surgeon until they were paid by the hospital $1000 per session.  This already potentially biased the panel in favor of the one who was paying them.  After many months of strung out hearings the panel stated in their final report that the surgical specialist was an excellent physician with no quality of care problems.  However, they said he should be removed from the staff since he was a pain to the nurses and nurses were hard to hire and retain.  They cited the leaving of one nurse but did not have any proof that the nurse left because of the surgeon.   

The surgical specialist is now up for appeal to the hospital Board of Directors but will probably lose since they will listen to the peer review and CEO.  The physician will then have to take the hospital to court for the unfairness of the hearing.  In the meantime, the surgeon has applied and been placed on the staff of other hospitals and will retain his office.  He will retain his patients since he has an excellent reputation and the hospital will lose not only his patients but the new surgeon as well plus the high six figures they have spent on paying the hospital hired attorney and the members of the peer review committee, a true lose-lose situation.  

Is this a fair hearing?  Is being a disruptive physician without any quality of care issues enough to take away someone’s livihood?  The answer is no. This is a good time to put in a plug for the physician hiring a healthcare attorney for any accusations that may lead to peer review.  This doctor hired a criminal defense attorney with no expertise in medicine.  

In a Southeastern state a physician had some adverse outcomes in 1994.  He was asked and agreed to be proctored for a period of time.  This was done and the physician came away clean.  There were no other cases until 2002.  He was called to the MEC without any warning of what was to be discussed.  When he arrived he was told about three cases.  The first was a surgical complication from six months prior which required the patient to be transferred.  The next was a nurse’s unsubstantiated complaint that he took out staples without wearing gloves and the third was a fire on a patient caused by an electrosurgical unit after a nurse scrubbed the patient with an alcohol based solution and did not tell anyone.  There was no injury in any of the three cases.  The doctor presented testimony from the anesthesiologist on the last case that no warnings about the alcohol prep was told to anyone in the OR.  He presented a letter from a surgical colleague who witnessed the staple removal and reported nothing unprofessional.  The initial case was reviewed by a competitor who was critical of the care.  Hours later he was summarily suspended.  There was no evidence of imminent danger to any patients.  The physician at the peer review committee meeting presented two opinions that agreed with the way the surgical case was handled.  No evidence was presented by the nurse who complained of the staple removal nor the surgical competitor.  The peer review committee stated in its report to the MEC that privileges should be restored.  The MEC got another outside consultant who stated the surgical case was within the standard of care.  The MEC then continued the physician’s suspension.  The Board backed the MEC, despite QA data that showed he had a lower complication and readmission rates than his peers.  He was, of course reported to the Data Bank.  He is now considering suing the hospital and the MEC individually for breaking the bylaws and unfair peer review by the MEC.  This is a perfect case why peer review decisions should not go back to the MEC except as a report.  

In several states some hospital organizations are miffed that Orthopods and others are opening specialized health hospitals.  They are afraid of “cherry picking” and the lack of EDs.  They forget that the reason for many of these new hospitals is the hospitals own inability to allow the physicians to schedule cases promptly and conveniently.  The hospitals are threatening the physicians with loss of medical staff privileges for new physicians joining the staff and/or those already on the staff.  The AMA is fighting this by asking the OIG to investigate whether this constitutes an illegal kickback to the hospital for staff privileges.  

Let’s look at two licensing matters.  The first is one in a southwest state.  A Black Intensivist had her license revoked for being removed off of four hospital medical staffs.  The Medical Board did not investigate the reasons for the peer review.  Three hospitals removed the doctor because she was removed from the fourth hospital.  There were no quality of care issues in those three hospitals.  The hospital she was first removed from investigated her because of a death.  The patient was terminal and comfort care only.  She gave the patient who was in pain five mg. of morphine IV and then an infusion of five mg. per hour.  As the patient continued to have discomfort, this dosage was increased first to 10 and then to 20 mg per hour.  The patient had received a total of about 16 mg. in an hour and twenty minutes.  The patient later died and was sent to the coroner.  The coroner ruled it a homicide since there were high levels of morphine in the body.  The press got hold of the story and this doctor was named Dr. Death.  She was peer reviewed and found to have not done anything wrong.  The Hospital Board did not agree due to adverse publicity and let her go, leading to the cascade of events.  

What does this say about what physicians should do with patients in pain?  Do you potentially sacrifice your license and give the patient what is necessary to relieve pain and suffering or do you allow the patient to suffer due to fear of Medical Board reprisal?   Even California, who has come out with multiple statements by their Medical Board fostering the use of pain medicine, does not practice what it says. Several good physicians have had their license revoked for giving pain medicines.  A new law in California requires all licensees to have 12 hours of pain management courses by 2006.  If these courses are taught correctly and explain the “do as I want, not what I say”  Medical Board stance, physicians of the Golden State will be getting a lot of consults to cover themselves before giving pain medications.  

In an upper plains state a podiatrist was turned in to the Podiatry Board by a group of competitor orthopedists for doing ankle surgery.  This surgery is allowed in the state. The four members of the Podiatry Board were direct competitors of the podiatrist involved.  They revoked his license.  The Center for Peer Review Justice became involved with this case and over a period of time got the Board of Podiatry members replaced. The podiatrist’s case was then reheard and he got his license back.   

This is a prime example of what can be done outside the legal system by a group of people dedicated to help those who have been shammed.  Kudos to Richard Willner and his Center for their long and dedicated work in this case.  

The message of this newsletter is to those of you who work in the medical staff offices of hospitals either as the medical or non-medical head or serve on hearing panels is “there but for the grace of God go I”.  Everybody makes errors.  The question is whether or not this makes one a danger to patients.  If there is a trend or a single error so egregious, then the practitioner needs to be removed from the ability to harm the public.  However, it should be done with investigation of all the facts and with fairness to the accused practitioner as well as the patients.  This is not the place for a kangaroo court.   

To those practitioners who are now or who will be subject to discipline, do not be cheap.  You need to obtain the services of a healthcare attorney who can work for you to get you the best decision possible.  This may mean forgoing a peer review process and negotiating a settlement.  It may mean being a bulldog in fighting an unfair process.  It may mean doing things outside of the legal process such as what was done with the Podiatry Board being replaced.  It all depends on what the affected physician wants to do after being given all the options, the realistic chance of success of each of those options and the approximate costs associated with each option as related to the money lost if they lose their license.  

If you remember nothing else, remember that you should not be like a sign in a Denver office building that states “Braille Instructions.  Please see below.”  Please see the whole picture and see what you would want done if you were accused.  

Also, remember the admonition of the AMA that states that all medical staffs should have and pay their own attorney to avoid the perception of a conflict of interest.  The most common example of this is in bylaws writing and interpretation.  An example is, as above, that the decision of the peer review committee should only go back to the MEC as a report but to the Board for action.  The rationale is if the MEC was not going to follow the peer review decision, why do peer review.  It is a process for fairness, not just for legality.  Maybe the fairest method of all is that espoused by Dr. Howard Lang, Past President of the California Medical Association, that the entire peer review process should be moved out of the hospital environment.  This would truly make it an independent process and remove all political motives.  

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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.