Tactics Characteristic of Sham Peer Review

L. Huntoon M.D., Ph.D., FAAN

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Editorial:

Tactics Characteristic of Sham Peer Review

Lawrence R. Huntoon, M.D., Ph.D.

The tactics used by hospitals and others in conducting a sham

peer review are remarkably similar throughout the country. The

common feature of these tactics is that they violate due process

and/or fundamental fairness, and they often represent an attempt to

make the incident or event “fit the crime.”

Although our legal system is not perfect, it does incorporate

sound principles and procedures designed to protect an accused

individual’s right to due process and fundamental fairness (e.g. an

accused person is considered innocent until proven guilty). In

evaluating the fairness of peer review, one can often find

corresponding principles of due process and fundamental fairness in

our legal system.

The following list is not all-inclusive, but represents common

tactics of sham peer review.

Hospitals that employ sham peer review typically use the ambush

tactic to place the targeted physician at severe disadvantage. An

administrative secretary may call the physician’s office and request

that the targeted physician attend an “informal friendly meeting” in

the administrator’s office to discuss unspecified “issues.” Although

the targeted physician typically asks about the specific issues or

concerns, the hospital administration often refuses to provide any

specific details prior to the meeting.

On arrival at the meeting, the targeted physician often finds

himself facing the hospital chief executive officer (CEO), hospital

attorney, vice-president of medical affairs, chief of staff, and chief of

service. The meeting is anything but informal or friendly. All of the

individuals in the room, except for the targeted physician, know

precisely what the specific issues or concerns are that will be

discussed in the meeting.

As the targeted physician fumbles to recall and explain events or

patient cases that occurred weeks or months ago, his inability to

recall specifics under highly stressful conditions makes him look

“guilty.” Catching the physician off guard and making him look

“guilty” is, of course, the purpose of the tactic. The ambush tactic is

frequently enhanced by imposing an immediate summary

suspension on the targeted physician, an action that elicits an

expected “shock and awe” effect from the targeted physician.

Physicians who are asked to attend one of these “informal

friendly meetings” should take a trusted physician colleague with

them to the meeting so there will be an independent account of what

was said or done at the meeting. Concealed digital recorders, either

audio or audio/visual, can also be utilized depending on state laws.

Consent for taping requirements is posted on the AAPS website

AmbushTactic and Secret Investigations

(http://www.aapsonline.org/judicial/telephone.htm). Physicians

should also consult a local attorney to confirm requirements.

Hospitals that employ sham peer review also frequently use

secret investigations, which can continue for weeks, months, or even

longer. In fact, a secret investigation can remain open almost

indefinitely until a formal action is taken or the investigation is

formally closed. If the physician resigns or lets his hospital privileges

expire while under secret investigation, it is reportable to the

National Practitioner Data Bank (NPDB), and the physician’s career

may be ruined or ended. A secret investigation, however, fails to

satisfy the requirement (42 U.S.C. §11112(a)(2)) that a reasonable

effort be made to obtain the facts of the matter, because it fails to

obtain information from the very person (physician under review)

who could provide the most direct information about why a patient

was treated a particular way.

Although no court of law would permit depriving an accused

person of files or records needed to defend himself, as it is

fundamentally unfair and in violation of due process, hospitals that

employ sham peer review frequently refuse to provide records in a

timely manner to the physician under review. Sometimes, hospitals

delay providing the needed records to the accused physician until just

prior to the peer review hearing or at the time of the hearing, leaving

the accused physician inadequate time to prepare his defense.Having

inadequate time to prepare a defense places the physician at severe

disadvantage and makes him look “guilty” as he fumbles to defend

himself at the hearing. Attorneys who represent physicians should

document strong objection to this tactic both before and during the

hearing.

Even accused serial murders, serial rapists, and serial child

molesters are supposed to be considered innocent until proven guilty

in a court of law. However, due to unfair provisions of the Health

Care Quality Improvement Act (42 U.S.C. §11112(a)(4)), and provisions

often found in medical staff bylaws that have been

manipulated so as to favor the hospital, targeted physicians are often

essentially presumed “guilty” and the burden is shifted to the accused

physician to go forwardwith evidence to prove his “innocence.”

Although the numerator-without-denominator tactic can be used

against any physician, it is most commonly used against surgeons.

Hospitals that use this tactic typically select cases that are specifically

DeprivingTargeted Physician ofRecordsNeeded

to Defend Himself

Guilty Until Proven Innocent

Numerator-Without-DenominatorTactic

64 Journal of American Physicians and Surgeons Volume 14 Number 3 Fall 2009

designed to highlight complications or negative outcomes.The selection

of cases often falls outside the routine protocol used for selecting cases

for review of physicians practicing at the hospital. The hospital then

presents this select group of cases to peer reviewers as evidence that the

targeted physician is a bad doctor or provides unsafe care.

Hospitals that use this tactic specifically omit the denominator

(how many cases of that type the physician has performed over a

period of time), thus eliminating the possibility of calculating a

complication rate that could be used to make a fair comparison with

statistics of other colleagues, or statistics published in medical

literature.Virtually all surgeons, of course, experience complications,

and the only surgeons who have zero complications are those who do

not perform surgery, or who do not report their complications.

This tactic takes advantage of the fact that it is very common for

physicians to hold legitimate differences of professional opinion

concerning optimal treatment for a specific patient or condition.

Hospitals that employ this tactic frequently hire an outside expert

who opines that because the targeted physician did not use the same

surgical technique or medical treatment that the expert prefers, the

targeted physician must be practicing beneath the standard of care.

However, if the accused physician can provide evidence, either from

the medical literature or from expert testimony, that justifies the

treatment provided, then the issue is clearly a matter of difference of

professional opinion and not a standard-of-care issue. In some cases,

Medicare billing guidelines have even been misrepresented in peer

review as a clinical standard of care.

Hospitals that use sham peer review frequently bring trumpedup,

fabricated, and totally false charges against targeted physicians.

Charges are often pretextual, consisting of more “spin” than

substance. Some examples and associated characteristics include:

A “stack” of invalid incident reports or complaints—creating an

appearance of a large quantity of actual valid incidents/complaints;

“Sanitization” of meeting minutes (altering wording so as to

show the targeted physician in unfavorable light, or place

targeted physician at disadvantage);

Use of summaries or abstracts (subject to manipulation/editing)

prepared by hospital employees;

Use of hearsay evidence;

Strategic omissions of fact that place the targeted physician at a

disadvantage;

Highly damaging accusations of alcohol or drug abuse where

there is no substantial or credible evidence to suggest that the

accused physician has a problem;

Prosecution choreographed/presented by one person under the

hospital’s influence or control, with an agenda not in furtherance

of quality care;

Wrongfully attributing the deficiency of the hospital or others

solely to the targeted physician; and

Accusers who are frequently guilty of the same accusations being

made against the targeted physician.

In sham peer review, where the hospital controls the entire

process and acts as judge, jury, and executioner, the truth or falsity of

Misrepresenting the Standard of Care

Trumped-Up and/or False Charges

•

charges makes no difference, and the truth and the facts do not matter

because the outcome is predetermined and the process is rigged.

The definition of “disruptive physician” is highly subjective and

subject to manipulation and abuse. Recently, the general and vague

definition of “disruptive physician” has been fortified with the more

specifically vague and subjective descriptions in the “Code of

Conduct” as promulgated by the Joint Commission onAccreditation of

Healthcare Organizations (JCAHO). Nonverbal conduct, such as

facial expression and body language, can be used to label a physician

“disruptive,” and no evidence is required beyond how the accuser feels.

Increasingly, the term “disruptive physician” has become

synonymous with “mentally impaired” physician. A physician who

is wrongfully labeled “disruptive” because he does not agreewith the

hospital administration’s views, or complains about substandard care

in the hospital, can be subjected to inpatient treatment at a facility that

specializes in treating “disruptive physicians.” “Treatment” at one of

these facilities may include treatment with medications, which if the

“dissident physician” refuses to take “voluntarily,” may result in

automatic termination of privileges for failure to comply with the

recommended “treatment.” Physicians typically emerge from one of

these “treatment” facilities with psychiatric diagnoses of narcissistic

personality disorder, obsessive-compulsive disorder, or both.

Hospitals that use sham peer review frequently will use cases

occurring in the distant past to justify a contemporaneous summary

suspension. This tactic suffers from an obvious flaw in logic: If

hospital officials truly believed that the physician posed an imminent

danger to patients months ago, why did they wait and allow the

physician to continue to practice, instead of summarily suspending

the physician at the time when the incident occurred, in order to

protect patients?

Although no court of law would allow a prosecutor, judge, or

witnesses to meet with members of the jury outside the hearing to

discuss or influence a case, similar ex-parte communications occur

frequently in sham peer review. Although such ex-parte

communications taint the entire hearing process and clearly violate

fundamental fairness and due process, hearing officers, hired by the

hospital, often allow ex-parte communications.

Hospitals that employ sham peer review often will use an

attorney who represents the hospital or who represents both the

hospital and medical staff simultaneously (i.e. a conflicted attorney)

to influence the peer review process.

The goals and interests of a hospital administration and a medical

staff are not identical. The medical staff is the primary entity in a

hospital that is responsible for assuring safe and competent care of

patients. Although a hospital administration also has responsibility

Abuse of the “Disruptive Physician” Label

DredgingUpOld Cases to Justify Summary Suspension

Ex-Parte Communications

Hospital Attorney or Conflicted Attorney Used to Influence the

Peer Review Process

Journal of American Physicians and Surgeons Volume 14 Number 3 Fall 2009 65

for assuring quality care, the administration also has a fiduciary duty

to assure the profitable operation of the hospital, a goal that may

conflict with optimal care of individual patients.

Hospital attorneys, or attorneys who have a conflict of interest in

simultaneously representing the hospital administration and medical

staff, influence the peer-review process and thus violate due process

and fundamental fairness. Although a medical staff can hire its own

independent attorney to give advice concerning the peer-review

process, peer review should be performed by peers (other physicians

on staff) and should not be influenced by the hospital administration,

or its attorney or a conflicted attorney, prior to the matter reaching the

level of the hospital board of directors.

Hospitals that employ sham peer review frequently bias the peerreview

proceedings in a number of ways, including: stacking the

investigative committee or hearing panel with physicians who have

personal animus or bias against the accused physician; allowing the

prosecution much more time to review records or present the case than

the targeted physician; unfairly limiting the time allowed for the

physician to present his case; disallowing evidence or testimony that

may be favorable to the targeted physician; differential treatment of the

physician whereby the targeted physician is treated more harshly than

his colleagues for a similar alleged offense; use of the hospital “rumor

mill” to spread negative and highly damaging rumors about the targeted

physician while the peer-review process continues, andmany others.

Hospitals that use the “rumor mill” to damage the targeted

physician’s reputation, and influence the peer review process, may

also file improper or false reports with the National Practitioner Data

Bank (NPDB) so as to permanently damage or end a physician’s

career.Hospitals will also frequently not allow the physician to hire a

court reporter to provide an independent record of the peer review

hearing, opting instead to provide a record kept by the prosecuting

hospital. No court of law, of course, would permit a record of a

hearing to be kept solely by the prosecutor, as it would introduce bias

andwould be patently unfair to the accused.

Bias

PeerValidation ofTactics Characteristic of Sham Peer Review

Implications for PhysiciansWhoConduct Peer Review

The information in this current editorial about tactics

characteristic of sham peer review was presented to two large groups

of physicians in June and July, 2009 (AAPS meeting inDallas,Texas,

on Jun 5, and at the Florida Medical Association annual meeting on

Jul 25). Following the presentation, a survey question was posed to

these two large groups of physicians: “Are any of the tactics reviewed

in this presentation fundamentally fair to physicians subject to peer

review, and do any of these tactics comply with due process for the

accused physician?” Not a single hand in the audience at either

meeting was raised, indicating that the tactics reviewed are indeed

characteristic of sham peer review, because they do not provide

fundamental fairness or due process for the physician under review.

AAPS supports peer review done in good faith for the purpose of

furthering quality care and protecting patients. Physicians who serve

on peer-review committees need to be vigilant and diligent in

conducting fair peer review. Physicians need to be aware that those

who are choreographing the process and presenting the case may

have underlying motives that have nothing to do with assuring

quality care. Peer reviewers need to ask questions, and personally

review cases, complaints, and incident reports, rather than relying on

summaries provided by the hospital.

Protecting patients and assuring competent care must be

balanced by a process that provides substantive due process and

fundamental fairness to the physician under review. Peer reviewers

need to recognize that an accused physician’s medical career and

livelihood are at stake, and any adverse action taken should be

justified by full and impartial consideration of all the facts.

Lawrence R. Huntoon, M.D., Ph.D., is a practicing neurologist and editor-inchief

of the Contact:

editor@jpands.org.

Journal of American Physicians and Surgeons.

66 Journal of American Physicians and Surgeons Volume 14 Number 3 Fall 2009