MS.1.20 : A Chance to Establish Neutral Peer Review
Although the newly adopted Joint Commission Standard MS.1.20 will compel hospitals and medical staffs to re-evaluate the provisions of the medical staff by-laws on a multitude of issues, I would like to focus just upon peer review issues from the physician’s perspective, i.e., the physician who is the “target” of the peer review investigation or process.
While some stakeholders in this process from all perspectives, i.e., hospitals, physicians, administrators, medical staff officers, reject the notion that sham peer review is a problem, there is nevertheless almost universal acknowledgment that the peer review process is a threatening process to physicians being investigated. True peer review is not designed as a threatening process; it is a process intended to correct behavior and improve the quality of care. Although summary suspension and other disciplinary acts at the later stages of the peer review process inevitably occur, and in many and even in perhaps the substantial majority of cases may be justified, disciplinary actions should be an unfortunate result of a process rather than the goal of a process.
However, since the disciplinary peer review process (as distinguished from typical morbidity and mortality conferences) is very secretive and is conducted without the participation and sometimes without the knowledge of the target physician, the perception of this process as being a secretive and punitive process is all to often supported by the facts. MS.1.20 provides the opportunity to improve this process from the physician perspective, without changing either the confidentiality of the process from the perspective of a third party or affecting the control or governance of the process by the hospital or medical staff. Confidentiality was never intended to exclude physician participation. After all, most of the gory details of the process are not only disclosed, but highlighted and emphasized, once a decision to impose adverse peer review is made. My suggestions are as follows:
1. Knowledge and Representation on the Ad Hoc/Investigative Committee: Standard bylaws provide that an investigative committee is appointed or assigned to investigate complaints about physicians. Physicians are typically notified that this action has occurred, but we believe physicians should always be notified and should also have the opportunity to approve or appoint one member of the committee, without regard to the total number of members of the committee. The goal is not to achieve a voting balance of power or stalemate, but simply to assure the absence of secrecy and the presence of accountability.
2. Physician Participation in the Investigated Process: Standard bylaws often provide that the physician is granted the opportunity to meet with the investigative committee and discuss the findings. However, once findings have been made, the participation of the physician is almost irrelevant. The opportunity for the committee to make a decision considering all perspectives has already been lost. Physician participation in the process must start at the inception of the process, as it would in lower level peer review not intended to result in disciplinary consequences.
3. Hearing Committee Representation: As with the investigative committee, a physician representative should be included on the hearing committee. This is again without regard to the numbers, because the goal of this safeguard is not to create minority voting power or stalemates, but simply to assure that the physician is represented where it counts, in the deliberative process. The current deliberative process is unapologetically skewed to favor the hospital and facilitate the outcome desired by the hospital. The hospital, or the medical staff executive officers appointed or elected with hospital support, select the hearing panel members, whom deliberate in private and often with the participation in advice of hospital counsel. It is not necessary that the physician being investigated have any control over this process; it is merely important that a physician representative bring openness and the light of day to the process.I suspect that until hospitals face liability to actions by the private bar for bad faith peer review, it will continue. The key to opening the process to fairness is diminution of HCQIA's immunity. I have suggested a straightforward sword to cut this Gordian Knot:
"The Health Care Quality Improvement Act, 42 U.S.C. § 11112(b)(3) provides the loophole [retaliating] hospitals and their lawyers work their way through: "A professional review body's failure to meet the [peer review] conditions described in this subsection shall not, in itself, constitute failure to meet the standards of subsection (a)(3) of this section." [providing wide immunity] "
"The way to fix the problem this causes is to amend this section:"
""A professional review body's failure to meet the conditions described in this subsection shall, in itself, constitute failure to meet the standards of subsection (a)(3) of this section." "
"That is, take out the "not." A hospital that that runs a kangaroo court should not get to take advantage of its own wrongdoing. Each and every National Practitioner Data Bank report that results from a peer review body that fails to meet the specified conditions should not be privileged, should be enjoin-able in equity in state or federal court, and should give rise to a damages action including attorneys' fees. Each and every kangaroo court "peer review" should not enjoy immunity from any damages causes of action."
"All of this may well drive some physicians out of the business of judging other physicians, as do many other factors. The hospitals have pretty much taken that over anyway, once the process gets out of departmental whitewashes and into "discipline." If it's going to be a legal rather than a medical process, it must be fair, afford due process of law and implement adequate legal remedies for those who are injured by wrongdoing, including attorneys' fees for intentionally or negligently injured or wronged physicians."
I am looking forward to hearing related and indeed opposing views.