By Kevin Klauer, DO, EJD, Chief Medical Officer — Emergency Medicine Chief Risk Officer, Executive Director, Patient Safety Organization, TeamHealth
Quality assessment is a critical tool to determine the quality of the care provided. Many tools can be utilized to this end. In recent years, it has been recognized that a blame-free culture is optimal to identify opportunities for improvement and reduce barriers to reporting and participation. Although many aspects of quality assessment and performance improvement can, and should, easily conform to this laudable standard, peer review presents unique and significant challenges, particularly for the individual provider.
“Peer review is the process whereby doctors evaluate the quality of their colleagues’ work in order to ensure that prevailing standards of care are being met.”1
In the simplest of terms, traditional peer review is the assessment of one provider’s care by a group of his or her peers. Thus, by design, traditional peer review is designed to focus on the care of one provider and to assign a judgment regarding the appropriateness of that care.
Peer review performed in this fashion has many limitations. The first is that broad generalizations are often made about the quality of care delivered by a provider based on one case or a relatively small number of cases.
Cases are evaluated under the construct of an inherently biased system. Such systems are biased toward the assumption that bad outcomes have occurred and that the provider is likely at fault. Thus, although not written in policy, it is often found in practice that the provider is “guilty” until proven otherwise, and, unfortunately, the bias may be so polarizing that the burden required for exoneration is too great to overcome.
Third, and perhaps the most important, is that the definition of “peer” ranges dramatically between health care organizations, institutions, and regulatory bodies. This poses an especially worrisome challenge for the specialty of emergency medicine. Often, particularly at the hospital level, the peer group is identified as physicians, and not necessarily as emergency physicians (EPs). It has been this author’s experience that many, if not most, hospitals allow peer review of EPs by non-emergency physicians. However, the converse is much less likely to be tolerated. For example, a group of non-emergency physicians serving as members of a hospital’s peer-review committee may call into question the quality of care delivered by an EP. However, rarely, if ever, would you see a group of non-surgeons review a surgeon’s outcomes and question his surgical technique, let alone levy sanctions against, mandate remediation of, or impact credentialing decisions of a surgeon.
Although speculative, this inconsistent treatment of EPs may be due to deep-seated roots and the historic culture of medicine. Although emergency medicine has evolved and matured over its 40 years of existence, it is still regarded by many as a young specialty and one that incorporates the emergency aspects of other specialties. The latter, perhaps, creates a sense of entitlement by other providers to assume that their knowledge regarding emergency medicine is adequate to judge the care provided by EP. Even if a specialist is included in the peer-review process just to address concerns that are related to his or her specialty, such bias may exist. This stems from the lack of understanding that emergency medicine requires a unique body of knowledge to practice the specialty. Thus, the standards relating to the emergency evaluation of possible pulmonary embolism or ectopic pregnancy should not be subject to the scrutiny of internists and pulmonologists or gynecologists and general surgeons. Although internists and pulmonologists evaluate and care for patients suspected of having pulmonary emboli, and gynecologists and general surgeons evaluate patients with possible ectopic pregnancies and both manage surgical disease, they are not uniquely qualified by training or experience to assess what would constitute an acceptable provision of care for such patients presenting as emergency department patients.
Case in point: Many of us have experienced a conversation much like this:
EP: “Mr. Jones is a 52-year-old male that presented with lower-sternal chest pain. He has a history of type II diabetes and hypertension and has been smoking 1 pack per day for 20 years. His ECG is non-diagnostic, and initial laboratory diagnostics are negative. However, I think he should be admitted for observation to rule out ACS [acute coronary syndrome] and, perhaps, obtain provocative testing.”
Primary care physician: “Well, if he came to my office, I wouldn’t be admitting him!”
Therein lies the problem. Patients who select the emergency department for evaluation of their symptoms are often very different than those who do so in other settings, such as a primary care physician’s office. One study noted such a difference between patients presenting with chest pain to primary care and to the emergency department. Serious cardiovascular disorders were noted in 4.8% of those presenting to primary care, compared to 28.1% of those presenting to the emergency department.2 In other words, whether an internist or family physician would admit a similar sounding patient from their office or not is immaterial and not germane to the question of whether an emergency department patient should be admitted.
These experiential similarities may create bias with those who care for similar types of patients, lending them to validate their assumptions that they don’t need to have trained in or have practiced emergency medicine to be qualified to evaluate the care provided by an emergency physician.
The Effects of Non-peer “Peer Review”
Is peer review performed by non-peers just an annoyance, or does it have a material impact on a physician’s career? Well, unfortunately, it’s both. Oh, it certainly is beyond annoying when someone who doesn’t understand your training, experience, care environment, or role in care delivery is empowered to judge you. However, it’s even worse when that body is given authority to mandate remediation, place limitations on privileges, and even impact credentialing decisions. Thus, “peer review” performed by non-peers can result in suspension, mandated remedial actions, limiting of hospital privileges, and loss of hospital privileges altogether, with such actions possibly resulting in required reporting to the National Practitioners’ Data Bank (NPDB).
The Medicare and Medicaid Patient and Program Protection Act of 1987 led to the creation of NPDB. The data bank requires that the following events be reported.3
• Medical malpractice payments;
• Federal and state licensure and certification actions;
• Adverse clinical privileges actions;
• Adverse professional society membership actions;
• Negative actions or findings by private accreditation organizations and peer review organizations;
• Health care-related criminal convictions and civil judgments;
• Exclusions from participation in a federal or state health care program (including Medicare and Medicaid exclusions); and
• Other adjudicated actions or decisions.
Title IV further states the following: “Professional review actions — based on reasons related to professional competence or conduct — adversely affect clinical privileges for a period longer than 30 days. Voluntary surrender or restriction of clinical privileges while under, or to avoid, an investigation.”3
The Joint Commission, formerly known as the Joint Commission on Accreditation of Healthcare Organizations, began requiring all accredited hospitals to perform physician peer review in 1952. However, in 1986, a landmark case illustrated how peer review could be and had been used inappropriately for economic advantage.
“The peer-review process further suffered a major blow in 1986 when Dr. Timothy Patrick, a general and vascular surgeon, sued Columbia Memorial Hospital (CMH) after being unfairly subjected to a bad-faith peer review for economic reasons. Upon starting practice in the small town of Astoria, Oregon, Dr. Patrick joined a group of established surgeons at the Astoria Clinic. After several years of employment, Dr. Patrick was offered partnership at the clinic, which he later refused in order to open his own competing surgical practice in the same geographic area. In retaliation, Patrick’s former colleagues at the Astoria Clinic reported Patrick to the hospital executive committee at CMH for peer review. The charges levied claimed that Patrick exhibited irresponsible behavior toward patient care. An executive peer-review committee was formed and was chaired by Dr. Gary Boeling, a partner of the Astoria Clinic. After an investigation was conducted and subsequent false evidence concerning Patrick’s care was presented, the committee voted to terminate Patrick’s privileges at CMH. Fearing termination, Patrick instead chose to resign.
“A subsequent federal antitrust lawsuit filed by Patrick against partners of the Astoria Clinic, including Dr. William Burget, claimed that the defendants participated in a bad-faith peer review in order to stifle competition. The United States Supreme Court, which later ruled in Patrick’s favor, awarded the plaintiff $2.2 million and further disbanded the Astoria Clinic based on the clinic’s violation of the Sherman Antitrust Act.”4
Following the Patrick case, physicians were reluctant to participate in peer review, and, thus, the Healthcare Quality Improvement Act (HCQIA) was introduced and enacted by Congress in 1986.4 The Act had two components: Part B resulted in the creation of the NPDB, and Part A provided hospitals and reviewers immunity from litigation from providers subject to peer review. It is critical to note that this Federal protection was specifically aimed at limiting discovery of the peer-review process to protect those performing peer review, not to prohibit discovery of the peer-review process regarding claims (e.g., medical malpractice) filed against the provider being reviewed. If the following requirements are met, the hospital and reviewers are granted immunity:
“A professional review action must meet the standards set forth in the Act in order to qualify for immunity. The professional review action must be taken:
1. “In the reasonable belief that the action was in furtherance of quality health care;
2. “After a reasonable effort to obtain the facts of the matter;
3. “After adequate notice and hearing procedures afforded to physician or other such procedures that are fair to the physician; and
4. “In the reasonable belief that the action was warranted by the facts known after the reasonable effort to obtain the facts and adequate notice and hearing procedures have been afforded to the physician.
“A professional review action shall be presumed to have met the HCQIA standards unless the presumption is rebutted by a preponderance of the evidence.” (see: 42 U.S.C. 11112(a)).5
The case of Dr. Susan Meyer is an excellent example of the low bar that hospitals have to meet regarding immunity. Basically, if some form of due process is afforded and even a weak link to quality of care seems to be present, the organization and its reviewers will enjoy immunity from liability.4
Dr. Susan Meyer, an emergency room physician at Sunrise Hospital, was required to undergo review after her treatment of Adolph Anguiano, a homeless patient who, two hours after being seen by her in the ED, died in the parking lot of Sunrise Hospital. Upon entering the ED, Meyer performed a full physical exam, took vital signs, measured oxygenation levels of Mr. Anguiano, and subsequently determined the patient did not require any acute medical care and later discharged the patient from the ED. Upon discovering that Mr. Anguiano had died, Dr. Graham Wilson, Chair of the Department of Emergency Services, advised Dr. Meyer to finish her shift in the ED and subsequently informed her that she was being suspended due to her substandard care. She was advised to obtain legal counsel in order to undergo a fair hearing process.
Meyer, who later lost an appeal of her case in the Nevada Supreme Court, was later informed by Dr. Rick Kilburn, the Chief Operating Officer of Sunrise Hospital, that she would be suspended regardless of the result of her peer-review hearing. Despite knowing the final result beforehand, Meyer requested a formal peer review by the hospital in order to have her clinical judgment assessed by her colleagues. Despite several ED physicians testifying that Meyer’s treatment was “well within the standard of care,” the review committee found otherwise and recommended her suspension. The recommendation was reaffirmed by the Appellate Review Committee of the hospital.
Meyer, in turn, filed a civil action lawsuit against Sunrise Hospital alleging a breach of contract and breach of the covenant of good faith and fair dealing. The hospital, claiming immunity under HCQIA, in turn succeeded in dismissing the case in district court. The case was met with the same decision at the Nevada Supreme Court. However, the justices gave a rare glimpse into the reason for Meyer’s loss and the extent of the powerful immunity granted to hospitals and peer reviewers in their concluding summary statement.”4
Although the Act did provide immunity to reviewers, it attempted to bring fairness to the process for those being reviewed. The question is whether or not those efforts were balanced. Many feel that overwhelming share of benefit was granted to the reviewer’s side of the equation.
Fortunately, this seemingly impenetrable immunity has been challenged. However, the Poliner case reflects exactly how strong this privilege of immunity really is, and concerns regarding the potential for abuse and “sham” peer review continue.
“In 2004, a Texas jury awarded Dr. Lawrence Poliner $366 million — one of the top ten largest jury verdicts that year — in his lawsuit against a hospital and several physicians for malicious peer review. Dr. Poliner left a large physician group and started competing with his former colleagues in the same hospital. According to the United States District for the Northern District of Texas, the hospital and peer-review committees effectively suspended Dr. Poliner’s privileges to perform cardiac catheterizations summarily on the basis of one questionable case and without giving Dr. Poliner an opportunity to defend himself.”6
On July 23, 2008, the Fifth Circuit Court of Appeals reversed the Poliner decision, including vacating a judgment of $30 million based on defamation claims that Dr. Poliner had asserted.
“Not only has Poliner failed to rebut the statutory presumption that the peer-review actions were taken in compliance with the statutory standards, the evidence independently demonstrates that the peer-review actions met the statutory requirements.” Furthermore, “if a doctor unhappy with peer review could defeat HCQIA immunity simply by later presenting the testimony of other doctors of a different view from the peer reviewers, or that his treatment decisions proved to be ‘right’ in their review, HCQIA immunity would be a hollow shield.”7
State Peer-review Protections Have Limitations
Processes for the purpose of assessment of individual provider quality are often touted as safe from discovery per “peer-review protection.” In general, this may be true, as states recognized the need for individual provider protections against discovery, especially with respect to medical malpractice claims and lawsuits, noting that a lack of such protection would result in a chilling effect on provider willingness to participate in peer-review processes. However, how much protection do you have? With striking precision, when these statements are made and relied upon, the presumed rights of protection are often exaggerated way beyond what is actually and practically available.
“Peer-review privilege is a privilege that protects from disclosure the proceedings and reports of a medical facility’s peer-review committee, which reviews and oversees the patient care and medical services provided by the medical staff. This privilege prevents patient plaintiffs from obtaining the hospital records prepared in connection with quality-review proceedings. All 50 states and the District of Columbia have privilege statutes that protect peer-review records of medical staff members. Some states like Georgia and California also provide a statutory immunity from discovery of peer-review records. This protection excludes from discovery records containing performance reviews, and assessments of physicians by their peers, primarily in connection with their practices at hospitals.”8
It is important to underscore that no federal peer-review privilege exists. Thus, all peer-review documents are discoverable in federal court.9 So, if a case is brought in federal court (i.e., civil rights allegations), state peer-review protections are not recognized.
Many providers and institutions assume that “peer review” provides an all-encompassing, blanket coverage prohibiting discovery. This simply is not the case and is subject to much scrutiny on a case-by-case basis. In Giusti v. Akron General Medical Center, an overly broad interpretation was asserted. The court determined that the privilege must be “strictly construed” and that the party asserting the privilege has the burden of proof with respect to the specific information requested. At the very least, the hospital must prove it has a peer-review committee and that the actual incident was investigated.10
“If a hospital were to establish that a qualifying peer-review committee investigated a particular incident, the next question for the trial court would not be whether the privilege applies to some general category of communications among peers. The question would be whether the privilege actually does apply to each question the hospital’s lawyer instructed its witness not to answer at deposition.”10
Although all states provide some degree of protection, each state’s statute varies in its scope and application. In general, a more narrow intent should be assumed. For instance, many states do not include incident reports as part of the peer-review process and, thus, are discoverable. As with Giusti, claims of peer-review protection are likely to be challenged, but unlike the immunity privilege of the HCQIA, such challenges are often successful.
Another limitation to state peer-review protection is waiver of the privilege. In West Covina Hospital v. Superior Court, the California Supreme Court ruled that a party could waive their privilege and testify. However, such testimony has the effect of waiving privilege for all of those involved, considerably weakening the intended privilege.11
In addition, providers, under the assumption of peer review, assume they have privilege, which simply does not exist. The peer-review process must be clearly defined and communications outside of that process will not enjoy protection. So, as an example, if a case is discussed at a staff meeting, non-physician peer hospital employees are in attendance. Although not clearly defined as part of the hospital’s peer-review process, the conversations that occur are likely discoverable. Although this is a hypothetical example, it is an all too common practice.
All providers need to be mindful of the immunity afforded to hospitals and reviewers. In addition, it is critical to recognize the limitations of state peer-review protections. Assumed privilege often results in no protection at all.
Newton GE. Maintaining the balance: Reconciling the social and judicial costs of medical peer review protection. Ala L Rev 2001;723:
- Buntinx F, et al. Chest pain in general practice or in the hospital emergency department: Is it the same? Family Practice 2001;18: 586–589.
- The DataBank. http://www.npdb.hrsa.gov/hcorg/whatYouMustReportToTheDataBank.jsp.
- Vyas D, Hozain AE. Clinical peer review in the United States: History, legal development, and subsequent abuse. World Journal of Gastroenterology 2014;20:6357-6363.
- Health Law Resources, Health Law Wiki, HCQIA. https://www.healthlawyers.org/hlresources/Health%20Law%20Wiki/HCQIA.aspxaccessed 3/13/15.
- Kinney ED. Hospital peer review of physicians: Does statutory immunity increase risk of unwarranted professional injury? Michigan State University College of Law Journal of Medicine and Law 2009;13:57.
- Poliner v. Texas Health Systems. Court of Appeals for the Fifth Circuit, Case No. 06-11235.
- USLegal.Com, Peer-Review Privilege Law & Legal Definition http://definitions.uslegal.com/p/peer-review-privilege/. Accessed 3/13/15.
- (C.A. 4, 2001) 259 F.3d 284. See also Dorsten v. Lapeer Cty. General Hospital, (E.D.Mich. 1980) 88 F.R.D. 583 (adopting same rationale followed by Virmani twenty-one years later).
- Jordan MJ. What’s left of the peer review privilege? Bar Journal of The Cleveland Metropolitan Bar Association 2009;1:12.
- West Covina Hospital, Petitioner, v. The Superior Court of Los Angeles County, Respondent 718 P.2d 119 (Cal. 1986).