Every human institution has the potential for corruption, this includes the medical field.
Corruption usually happens when there’s an element introduced to the system that allows for bad actors to exploit power, namely, the ability to operate under “confidentiality” without accountability or the option for an appeal. A particularly excellent example of this situation in the medical field is something known as “Sham Peer Review”.
This blog article will discuss sham peer review, its causes, its far reaching consequences, and what to do if you’re a medical professional who feels as though this is happening to you.
The History of Medical Peer Review
To discuss the concept of sham peer review, we need to understand peer review itself. Peer review is a concept where the quality of care done by a doctor is reviewed by an “appointed” medical staff committee. The committee reviews whether the diagnosis or treatment given by the doctor is correct. The functional and intended purpose of peer review is to improve the quality of care of patients and obviously patient outcomes.
Once upon a time, those doctors who conducted peer review were not as well protected as today, and doctors who felt like the peer review was wrong or unjust would sometimes bring law suit the medical staff committee, resulting in fellow doctors’ unwillingness to join the committee altogether.
By keeping records confidential, the goal was to protect the peer review physicians from lawsuit from by the doctor being reviewed. In 1986 Congress passed the Health Care Quality Improvement Act (HCQIA) in 1986 to provide absolute confidentiality to the deliberations of a peer review committee making discovery of the committee notes, documents and deliberation protected from discovery.
In California, this led to the creation of Evidence Code Section 1157 which protects committee members by making the documents relating to a peer review confidential. The evidence code states that the “documents and deliberations of the medical staff committee that is charged with ensuring quality of care are protected from any disclosure”.
Welcome to “Sham Peer Review”
Nowhere else in the law do we find such privilege or protection as that now provided in medical peer review, and for good reasons. Many bad problems started as a good idea, however, when the idea crosses the line for total protection and no right of appeal, bad things naturally follow. And of course, the peer review process is no different.
We must look objectively now at the potential for human corruption in the scenario where a committee is given the ability to summarily determine a diagnosis or treatment with no access to the documents used in the review, no understanding as to the qualifications of who did the review, and no right to appeal.
Here’s where things go bad. And indeed, they do go very bad. It’s not too difficult to imagine if one of the members of the medical staff (eg. a department Chief) has a bias against a targeted physician, this bad actor can simply submit a complaint on the quality of care to the peer review process. The targeted physician may have submitted a legitimate human resource complaint based on sexual assault and/or discrimination based on sex, gender, and/or race. Submitting a complaint to the peer review quality process may be easily motivated out of retaliation.
Sham peer review is illegitimate, wrongful, and carried out in bad faith by the members of the medical staff, hospital or medical group. Basically, think of this as a “junk” or “frivolous” quality complaint. A desperate sham peer review perpetrator may even scour the targeted physician’s charts going back many, many years
In a recent episode of our podcast, workers’ compensation attorney Phil Walker joined to explain sham peer review in detail. In one case of Mr. Walker’s, a fraudulent claim was submitted on a case over seven years old. Remember, the complaint to peer review is manufactured for the purposes of harm, and no benefit to patient quality whatsoever. Further, if this bad actor Chief has additional contacts or friends on the committee (e.g., a quality review officer or the Chief of Quality), it is very easy to dictate the outcome of the review in advance of the process.
In other words, since there is no transparency in the process, no way for the targeted doctor to represent him or herself, peer review, now becomes “sham peer review”. Sham peer review is the perfect tool to assassinate the targeted physician’s career with little or no chance of repercussions. For doctors who habitually act in bad faith, sham peer review to be the perfect tool for abuse.
To further compound the problems, any complaints or accusations of sham peer review are vigorously denied and defended by the hospital or institution for obvious reasons. No hospital or medical corporation wants this activity to come to light, AND likely there were many cases prior. Legal exposure, public opinion, and loss of these corrupt administrative jobs and salaries are all in serious peril if this gets out.
The entity can further incorrectly attempt to claim that ALL documents, including the human resource files of the bad actor doctor’s track record of misconduct etc. As Phil Walker Esq. notes in our podcast “it shocks the conscious”.
Beware of the Sham Peer Review “Bait and Switch”
If you see one complaint submitted and another complaint emerges from the peer review process, be immediately on alert for sham peer review. Remember, any predatory doctor can submit a sham peer review submission on a targeted physician.
If the case has absolutely no medical or scientific merit, the committee will “revise” the allegations to create something more convincing. This “re-engineering of the complaint” is more aptly known as the sham peer review “bait and switch”.
When this occurs, it is a forensic sign of extreme desperation and relies on further internal coordination and corruption to “sell it” up the administrative process. Basically, the original submission is so weak and baseless, the peer committee has to give it a totally new angle to make a false determination more palatable to the summary report.
For instance, in Mr. Walker’s example, the bad actor Chief doctor who knowingly submitted a case for an erroneous diagnosis is found so egregious and blatantly unbelievable that the “review committee” must create a new finding of poor quality of care, such as “untimely care” to shift the allegation internally.
Again, the care may have been delivered in under one hour, but remember, this is sham peer review, so the findings are always wholly supported and endorsed by the “good faith and integrity” of the organization, so the burden is quickly transferred to the targeted physician who has no appeal process.
Focused Practice Review: Marking for Final Removal
This action is accordingly called “Sham Focused Practice Review”. Think of this as the “icing on the cake”. It affords the bad actor and sham peer review process a second bite at the apple. This means, the targeted physician is now placed under supervision of all patient care for a defined period, for example, one month.
The physician who has been targeted for sham peer review successfully is now at a second additional disadvantage, as the same committee members and quality personnel can now take the “hand-off” and order something called a “Focused Practice Review” (FPR).
Hospitals and medical groups have volumes of written bylaws about the implication of FPR. Usually there must be a certain number of quality errors that occur over a certain or fixed amount of time. But there is no surprise when the sham peer review committee and appointed officers suddenly develop difficulty counting or reading the calendar, and simply implement the FPR anyway, regardless of their own written guidelines.
After all, this is a totally protected process by their claim, why stop now? All work of the targeted physician is now fair game, and it widens the drag net for opening up volumes of more opportunities for the claim of more bogus errors in care. This maneuver is part of further “papering up” of the sham peer review.
This helps build the appearance of a pattern that will be further leveraged as “evidence” in the sham process that the targeted physician has “widespread” and a “pattern” of quality concerns.
The final added bonus for the sham focused practice review is the claim that the review committee has been “through” and performed their “due diligence” when they announce the provider will have practice privileges placed under probation, or simply revoked.
Are you being targeted? Look for these Simple Four Red Flags
Flag 1. Are you getting “papered up”?
One of the big issues for doctors victimized by sham peer review is that they do not immediately understand what is happening, or who is submitting the cases. Often sham peer review is initiated by someone with motive or a need for revenge who may have a direct connection with the peer review process. Submissions begin subtle but continue to build the appearance of a pattern in errors of care.
Flag 2. Is the claim junk and frivolous?
This includes a) claims of baseless, fact less and non-science bogus complaints. b) numerous submissions that include remote dates of incident eg. Many years in the past, including the diagnosis being confirmed serial times by other physicians.
Flag 3. Do you hear the sound of a tiny axe grinding?
Is the submitting doctor one of management and elevated position in the department. Peer review officers that are biased, meaning, they have a social relationship with the bad actor doctor, work in the same office, or may even work in a position of subordination eg. a staff doctor trying to curry favor under a Chief that is dependent on positive performance reviews for bonus, advancement, or promotions etc.
Likewise, the employer medical group may have a shell organization or foundation created to claim objectivity and separation of the entity doing the sham peer review, however the giveaway is the individuals who perform the sham peer review are also employees of the medical organization they police and work side by side with the targeted physician. Conflict of interest is obvious, yet not acknowledged openly. It’s all in the bylaws, trust us.
Flag 4. Do you feel like leaving your job is a better option than staying?
Sham peer review participants know the weight of winning is clearly on the employer side with regards to in house counsel who have run this exercise many times, stacks of bylaws and most importantly the crowned jewel: “Perfect confidentiality”.
Sham peer review is socially isolating and stressful to the targeted physician when it is realized what is happening. Personal internal responses of victims include guilt, shame, doubt, workplace isolation and “gaslighting” by supervisors and co-workers. The sham peer review participants rely heavily on this gravity and unfortunately often win the bet that you will leave, so the practice continues.
Fighting a sham peer review requires time, resources, thousands of dollars in attorney fees during a long and drawn-out process. Remember, this is a successful business model and works quite well often with the internal support of large organizations. Although daunting, sham peer review not insurmountable.
Tools to Fight Sham Peer Review
Step 1. Get an outside peer review immediately.
If you are concerned about a sham peer review unfolding demand an outside entity perform the review. Get your demand in writing and do it immediately.
Step 2. Get lawyered up.
Once you are aware of sham peer review get an attorney. Period. You need protection and you need representation to call out the process. Sham peer review organizations may often claim the human resource policy prevents you being represented in the process. You have the right to be represented, and waving your right for representation allows the sham peer review organization to create the written narrative. Avoid it.
Step 3. Know what constitutes a true peer review.
Just because you may be victim to sham peer review does not mean that your fate is sealed. In fact, the law doesn’t give the medical staff committee as much power as it may seem.
Remember, a sham peer review is not a real review process at all, and ONLY the documents, deliberations and notes of the “assigned” peer review committee are “privileged”. Understand what is protected and what is not. The hospital or entity must prove with a ledger that an actual and good faith review occurred. A judge may demand documentation and review records. You cannot. The reviewers on the committee must be well qualified to address the complaint. If a peer review is determined to be a sham, all rights of protection and privilege are waived.
Remember that good faith peer review was originally found to honestly assess the diagnoses or treatment from a physician. Sham peer review is an imitator, done with malicious intent against a targeted physician often in retaliation or removing an individual when other means have failed the bad actor. This means that the diagnoses and care may be perfectly acceptable, even exceptional. Remember, Mr. Walker’s case where the dermatology diagnosis was validated by a “world expert” in the field, yet still ignored by malicious committee members because the outcome is a foregone conclusion.
Sham peer review is wrongful, hurtful malicious and of course illegal. It can wreak havoc in the personal and professional lives of innocent physicians who are providing excellent care and/or acting as whistleblower on behalf of patient care and safety.
Hopeless as the situation may seem, by following the items that we’ve outlined above and remaining diligent about them, justice can prevail.
Please feel free to contact us at email@example.com if you suspect that you or someone else has fallen victim to a medical provider sham peer review.