This is a topic that is important to each and every one of us. We are doing this for you, for all MDs/DOs in the US. Peer review is a malicious tool not being used for patient care improvement but for totally economic and punitive measure to prevent competition.

Richard Chudacoff, MD, FACOG

Las Vegas International Center for Advanced Gynecologic Care

(Specializing in minimally and non-invasive surgery)

TEL:   702-485-8893  702-485-8893

FAX: 702-629-4628

rchudacoff@lasvegasgyncenter.com

 www.lasvegasgyncenter.com

“If lawyers want to fix the medical system, then let doctors fix the legal system….preferably with a scalpel and electrocautery.”     -me

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From: Jacob Hafter [mailto:jhafter@hafterlaw.com] 
Sent: Thursday, August 27, 2009 10:14 AM
To: undisclosed-recipients:
Subject: HCQIA & the Data Bank

I write to you today, as one of many physicians who are receiving this email, to discuss a new matter which we our office is working on developing.

For those of you who don’t know me, I am not only an attorney, but I have extensive experience in health care as a paramedic.  I have a masters in health sciences and am a candidate for a PhD in health policy.  I am an zealous advocate for physicians and physician rights.  At the risk of sounding arrogant (which is not my intent at all) through my efforts, we have made new case law that, as discussed below, legitimizes a physician’s property rights in his clinical privileges.   On all of my medical cases involving physician’s rights and advocacy, my representation has been on a contingency basis.  In fact, with numerous federal cases that are on-going for several years, I have spent far more than what I have received advocating for physicians.  I can tell you that this has been a drain on myself.  Nonetheless, it is something that I truly enjoy doing.

In particular, I believe that none of my cases would be where they are if the reporting requirements to the NPDB were not in existence.  They are wrong and need to be addressed. The fact that any hospital, public or private, must report to the government sponsored federal database, and that such report can have catastrophic effects on a physician’s career (Judge Reed in Chudacoff stated: “The private interest at stake here is the ability to practice medicine at a particular location. The interest extends further, however, in that a suspension of privileges at one hospital, when reported to the NPDB, could limit a physician's ability to practice anywhere in the country. The amount of process must accord sufficient respect for a professional's life and livelihood.” Chudacoff v. UMC, 609 F.Supp.2d 1163, 1173), makes this issue ripe for a challenge.

In two of our existing cases, we have filed motions claiming that the reporting requirements of the Health Care Quality Improvement Act of 1986, 42 USC 11101, et. seq., (“HCQIA”) are unconstitutional.   In one we just received a cursory opinion (I use that word loosely), which denied the motion.  The other is pending.   In retrospect, we tried to tack this issue onto pending litigation; such a tactic may not have been the best procedural move.  I would like to sue the Secretary of the Department of Health and Human Services alleging that 42 USC 11133 (the “Reporting Requirements”) is unconstitutional.   Filing suit in the State of Nevada would probably be one of the best forums in which we can bring such an action for two reasons.  First, it has been held that Nevada state law indicates that Plaintiff has a protected property interest in his hospital privileges.  Chudacoff v. UMC, 609 F.Supp.2d 1163.  In Chudacoff it was stated that “a physician's medical staff privileges are thus a protected interest under Nevada state law” and “cannot be revoked without constitutionally sufficient procedures.” Id.  Second, we are in the Ninth Circuit, one of the best circuits to be in.  In fact, recently, in Ulrich v. City and County of San Francisco, 308 F.3d 968 (9^thCir.2002), a physician sued city, city hospital, and individual members of hospital’s peer review committee alleging retaliation based on speech protected by First Amendment and violation of due process.   Adopting the United States Supreme Court decision in Paul v. Davis, 424 U.S. 693 (1976), the Ninth Circuit stated that “stigmatizing statements” is actionable.  Ulrich at 983.  The Ulrich case adopted the “Stigma Plus” test and doctrine for the Ninth Circuit.  Id.  Under this test, “a Petitioner must show the public disclosure of a stigmatizing statement by the government, the accuracy of which is contested, plus the denial of ‘some more tangible interest such as employment,’ or the alteration of a right or status recognized by state law” in order to obtain relief.[1]  Id., citing Paul at 701, 711. 

This is a complicated issue.  In fact, in the recent denial of our motion for partial summary judgment on this issue, the judge wrote in one sentence that “There is no requirement that prior to each reporting, a physician be given notice and an opportunity to be heard on the content of the report.”  This is exactly our point.  However, in the next sentence, he wrote “rather, a physician’s right to procedural due process is implicated under the peer review process which can result in an adverse action, but not through the reporting provision pursuant to 42 U.S.C. § 11133.”   This contradicts each other.  On one hand there is “no requirement” that a physician be given notice and opportunity to be heard, and, on the other, a physician has a “right to procedural due process.”  We are not sure where this right is anchored.  While we have asked for clarification of the order on this point, it is not sure whether such will be provided.  In our opinion, the judge is theoretically correct, but actually wrong.  Physicians should have a right to due process before a statement is posted about them on a governmentally sanctioned data bank, however, especially in private hospitals, no guarantees for due process exist.

To be frank, I am looking for financial support to file this motion.  I have several plaintiffs.  In fact, if need be, I could make it into a class action, easily.  However, since we are simply looking to find the law unconstitutional, and there is not a damages question, such pomp and circumstance would be futile.   As such, I am not looking for a plaintiff.  I am looking for financial support.   

The reality is that, if successful, the implications will be large spread and tremendous for all physicians.  You see, I have tried to throw this theory into specific cases that I take (all of which are contingent), but, the viability of the claim is not critical to the case, as a whole.  So judges are not so apt to truly consider the issue.  However, as a separate case, a judge would have to consider it.

This is a physician issue.  There is no benefit to me to do this.  In fact, if the reporting requirements are negated, my business in this area would probably dry up.  However, I still would like to lead the way in this fight.  But I need physician support.  There are over thirty physicians on this email alone.   If each agreed to pay a few dollars to help subsidize my work, it would go a long way.  Moreover, as Dr. Chudacoff can attest, the writing of one email can spread like wildfire and generate a significant amount of heat if those who receive it are willing to pass it on to others.  Accordingly, not only am I requesting a few dollars, I am requesting that you copy this email to every single physician you have in your electronic rolodex.

I know that most doctors could care less about the data bank and peer review issues unless they have been victimized.  Then, it is a priority.  If you know someone who doesn’t care or doesn’t think that this will help them, have them call me.  I will tell them about a dozen or more good physicians who have been victimized without merit.  It can happen to anyone.

As I already said, these issues are complex.  They take years to litigate.  I don’t mind undertaking such a fight, I just need some financial support.  For any of you who have had the (dis)pleasure of being represented by an hourly attorney, you surely can appreciate the cost of such.  I am not asking for you to pay for my services on an hourly basis.  Rather, I am suggesting that with a critical mass of physicians who all pay a small amount ($500 to $1000), I can afford to take this on in a manner that would be appropriate.  If each of you can get 10 or 15 doctors to help, I am confident that we can launch a valiant campaign.  I am not looking to get rich on this case, just help compensate for work that needs to be done to help the physician community.

We are ready to file immediately.

Respectfully,

Jay

Jacob L. Hafter, Esq.

7201 West Lake Mead Blvd, Suite 210

Las Vegas, Nevada 89128

 702-405-6700  702-405-6700 Telephone

702-685-4184 Facsimile

 702-716-8004  702-716-8004 mobile

jhafter@hafterlaw.com

Visit us online at www.hafterlaw.com

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