Medical peer review

Question: Which of the following statements regarding medical peer review is best?

A) The purpose is to evaluate quality of patient care and monitor physician performance.

B) A physician under peer review must be accorded due process, which at a minimum includes notice and opportunity to be heard.

C) Proceedings are confidential and nondiscoverable.

D) Medical peer review has been criticized for being biased, inconsistent, and lacking transparency.

E) All are correct.

Answer: E. Medical peer review, a requirement of the Joint Commission, has been called the cornerstone of quality assurance. A committee of doctors typically reviews applications for hospital staff membership, reappointments, and medical care rendered. To encourage candid, effective, and meaningful discussions, federal and state laws shield committee members from liability by granting qualified immunity and protecting the confidential information from discovery.

Due process, antitrust liability, and records protection are three issues in peer review deserving of special attention.

The requirements of procedural due process are typically spelled out in hospital medical staff bylaws. In addition, peer review deliberations and decisions are expected, as specifically outlined at Yale-New Haven (Conn.) Hospital, to be consistent, timely, rational, defensible, balanced, and useful.¹

One of the earlier litigated cases was Silver v. Castle Memorial Hospital,² which involved a Hawaii neurosurgeon whose hospital privileges were not renewed after a 1-year probationary period. The court found that prior to his termination, Dr. Silver was never provided with specific written charges as to why his performance was not deemed acceptable, and the hospital board made its decision prior to an ineffective hearing. The court emphasized that due process required fair and thorough consideration. The doctor must be on notice that a hearing is available to him, and be given timely notification sufficiently prior to the hearing for him to adequately prepare a defense.

Other requirements include the provision of a written statement specifying the reasons for any adverse decision, which must come from substantial evidence produced at the hearing. As such, the board cannot rely on ex parte communications that were not made known to the doctor in question.

The doctor who is judged wanting in peer review not infrequently files an antitrust lawsuit in retaliation, claiming an anticompetitive intent.

The most publicized case is Patrick v. Burget,³ which dealt with an adverse peer review action against Dr. Timothy Patrick, a vascular surgeon. His decision to leave the Astoria Clinic in Oregon for an independent practice was followed by revocation of his hospital privileges for alleged substandard care, but Dr. Patrick claimed that the medical staff’s true purpose was to eliminate him as a competitor.

After Dr. Patrick won a $2.1 million jury verdict, the hospital appealed the decision and was initially successful in invoking the so-called "state action doctrine" immunity against antitrust liability. However, the U.S. Supreme Court unanimously found that the "state action doctrine" required proof of active state supervision of the peer review process, which was not evident in the case.

Following Burget, the U.S. Congress enacted the Health Care Quality Improvement Act of 1986,⁴ in the belief that the threat of liability under federal antitrust laws unreasonably discouraged physicians from participating in effective professional peer review. The act confers immunity upon participants sitting in judgment so long as the action taken was in the furtherance of quality health care, and the process carried out in a legitimate fashion with appropriate due process safeguards. These safeguards include, among others, a reasonable effort to obtain the facts, an adequate notice and hearing procedure, a reasonable belief that the action was warranted, and reporting any adverse outcome to the National Practitioner Data Bank.

A third issue in peer review involves disclosure. State statutes universally require that peer review be carried out in confidence, and committee minutes are to be nondiscoverable. This is to allow participants to speak freely and candidly without risk of legal discovery in the event there is an accompanying or subsequent malpractice lawsuit.

However, motions by plaintiff attorneys for production of supposedly protected documents may occasionally prove successful. Where federal laws conflict with state statutes, one federal court has asserted that its interests in "ascertaining the truth through an examination of all the available facts" would trump a state’s concern for privacy.

Courts have also found certain clinical information to be beyond statutory protection. For example, a Missouri appellate court ordered the production of hospital quality assurance and infection control records sought by the plaintiff. The Connecticut Supreme Court has made a similar determination, and the Nevada Supreme Court has ruled that hospital incident reports are not covered by the state peer review privilege.

What about an aggrieved physician who sues the committee members and hospital? Is he/she entitled to the records?

The Supreme Court of Pennsylvania has held that there was no statutory protection of such records where a physician challenged his own peer review process, because the statute’s intent was directed only at preventing disclosure to outside litigants in negligence actions.

West Covino Hospital v. Superior Court⁵ went even further. In that malpractice case against a surgeon, the California Supreme Court allowed a physician who served on the peer review committee to voluntarily testify about the confidential proceedings, to the obvious distress of the hospital as well as other members who had neither volunteered nor agreed to such disclosure. The court reasoned that the confidentiality rule was intended to preclude involuntary testimony, not that given voluntarily by one with access to peer review information.

Unfortunately, the decision may spawn unintended consequences. For example, the Joint Commission has instituted confidential medical error reporting systems designed to improve patient safety. These programs are unlikely to go very far if physicians were to fear disclosure without consent.

Peer review is an integral part of medical practice, and self-scrutiny is a laudable expression of quality assurance. Professional organizations such as the Joint Commission and the American Medical Association understandably support the practice.

The AMA, for example, subscribes to the view that peer review, which "balances the physician’s rights to exercise medical judgment freely with the obligation to do so wisely and temperately," is both necessary and ethical, so long as principles of due process are observed.⁶

Still, some observers both inside and outside the profession are skeptical. They believe that deliberations by a commonly transient, unschooled, and inexperienced committee sitting in judgment are too often tainted by conflicts of interest, refusal to censure a colleague, or a punitive agenda based on biases and/or anticompetitive motives.

In 2008, Lumetra, a nonprofit health care consulting organization, completed a legislature-sponsored study of medical peer review in the state of California.⁷ It found a "broken" system that needed a "major fix." There were significant inconsistencies in the way entities conducted peer review, variations in the selection and application of criteria, and confusion over reporting requirements. The authors felt that these variations could result in the perpetuation of the provision of substandard care, which in turn imperiled public safety.

Among its recommendations was a redesign of the peer review process to include establishing a separate, independent peer review organization with no vested interest in the review outcome except the protection of the public, improved physician education of the process, and public disclosure.

References

1. Yale-New Haven Hospital, Department of Physician Services: www.ynhh.org/vSiteManager/Upload/Images/Professionals/OPPE.pdf.

2. Silver v. Castle Memorial Hospital, 497 P.2d 564 (Haw. 1972).

3. Patrick v. Burget, 108 S. Ct. 1658 (1988).

4. 42 U.S.C.A. Sections 11101-11152.

5. West Covino Hospital v. Superior Court, 718 P.2d 119 (Cal 1986).

6. Code of Medical Ethics of the American Medical Association, 2012-2013 edition, section 9.10.

7. Comprehensive Study of Peer Review in California Final Report. Available at www.mbc.ca.gov/publications/peer_review.pdf.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, "Medical Malpractice: Understanding the Law, Managing the Risk," and his 2012 Halsbury treatise, "Medical Negligence and Professional Misconduct." For additional information, readers may contact the author at siang@hawaii.edu.

Question: Which of the following statements regarding medical peer review is best?

A) The purpose is to evaluate quality of patient care and monitor physician performance.

B) A physician under peer review must be accorded due process, which at a minimum includes notice and opportunity to be heard.

C) Proceedings are confidential and nondiscoverable.

D) Medical peer review has been criticized for being biased, inconsistent, and lacking transparency.

E) All are correct.

Answer: E. Medical peer review, a requirement of the Joint Commission, has been called the cornerstone of quality assurance. A committee of doctors typically reviews applications for hospital staff membership, reappointments, and medical care rendered. To encourage candid, effective, and meaningful discussions, federal and state laws shield committee members from liability by granting qualified immunity and protecting the confidential information from discovery.

Due process, antitrust liability, and records protection are three issues in peer review deserving of special attention.

The requirements of procedural due process are typically spelled out in hospital medical staff bylaws. In addition, peer review deliberations and decisions are expected, as specifically outlined at Yale-New Haven (Conn.) Hospital, to be consistent, timely, rational, defensible, balanced, and useful.¹

One of the earlier litigated cases was Silver v. Castle Memorial Hospital,² which involved a Hawaii neurosurgeon whose hospital privileges were not renewed after a 1-year probationary period. The court found that prior to his termination, Dr. Silver was never provided with specific written charges as to why his performance was not deemed acceptable, and the hospital board made its decision prior to an ineffective hearing. The court emphasized that due process required fair and thorough consideration. The doctor must be on notice that a hearing is available to him, and be given timely notification sufficiently prior to the hearing for him to adequately prepare a defense.

Other requirements include the provision of a written statement specifying the reasons for any adverse decision, which must come from substantial evidence produced at the hearing. As such, the board cannot rely on ex parte communications that were not made known to the doctor in question.

The doctor who is judged wanting in peer review not infrequently files an antitrust lawsuit in retaliation, claiming an anticompetitive intent.

The most publicized case is Patrick v. Burget,³ which dealt with an adverse peer review action against Dr. Timothy Patrick, a vascular surgeon. His decision to leave the Astoria Clinic in Oregon for an independent practice was followed by revocation of his hospital privileges for alleged substandard care, but Dr. Patrick claimed that the medical staff’s true purpose was to eliminate him as a competitor.

After Dr. Patrick won a $2.1 million jury verdict, the hospital appealed the decision and was initially successful in invoking the so-called "state action doctrine" immunity against antitrust liability. However, the U.S. Supreme Court unanimously found that the "state action doctrine" required proof of active state supervision of the peer review process, which was not evident in the case.

Following Burget, the U.S. Congress enacted the Health Care Quality Improvement Act of 1986,⁴ in the belief that the threat of liability under federal antitrust laws unreasonably discouraged physicians from participating in effective professional peer review. The act confers immunity upon participants sitting in judgment so long as the action taken was in the furtherance of quality health care, and the process carried out in a legitimate fashion with appropriate due process safeguards. These safeguards include, among others, a reasonable effort to obtain the facts, an adequate notice and hearing procedure, a reasonable belief that the action was warranted, and reporting any adverse outcome to the National Practitioner Data Bank.

A third issue in peer review involves disclosure. State statutes universally require that peer review be carried out in confidence, and committee minutes are to be nondiscoverable. This is to allow participants to speak freely and candidly without risk of legal discovery in the event there is an accompanying or subsequent malpractice lawsuit.

However, motions by plaintiff attorneys for production of supposedly protected documents may occasionally prove successful. Where federal laws conflict with state statutes, one federal court has asserted that its interests in "ascertaining the truth through an examination of all the available facts" would trump a state’s concern for privacy.

Courts have also found certain clinical information to be beyond statutory protection. For example, a Missouri appellate court ordered the production of hospital quality assurance and infection control records sought by the plaintiff. The Connecticut Supreme Court has made a similar determination, and the Nevada Supreme Court has ruled that hospital incident reports are not covered by the state peer review privilege.

What about an aggrieved physician who sues the committee members and hospital? Is he/she entitled to the records?

The Supreme Court of Pennsylvania has held that there was no statutory protection of such records where a physician challenged his own peer review process, because the statute’s intent was directed only at preventing disclosure to outside litigants in negligence actions.

West Covino Hospital v. Superior Court⁵ went even further. In that malpractice case against a surgeon, the California Supreme Court allowed a physician who served on the peer review committee to voluntarily testify about the confidential proceedings, to the obvious distress of the hospital as well as other members who had neither volunteered nor agreed to such disclosure. The court reasoned that the confidentiality rule was intended to preclude involuntary testimony, not that given voluntarily by one with access to peer review information.

Unfortunately, the decision may spawn unintended consequences. For example, the Joint Commission has instituted confidential medical error reporting systems designed to improve patient safety. These programs are unlikely to go very far if physicians were to fear disclosure without consent.

Peer review is an integral part of medical practice, and self-scrutiny is a laudable expression of quality assurance. Professional organizations such as the Joint Commission and the American Medical Association understandably support the practice.

The AMA, for example, subscribes to the view that peer review, which "balances the physician’s rights to exercise medical judgment freely with the obligation to do so wisely and temperately," is both necessary and ethical, so long as principles of due process are observed.⁶

Still, some observers both inside and outside the profession are skeptical. They believe that deliberations by a commonly transient, unschooled, and inexperienced committee sitting in judgment are too often tainted by conflicts of interest, refusal to censure a colleague, or a punitive agenda based on biases and/or anticompetitive motives.

In 2008, Lumetra, a nonprofit health care consulting organization, completed a legislature-sponsored study of medical peer review in the state of California.⁷ It found a "broken" system that needed a "major fix." There were significant inconsistencies in the way entities conducted peer review, variations in the selection and application of criteria, and confusion over reporting requirements. The authors felt that these variations could result in the perpetuation of the provision of substandard care, which in turn imperiled public safety.

Among its recommendations was a redesign of the peer review process to include establishing a separate, independent peer review organization with no vested interest in the review outcome except the protection of the public, improved physician education of the process, and public disclosure.

References

1. Yale-New Haven Hospital, Department of Physician Services: www.ynhh.org/vSiteManager/Upload/Images/Professionals/OPPE.pdf.

2. Silver v. Castle Memorial Hospital, 497 P.2d 564 (Haw. 1972).

3. Patrick v. Burget, 108 S. Ct. 1658 (1988).

4. 42 U.S.C.A. Sections 11101-11152.

5. West Covino Hospital v. Superior Court, 718 P.2d 119 (Cal 1986).

6. Code of Medical Ethics of the American Medical Association, 2012-2013 edition, section 9.10.

7. Comprehensive Study of Peer Review in California Final Report. Available at www.mbc.ca.gov/publications/peer_review.pdf.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, "Medical Malpractice: Understanding the Law, Managing the Risk," and his 2012 Halsbury treatise, "Medical Negligence and Professional Misconduct." For additional information, readers may contact the author at siang@hawaii.edu.

Question: Which of the following statements regarding medical peer review is best?

A) The purpose is to evaluate quality of patient care and monitor physician performance.

B) A physician under peer review must be accorded due process, which at a minimum includes notice and opportunity to be heard.

C) Proceedings are confidential and nondiscoverable.

D) Medical peer review has been criticized for being biased, inconsistent, and lacking transparency.

E) All are correct.

Answer: E. Medical peer review, a requirement of the Joint Commission, has been called the cornerstone of quality assurance. A committee of doctors typically reviews applications for hospital staff membership, reappointments, and medical care rendered. To encourage candid, effective, and meaningful discussions, federal and state laws shield committee members from liability by granting qualified immunity and protecting the confidential information from discovery.

Due process, antitrust liability, and records protection are three issues in peer review deserving of special attention.

The requirements of procedural due process are typically spelled out in hospital medical staff bylaws. In addition, peer review deliberations and decisions are expected, as specifically outlined at Yale-New Haven (Conn.) Hospital, to be consistent, timely, rational, defensible, balanced, and useful.¹

One of the earlier litigated cases was Silver v. Castle Memorial Hospital,² which involved a Hawaii neurosurgeon whose hospital privileges were not renewed after a 1-year probationary period. The court found that prior to his termination, Dr. Silver was never provided with specific written charges as to why his performance was not deemed acceptable, and the hospital board made its decision prior to an ineffective hearing. The court emphasized that due process required fair and thorough consideration. The doctor must be on notice that a hearing is available to him, and be given timely notification sufficiently prior to the hearing for him to adequately prepare a defense.

Other requirements include the provision of a written statement specifying the reasons for any adverse decision, which must come from substantial evidence produced at the hearing. As such, the board cannot rely on ex parte communications that were not made known to the doctor in question.

The doctor who is judged wanting in peer review not infrequently files an antitrust lawsuit in retaliation, claiming an anticompetitive intent.

The most publicized case is Patrick v. Burget,³ which dealt with an adverse peer review action against Dr. Timothy Patrick, a vascular surgeon. His decision to leave the Astoria Clinic in Oregon for an independent practice was followed by revocation of his hospital privileges for alleged substandard care, but Dr. Patrick claimed that the medical staff’s true purpose was to eliminate him as a competitor.

After Dr. Patrick won a $2.1 million jury verdict, the hospital appealed the decision and was initially successful in invoking the so-called "state action doctrine" immunity against antitrust liability. However, the U.S. Supreme Court unanimously found that the "state action doctrine" required proof of active state supervision of the peer review process, which was not evident in the case.

Following Burget, the U.S. Congress enacted the Health Care Quality Improvement Act of 1986,⁴ in the belief that the threat of liability under federal antitrust laws unreasonably discouraged physicians from participating in effective professional peer review. The act confers immunity upon participants sitting in judgment so long as the action taken was in the furtherance of quality health care, and the process carried out in a legitimate fashion with appropriate due process safeguards. These safeguards include, among others, a reasonable effort to obtain the facts, an adequate notice and hearing procedure, a reasonable belief that the action was warranted, and reporting any adverse outcome to the National Practitioner Data Bank.

A third issue in peer review involves disclosure. State statutes universally require that peer review be carried out in confidence, and committee minutes are to be nondiscoverable. This is to allow participants to speak freely and candidly without risk of legal discovery in the event there is an accompanying or subsequent malpractice lawsuit.

However, motions by plaintiff attorneys for production of supposedly protected documents may occasionally prove successful. Where federal laws conflict with state statutes, one federal court has asserted that its interests in "ascertaining the truth through an examination of all the available facts" would trump a state’s concern for privacy.

Courts have also found certain clinical information to be beyond statutory protection. For example, a Missouri appellate court ordered the production of hospital quality assurance and infection control records sought by the plaintiff. The Connecticut Supreme Court has made a similar determination, and the Nevada Supreme Court has ruled that hospital incident reports are not covered by the state peer review privilege.

What about an aggrieved physician who sues the committee members and hospital? Is he/she entitled to the records?

The Supreme Court of Pennsylvania has held that there was no statutory protection of such records where a physician challenged his own peer review process, because the statute’s intent was directed only at preventing disclosure to outside litigants in negligence actions.

West Covino Hospital v. Superior Court⁵ went even further. In that malpractice case against a surgeon, the California Supreme Court allowed a physician who served on the peer review committee to voluntarily testify about the confidential proceedings, to the obvious distress of the hospital as well as other members who had neither volunteered nor agreed to such disclosure. The court reasoned that the confidentiality rule was intended to preclude involuntary testimony, not that given voluntarily by one with access to peer review information.

Unfortunately, the decision may spawn unintended consequences. For example, the Joint Commission has instituted confidential medical error reporting systems designed to improve patient safety. These programs are unlikely to go very far if physicians were to fear disclosure without consent.

Peer review is an integral part of medical practice, and self-scrutiny is a laudable expression of quality assurance. Professional organizations such as the Joint Commission and the American Medical Association understandably support the practice.

The AMA, for example, subscribes to the view that peer review, which "balances the physician’s rights to exercise medical judgment freely with the obligation to do so wisely and temperately," is both necessary and ethical, so long as principles of due process are observed.⁶

Still, some observers both inside and outside the profession are skeptical. They believe that deliberations by a commonly transient, unschooled, and inexperienced committee sitting in judgment are too often tainted by conflicts of interest, refusal to censure a colleague, or a punitive agenda based on biases and/or anticompetitive motives.

In 2008, Lumetra, a nonprofit health care consulting organization, completed a legislature-sponsored study of medical peer review in the state of California.⁷ It found a "broken" system that needed a "major fix." There were significant inconsistencies in the way entities conducted peer review, variations in the selection and application of criteria, and confusion over reporting requirements. The authors felt that these variations could result in the perpetuation of the provision of substandard care, which in turn imperiled public safety.

Among its recommendations was a redesign of the peer review process to include establishing a separate, independent peer review organization with no vested interest in the review outcome except the protection of the public, improved physician education of the process, and public disclosure.

References

1. Yale-New Haven Hospital, Department of Physician Services: www.ynhh.org/vSiteManager/Upload/Images/Professionals/OPPE.pdf.

2. Silver v. Castle Memorial Hospital, 497 P.2d 564 (Haw. 1972).

3. Patrick v. Burget, 108 S. Ct. 1658 (1988).

4. 42 U.S.C.A. Sections 11101-11152.

5. West Covino Hospital v. Superior Court, 718 P.2d 119 (Cal 1986).

6. Code of Medical Ethics of the American Medical Association, 2012-2013 edition, section 9.10.

7. Comprehensive Study of Peer Review in California Final Report. Available at www.mbc.ca.gov/publications/peer_review.pdf.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, "Medical Malpractice: Understanding the Law, Managing the Risk," and his 2012 Halsbury treatise, "Medical Negligence and Professional Misconduct." For additional information, readers may contact the author at siang@hawaii.edu.