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Are There Sufficient Legal Protections?" May 15, 2007
Committee on Labor and Education
Submitted by:
Association of American Physicians and Surgeons (AAPS)
CONTACT: Kathryn Serkes, Dir. Policy & Public Affairs The Association of American Physicians & Surgeons, Inc. (�AAPS�) is a non-profit national professional organization consisting of thousands of physicians in all specialties. Founded in 1943, AAPS is dedicated to defending the patient-physician relationship and the ethical practice of medicine. AAPS is one of the largest physician organizations funded virtually entirely by its physician membership. This enables it to speak directly on behalf of the ethical service of patients who entrust their care to the medical profession. The motto of AAPS is �omnia pro aegroto,� or �all for the patient.� Physicians are Afraid to Report Medical Errors Although thousands of patients die every year from preventable errors that occur in hospitals, many physicians today are afraid to come forward to report problems in hospitals out of fear that their careers will be ended by a retaliatory sham peer review. Fewer and fewer physicians are willing to risk their career and livelihood to protect patients in hospitals. It is easier and far safer for physicians to simply look the other way and remain silent. Politics Trump Safety: Hospitals Retaliate Against Physician Whistleblowers Increasingly, hospitals are retaliating against physician whistleblowers to silence them and to end their careers. Sham peer review has become the weapon of choice used by hospitals to eliminate these good, conscientious physicians from the hospital. Hospital administrators frequently are more concerned about expanding their power and managing the hospital�s business operations than improving patient care, and physicians who speak out for quality therein have become targets. Good Faith Peer Review v. Sham Peer Review: Process Intended to Correct Problems Now Used to Eliminate Whistleblower Doctors Traditionally, physicians have reviewed the medical care provided by other physicians with the goal of improving the quality of care. That is known as peer review done in good faith. Sham peer review, on the other hand, is peer review done in bad faith for some purpose other than the furtherance of quality care. This includes retaliation against physicians who are outspoken in favor of improved patient care and safety in addition to those unfairly targeted for reasons not truly related to quality of care. Sham peer review is not only very real, but is epidemic in this country and has a dreadful chilling effect on the entire medical profession, particularly those advocates of reasonably-priced, patient-friendly quality care. Presented with numerous examples, AAPS formed a Sham Peer Review Committee to review cases. Sham Peer Review Scenario A typical sham peer review scenario goes something like this:
Instead of fixing the problem, some hospitals misuse the peer review process to attack and silence the physician whistleblower. The hospital administration and unethical physician collaborators then search for some pretext upon which to attack the physician whistleblower. This might involve the hospital bringing trumped up charges against the physician or it might involve bringing totally false and/or fabricated charges against the physician. The truth and the facts do not matter in a sham peer review in the hospital since the hospital controls the entire process. The hospital then goes through the motions of providing a hearing to the accused physician, which they call �fair,� yet the outcome of the hearing is predetermined. The physician�s due process rights are often utterly trampled. At the conclusion of the process, the physician�s privileges to practice at the hospital are terminated. The physician is reported to the National Practitioner Data Bank, and the physician�s career is essentially over. Once a physician receives a negative report in the National Practitioner Data Bank, it is unlikely that physician will ever work in any hospital again anywhere in the nation. Conflicts-of-Interest in Peer Review Process Unethical physicians also employ sham peer review to attack other physicians who they view as economic competitors. It is a process that is being driven by money. As reimbursements to hospitals and physicians decline, sham peer review increases. Unfortunately hospital administration, through the use of lucrative employment and administrative contracts and in some cases compensating the Medical Staff Officers has thwarted the objectivity of many physicians. The phenomenon wherein many physicians are �joined at the hip� financially to the hospital has facilitated the development of sham peer review. It is those very physicians who are typically chosen to adjudicate the fate of a politically-non-aligned colleague. Their objectivity has usually already been �bought and paid for�. Lack of Judicial Due Process in Peer Review Here is an actual example of a �Code of Conduct� that attempts to replace Medical Staff Bylaws. This was recently received by AAPS from one of its members:
You agree that if, in the hospital�s judgment, you violate any provision of the Medical Staff Bylaws or Code of Conduct Policy, you are deemed to have voluntarily resigned your Medical Staff Membership and Privileges without any right to a fair hearing or other due process of any kind. This Code of Conduct attempts to replace the Medical Staff Bylaws with the sole discretion of hospital administrators, in violation of the bylaws and applicable state law. This would never have occurred in the days of truly independent medical staffs but is the norm today. A common provision of a hospital Code of Conduct policy mandates that physicians shall not complain about any quality of care or patient safety concerns to outside agencies. These types of provisions make it painfully clear that hospitals are more interested in control and financial benefit than true open dialogue as to improving quality of care. Federal Law Enables Abuse of Peer Review The enabling source of this insidious and spreading evil is a law called the Health Care Quality Improvement Act, otherwise known as HCQIA, which congress passed in 1986. Although the purported intent in passing this law was to improve quality health care, in reality it has had the opposite effect. The HCQIA law has invited the widespread abuse from which we now suffer, and it is doing irreparable harm to quality care. HCQIA has provided a shield of nearly absolute immunity for bad faith, malicious peer reviewers. Absolute immunity, like absolute power, corrupts absolutely. Recommendations
Sham peer review is not just an internal �doctor problem� or a �medical profession problem.� This is a serious problem that affects all of us. Although some may have the good fortune of dying in their sleep in their own bed in their own home of old age, most of us will become patients in a hospital at some point. And when you become a patient in a hospital, you will have the expectation that your doctor will ensure that you receive the quality care you need. You will have the expectation that your doctor will look out for your welfare and act as your primary advocate in the hospital. But unless something is done to eradicate this spreading evil of sham peer review, you may not be able to count on your doctor acting as your advocate in the hospital. If hospitals eliminate the most competent, ethical and caring physicians from the hospital via sham peer review, what kind of doctor will be left? And, if physicians are afraid of reporting deficiencies in quality care and problems with patient safety, what kind of care will you receive? It is a plague that is destroying the trust which patients place in their physicians. It is a plague that is destroying the ability of physicians to act as patient advocates in the hospital.
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