Sham peer review is created and perpetuated by secrecy. Charles Mackay wrote in “Eternal Justice”:
“But the sunshine aye shall light the sky,
As round and round we run;
And the truth shall ever come uppermost,
And justice shall be done.”
Physicians do not need voluminous due process protections in medical staff bylaws in order to protect their interests; they merely need the opportunity to assure that the truth will come out. Here are four suggestions to let the truth be told.
1. Notice. Physicians should receive notice and/or copies of all complaints filed against them, whether they are mere incident reports or formal complaints requesting investigation by the medical staff. Notice provide the physicians an opportunity to respond to the complaint at the time it was made, rather than allowing them to accumulate until a more serious dispute arises. Hospitals respond that effective peer review requires confidentiality and immunity. However, the confidentiality provisions were never intended to allow anonymous complaints; they were intended to prevent third parties from discovering peer review documents as part of a tort or malpractice complaint. Those people submitting valid complaints are protected by the immunity provisions of state peer review laws, so confidentiality should not be an issue.
Hospitals defended their position by arguing that they are concerned about retaliation. Retaliation should not be permitted. Retaliation should be punishable by suspension, which may or may not be reportable to the Data Bank. Once physicians understand that they cannot retaliate against hospital employees who are just trying to do their job, retaliation should not be an issue.
Physicians should receive notice of ongoing investigations. There is nothing worst than being on the “watch list” or being on “double secret probation” in an environment in which incident reports and case review are being invited.
2. Cross examination of witnesses. All individuals who submit reports should be included within the definition of the term “witnesses” and their reports should not be accepted as true or relied upon by the medical staff hearing committee unless the physician has had the opportunity to cross examine those individuals about those complaints. Cross examination does need to be integration under harsh lights; it is simply intended to give the physician the right to question and point out errors, inconsistencies and inaccuracies in written complaints. The immunity provisions of the state peer review laws should protect those witnesses from good faith disclosures.
3. Premature suspensions: Clinical privileges should not be suspended unless the physician has had the opportunity to respond or to explain the situation which has thought to be the problem. Medical staff bylaws should allow suspension in those situations in which patient’s safety is an immediate and significant concern. When deciding whether patient’s safety gets protected or the physician’s right to practice gets protected, obviously the hospitals must come down on the side of patient safety. However, except in those situations, which exception will always give the hospital the most leverage or upper hand in these proceedings, suspension should not be imposed before the physician has had the opportunity to defend himself.
4. Participation in the hearing panel: The due process procedures of the medical staff peer hearing process should allow the physician to appoint a member of the hearing panel. The hospital may retain the right to appoint the majority of the members; this safeguard is not intended to deadlock the process. It is merely intended to bring the light of day into the deliberations.