Physician PEER REVIEW Defense 

Peer Review Defense by Daniel Horowitz: A Nationally Recognized Legal Commentator and Trial Lawyer

Daniel Horowitz and his team of medical-legal attorneys specialize in defending physicians facing peer review. With a proven track record against sham peer review and retaliatory peer review, Daniel Horowitz has made headlines. His 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. The experienced legal team includes Physician and Lawyer Mark Ravis and Brookes Hammock, a physician defense attorney formerly with the medical board of Ohio.

Call the Horowitz Medical Group at 925-291-5388

 What Does a Peer Review Defense Lawyer Do?

A. Lawyer as Peacemaker (if Possible)

A physician peer review attorney is part negotiator and part litigator. Dr. Mark Ravis (MD/JD) and Daniel Horowitz look for common ground shared by our doctors and investigating medical staff committees so that fractured relationships can be repaired, and our doctors can return to their normal life and normal practice.  (With sham peer review this process is difficult as the termination of privileges and imposition of sanctions is the intended purpose of the hijacked peer to peer review process.)

B. Lawyer Fighting Sham or Unfair Peer Review

 If the peer review is sham or malicious, our attorneys are top medical trial attorneys experienced in thousands of contested hearings and a superb success record. Disruptive Physician claims and other sham peer review are political and business tools unleashed against excellent physicians who advocate for patient care. We defend against this sham peer review.

Steps in the Peer Review Process:

• Purpose: The peer review process aims to evaluate a healthcare professional’s clinical performance, medical decisions, and adherence to standards of care.
• Peer Evaluation: Ideally, this evaluation is conducted by other healthcare professionals in the same geographical area and, when possible, in the same or similar field or specialty. If the panel is independent it is possible to prevail at these hearings.
• Summary Suspension: Technically, summary (prehearing) suspension is done on an emergency basis. This process is often abused, and summary suspensions with reporting to the medical board is a weapon regularly abused by the MEC.
• Challenges: Unfortunately, the process can be tainted by internal conflicts, cherry-picking of difficult cases, and unfair criticisms. The physician has limited rights. We often make the point that accused criminals have greater rights to due process than medical doctors do at a peer review hearing.
• Negotiation/Meeting: The investigating medical committee will meet with the target doctor and get his/her side of the story. An offer such as counseling, additional training, or restriction of privileges may be made.
• Peer Review Hearing:  This is a semi-formal, high stakes evidentiary hearing with a panel of physicians hearing evidence from both sides and reaching a decision.
• Appeal (if necessary): An appeal to the supervising entity (e.g. hospital), if contained in the by-laws and next to an actual court, to challenge any findings unwarranted by the evidence or procedural violations rendering the decision fundamentally unfair.

HOW TO RESPOND TO PEER REVIEW

What is an 805 REPORT?

Peer review moves quickly and adverse consequences can take place in matter of weeks.

California Business & Professions Code section 805 requires reporting of discipline (including interim discipline) of physicians to the Medical Board of California. Summary suspensions almost always result in reporting. Here is the reporting part of the statute (edited and highlighted)

Section 805 - 805 report by peer review body  

 (b) The chief of staff of a medical or professional staff or other chief executive officer, medical director, or administrator of any peer review body and the chief executive officer or administrator of any licensed health care facility or clinic shall file an 805 report with the relevant agency within 15 days after the effective date on which any of the following occur as a result of an action of a peer review body:

The items that must be reported are summarized as follows:  (Sourced from the Medical Board of California website)

• A peer review body denies or rejects a licensee’s applications for staff privileges or membership for a medical disciplinary cause or reason;
• A licensee’s staff privileges, membership, or employment are revoked for a medical disciplinary cause or reason;
• Restrictions are imposed, or voluntarily accepted, on staff privileges, membership, or employment for a total of 30 days or more within any 12 month period for medical disciplinary reasons;
• If the resignation, leave of absence, withdrawal or abandonment of application or for renewal of privileges occurs after receiving notice of a pending investigation initiated for a medical disciplinary cause or reason;
• A summary suspension of staff privileges, membership, or employment is imposed for a period in excess of 14 days.

This reporting period is a commonly used “hammer”, wielded by the attorney for Medical Staff against the target physician. The physician is often trapped. Once the process is started can the physician just pack up and move to a better environment? Here is what the NPDB says.  Basically it parses the issue.  Is it a resignation while “under investigation?” Or is it a resignation during a “routine review process” e.g. a non-triggered OPPE.

 Business and Professions Code Sections 800 and 805(f), allow a doctor to submit "additional exculpatory or explanatory statements" to supplement the (negative) 805 report. This doctor provided explanation will be provided with the 805 report to any party who receives the report. 

Medical Board of California 805 Reporting Forms