Getting physicians to critique their colleagues has always been a challenge, but in recent years challenged physicians have increasingly used expensive litigation and claims of antitrust violations to defend themselves. That has made some physicians even more reluctant to participate in peer review, but there are solutions.
Most physicians understand that the peer review process is crucial to ensuring quality medical care, but the system fails when they think the process is not objective, says Ricardo Martinez, MD, chief medical officer of North Highland, a global consulting firm based in Atlanta.
When physicians see the peer review process as biased or political, they do not want to be associated with it because of the potential ramifications to their own careers, Martinez says. They may fear retaliation that would affect their referrals or, in a growing trend, litigation that accuses them of participating in an antitrust conspiracy.
“When you have a peer review process that is poorly organized, you get poor participation,” Martinez says.
MUST BE FAIR, TRANSPARENT
For peer review to succeed, it must be positioned within the culture of the organization so that it is seen as objective, fair, and transparent, with the goal of improving quality rather being a weapon with which to punish physicians, he says. That means peer review should not be seen as a sort of court for misbehaving physicians, but rather a resource that provides education, training and mentoring, policy formulation, and intervention.
“The process has to be systematic. It consistently occurs, as opposed to ad hoc because an issue popped up,” Martinez says. “It should be part of building a high quality culture. If you have an institution where peer review is just what happens when there’s problem with a physician, that raises a red flag.”
LAWSUITS DETER PARTICIPATION
Opposition to peer review can get ugly. Attorney Michael Eisner, JD, in New Haven, CT, has represented numerous hospitals facing claims of antitrust violations from physicians in the peer review process. In many cases the physician had serious deficiencies but used antitrust litigation as a way to derail the process and tie the hospital up in court, delaying any action against the physician, he says.
In addition, the lawsuits often target individual physicians on the peer review committee. That has a chilling effect on physician participation and makes members of the committee leery of taking any decisive action against a physician, fearing retribution in the form of a trumped-up lawsuit, he says.
“A tremendous number of physicians are very gun shy about participating in peer review,” Eisner says. “Doctors will call up and say, ‘This physician is applying for privileges at my hospital and he’s a horrible doctor, but I’m afraid to say anything because I’ll get sued.’ Unfortunately, the truth is that he or she might get sued.”
Part of the problem lies in how hospital bylaws provide “qualified privilege” for physicians. This part of the agreement between the hospital and physician states that the physician will not sue anyone who comments about the physician’s qualifications, unless there is bad faith or fraud. That qualified privilege is meant to enable the peer review process, but in fact it falls short.
“What happens is that there always is an allegation of bad faith,” Eisner says. “If the doctor is upset or threatened by the peer review process, they make the claim of bad faith and that promise not to sue just goes out the window.”
One way to combat that type of lawsuit, Eisner suggests, is to require physicians to accept “unqualified privilege,” also known as “absolute privilege,” meaning they agree not to sue someone who provides information or an opinion of their qualifications. There is no exception for bad faith or fraud. Some will argue that unqualified privilege would allow blatant defamation of a physician, but Eisner says that is unlikely because the physicians who volunteer for peer review have good intentions. And even if a physician does lie and intentionally harm another doctor, there are other legal remedies, he says. The state medical board could take action on the physician’s license, for instance.
“It’s not a perfect solution, but some hospitals use unqualified privilege and it makes a dent in the problem,” Eisner says. “Arbitration clauses also are becoming more common. The combination of unqualified privilege and arbitration requirements could alleviate a lot of the concern from physicians that they’re going to be sued for saying a doctor is unqualified.”
ONGOING IMPROVEMENT PROCESS
Outliers and problematic events will make their way to the peer review process, of course, but peer review should be an ongoing process aside from those issues, Martinez says. He suggests planning a peer review calendar of what the committee will focus on every month and making that calendar public.
“Peer review has become more important as healthcare focuses more on teams than individuals. You have to have a process that asks less ‘How are you doing?’ and more ‘How are we doing?’” Martinez says. “People are more likely to participate then because the process helps build teamwork and not blame individuals. The best person can’t do well in a bad system.”
In that spirit, Martinez says, the peer review process should embrace root cause analyses and avoid the tendency to “proximity bias,” the assumption that the person closest to the patient or error is to blame for the outcome. It also is important to establish criteria that will trigger sending a case for external peer review, he notes. Lack of expertise could be one criterion, but the process should also accommodate a physician’s concerns that the hospital or members of the peer review committee are trying to constrain the physician’s practice. Any factors that could create bias or even the appearance of bias should result in the physician being reviewed outside of the hospital’s own peer review system, he says.
Peer review also should be positioned as a continuation of the apprenticeship model in which all physicians were trained, Martinez says. They resist being put in a position of judging and telling another physician what to do, but the mentoring approach is second nature to them, he notes.
“If you get a bunch of doctors together, they immediately start talking about who taught you that procedure and who you studied this topic under,” Martinez says. “The peer review program has to be seen as part of that continuous mentoring rather than a hospital program that is out to get an individual in trouble.”
Michael Eisner, JD, New Haven, CT. Telephone: (203) 772-0065. Email: [email protected].
Ricardo Martinez, MD, Chief Medical Officer, North Highland, Atlanta, GA. Telephone: (404) 975-6192. Email: