In this case the physician resigned while under peer review. Although the resignation was apparently not related to the peer review, the hospital accepted his resignation reported the undeniable fact that the physician had resigned, while under investigation. The Physician attempted to resend his resignation when he discovered the terrible consciousness of his act. [1] The hospital did not reinstate, and the physician sued. The Court held that the Physician had surrendered his property interest in the job when he resigned and it was accepted, he therefore had no civil right which was impaired. No property right, no civil right. As was noted in the original paper, the government can slander your good name to its hart is content, [2] it is only actionable when (1) it is a government that is depriving civil rights, and (2) the plaintiff has a property right that is being damaged. [3] The case is not over for the Physician, his claim that the failure to re-instate was a government retaliation for his free speech that he claimed was the basis of his problems was permitted to be litigated. Also of interest was Patel <http://www.lexis.com/research/buttonTFLink?_m=1eeda4f01e3b0bf701a16fca41a695b6&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2002%20U.S.%20App.%20LEXIS%2017288%20%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=114&_butNum=1&_butInline=1&_but%20> v. Midland Mem. Hosp. & Med. Ctr., 2002 U.S. App. LEXIS 13834 (5th Cir. Tex. 2002). In this action a public hospital revoked a physician's privileges without due process, claiming emergency. They then afforded a full and fair hearing, at which the physician established that what appeared to be dangerous malpractice was in fact only poor record keeping. (see our commit in the original paper about the danger of peer review penalizing such practice). The privileges were re-instated, with instructions about making a better record. The Physician sued over the failure to afford due process before the emergency termination of privileges, and lost. The Law had made a balance that it is better and permitted for a regulator to act and suspend the livelihood of a person where it appears that they are acting to endanger the public, and then give him due process, than it is to permit the apparent danger to continue while due process works its slow way. This rule came up where a police officer was suspended without pay pending investigation of drug charges. The officer was cleared, and sued. The Supreme Court [4] held that the public was better served with the questioned officer off the beat, than it would have been if he had continued at work and it had turned out to be that he was in fact guilty. So this Court held that the public was better served by suspending the physician pending due process. If it had turned out that the public was endangered by his acts, the sooner he had stopped practicing the better. The Case makes several interesting observations. The Court assumed without deciding that the physician was entitled to due process [5], based on Gilbert v Homar [6]. The Court also noted Some of the leaders of the charge to remove the physicians were in direct economic competition. The hospital was aware of the conflict, and the final decision was made by physicians who were from out of town and had no economic stake.
In addition to these cases there have been several cases on the issue of State Statutory privilege against disclosure for the activities of peer review. The Plaintiff has not been successful in obtaining records without an overriding Federal statute, such as the ADA.
Segall's opinion (not law) 1. You can contract for Due Process. There is absolutely no good reason to sign any employment agreement-hospital privilege agreement that would permit an adverse NRDB report and not afford the physician an opportunity to be heard, before an impartial board. If an employer -hospital does not agree to the insertion of such protections, do not work for them. [7] Do not be fooled into thinking that the hospital or other employer does not have the power to agree to due process. They can, and the Courts will enforce. If the Employer does not agree (in writing) and the organization is not public operated, due process had not been required. 2. If you must sue, sue for the underlying problem. Due process denied is harmless where the truth of the matter is that a doctor is a danger. The Courts in fact always look to the harm that a failure to follow procedure has created, not just to the fact that procedures were not followed. No harm no foul. In criminal cases this is called "harmless error" . It matters not what statute, what rule, what settled law was violated by the tribunal if there was no demonstrable harm. As Dr. Ulrich supra demonstrated, his due process claim got nowhere, he is in court on his "they-fired-me-because-of- what-I-said" claim. If the reality is that peer review is being used to stifle economic competition, sue for the monopoly violation. If the reality is that there is no error, and the peer review committee has fabricated one, there is an underlying tort. 3. Lobby. There are a number of organizations that have a stake in quality peer review. The hospital accreditation organizations require peer review, physicians should have such organizations require due process as a part and parcel. State legislators have the power to require due process by statute, as do city or other local regulators. Be heard on this issue, or suffer in silence
I have been asked to revisit the issue of peer review and due process. There has been little litigation reported on this issue, here is an update of the case law:
There have been two cases that highlight some of the main issues.
In this case the physician resigned while under peer review. Although the resignation was apparently not related to the peer review, the hospitalaccepted his resignationreported the undeniable fact that the physician had resigned, while under investigation. The Physician attempted to resend his resignation when he discovered the terrible consciousness of his act.[1] The hospital did not reinstate, and the physician sued. The Court held that the Physician had surrenderedhis property interest in the job when he resigned and it was accepted, he therefore had no civil right which was impaired. No property right, no civil right. As was noted in the original paper, the government can slander your good name to its hart is content,[2] it is only actionable when (1) it is a government that is depriving civil rights, and (2) the plaintiff has a property right that is being damaged. [3] The case is not over for the Physician, his claim that the failure to re-instate was a government retaliation for his free speech that he claimed was the basis of his problems was permitted to be litigated.
Also of interest was Patel v. Midland Mem. Hosp. & Med. Ctr., 2002 U.S. App. LEXIS 13834 (5th Cir. Tex. 2002). In this action a public hospital revoked a physicians privileges without due process, claiming emergency. They then afforded a full and fair hearing, at which the physician established that what appeared to be dangerous malpractice was in fact only poor record keeping. (see our commit in the original paper about the danger of peer review penalizing such practice). The privileges were re-instated, with instructions about making a better record. The Physician sued over the failure to afford due process before the emergency termination of privileges, and lost. The Law had made a balance that it is better and permitted for a regulator to act and suspend the livelihood of a person where it appears that they are acting to endanger the public, and then give him due process, than it is to permit the apparent danger to continue while due process works its slow way. This rule came up where a police officer was suspended without pay pending investigation of drug charges. The officer was cleared, and sued. The Supreme Court[4] held that the public was better servedwith the questioned officer off the beat, than it would have been if he had continued at work and it had turned out to be that he was in fact guilty. So this Court held that the public was better served by suspending the physician pending due process. If it had turned out that the public was endangered by his acts, the sooner he had stopped practicing the better.
The Case makes several interesting observations. The Court assumed without deciding that the physician was entitled to due process[5], based on Gilbert v Homar[6]. The Court also notedSome of the leaders of the charge to remove the physicians were in direct economic competition. The hospital was aware of the conflict, and the final decision was made by physicians who were from out of town and had no economic stake.
In Moore v. Gunnison Valley Hosp., 170 F. Supp. 2d 1080, 2001 U.S. Dist. LEXIS 19394 (D. Colo. 2001) The Tenth Circuit held that the peer review committee did not enjoy immunity normally afforded to an adjudication body primarily because it did not afford due process. No due process, no judicial immunity. The Court noted a laundry list of the differences between a proper adjudication body and the peer review committee in question.
In addition to these cases there have been several cases on the issue of State Statutory privilege against disclosure for the activities of peer review. The Plaintiff has not been successful in obtaining records without an overriding Federal statute, such as the ADA.
Segalls opinion (not law)
1.You can contract for Due Process. There is absolutely no good reason to sign any employment agreement-hospital privilege agreement that would permit an adverse NRDB report and not afford the physician an opportunity to be heard, before an impartial board. If an employer hospital does not agree to the insertion of such protections, do not work for them.[7] Do not be fooled into thinking that the hospital or other employer does not have the powerto agree to due process. They can, and the Courts will enforce. If the Employer does not agree (in writing) and the organization is not public operated, due process had not been required.
2.If you must sue, sue for the underlying problem. Due process denied is harmless where the truth of the matter is that a doctor is a danger. The Courts in fact always look to the harm that a failure to follow procedure has created, not just to the fact that procedures were not followed. No harm no foul. In criminal cases this is called harmless error . It matters not what statute, what rule, what settled law was violated by the tribunal if there was no demonstrable harm. As Dr. Ulrichsupra demonstrated, his due process claim got nowhere, he is in court on his they-fired-me-because-of- what-I-said claim.If the reality is that peer review is being used to stifle economic competition, sue for the monopoly violation. If the reality is that there is no error, and the peer review committee has fabricated one, there is an underlying tort.
Lobby. There are a number of organizations that have a stake in quality peer review. The hospital accreditation organizations require peer review, physicians should have such organizations require due process as a part and parcel. State legislators have the power to require due process by statute, as do city or other local regulators. Be heard on this issue, or suffer in silence
[1] The report to the NPDB is just that, resigned during investigation, which implies serious guilt.
[7] its a free county, go some where else. Do it today. If your current agreement does not have protections, insist on it being modified, or leave
------------------------------------------------
From the Southern Medical Journal, March, 1993:
Judge Scott Segall,
Nathan Pearl, M.D.
SHOULD DUE PROCESS BE PART OF HOSPITAL PEER REVIEW? Medical peer review is the process by which a committee of physicians investigates the medical care rendered by a colleague in order to determine whether accepted standards of care have been met. The professional or personal conduct of a physician may also be investigated. If the committee finds that the physician departed from accepted standards, it may recommend limiting or terminating the physician's privileges at that institution. If the physician's privileges are restricted for more than 30 days, federal law requires the peer review committee to report that fact to the National Practitioner Data Bank (1).
There is no federal statute that requires peer review committees to observe due process, which the Supreme Court has defined as (1) giving written notice of the actions contemplated, (2) convening a hearing, (3) allowing both sides to present evidence at the hearing, and (4) having an independent adjudicator (2). Prior to the Health Care Quality Improvement Act of 1986 (HCQIA) (3), the effects of an adverse peer review finding were restricted to the hospital involved. Because the HCQIA mandates the reporting of disciplinary actions of peer review committees to the National Practitioner Data Bank, such a report could harm a physician's career throughout the nation (1-4).
Medical peer review is usually based on the screening of medical records, which places physicians with poor record-keeping skills at a disadvantage, and ignores the fact that medical records are often a poor indicator of the quality of care (5). Additionally, there is no requirement that the physician be given notice and an opportunity to be heard, and there is no requirement that members of the peer review committee be unbiased. The HCQIA recommends that the physician should get notice of the allegations, time to prepare for a hearing, a list of witnesses, the right to legal counsel, and an impartial fact finder. However, the act concludes "A professional review body's failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of this act)." This failure of the HCQIA to require due process calls into question the fundamental fairness of the medical peer review system.
The reason that due process should be a part of any fact-finding endeavor was stated by Justice Goldberg in SILVER v NEW YORK STOCK EXCHANGE:
'Experience teaches...that the affording of procedural safeguards, which by their nature serve to illuminate the underlying facts, in itself often operates to prevent erroneous decisions on the merits from occurring (7).'
The purpose of requiring due process is to ensure that the actions taken are not arbitrary, capricious, or unreasonable. Where there is no due process, the system invites abuse (8).
Peer review in its current form fails to protect an investigated physician from committee members having an economic or personal bias. Economic bias occurs when a committee member has a financial interest in the outcome. If the challenged physician is a partner or associate, any error that he may have made is likely to be considered to have been unavoidable. On the other hand, peer review has already been used to force a competing physician out of practice (9). Such economic bias denies due process (10). The United States Supreme Court struck down a decision from Ohio's municipal court system in which the judge was partly paid from the fines he assessed. The Court found that the system gave an incentive to rule one way rather than the other (10).
Personal bias is inevitable when coworkers judge each other. Some people are very likable, and others illuminate the room by their absence.
Federal law prohibits a federal judge from hearing cases in which his impartiality might reasonably be questioned or in which he has a financial interest (11). The same standards should apply to member of a peer review committee. The potential for abuse when these suggested procedures are not followed would indicate the need for mandatory due process.
Due process, which is designed to limit these abuses, is not required by the Constitution of the United States unless there is government action that affects a liberty or property right (12,13). The case of PAUL v DAVIS illustrates the legal meaning of property rights as applied to employment (14). The police labeled the plaintiff as a shoplifter and advised local businesses to watch him carefully. The plaintiff sued, claiming that the government was injuring his reputation without due process. The Supreme Court ruled against the plaintiff, but stated that should there be an effect on employment, then such injury would invoke the constitutional protection (14).
The sole reason for reporting the results of peer reviews is to restrict the practices of incompetent physicians. Congress cited the following as the very reason for the act: 'There is a national need to restrict the ability of incompetent physicians to move from state to state without disclosure or discovery of the physicians'...incompetent performance (15).'
The right to practice medicine without a governmental agency erroneously reporting that a physician has been deficient in his actions is a constitutional property right. Rights, even constitutional rights, can be waived by express agreement, or by the failure to assert those rights. State institutions, however, may not make waiver of a constitutional right a condition for employment (16).
In 1986, New YorkState enacted a system of physician discipline that includes a hearing presided over by an administrative law judge, to ensure due process (17,18). Although this system provides due process, it has the glaring problem of giving control of hospital privileges to lawyers. A far better solution is for peer review committees to be required to observe due process. Lawyers and other non-physicians may have a role as consultants, but should not be voting committee members.
The effects of an adverse peer review decision are no longer limited to the relationship between a physician and a hospital. The decision becomes part of the National Practitioner Data Bank. Medical peer review must provide physicians the protections of due process.
Scott E. Segall, JD Judge, El Paso Criminal Law Magistrate Court William Pearl, MD William Beaumont Army Medical Center Box 70614 El Paso, Texas 79920 The opinions or assertions herein are the private views of the authors and are not to be construed as official or as reflecting the views of the Department of the Army or the Department of Defense.
References 1. Health Care Quality Improvement Act of 1986, 42 USC &11133 2. VITEK v JONES, 445 US 480 (1980) 3. Health Care Quality Improvement Act of 1986, 42 USC &11101 4. Iglehart JK: Congress moves to bolster peer review: the health care quality improvement act of 1986. N Eng J Med 1987; 316:960-964 5. Steffen GE: Quality medical care, a definition. JAMA 1988; 260:56-61 6. Health Care Quality Improvement Act of 1986, 42USC &11112(b) 7. SILVER v NEW YORK STOCK EXCHANGE, 373 US 341(1963) 8. BOARD OF REGENTS v ROTH, 408 US 564 (1972) 9. Green R: Hospital peer review in a hostile environment. J Med AssocGa 1987; 76:138-140 10. TUMEY v OHIO, 273 US510 (1927) 11. 28 USC $455 12. US Constitution, Amend XIV 13. Board of Regents v. Roth, 408 US 564 (1972) 14. Paul v Davis, 424 US 693 (1976) 15. 42 USC $11101(2) 16. Rutan v Republican Party of Illinois, 110 SC: 2729 (1990) 17. New YorkState Laws of 1986, Chapter 266 18. O'Keefe DE, Conway GL: Physician discipline and professional conduct. NY State J Med 1988; 88:146-148
From the Southern Medical Journal, March, 1993:
Judge Scott Segall,
Nathan Pearl, M.D.
SHOULD DUE PROCESS BE PART OF HOSPITAL PEER REVIEW? Medical peer review is the process by which a committee of physicians investigates the medical care rendered by a colleague in order to determine whether accepted standards of care have been met. The professional or personal conduct of a physician may also be investigated. If the committee finds that the physician departed from accepted standards, it may recommend limiting or terminating the physician's privileges at that institution. If the physician's privileges are restricted for more than 30 days, federal law requires the peer review committee to report that fact to the National Practitioner Data Bank (1).
There is no federal statute that requires peer review committees to observe due process, which the Supreme Court has defined as (1) giving written notice of the actions contemplated, (2) convening a hearing, (3) allowing both sides to present evidence at the hearing, and (4) having an independent adjudicator (2). Prior to the Health Care Quality Improvement Act of 1986 (HCQIA) (3), the effects of an adverse peer review finding were restricted to the hospital involved. Because the HCQIA mandates the reporting of disciplinary actions of peer review committees to the National Practitioner Data Bank, such a report could harm a physician's career throughout the nation (1-4).
Medical peer review is usually based on the screening of medical records, which places physicians with poor record-keeping skills at a disadvantage, and ignores the fact that medical records are often a poor indicator of the quality of care (5). Additionally, there is no requirement that the physician be given notice and an opportunity to be heard, and there is no requirement that members of the peer review committee be unbiased. The HCQIA recommends that the physician should get notice of the allegations, time to prepare for a hearing, a list of witnesses, the right to legal counsel, and an impartial fact finder. However, the act concludes "A professional review body's failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of this act)." This failure of the HCQIA to require due process calls into question the fundamental fairness of the medical peer review system.
The reason that due process should be a part of any fact-finding endeavor was stated by Justice Goldberg in SILVER v NEW YORK STOCK EXCHANGE:
'Experience teaches...that the affording of procedural safeguards, which by their nature serve to illuminate the underlying facts, in itself often operates to prevent erroneous decisions on the merits from occurring (7).'
The purpose of requiring due process is to ensure that the actions taken are not arbitrary, capricious, or unreasonable. Where there is no due process, the system invites abuse (8).
Peer review in its current form fails to protect an investigated physician from committee members having an economic or personal bias. Economic bias occurs when a committee member has a financial interest in the outcome. If the challenged physician is a partner or associate, any error that he may have made is likely to be considered to have been unavoidable. On the other hand, peer review has already been used to force a competing physician out of practice (9). Such economic bias denies due process (10). The United States Supreme Court struck down a decision from Ohio's municipal court system in which the judge was partly paid from the fines he assessed. The Court found that the system gave an incentive to rule one way rather than the other (10).
Personal bias is inevitable when coworkers judge each other. Some people are very likable, and others illuminate the room by their absence.
Federal law prohibits a federal judge from hearing cases in which his impartiality might reasonably be questioned or in which he has a financial interest (11). The same standards should apply to member of a peer review committee. The potential for abuse when these suggested procedures are not followed would indicate the need for mandatory due process.
Due process, which is designed to limit these abuses, is not required by the Constitution of the United States unless there is government action that affects a liberty or property right (12,13). The case of PAUL v DAVIS illustrates the legal meaning of property rights as applied to employment (14). The police labeled the plaintiff as a shoplifter and advised local businesses to watch him carefully. The plaintiff sued, claiming that the government was injuring his reputation without due process. The Supreme Court ruled against the plaintiff, but stated that should there be an effect on employment, then such injury would invoke the constitutional protection (14).
The sole reason for reporting the results of peer reviews is to restrict the practices of incompetent physicians. Congress cited the following as the very reason for the act: 'There is a national need to restrict the ability of incompetent physicians to move from state to state without disclosure or discovery of the physicians'...incompetent performance (15).'
The right to practice medicine without a governmental agency erroneously reporting that a physician has been deficient in his actions is a constitutional property right. Rights, even constitutional rights, can be waived by express agreement, or by the failure to assert those rights. State institutions, however, may not make waiver of a constitutional right a condition for employment (16).
In 1986, New YorkState enacted a system of physician discipline that includes a hearing presided over by an administrative law judge, to ensure due process (17,18). Although this system provides due process, it has the glaring problem of giving control of hospital privileges to lawyers. A far better solution is for peer review committees to be required to observe due process. Lawyers and other non-physicians may have a role as consultants, but should not be voting committee members.
The effects of an adverse peer review decision are no longer limited to the relationship between a physician and a hospital. The decision becomes part of the National Practitioner Data Bank. Medical peer review must provide physicians the protections of due process.
Scott E. Segall, JD Judge, El Paso Criminal Law Magistrate Court William Pearl, MD William Beaumont Army Medical Center Box 70614 El Paso, Texas 79920 The opinions or assertions herein are the private views of the authors and are not to be construed as official or as reflecting the views of the Department of the Army or the Department of Defense.
References 1. Health Care Quality Improvement Act of 1986, 42 USC &11133 2. VITEK v JONES, 445 US 480 (1980) 3. Health Care Quality Improvement Act of 1986, 42 USC &11101 4. Iglehart JK: Congress moves to bolster peer review: the health care quality improvement act of 1986. N Eng J Med 1987; 316:960-964 5. Steffen GE: Quality medical care, a definition. JAMA 1988; 260:56-61 6. Health Care Quality Improvement Act of 1986, 42USC &11112(b) 7. SILVER v NEW YORK STOCK EXCHANGE, 373 US 341(1963) 8. BOARD OF REGENTS v ROTH, 408 US 564 (1972) 9. Green R: Hospital peer review in a hostile environment. J Med AssocGa 1987; 76:138-140 10. TUMEY v OHIO, 273 US510 (1927) 11. 28 USC $455 12. US Constitution, Amend XIV 13. Board of Regents v. Roth, 408 US 564 (1972) 14. Paul v Davis, 424 US 693 (1976) 15. 42 USC $11101(2) 16. Rutan v Republican Party of Illinois, 110 SC: 2729 (1990) 17. New YorkState Laws of 1986, Chapter 266 18. O'Keefe DE, Conway GL: Physician discipline and professional conduct. NY State J Med 1988; 88:146-148
