Comment on "Eight Reforms To Medical Peer Review Post."

Until my retirement three years ago I was Associate Director for Research and Disputes for HRSA's National Practitioner Data Bank.  For over 10 years I read every Secretarial Review request, assigned every case to staff reviewers, and approved every decision before forwarding it for final approval and signature by the Director.  In other words, I have great familiarity with this matter. 

Before turning to the eight suggestions, I must take issue with the implication that a report to the NPDB can destroy a career.  It is the underlying actions that hurt careers, not reports to the Data Bank.  Applications for licensure, privileges, etc., require physicians to disclose more than is required to be reported to the Data Bank.  For example, the Data Bank does not require reporting of pending cases; applications do.  Honest physicians have nothing to fear from Data Bank reports; they have to disclose the same information regardless of the Data Bank.

It also should be noted that there are thousands of physicians with multiple reports in the Data Bank who continue to practice and, often, to have even more actions taken against them and reported.  If the Data Bank ended careers, physicians would not continue to have action after action taken against them.

Turning to the eight suggested reforms for peer review:

1. Based on my experience with reviewing Secretarial Review cases, I would agree that there are some bad faith peer review actions, but I think they are relatively uncommon.  Under the law Secretarial Review is not a forum for re-trying peer review cases; the Secretary is not the “supreme court” of peer review.  And I suspect most physicians would not want that.  The government should not substitute its judgment for that of peer reviewers.  This, of course, made it impossible for us in Secretarial Review to remove reports from the Data Bank, let alone reverse the underlying actions, when we believed there had been bad faith but the record supported the accuracy of the report in terms of the action taken and the reasons in the record for the action.  But in such circumstance we typically raised some very pointed questions with reporting institutions, and this often resulted in a much more satisfactory result for the physician.  In other instances the Secretary added comments to reports noting concerns.  I should also point out that about 20 percent of Secretarial Review cases result in an outcome in favor of the complaining physician either in the decision itself or through a “voluntary” change by the reporting institution.

It should also be noted that there are sanctions in the HCQIA for bad faith peer review.  Hospitals lose their immunity for paying damages for improperly conducted or bad faith peer review.  Some physicians have won such cases in court.  

2.  It seems reasonable to me that peer review be required to be essentially fair.  Actions should not be overturned and reports voided simply because not every i was dotted or not every t was crossed.  The system is, after all, designed ultimately to protect the public, not allow those who should be sanctioned to escape sanctions because of legal technicalities.  Basic fairness should be the requirement.  The law reflects this.

3.  Providing an opportunity for truly independent peer review would be a great step forward.  I generally endorse the suggestion for “permitting affected [physicians], at their cost, to opt for a hearing by a standing independent body of physicians in his or her own specialty.”  Depending on the nature of the offense, however, it may not be necessary to have physicians of the same specialty.  Unacceptable behavior, as opposed to clinical competence, does not depend on specialty.

4. Establishing a threshold for reporting malpractice payments would be a major policy error.  It would work against the interest of physicians because of the idea’s unintended consequences.   California had a system of reporting payments to the state which, essentially, did not require reporting to the state for possible public disclosure of payments under $30,000.  These small payments, however, were reported to the NPDB.  Almost 10 percent of all payments in California were for $29,999 – an amount almost never reported from any other state.  It appeared that plaintiff’s attorneys were holding out for $29,999 in cases which would have had lower payments or no payments at all by using the threat of a higher reportable payment if they took the case to court.  I think the defense would offer $29,999 to ensure the case would “go away.”  

5.  I don’t think it is in the public interest “to submit the malpractice claim for review to an independent body of physicians to determine whether the physician’s conduct failed to meet the standard of care before reporting to the Data Bank.”  This would substitute a subjective standard (and one with a bit of fox guarding the hen house) for an objective one (payment made = report).  Those who obtain reports know that some malpractice payments are made “for convenience,” and many reports already contain a notation from the reporting insurer that they paid for convenience and that in their opinion the standard of care had been met.  I would certainly not object to having this determination made by an “independent body” and noted in the report, but all payments should be reported.  This ensures that those who receive the reports get full information and that they can evaluate individual payment reports to determine their significance or lack of significance.

6.  This option already exists.  Any institution can require “retraining and recertification of physicians by a university or specialty certification organization” instead of taking a reportable action.  So long as clinical privileges are not negatively affected during the retraining and recertification process, the action is not reportable to the NPDB.

7.  I tend to agree with the concept of “eliminat[ing] immunity for the sanctioning of physicians for “disagreeable” conduct that is based upon a legitimate, bona fide complaint or concern by the physician over the quality of care or other practices in a hospital, where the conduct of the physician is not shown to rise to the level of immediate, rather than theoretical risk of disruption and patient harm.”  The problem is in the implementation.  Who is to judge whether there is a legitimate complaint or concern over quality of care or other practices and whether the risk to patients is immediate or only theoretical?   Perhaps the independent peer review option suggested in # 3 is an answer.

8. “Requir[ing] a specific time frame for the Secretary of HH&S to act on objections by physicians to the propriety of filings with the National Practitioner Data Bank, so as to make the NPDB process meaningful and useful” sounds reasonable but is difficult, if not impossible, in practice.  I cannot speak to the current situation, but while I was in charge of Secretarial Review, our goal was to close cases within a year if possible and to routinely do it much more quickly.  We sometimes were unable to meet our goal, occasionally because of staffing shortages but more often because of lack of responsiveness by reporting institutions or by reported physicians to requests for additional information or because of the need to repeatedly request more information when only incomplete information was provided.   I believe it is simply impractical to set a firm deadline for the conduct of reviews if the goal is to conduct them fairly based on complete information.  

Robert E. Oshel, Ph.D.    RETIRED Associate Director for Research and Disputes, Division of Practitioner Data Banks, HRSA, US DHHS

DISCLAIMER: The above comments represent my personal opinions and are not meant to represent either the current or previous positions of my pre-retirement employer, the U.S. Department of Health and Human Services

Comments

[GREG PICHE']

Richard: It appears that you are commenting on another comment to my article, rather than my article itself. Am I correct?

[Richard Willner]

Greg,

I respect you as you are a national authority in Health care Law as well as regarding Physician Peer Review.

I am a great fan of your blog and I never miss an article. But, as a man who has worked for 12 years with specialists who were sham peer reviewed, you and I part company on some of your conclusions in this article.

I always ask a doctor under peer review "how many malpractice suits have you had?" The answer is almost always, "NEVER". So, a specialist who has a sparkling reputation often for decades suddenly went bad? And, this same doctor is in good standing at the other hospitals that he has privileges at?

I always wonder how many med mal suits the other doctors have?

Richard Willner
[email protected]

[phitteeFeedly]

Original Opinion of January 8, 1997, Reported at: 1997 Fla. App. LEXIS 685.Spencer v. State, 615 So. 2d 688 (Fla. 1993) (requiring additional evidentiary hearing be held after the jury makes a sentence recommendation, to afford the defendant, defense counsel, and the State an opportunity to be heard and present additional evidence).It appearing to the Court that it is without jurisdiction, the Petition for Review is hereby dismissed. Jenkins v. State, 385 So. 2d 1356 (Fla. 1980).469 US 873469 U.S. 873;105 S Ct 228105 S. Ct. 228;83 L Ed 2d 15783 L. Ed. 2d 157;1984 US LEXIS 3611984 U.S. LEXIS 361;53 USLW 324153 U.S.L.W. 3241Editorial Information: Prior Historyhttp://www.pursonalityplus.com/2012/08/16/selecting-fast-products-of-bankruptcy/ http://www.eranostra.com/2012/08/16/simplifying-quick-plans-of-bankruptcy/ SUPREME COURT OF FLORIDAOn cross-appeal, the Silvas argue that Club Boca was not entitled to any set-off for settlements with prior co-defendants, as they were not pled as Fabre non-parties, placed on the verdict form, nor determined by the jury to be liable. We affirm based on D'Angelo.Under the charter to the Bermudian corporation, the charterers hired the vessel for a period of one year with an option to renew for up to two additional periods of six months. The charter permits the vessel to be employed in trade between ports in the Caribbean, including the United States, "as the Charterers shall direct." Carib-USA provides the crew for the vessel, but the charterer can request changes upon complaint by the owner. Carib-USA receives $ 60,000 per month in Bahamian currency from the charterer for the lease of the vessel, which is wired from Tropical Shipping's Bahamian bank and deposited in Carib-USA's Bahamian accounts. There is no forum selection clause in the contract, but disputes are to be arbitrated in New York.Counsel John P. Brooks of Jones & Langdon, P.A., Gainesville, for Appellant.Opinion
http://www.read-books-online.info/technology/technology-electronics/uncovering-no-hassle-programs-regarding-bankruptcy/ http://www.postarticleshere.com/major-aspects-personal-bankruptcy/

[phitteeFeedly]

Under Fla. Stat. ch. 768.21(6)(b), a hospital lien can only attach where the estate of the decedent in any action it might bring against the tort-feasor is entitled to recover for medical expenses. Orlando Regional Medical Center, Inc. v. Estate of Heron, 596 So.2d 1078, 1992 Fla. App. LEXIS 1847 (Feb. 28, 1992), review denied by 604 So.2d 487, 1992 Fla. LEXIS 1559 (Fla. 1992). It was error to deny motion to suppress evidence where police lacked reasonable suspicion to stop defendant; police were required, under Fla. Stat. ch. 901.151(2), to articulate a reasonable belief that defendant had committed, was committing, or was about to commit a criminal offense. Davis v. State, 606 So.2d 460, 1992 Fla. App. LEXIS 10594 (Oct. 12, 1992). Insurance Law : Claims & Contracts : Costs & Attorney Fees : General Overview http://canada-directory-online.info/eliptical-traing-so-you
Governments : Legislation : Statutes of Limitations : Time Limitations
http://merleescalero.blog.com/2012/06/27/considering-effective-how-to-get-rid-of-manboobs-methods/

[Gursheel S. Dhillon]

It is not uncommon to see "non-Caucasian" doctors picked on by their Caucasian counter-parts especially in the South

The exact same issue occurred with me and the Hospital conspired with medical board to attack my licence.

I have set up a Discrimination in Health Care Group on Linked In and would like everyone who has faced discrimination to join.

I know that unfortunately it does link the complainant on social network however if we don't do this then there is no impetus for change.

Pooja, my family was destroyed and it goes much further than that, in the Asian Community Reputation is everything and when a doctor loses his licence the whole family faces embarrassment and my parents have been devestated.

[GREG PICHE']

Thank you for your comment. I am afraid that your circumstance is all too common. You may also be interested in my recent book on Sham Peer Review. See www.gregorypiche.com

[Physician underdistress]

As a young physician and with an independent practice I was placed under a unfair peer review. The motives of this review were not clear to me and the scrutiny and case review did not make much sense. Now I am faced with a situation of a report due to a precautionary suspension. You would think that a physician would be judged by his outcomes and not by a lack of documentation. My patients love me and despite the allegations of this hospital my referrals continue to send me patients. I work at other hospitals, which did not see the issues that this institution saw. I was told by my peers at that institution that I was being picked on and that they perceived a turf issue. In a short period of time at that institution I became popular and was seen as a one stop shop. I applied all that I learned and my personal skills surely helped in the growth of my practice. I really can not believe what has happened to me and I am afraid for the future of my young family and my career that has been my devotion and love.

[pooja]

the info which are u spreading is so nice where these things to be kept in the mind