Sham peer review

Last updated July 07, 2024

Sham peer review or malicious peer review is a name given to the abuse of a medical peer review process to attack a doctor for personal or other non-medical reasons.^[1] The American Medical Association conducted an investigation of medical peer review in 2007 and concluded that while it is easy to allege misconduct and 15% of surveyed physicians indicated that they were aware of peer review misuse or abuse, cases of malicious peer review able to be proven through the legal system are rare.^[2]

Legal basis

Those who maintain that sham peer review is a pervasive problem suggest that the Healthcare Quality Improvement Act (HCQIA) of 1986 allows sham reviews by granting significant immunity from liability to doctors and others who participate in peer reviews. This immunity extends to investigative activities as well as to any associated peer review hearing, whether or not it leads to a disciplinary (or other) action.

The definition of a peer review body can be broad, including not only individuals but also (for example, in Oregon), "tissue committees, governing bodies or committees including medical staff committees of a [licensed] health care facility...or any other medical group in connection with bona fide medical research, quality assurance, utilization review, credentialing, education, training, supervision or discipline of physicians or other health care providers."^[3]

The California legislature framed its statutes so as to allow "aggrieved physicians the opportunity to prove that the peer review to which they were subject was in fact carried out for improper purposes, i.e., for purposes unrelated to assuring quality care or patient safety". These statutes allow that a peer review can be found in court to have been improper due to bad faith or malice, in which case the peer reviewers' immunities from civil liability "fall by the wayside".^[4]

Those who practice sham peer review could draw out the process by legal maneuvering, and the fairness of a peer review that has been unduly delayed has been called into question. Many medical staff laws specify guidelines for the timeliness of peer review, in compliance with JCAHO standards.

Medical peer review process

The medical peer review system is a quasi-judicial one. It is modeled in some ways on the grand jury / petit jury system. After a complainant asks for an investigation, a review body is assembled for fact-finding. This fact-finding body, called an ad hoc committee, is appointed by the medical Chief of Staff and is composed of other physician staff members chosen at the Chief of Staff's discretion. This ad hoc committee then conducts an investigation in the manner it feels is appropriate. This may include a review of the literature or an outside expert. Thus, there is no standard for impartiality and specifically no standard for due process in the "peer-review 'process' ."

Physicians that are indicted (and sanctioned) have the right to request a hearing. At the hearing, counsel is allowed. A second independent panel of physicians is chosen as the petit jury, and a hearing officer is chosen. The accused physician has the option to demonstrate conflicts of interest and attempt to disqualify jurors based on reasonable suspicions of bias or conflicts of interest in a voir dire process.

Although some medical staff bodies utilize the hospital attorney and accept hospital funds to try peer review cases, the California Medical Association discourages this practice. California has enacted legislation formally requiring the separation of the hospital and medical staff.^[5]

Alleged cases

Some physicians allege that sham peer review is often conducted in retaliation for whistleblowing, although one study in 2007 suggested that such events were rare.^[2]

Khajavi v. Feather River Anesthesiology Medical Group

Those who disagree with the AMA point to the case of Nosrat Khajavi. In 1996, Khajavi, an anesthesiologist in Yuba City, California, disagreed with a surgeon over the appropriateness of cataract surgery for a patient and refused to attend during the procedure. Khajavi was subsequently terminated from his anesthesia group. He sued for wrongful termination under California Business & Professions' Code Section 2053, and the suit was allowed by the California Court of Appeals. In 2000, the court held that Khajavi was not protected from termination on the basis of advocating for what he felt was medically appropriate care. The court did not rule on the merits of the dispute.^[6]^[7]

Mileikowsky v. Tenet

A doctor was allegedly subject to multiple hearings for the same charges, and his rights to an expedited hearing were allegedly denied while a suspension was in place. On May 15, 2001, the California Medical Association filed an amicus curiae brief to emphasize legal protections meant to prevent physicians being arbitrarily excluded from access to healthcare facilities based on mechanisms such as summary suspension without a speedy hearing. This case was decided on April 18, 2005. The court ruled that the hearing officer in the case could indeed terminate the physician's peer review hearing based on grounds that the physician refused to cooperate on procedural and other matters necessary for the good conduct of the proceedings. Thus, the physician lost his membership and privileges at the hospital.^[8]^[9] Ironically, the same physician was brought into a peer review hearing at another facility a short time later. The hearing officer in that case also terminated the proceedings, this time due to the physician's failure to turn over certain evidence for use in the hearing. The physician challenged the termination through the court system arguing, contrary to the Tenet appellate court ruling, that California's peer review statutes never intended the hearing officer in peer review hearings to have such powers of termination. The California Supreme Court reviewed the case and agreed in April 2009. The High Court ruled, among other things, that peer review hearing officers must defer the question of termination to the panel of physicians who sit in judgment of each peer review hearing.^[10]

Roland Chalifoux

Roland Chalifoux, member of an advocacy organisation called the Semmelweis Society, had his medical license revoked in Texas in 2004 after numerous incidents including the death of a patient. The Texas State Board of Medical Examiners stated that Chalifoux's practices "constitute such a deviation from the standard of care that revocation of his license is the only sanction that will adequately protect the public".^[11] Chalifoux subsequently secured permission to practice in West Virginia,^[12] and alleges that the Texas board's actions constitute sham peer review.

Charles Williams, MD

Six years after Charles Williams, MD, an anesthesiologist was summarily suspended by University Medical Center of Southern Nevada, a federal jury in Las Vegas awarded Dr. Williams $8.8 million as compensation for the due process violations he experienced in his sham peer review.^[13] Before the trial, which began May 16, U.S. District Judge Philip Pro made a finding that Ellerton and UMC's medical staff had violated Williams' due process rights. That left only the question of damages for the jury. This case appears to be the highest jury verdict in the nation for sham peer review which has not been overturned.

Richard Chudacoff, MD

On May 28, 2008, without any notice or opportunity to be heard, the Medical Staff of UMC suspended Dr. Chudacoff's clinical privileges. As a result of this, UMC filed a report against Dr. Chudacoff with the National Practitioner Data Bank claiming that Dr. Chudacoff was a risk to patient safety and had inadequate skills. This led to the virtual destruction of Dr. Chudacoff's career. Dr. Chudacoff sued. U.S. District Court Judge Edward Reed opined that, in Nevada, a physician's hospital privileges are a constitutionally protected property right.^[14] The Ninth Circuit Court of Appeals then affirmed that Dr. Chudacoff's due process rights were violated by UMC. As well, the Medical Executive members lost their immunity under the HCQIA for failure to follow their bylaws. The case was settled out of court in favor of Dr. Chudacoff, under the cloak of confidentiality.^[15]

Development of the Patient Safety Organization (PSO)

The Patient Safety and Quality Improvement Act of 2005 (Public Law 109-41) allows for the creation of Patient Safety Organizations, quality of care committees that can act in parallel with peer review boards. PSOs were authorized to gather information to be analyzed by hospital administrators, nurses, and physicians as a tool for systems failure analysis. They may be used by any healthcare entity except insurance companies, but must be registered with the AHRQ wing of the US Department of Health and Human Services.

In PSOs, root cause analysis and "near misses" are evaluated in an attempt to avert major errors. Participants in PSOs are immune from prosecution in civil, criminal, and administrative hearings.^[16]

Related Research Articles

<span class="mw-page-title-main">Emergency medicine</span> Medical specialty concerned with care for patients who require immediate medical attention

Emergency medicine is the medical speciality concerned with the care of illnesses or injuries requiring immediate medical attention. Emergency physicians specialize in providing care for unscheduled and undifferentiated patients of all ages. As first-line providers, in coordination with emergency medical services, they are primarily responsible for initiating resuscitation and stabilization and performing the initial investigations and interventions necessary to diagnose and treat illnesses or injuries in the acute phase. Emergency medical physicians generally practice in hospital emergency departments, pre-hospital settings via emergency medical services, and intensive care units. Still, they may also work in primary care settings such as urgent care clinics.

Proposition 215, or the Compassionate Use Act of 1996, is a California law permitting the use of medical cannabis despite marijuana's lack of the normal Food and Drug Administration testing for safety and efficacy. It was enacted, on November 5, 1996, by means of the initiative process, and passed with 5,382,915 (55.6%) votes in favor and 4,301,960 (44.4%) against.

The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts. Since 1850, the court has issued many influential decisions in a variety of areas including torts, property, civil and constitutional rights, and criminal law.

A subpoena duces tecum, or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. In some jurisdictions, it can also be issued by legislative bodies such as county boards of supervisors.

Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Claims of medical malpractice, when pursued in US courts, are processed as civil torts. Sometimes an act of medical malpractice will also constitute a criminal act, as in the case of the death of Michael Jackson.

A Certified Registered Nurse Anesthetist (CRNA) is a type of advanced practice nurse who administers anesthesia in the United States. CRNAs account for approximately half of the anesthesia providers in the United States and are the main providers (80%) of anesthesia in rural America. Historically, nurse anesthetists have been providing anesthesia care to patients for over 150 years since the American Civil War and the CRNA credential came into existence in 1956. CRNA schools issue a doctorate of nursing anesthesia degree to nurses who have completed a program in anesthesia, which is 3 years in length.

The Lanterman–Petris–Short (LPS) Act regulates involuntary civil commitment to a mental health institution in the state of California. The act set the precedent for modern mental health commitment procedures in the United States. The bipartisan bill was co-authored by California State Assemblyman Frank D. Lanterman (R) and California State Senators Nicholas C. Petris (D) and Alan Short (D), and signed into law in 1967 by Governor Ronald Reagan. The Act went into full effect on July 1, 1972. It cited seven articles of intent:

Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14, was a case in which the Supreme Court of California held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. The original 1974 decision mandated warning the threatened individual, but a 1976 rehearing of the case by the California Supreme Court called for a "duty to protect" the intended victim. The professional may discharge the duty in several ways, including notifying police, warning the intended victim, and/or taking other reasonable steps to protect the threatened individual.

New York State Department of Health Code, Section 405, also known as the Libby Zion Law, is a regulation that limits the amount of resident physicians' work in New York State hospitals to roughly 80 hours per week. The law was named after Libby Zion, the daughter of author Sidney Zion, who died in 1984 at the age of 18. Sidney blamed Libby's death on overworked resident physicians and intern physicians. In July 2003, the Accreditation Council for Graduate Medical Education adopted similar regulations for all accredited medical training institutions in the United States.

In the United States, anesthesia can be administered by physician anesthesiologists, an anesthesiologist assistant, or nurse anesthetist.

Adventist Health Columbia Gorge is a hospital complex in The Dalles, Oregon, United States.

The Healthcare Quality Improvement Act of 1986 (HCQIA) was introduced by Congressman Ron Wyden from Oregon.

The California Medical Association (CMA) is a professional organization based in California that advocates on behalf of nearly 50,000 physicians in legislative, legal, regulatory, economic, and social issues. The organization was founded in 1856 and is a member of the American Medical Association.

Pascack Valley Medical Center formerly known as Hackensack University Medical Center at Pascack Valley is a full-service boutique hospital located in Westwood, New Jersey, at the site of the former Pascack Valley Hospital. Owned 35% by Hackensack University Medical Center (HackensackUMC) and 65% by Ardent Health Services, HackensackUMC at Pascack Valley serves the Pascack Valley and Northern Valley communities in northern Bergen County. In 2021 it was given a grade A by the Leapfrog patient safety organization.

Landeros v. Flood was a 1976 court case in the state of California involving child abuse and alleged medical malpractice.

Clinical peer review, also known as medical peer review is the process by which health care professionals, including those in nursing and pharmacy, evaluate each other's clinical performance. A discipline-specific process may be referenced accordingly.

The Texas Advance Directives Act (1999), also known as the Texas Futile Care Law, describes certain provisions that are now Chapter 166 of the Texas Health & Safety Code. Controversy over these provisions mainly centers on Section 166.046, Subsection (e),¹ which allows a health care facility to discontinue life-sustaining treatment ten days after giving written notice if the continuation of life-sustaining treatment is considered futile care by the treating medical team.

Certified anesthesiologist assistants (CAAs) are master’s degree level non-physician anesthesia care providers. CAAs are members of the anesthesia care team as described by the American Society of Anesthesiologists (ASA). This designation must be disambiguated from the Certified Clinical Anesthesia Assistant (CCAA) designation conferred by the Canadian Society of Respiratory Therapists. All CAAs possess a baccalaureate degree, and complete an intensive didactic and clinical program at a postgraduate level. CAAs are trained in the delivery and maintenance of most types of anesthesia care as well as advanced patient monitoring techniques. The goal of CAA education is to guide the transformation of student applicants into competent clinicians.

Team Health Holdings, Inc., stylized as TeamHealth, is a physician practice in the U.S. founded in 1979 and based in Knoxville, Tennessee, pursuing medical outsourcing. Originally a provider of emergency department services, it is outsourcing physicians in emergency medicine, hospital medicine, anesthesiology, critical care, obstetrics, orthopedic surgery, general surgery, ambulatory care, post-acute care and medical call centers to approximately 2,900 acute and post-acute facilities nationwide. After numerous acquisitions in the 2010s it has become the largest market share in U.S. physician outsourcing. TeamHealth has affiliated partner companies, including D&Y Locum Tenens, Spectrum Healthcare Resources and AccessNurse.

Los Angeles County Medical Association (LACMA) is a professional organization representing physicians from every medical specialty and practice setting as well as students, interns and residents. The organization was founded in 1871 and is a constituent of the California Medical Association (CMA). It advocates quality care for all patients and provides services to meet the professional needs of its physician members. The group serves to represent its professional members in public policy, government relations, and community relations. LACMA, together with CMA physicians, strives to preserve and protect the noble pursuit of healthcare delivery.

References

↑ Roland Chalifoux, Jr (2005). "So What Is a Sham Peer Review?". Medscape General Medicine. 7 (4): 47. PMC 1681729 . PMID 16614669.
1 2 "Inappropriate Peer Review. Report of the Board of Trustees of the American Medical Association."
↑ "JCAHO Periodic Performance Review". Legal Bulletin of Oregon Association of Hospital and Health Systems. Archived from the original on September 28, 2007.
↑ Greg Abrams, Esq. (May–June 2006). "Attacking Bad Faith Peer Review: Is It a SLAPP?". Sierra Sacramento Valley Medicine. 57 (3). Archived from the original on 2011-07-21.
↑ Bruce Adornato, MD (March 2005). "Column by the President of the Medical Staff: Purple fingers, Purple toes". Stanford Hospital and Clinics Medical Staff Updates.
↑ Arnold MS (2000). ""Employment: Physician Not Protected From Termination For Advocating Medically Appropriate Health Care"—Khajavi v. Feather River Anesthesia Medical Group, 100 Cal. Rptr. 2d 627 (Cal. App. 3d 2000)". American Journal of Law & Medicine .
↑ California Appeals Court (October 10, 2000). "Khajavi v. Feather River Anesthesia Medical Group, Inc".{{cite journal}}: Cite journal requires |journal= (help)
↑ Mileikowsky v. Tenet Healthsystem (April 18, 2005) 128 Cal.App.4th 531, 27 Cal.Rptr.3d 171.
↑ "Health Policy in the Courts – California Medical Association's participation in Amicus Curiae Briefs – January 2007" (PDF). California Medical Association. January 2007.
↑ Mileikowsky v. West Hills Hosp. and Medical Center (2009) 45 Cal.4th 1259, 203 P.3d 1113, 91 Cal.Rptr.3d 516.
↑ Horvit M and Jarviss J, "Board revokes doctor's license," Fort Worth Star-Telegram (TX), 12 June 2004, p.1B
↑ Mitchell M, "Former Texas neurosurgeon granted licenses in West Virginia," Fort Worth Star-Telegram (TX), 7 July 2005
↑ Thevenot, C., "Jury awards $8.8 million to anesthesiologist," Las Vegas Review-Journal (NV), 26 May 2011, http://www.reviewjournal.com/news/crime-courts/jury-awards-88-million-anesthesiologist
↑ Chudacoff v. Univ. Med. Ctr. of S. Nev., 609 F.Supp. 2d 1163, 1172–73 (D. Nev. 2009)
↑ Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143 (9th Cir. 2011)
↑ William E. Fassett, PhD (2006). "Patient Safety Organizations". Ann Pharmacother. 40 (5): 917–924. Retrieved 2007-06-10.