What is Sham Peer Review?
What is Sham Peer Review?
Sham peer review is the misuse of the peer review process to target a physician for issues unrelated to the quality of medical care provided by that practitioner. Sham peer review is initiated under the pretense of being quality of practice related but has as its primary motive non-medical motives such as professional jealously, personality conflicts, competitive business purposes such as competition to be selected as CMO or to perform certain high paying procedures.
Institutionally Triggered Sham Peer Review
Hospitals or medical practice management may trigger sham peer review to silence a whistleblower or to choose sides on business related matters. Institutional sham peer review is carried out by putting a “red flag” on the target doctor and encouraging staff, especially nursing and hospitalists to file complaints against a doctor.
What is Disruptive Physician Sham Peer Review
The American Medical Association Code of Medical Ethics, 9.4.4 Physicians with Disruptive Behavior states that “ Physicians have a responsibility to address situations in which individual physicians behave disruptively, that is, speak or act in ways that may negatively affect patient care, including conduct that interferes with the individual’s ability to work with other members of the health care team, or for others to work with the physician.”
Physicians who strongly advocate or are self assertive can be targeted with repeated reports of gruff behavior, rude behavior or other personality complaints which taken in the aggregate are alleged to disrupt patient care. There are paid expert witnesses who publish poorly researched opinion pieces that masquerade as research and these experts are prepared for a fee to render the opinion that a particular physician is disruptive.
These experts and others often ignore paragraphs 2 & 3 of AMA CME 9.4.4 which read:
Disruptive behavior is different from criticism offered in good faith with the aim of improving patient care and from collective action on the part of physicians. Physicians must not submit false or malicious reports of disruptive behavior.
Physicians who have leadership roles in a health care institution must be sensitive to the unintended effects institutional structures, policies, and practices may have on patient care and professional staff.
Peer Review is a Federally Mandated Process
Peer review is a federally mandated process designed to protect patient safety. Weaponized peer review is a perversion of this process so that sham peer review targets good physicians for non-medical reasons. Our image for this post is not a medical image. It is a hand holding a gun. You get the point. Sham peer review is like going to the parking garage and having someone put a gun to your stomach. It can be that sudden and that threatening albeit to a career and not directly to your life.
Sham Peer Review is an Orchestrated Abuse of the Mandated Process
Sham peer review involves false accusations. These are usually not simple statements and disagreements with back and forth arguments. That is normal in any high stress environment. Sham peer review is orchestrated.
Sham peer review is planned and often coordinated. Cases with negative outcomes are noted and blame is noted - against the target physician. We know that at times medicine has good outcomes with bad treatment or bad outcomes with the best of choices. There is also simply the unexpected and unanticipated, especially with atypical presentations. So, if someone is keeping book on outcomes and documenting blame without an objective review this is a classic sham peer review set up. Once the peer review process starts the ability to defend and document even the most reasonable choices may be lost or diminished. Evidence in terms of what was said but not documented in writing can be lost or invented. Suddenly a "patient safety" is an unfounded but expressed "concern".
Staff Conflicts are Weaponized
Staff conflicts are spun. Sometimes leadership requires a direct and critical approach. Sometimes being a bully involves a direct and critical approach. What is the difference? Should all physicians take management courses so that their leadership style meets current political and social norms? In hospital secret reporting systems can be filed with poisonous accusations and chatter at the lunch room can lead to piling on. But it can be worse. It is not outside our experience to see competing physicians or nurse vs. physician conflicts being deliberately escalated so that complaints mirror each other and incidents are exacerbated if not entirely created.
Interim Steps are Trojan Horses
Interim steps such as PIP's (Performance Improvement Plans), escalated OPPE's (called OPPE but internally treated as a level of discipline or investigation), "friendly" warning letters, offers for "training" courses and other set up tools are common. The target physician sees these interim measures as accommodative. They are usually not. In most cases they are a step toward suspension, medical board and NPDB reporting. The investigating committee will take a PIP or a coaching referral and say "We tried to help the doctor but even with a PIP the bad behavior continued". Two strikes - one more and you are out!
Normal Conflicts are Framed by Lawyers
Many incidents reflect political, personal or business conflicts unrelated to patient safety. However they are framed by intelligent people or MEC lawyers in a manner to allegedly impact patient safety. In some ways a sham peer review is worse than a real peer review. With real peer review there can be dialogue and collaboration. With sham peer review everything you do or say is twisted and used against you. You will not see their lawyers but at a certain stage the communications and decisions are orchestrated by attorneys who advise in the background. You will not see the attorneys but a medical defense lawyer can often tell when peer review has escalated to a level where attorneys are advising.
Sham Peer Review Harms
Summary Suspension lasting more than 14 days is reportable. It can only be imposed when patient safety is immediately at risk but to contest a summary suspension can take months. The full peer review process involves an investigation and conclusions with little physician input and no ability to cross-examine accusers. Once a negative peer review determination is made the delays in the formal peer review quasi judicial process force a physician to expend time, money and emotion fighting sham accusations.
The result of any peer review including planned sham review, is often the resignation of the target physician, reporting to the National Practitioner Data Bank and/or medical board privilege restrictions and summary suspension. These are often interrelated as summary suspensions beyond 14 days in California are mandatorily reportable to the medical board. A summary suspension must be reported to the NPDB if it is either effect or imposed for more than 30 days and it is based on the professional competence or professional conduct of the doctor and any patient health, care, safety concerns are involved.
Sham peer review often involves very loose applications of standard of care with individuals making case by case judgments on a highly personalized basis. The standard of care is not applied objectively. The criticisms are fit to meet a standard of care failure.
Sham peer review can arise from professional jealous, competition for referrals and in response to whistleblowing or criticism. Once a physician is in power at a hospital a new physician who competes with the more established physician is vulnerable to peer review. We have seen cases where a younger surgeon wanted training in TAVR. This competed with another MD and a series of criticisms followed. Were they fair? Or were the retaliatory? That case is now pending in the federal court.
Ganging up creates sham peer review when staff is encouraged (often by gossip) to file complaints in hospital or HR complaint systems. Bullying, threatening, disrespectful are just some of the terms that are bandied about and then turned into a disruptive physician complaint. The disruptions must be tied to a patient care issue which is when the sham peer review process becomes ugly. The ammunition of weeks or months of registered complaints are then added to a particular patient outcome and the peer review process takes off at a stunningly fast pace.
Sham Peer Review Has Broad Legal Protections
Per se sham peer review is not protected under the law. In reality every lawsuit alleging sham peer review is deemed by the defense as an attack on legitimate peer review. Lawsuits are challenged as being barred under various state and federal protections.
Anti SLAPP motions provide protections to the accusers and the statute can result in the dismissal of a valid lawsuit and the assessment of legal fees against the doctor. In California there was a landmark case (Bonni v. St Joseph Health System) which upheld the physician’s right to sue for sham peer review but also upheld the right of the defendants to throw out large portions of his case under peer review protections. In California the physician was financially responsible for paying the winning side’s attorney fees for the causes of action and factual allegations that were dismissed.
The fact gathering process is given broad immunity under HCQIA and even broader immunity in many states such as California. The HCQIA protections are described in 42 U.S.C. §11112(a). These are the minimum protections and provide full or almost full immunity for conduct done ostensibly to protect the patients. There are requirements of notice and fair hearing and a reasonable belief that the conduct involving the peer review process was done in good faith.
Fighting Sham Peer Review
Physician lawyers who are experts in sham peer review defense are necessary to challenge unfair peer review. Our lawyers have medical expertise, trial law expertise and years of experience navigating the peer review process. There are some protections for falsely accused physicians.
State rules and HCQIA at 42 U.S.C. §11112(b) and (c) describe the basic fair hearing requirements which include:
1. The right to a fair hearing.
2. Prompt hearings (usually within 30 days)
3. Notice of the procedures governing the hearings.
4. Notice of which witnesses are being called and the basics of their testimony.
The selection of the hearing officer and panel do not meet courtroom standards and the appointments are usually done by medical staff and the MEC.
The hospital by-laws should be compared to the minimum/minimal state and HCQIA standards and the more advantageous rules should apply to the target physician. Again, the summary e.g. emergency protection provisions of state laws and HCQIA dispense with notice and hearing requirements and allow suspension of privileges when there is “imminent danger to the health of any individual,” (42 U.S.C. §11112(c)).
Strong evidence based responses and proper presentation of evidence can result in favorable peer review hearing rulings. Medical Board and NPDB reports can be challenged and at times corrected.
Each case is different and the cardinal rule is that the best defense against sham peer review is early intervention. Our physician lawyers very familiar with sham peer review. We are not perfect but we have an excellent record representing physicians.
About Daniel Horowitz:
Daniel Horowitz has made headlines defending doctors in all licensing matters including peer review and medical board actions. His physician whistleblower case against John Muir Health was prominently featured on the front page and six interior pages of the Sunday San Francisco Chronicle. This case prompted an investigation by California Senator Alex Padilla and Congressman Mark DeSaulnier.
About Dr. Mark Ravis physician and attorney
Dr. Mark Ravis is a fully licensed physician and attorney. Dr. Ravis holds a Masters of Public Administration degree with a concentration in healthcare policy. Dr. Ravis never represents institutions and always represents the individual physician.