Peer Review

The need for self-regulation has been promoted among health care professionals for decades. Various efforts have been undertaken with inconsistent results. Currently, several venues exist for peer review among providers, and these primarily involve physicians on numerous fronts and nurses within healthcare facilities.

The Joint Commission now requires accredited members to meet certain minimum standards as a part of accreditation. The Health Care Quality Improvement Act (HCQIA) of 1986 mandated that if an organization is a “health care entity,” it must undertake peer review, and in doing so, must meet certain minimum standards. The National Practitioner Data Bank (NPDB) was established as a central repository for the reporting of certain disciplinary actions by “healthcare entities” and afforded access to those reports to the same kind of entities.

In addition to hospital based peer review and state licensure board investigations, there is now peer review or quality assurance activity by Medicare, Medicaid, managed care entities, and physician associations. The implications of these reviews may now include assessment not only of standard of care, but behavioral issues, and financial recoupment.

Peer review is a challenging and often frustrating area of practice for physicians or nurses who find themselves the subject of such proceedings. It has historically been plagued by procedurally unfair bylaw provisions which may purport to offer a fair hearing process, yet lack of reasonable and fair procedures (e.g. lack of any discovery or limited access to medical records, inability to compel witnesses to attend the hearing, etc.), medical politics, and economic credentialing. The latest “fad” or misuse of the peer review system is behavioral control under a “Disruptive Physician” label for issues regarding differences of clinical opinion or disputes or criticisms regarding hospital processes which, in the typical case, is broadly defined and subjectively applied. Sham peer review actions are also sometimes used to achieve financial goals of the hospital Administration or Medical Staff and the defense of such baseless corrective actions is challenging where there is an unspoken and unproven agenda which is driving the decisions.

Unfortunately there are often practices within the hospital industry which can effectively destroy any chance of a physician being treated fairly in a peer review Fair Hearing as is required by law. One common practice may occur when the hospital’s attorney gives legal advice to the Medical Staff leadership, such as the Medical Executive or Credentialing committees. The hospital attorney’s duty of loyalty may be compromised by the conflict of interest that may exist since the hospital attorney customarily advises and is compensated by the hospital administration. The Medical Staff leadership is highly influenced by the advice of hospital counsel, yet, because of the conflict of interest, the opinions and advice of the hospital attorney commonly reflects the views and desires of the hospital administration and not necessarily the best interests of the Medical Staff and its membership, the physicians. Medical staffs are commonly informed that they have broad legal protections for peer review action, however, physicians and other medical staff are not insulated from governmental review of hospital actions, policies, or situations where the practice of medicine and independent medical judgment or patient safety is being compromised under the guise of peer review or for improper financial reasons. This problematic area can be avoided if the Medical Staff retains independent counsel, but it is rarely obtained due to the Medical Staff’s lack of funding and the desire to follow the course of least resistance.

Another recent tactic employed by hospital administration and Medical Staff leadership is to offer a targeted physician an agreement called an Ongoing Professional Practice Evaluation (OPPE), Focused Professional Practice Evaluation (FPPE), Practice Agreement or a Confidential Professional Practice Agreement or similar titles. In some circumstances these agreements can be warranted and justified. However, often these agreements create a pathway to termination of a physician from the Medical Staff which bypasses all Fair Hearing and due process rights of the physician. Practice Agreements commonly require the physician to undergo a medical or competency evaluation, attend specific CME topics, have a focused chart review, utilize a proctor, or even require the implementation of a practice monitor. These matters usually do not rise to the level of a Corrective Action as defined in HCQIA or in many hospital bylaws if they do not create a precondition to provide services to a patient, so they will not cause a report to the National Practitioner Databank. However, commonly a physician will often be coerced into signing such agreements with a threat of a possibly reportable Summary Suspension or other action if he or she refuses.

In some situations, we may advise the physician not to sign the FPPE, OPPE or a Practice Agreement because such agreements or hospital bylaws may entail the waiver of any rights to due process or a Fair Hearing process. If the agreement is signed, then any subsequent incident can be used as justification to suspend the physician. The agreement usually will have waived the physician’s Fair Hearing rights and thus the physician will be left without recourse. In some cases, no report is sent to the NPDB because the termination was done under the rights of the hospital contained in the agreement and not out of a specific quality of patient care concern. In other cases the hospital may consider the matter reportable to the NPDB. All physicians should be aware that a copy of the NPDB report is automatically filed with the Texas Medical Board. Also, to “resign while under investigation” or to not renew credentialing while under “investigation’ is also a reportable event to the NPDB. Whether a physician is under “investigation” at any time may be a complex issue. Many physicians are unfortunately reported to the NPDB and Texas Medical Board with reports that are incorrect, false and/or deliberately disparaging. In some instances these reports are motivated by other than good faith or the desire to improve patient care. In such instances, it is advisable to seek competent Health Care Law counsel to carefully word a Practitioner’s Statement or to prosecute an appeal to the Secretary of HHS.

We have seen these practice agreements mechanisms employed many times to the extreme prejudice of the affected physician. Also, when the physician refuses to sign such agreements, the hospital does not summarily suspend them, but instead writes them a “Letter of Expected Compliance” which typically lists all the items which were contained in the offered Practice Agreement. Such a letter is not a binding obligation on the physician’s part, but the hospital may file it in the physician’s credentials file and may report such action in other credentialing inquiries.

For peer review “adverse actions”, physicians will usually have the opportunity to request an appeal or “fair hearing” before a hospital panel, hearing examiner, or a combination of the two hearing types. However, physicians should not place undue reliance on the terminology “fair hearing” as many of the procedural and evidentiary safeguards found in other legal proceedings are commonly not available in this process. Legally, peer review proceedings are given broad protections, however, creation of a factual and legal record may be of significant importance in any later court review or Texas Medical Board proceeding.

We recommend that any physician who is having issues within the Medical Staff at the hospital where they practice should retain qualified Health Care Law attorneys to represent them at the very earliest time possible, and do not sign any document without first consulting with that attorney. Many medical malpractice insurance policies also now provide coverage for the legal fees incurred in a medical staff peer review matter.

Attorneys at Sharp & Cobos, L.L.P. have experience with all types of peer review in health care facilities, professional associations, managed care entities, Medicare, and Medicaid. We have prepared “physician friendly” Medical Staff Bylaws, and have served as independent hearing officers in hospital peer review. We are committed to a fair and reasonable process, enacted with the view to preserve the physician’s career and avoid subjectively applied standards and harsh punitive action. We believe that the goal of legitimate peer review is to correct, not punish, but only after a fair and full opportunity to determine the facts. We practice in this area because its challenges are many and the imbalance of power of the reviewing entities can be overwhelming to the inexperienced and unrepresented physician. We understand that there is significant stress and cost to the practitioner under review and always seek to advance the client’s short term and long term goals after full evaluation of the issues and options.