Tuesday, October 13, 2009

Sham Peer Review: Could This Bad Faith Practice Contribute to the Silence About Healthcare IT Problems?

Health IT problems and failures seem to be rarely heard about in the public media, yet almost every physician and student I know, including those actively involved in HIT projects, privately tell me of many mishaps, traps and difficulties they encounter frequently. Some of these problems impact patient care, up to and including some only-by-the-grace-of-god "near misses" - and worse. They also state they do not want to be quoted publicly for fear of reprisals.

While I'd thought that part of this issue was fear of retaliation from vendors and hospital executives for contractual "defects gag clause" violations, another practice that may be uncomfortably common might also be a significant contributor to the general lack of information about bad HIT: bad faith ("sham") peer review.

Sham peer review or malicious peer review is a name given to the alleged abuse of a medical peer review process to punish a physician for personal or other non-medical reasons (Wikipedia).

This practice is really a show trial for physicians deemed by hospital management to be whistleblowers (e.g., on quality issues) or troublemakers. Sometimes it is used as a tool by competing physicians as well.

The article "Tactics Characteristic of Sham Peer Review" (PDF) by Lawrence R. Huntoon, MD PhD of the American Association of Physicians & Surgeons spells out some of the characteristics of this process:

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.

This article is worth reading in its entirety. It details tactics such as:

  • Ambush Tactic and Secret Investigations - unprepared physician is surprised by what amounts to a well-organized interrogation panel
  • Depriving Targeted Physician of Records Needed to Defend Himself - bureaucracy and red tape prevent a physician from mounting a timely defense.
  • Considering a physician "Guilty Until Proven Innocent" - burden of proving innocence shifted to the accused physician.
  • Numerator-Without-Denominator Tactic - cherry picking of cases to unfairly highlight (unavoidable) adverse outcomes.
  • Misrepresenting the Standard of Care - hospital administration hires 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.
  • Trumped-Up and/or False Charges - "spin" and outright fabrications are deployed.
  • The "Disruptive Physician" Label - this deserves full explanation here:

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 on Accreditation 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. [Unbelievable - Ed.]

Increasingly, the term "disruptive physician" has become synonymous with "mentally impaired" physician. A physician who is wrongfully labeled "disruptive" because he does not agree with 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.

  • Dredging Up Old Cases from the distant past to Justify Summary Suspension
  • Ex-Parte Communications - although such 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.
  • Hospital Attorney or Conflicted Attorney Used to Influence the Peer Review Process - 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.
  • Bias - e.g., 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; etc.

Also see the article "Twelve Signs of Sham Peer Review" here by a healthcare law firm.

Also of interest is "Readers' Responses to the Letter by Chalifoux and the Editorial by Bond in Regard to Sham Peer Review" at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1681969
in response to an article by Roland Chalifoux, Jr, D.O. entitled "So what is a sham peer review?", MedGenMed. 2005;7:47 available at Medscape here.

If the threat of sham peer review is being leveraged against physicians who are deemed "complainers" or "troublemakers", to the point of prosecution for facial expressions deemed "disruptive" by others, than it is understandable how physicians might be reluctant to complain about multimillion dollar HIT projects (the outcomes of which hospital executives' reputations and career advancement may depend upon) that have gone awry.

Finally, I should probably ask: does sham peer review contribute to silence about healthcare C-suite mismanagement and malfeasance in general?

-- SS


Anonymous said...

My reading of the definition of "disruptive physician" in the patient safety literature is that it applies to behaviors toward staff whom the physician outranks and/or toward patients, occurring in a patient care setting (e.g., an operating room) and which can disrupt teamwork, thus leading to worse patient outcomes because staff do not raise safety concerns.

Behaviors not occurring within a treatment context are irrelevant.

How many disruptive behaviors are too many may be subjective, but I think the standard is higher for threatening body language as compared with, say, throwing a scalpel across the OR.

Anonymous said...

Sham peer review or the threat of same undoubtedly silence doctors from reporting adverse events due to HIT.

There are disruptive hospital administrators, you know. They are the ones who buy the HIT and force doctors to use it, subjecting patients to undue risks.

MedInformaticsMD said...

How many disruptive behaviors are too many may be subjective, but I think the standard is higher for threatening body language as compared with, say, throwing a scalpel across the OR.

Can we be plain? Using a person's subjective appraisal of another's "disruptive body language" (overt acts such as assault and battery excluded) as a means to subject someone to career-threatening "investigation" is just asking for abuse, is totalitarian, and alien to the founding principles of this country.

That's a slippery slope that sensible people worthy of healthcare leadership would not want to go anywhere near.

Note the implications of the last statement.

-- SS