Sham peer review

Sham peer review or malicious peer review, a concept explained by Roland Chalifoux in Medscape General Medicine, is the practice of using a medical peer review process to remove a doctor who is seen to be disruptive, too great an advocate for change, or competitive with other doctors within the same institution. While technically sham peer review is a concept that applies to every discipline, it has most commonly been applied to the healthcare industry recently.

In healthcare, the lines between peer review of physicians and performance appraisal by non-peers has been blurred. Administrators, nurses, and even patients play a role in performance appraisals, while peer review is a system that is only supposed to involve the physicians themselves.

Scientific peer review has traditionally been held to be achievable only when research and investigations are able to be examined openly. Medical peer review, in contrast, is protected from open examination by rules of confidentiality. In this way it also diverges from true peer review.

Sham peer review in medicine

In 2005 and 2006, sham peer review was a subject of some controversy in medical circles in the United States.

In some instances, the staff of a poorly functioning hospital may attempt to blame an individual physician for system failures. Such system failures are now believed to be widespread in healthcare.

A 2006 New England Journal of Medicine article notes that "patient-safety experts stress that complex, error-prone systems are at the root of most mistakes in health care. Archaic, poorly designed systems often undermine the best efforts of well-intentioned, highly motivated clinicians and health care personnel to provide safe care. A major goal of contemporary patient-safety programs is to encourage a culture of safety and create a blame-free environment in which errors are seen as a by-product of bad systems, not as caused by bad or incompetent people. This orientation toward improving systems rather than blaming people who make mistakes is critical, since it encourages caregivers to report adverse events and near misses that might be preventable in the future."

In addition to shifting blame to an individual physician for actual system failures, hospitals also attempt to blame physicians for potential system failures (that have come under scrutiny). In the latter situation, "errors" are cited which have no associated adverse outcomes. Such a practice is a scientifically unvalidated premise for peer review action and has been questioned. In both situations, scapegoating is the reason for the sham peer review. This situation appears to be an outgrowth of the legally contentious atmosphere of healthcare in the 21st century.

Physicians who point out true (or potential) system failures in healthcare institutions, either from within the institution or to external evaluators, have been labeled as whistleblowers.

Lawrence R. Huntoon, chairman of the Association of American Physicians and Surgeons Committee to Combat Sham Peer Review, states that sham peer review is a tactic that is being increasingly employed as a retaliation against physicians whom the hospital regards to be whistleblowers. He distinguishes sham peer review, or "peer review done in bad faith for some purpose other than the furtherance of quality care", from good-faith peer review, or "peer review done in furtherance of the goal of improving the quality of care."

Sociological analogies

Westhues, Professor of Sociology at the University of Waterloo, describes sham peer review as a special case of workplace mobbing. Physicians identified the organizational pathology in healthcare and noted the similarity to workplace mobbing in other fields. Westhues notes six major parallels between sham peer review of "disruptive physicians" (in the medical profession) and the academic mobbing of "difficult professors" in universities.

Legal basis for sham peer review

Both Chalifoux and Huntoon attribute the ease by which sham peer review can be applied to an unintended side-effect of the Healthcare Quality Improvement Act (HCQIA) of 1986, which grants nearly absolute immunity from liability to doctors who participate in peer reviews.

This immunity extends to fact finding and investigate activities as well as to any associated peer review hearing whether or not it leads to a disciplinary (or other) action.

In California, a "peer review body" is defined in Business and Professions Code 805 to include not only the medical or professional staff of a healthcare institution, but also a health care service plan, a disability insurer, a local non-profit medical or professional society, and any ad hoc committee organized for the purpose of peer review by any entity with at least 25 licentiates.

In Oregon (ORS 41.675), the definition of a peer review body is even broader, and includes "tissue committees, governing bodies or committees including medical staff committees of a [licensed] health care facility ... or any other medical group in connection with bona fide medical research, quality assurance, utilization review, credentialing, education, training, supervision or discipline of physicians or other health care providers."

California has imposed fines of $100,000 to any peer review body that does not report an action to the medical board (an "805 report"). Complete civil and criminal immunity is afforded any person making an 805 report (BPC 805(j)).

The California legislature recognized the possibility for abuse of an absolute immunity, however, and left an opportunity for legal review of peer review committee decisions through the court system. It framed its statutes so as to allow "aggrieved physicians the opportunity to prove that the peer review to which they were subject was in fact carried out for improper purposes, i.e., for purposes unrelated to assuring quality care or patient safety". These statutes allow that a peer review can be found in court (by an administrative mandate, CA CCP 1085) to have been improper due to bad faith or malice, in which case the peer reviewers' immunities from civil liability "fall by the wayside". Nevertheless, such cases filed by aggrieved physician prior to the conclusion of the judicial peer review hearing have been labeled as SLAPP suits. California has a law against SLAPP suits that has been held to apply to the medical peer review setting. Therefore, physicians are not allowed to file suits against peer review participants unless they first exhaust the peer review process completely (including the judicial peer review hearing and any appeals process within the hospital).

Although California BP&C 809(a)(7) specified an intent that peer review progress expediently, this is frequently circumvented in sham peer review, by legal maneuvering. The fairness of a peer review judicial review hearing that has been unduly delayed has been called into question, and many medical staff laws specify guidelines for the timeliness of peer review, in compliance with JCAHO standards. Nevertheless, HCQIA procedural standards for peer review are less stringent than that of JCAHO, and the immunity granted by HCQIA has prevented attempts at redress for ignoring timeliness of peer review proceedings at the federal level in an anti-trust case (Austin v. McNamara)

No decision has yet been made whether HCQIA affords immunity when the written intent (regarding timeliness of peer review) of California statutes is violated.

The Kibler case

In the July 2006 California Supreme Court decision in Kibler v. Northern Inyo County Local Hospital District, Inc., that because peer review proceedings were reviewable by administrative mandate under B&PC 809.8, they were therefore meant to constitute an "official proceeding authorized by law."

They further noted that under B&PC 809(a)(5) " '[p]eer review, fairly conducted, will aid the appropriate state licensing boards in their responsibility to regulate and discipline errant healing arts practitioners.' Because a hospital's disciplinary action may lead to restrictions on the disciplined physician's license to practice or to the loss of that license, its peer review procedure plays a significant role in protecting the public against incompetent, impaired, or negligent physicians. (See Arnett, supra, 14 Cal.4th at pp. 7, 11, 56 Cal.Rptr.2d 706, 923 P.2d 1.)"

This interpretation implies that the peer review process, as an extension of the function of a medical board, may be subject to all the restrictions to which a medical board is subject. Because medical boards are usually subject to a large number of legislative regulations to which peer review proceedings have not historically been subject, this may be a new, additional, and appropriate significant legal burden on the peer review process.

States have recently refined the criteria concerning medical board reviews, regarding expert witnesses, publishing proceedings and outcomes, and other procedures. It would be beneficial for peer review to be bound by the same criteria by which a medical board is bound, if this Kibler interpretation is upheld.

Jury model of Medical Peer Review

The medical peer review system is a quasi-judicial one. It is modeled in some ways on the grand jury / petit jury system. After a complainant asks for an investigation, a review body is assembled for fact-finding. This fact-finding body, called an ad hoc committee, is appointed by the medical Chief of Staff and is comprised of other physician staff members chosen at the Chief of Staff's discretion. This ad hoc committee then conducts an investigation in the manner it feels is appropriate. This may include a review of the literature or an outside expert. In Sham Peer Review there is often neither.

In sham peer review, the committee is unduly influenced by the complainant, and members may even have financial or other ties to the complainant. The degree of willingness to rely on testimony during investigation instead of evaluating facts (such as chart records, labs, and other "hard data") is one hallmark of sham peer review.

While JCAHO guidelines recommend use of the literature and relevant clinical practice guidelines (JCAHO Hospital Accreditation Standards 2003 MS 8 to MS 8.4), there is no such requirement for the hospital under HCQIA. The definition of "peer" also is so open to broad interpretation that essentially anyone with an advanced degree can qualify. For example, a family practitioner can review a trauma case. In one hospital a family practitoner who had attended an Advanced Trauma Life Support course (but was not a surgeon) was relied upon for a peer evaluation. A nurse, who may have no knowledge of the issue before the committee, may also be relied upon to testify.

The ad hoc committee then reports its findings, in whatever detail it sees fit, to both the Chief of Staff and to a special meeting of the Medical Executive Committee (fulfilling the basic functions of a grand jury). At this point the Medical Executive committee invites the accused physician to provide input. This chance to provide input is required by law in many states, but there is no standard of what type of input may be allowed. Similar to a grand jury, the accused physician is not allowed counsel to represent him or her at this stage. Furthermore, the Medical Executive Committee is under no obligation at this point to allow the physician to present a defense, as this right is afforded at a formal hearing. In Sham Peer Review, the physician is usually allowed to present very little, if any, evidence at the Medical Executive Committee (MEC) meeting.

Verdict and imposition of sentence prior to a hearing

Although the function of the MEC is similar to a grand jury in some ways, most grand juries only determine whether there is enough evidence for indictment and do not have the power to issue an injunction or to mete out a sentence.

In the quasi-legal system of medical peer review, however, the MEC has the ability to not only review any evidence available and decide whether a hearing is warranted, but also to summarily impose sanctions against the accused physician, such as a suspension or limitation of privileges. These sanctions constitute an injunction that prevents or limits the accused physician's practice of medicine at that institution.

In a Sham Peer Review these sanctions are usually the maximum possible, i.e. suspension with recommendation for revocation of hospital privileges. These sanctions are immediately published nationally through the National Practitioner Data Bank and through reports to state medical boards. The effects of the sanctions are therefore not only local but also statewide and national.

The physician is not allowed counsel to contest such an injunction at the MEC meeting. In this regard it is an extreme deviation from generally held principles of justice in the United States.

The stated justification for this is the theory that a physician potentially poses a greater risk of danger to society than other types of societal dangers. He or she must immediately be removed from circulation until conclusively proven not to be a danger. A commonly stated belief is that there is an equal percentage of criminals in the medical profession as in other professions. There is very little evidence to substantiate this claim.

The HCQIA relieves the peer review from any potential sanctions for this type of abuse as well, and there is no defined standard of diligence required prior to any imposition of injunctive sanctions.

Severity of sanctions in sham peer review is in contravention of California law (BP&C 809(a)(7)) that states "It is the intent of the Legislature that peer review of professional health care services be done efficiently, on an ongoing basis, and with an emphasis on early detection of potential quality problems and resolutions through informal educational interventions."

The Fair Hearing process

Once the physician has been indicted (and sanctioned) he or she then has the right to request a hearing. At the hearing, counsel is allowed. A second independent panel of physicians is chosen as the petit jury, and a hearing officer is chosen. The accused physician has the option to demonstrate conflicts of interest and attempt to disqualify jurors based on reasonable suspicions of bias or conflicts of interest in a voir dire process.

At the hearing, the plaintiff is formally the medical staff, of which the medical executive committee is comprised. In this regard the grand jury and the plaintiff are the same body. This is also unusual in American justice.

Potential conflicts of interest between Hospital and Medical Staff

Most medical staff bodies utilize the hospital attorney and accept hospital funds to try peer review cases. Although the hospital and medical staff are technically independent entities, this independence is lost by this arrangement. In Sham Peer Review, the hospital, through its shared attorney, unduly influences the outcome of the proceeding. This effectively negates the independence of the medical staff.

Several law firms have made a business around the country promoting "Strategies and Tactics for Medical Staff Peer Review Disputes." The largest is Horty, Springer and Mattern, which hold regional conferences around the country to teach hospitals how to take advantage of the absolute immunity protections afforded to the peer review process. Hospital administrators or physicians in positions of power (often board members) often attend seminars to learn legal techniques to influence peer review outcomes. Colloquially these have become known as Horty Springer techniques. These large multi-state law firms, such as Davis, Wright, and Tremaine and Foley and Lardner, specialize in racketeering and labor disputes and have both attacked and defended racketeering cases and therefore accumulated extensive experience in these fields.

The California Medical Association and others have strongly advocated against this practice and warns medical staffs about its dangers. California has enacted legislation formally requiring the separation of the hospital and medical staff.

Other Sham Peer Review techniques in healthcare

One of the most common techniques, the one used most frequently, is a system of sham "performance appraisal," in which a file is created for each member of the hospital staff. Minor complaints accrue in this file for each physician or nurse on staff. Many hospitals now encourage a system of complaints against physicians (and nurses and other hospital personnel). The number of complaints, rather than the content, are then used as justification for a sham peer review.

It is usually not very difficult to collect vague and minor complaints about a large number of physicians and nurses in the hospital using such a system. The system is often given the euphemism "suggestion box for quality improvement." In hospitals where there is a contentious nursing environment, such as an ongoing union dispute, complaints are very easy to garner.

This practice has been a major source of contention between nurses' unions and hospitals.

Physicians often may not be part of the system as contributors or reviewers, despite being the target of complaints. A physician (or nurse) that reaches a threshold number of complaints (which can vary from hospital to hospital), is labeled a "disruptive physician" (or "disruptive nurse").

Originally the term "disruptive physician" was used to characterize an individual who promoted an atmosphere of physical or other fear in employees of a degree that they would not be able to execute their job. However, it is now most commonly applied in the context of vague slights and normal frictions that are normal in a large organization. These are encouraged to be reported and are then catalogued. (It is rare to have a truly disruptive physician paralyze the medical staff.)

"Dissatisfaction with a colleague's performance" surveys are pseudo-quality data are used to justify personnel changes or cutbacks (in nursing) or to justify a disruptive physician accusation in sham peer review. As touted in tactics seminars, the more vague the accusation, the harder it is to disprove.

In recent years, this type of sham performance appraisal, often used to replace outcomes reviews, has become popular with both administrators and insurance companies alike. It is used in sham "pay-for-performance" schemes directed at reducing reimbursements to physicians or other personnel based on vague pseudo-indicators. Hospital-based employees, such as hospitalists, anesthesiology groups, radiologists, emergency departments, and pathologists, are especially prone to this type of maneuver during salary negotiations or other contract negotiations.

The role of independent appraisal systems in sham peer review

In some instances, sham peer review can be independent from physician-run departmental peer review.

A sham peer review may entail multiple complaints to an informal "systems analysis" committee, run by administration, that is not bound by the regulations of the Patient Safety Quality Improvement Act of 2005 (see below). These complaints may be reviewed by administrators, nurses, or physicians that are part of, or sympathetic to, the administration, and may not be run through a clinical departmental peer review.

These complaints may then be referred directly to an ad hoc committee, bypassing departmental peer review. If they are simultaneously or later also evaluated in departmental peer review, their conclusions may be contradictory to those determined by physician-based departmental review.

Complaints from "performance appraisal" review committees (almost always run by the administration) may also be forwarded to an ad hoc peer review committee run by a medical staff member sympathetic to the administration, bypassing normal channels of departmental peer review as well.

When such charges stemming from this type of review are brought against a physician bypassing or in contradiction to clinical departmental peer review, this is almost always a sham peer review.

Non-binding nature of Fair Hearing

Lastly, while the medical staff is the plaintiff in a peer review hearing and the Medical Executive Committee serves as grand jury, the hospital board has final decision whether to accept the results of the hearing or not. There have been instances in which a fair hearing has concluded that no merit exists to accusations against a physician, only to have a board impose penalties anyway. In the most extreme circumstance, the same physician can be complainant, member of the medical executive committee, and also a member of the board. This not entirely uncommon situation is very susceptible to sham peer review and an unbiased outcome is highly unlikely. Currently there are no checks and balances against such abuse.

In the case of Mileikowsky v Tenet (which ran Tarzana Hospital in 2000), Mileikowsky was subject to multiple hearings for the same charges and his rights of an expedited hearing were allegedly denied while a suspension was in place. On May 15, 2001, the California Medical Association filed an amicus curiae brief to emphasize legal protections meant to prevent physicians being arbitrarily excluded from access to healthcare facilities based on mechanisms such as summary suspension without a speedy hearing. This case is still being heard in the California Court of Appeals.

Whistleblowing and sham peer review

The contention that many physicians are targets of sham peer review due to whistleblowing activities has received significant attention recently. The Sarbanes-Oxley Act of 2002 was passed at the federal level in response to whistleblowing in the accounting scandals of major companies such as Enron, Tyco, and WorldCom.

In 1999, an anesthesiologist in (Yuba City, CA) named Khajavi fought with a surgeon when he believed an elderly patient should not undergo cataract surgery. The anesthesiologist was subsequently terminated from his anesthesia group over the altercation. He sued for wrongful termination per California B&PC 2056, and the suit was allowed by the California Court of Appeals, which held in 2000 that a physician could bring a suit for wongful termination on the basis of advocating for medically appropriate health care (it did not rule on the merits of the altercation.)

Attempts to prevent sham peer review

The Healthcare Quality Improvement Act of 1986 was initially introduced by a Congressman from Oregon. Nearly 20 years later, the Oregon Medical Association has passed a resolution to "explore ways and means to prevent misuse of the "Disruptive Doctor Doctrine," a reference to the label hospitals attach to doctors viewed as troublemakers, sometimes unfairly.

The Illinois State Medical Society has placed Sham Peer Review and Sham Privileges Suspension on its legislative agenda for 2007.

In 2006, the Michigan Supreme Court ruled that the Michigan immunity statutes does not protect the peer review committee if it acts with malice, specifically meaning that the committee acted with a reckless disregard of the truth.

Protection from immunity under the federal HCQIA is not absolute. If a peer review panel is not taken after a reasonable effort to obtain the facts or if its actions are unreasonably restrictive, then it is not afforded immunity (Brown v. Presbyterian Healthcare Services, from the 10th Circuit Court of Appeals.)

The HCQIA avoided establishing good faith standards for peer review, as noted in Austin v. McNamara.

Medical professional organizations have reviewed concepts of medical error in detail, given the alarmist but inconsistent claims of widespread error in the healthcare industry by attorneys and consumer groups. They describe a wide spectrum of medical error, from insignificant to catastrophic, and note that errors are not all equal for purposes of peer review.

In New York in 1986, peer review actions were required to be adjudicated in court to provide an independent forum. At the time, the AMA objected, because they feared peer review would become inefficient if tied up in the legal system.

Many other state boards, however, have a system of administrative review to provide an independent forum to review their peer review decisions.

Oversight of the peer review process by the Medical Board of California (through an independent committee) was established by the California legislature to prevent peer review abuse.(BP&C 805.2)

The development of the Patient Safety Organization (PSO)

The Patient Safety and Quality Improvement Act of 2005 (Public Law 109-41) allows for the creation of Patient Safety Organizations. Because of widespread belief that the peer review system had become corrupted and was not useful for systems failure analysis, these parallel quality of care committees were authorized to gather information to be analyzed by hospital administrators, nurses, and physicians as a tool for systems failure analysis.

They are able to be used by any healthcare entity except insurance companies, but must be registered with the AHRQ wing of the US Department of Health and Human Services.

In these PSOs, root cause analysis and "near misses" are evaluated in an attempt to avert major errors.

As discussed above, the definition of an "error" or "near miss" is predicated on adverse events, however, and should not be based on speculation or non-evidence-based, non-standardized personal opinions of participants of the PSO. In an attempt to prevent the common situation of introducing personal bias in systems analysis committees, a Network of Patient Safety Databases was authorized to which PSO data is to be communicated, so that individual institutions can compare their statistics to national averages and thereby avoid personal biases.

In addition, the AHRQ is attempting to assemble clinical guidelines from peer-reviewed medical journals to be used nationally in an effort to formalize national treatment standards.

Participants in the use of these PSOs are immune from prosecution in civil, criminal, and administrative hearings.

A potential for sham peer review still exists, however, when a single physician serves on a systems analysis committee (even if it is a PSO) and is also the major player in a sham peer review process. The individual may be the chairman of a department, or the chief of staff (and therefore gatekeeper of peer review), may also serve on the peer review committee, and may even be a member of the hospital board.

However, the Patient Safety and Quality Improvement Act allows for a $10,000 fine to be applied to any individual provider who allows PSO data to be "admitted in a professional disciplinary proceeding of a professional disciplinary body established or specifically authorized under State law." Immunity from civil liability also disappears in the event of such an infraction.

In California and in many states, both the peer review hearing and the investigation have been held to be part of a professional disciplinary proceeding, so that the penalty applies in the event of usage of PSO data in either.

Further reading

• Steve Twedt (2003-10-26). "The Cost of Courage: How the tables turn on doctors". Post-Gazette. PG Publishing.
• Magazine Staff (2006-08-01). "All Is NOT Calm on the Hospital-Medical Staff Front". Southern California Physician. LACMA Services Inc.
• Charles Bond (2005-11-15). "Editorial in Response to "What Is Sham Peer Review?"". Medscape General Medicine. 7 (4): 48.
• Goldstein H. (2006). "Appraising the performance of performance appraisals". IEEE Spectrum.
• Lawrence R. Huntoon (September/October 2004). "Sham Peer Review" (PDF). Journal of the Arizona Medical Association. {{cite journal}}: Check date values in: |date= (help)
• Verner S. Waite (Autumn 2003). "Sham Peer Review: Napoleonic Law In Medicine" (PDF). Journal of American Physicians and Surgeons. 8 (3).
• John R. Minarcik (Winter 2004). "Sham Peer Review: a Pathology Report" (PDF). Journal of American Physicians and Surgeons. 9 (4).
• William K. Summers (Winter 2005). "Sham Peer Review: A Psychiatrist's Experience and Analysis" (PDF). Journal of American Physicians and Surgeons. 10 (4).
• Michael Arnold Glueck (2001-07-20). "Medical "3-strike rule"". WorldNetDaily.
• Greg Piche' (2006-05-22). "Twelve Signs of Sham Peer Review". Holland & Hart Health Care. {{cite web}}: Cite has empty unknown parameter: |1= (help)
• Philip L. Merkel (Winter 2004). "Physicians Policing Physicians: the Development of Medical Staff Peer Review Law at California Hospitals" (PDF). University of San Francisco Law Review. 38 U.S.F. L. Rev. 301.
• "Center for Peer Review Justice, Inc". Center for Peer Review Justice. 2007.
• Bryan G. Hall (Fall 2003). "The Health Care Quality Improvement Act of 1986 and Physician Peer Reviews: Success or Failure?". University of South Dakota Elder Law Forum.
• "Health Policy in the Courts -- California Medical Association Lawsuits -- 2006 - January 2007" (PDF). California Medical Association. 2007-01. {{cite web}}: Check date values in: |date= (help)
• "Health Policy in the Courts -- California Medical Association's participation in Amicus Curiae Briefs - January 2007" (PDF). California Medical Association. 2007-01. {{cite web}}: Check date values in: |date= (help)
• "The Physician's Advocate". Physician's National Advocacy Network. 2005-05-29.
• "Alliance for Patient Safety". Alliance for Patient Safety. 2007-01. {{cite web}}: Check date values in: |date= (help)