Peer review under fire: Real problems or trumped-up accusations?

Terrence Babb, MD, said his troubles started when he complained about the quality of care provided at the clinic where he worked.

The then-Pennsylvania obstetrician-gynecologist raised questions about some physicians and how they provided care, including the case of a woman who died following delivery, court records show. Not long after voicing concerns about what he saw at Penn State Geisinger Clinic and Centre Community Hospital, he was fired. Dr. Babb said it was in retaliation.

He believed he was unfairly scrutinized for bringing attention to quality issues and sought relief through the hospital's peer review.

"All I was doing was trying to take up for the patients," he said.

Geisinger officials would not comment on the case. But in court documents, officials said it had not targeted Dr. Babb.

A civil court jury later found that doctors did not cause the death of the woman Dr. Babb raised concerns about. But the jury found one of the doctors negligent in the woman's care.

For more than eight years, Dr. Babb has waged a legal battle over his own case. This year, he hopes a jury will finally decide whether he was wrongly singled out for "disruptive behavior" by complaining about quality of care.

"The perversion of peer review is more widespread than doctors think," said Dr. Babb, who is now a locum tenens physician at Keller Army Community Hospital in West Point, N.Y.

Many physicians say the vast majority of peer review in the hospital setting is done properly, but Dr. Babb is among a growing number of physicians who are raising concerns that the confidential system is too easily abused. Their complaints are gaining traction in the courts, and more medical societies are discussing the issue.

A system that is part of law and medical tradition is, according to these doctors, a virtually risk-free way to get rid of colleagues who are economic competitors or whistle-blowers who raise patient safety concerns. They say confidentiality laws offer too much protection to those who might wrongly accuse another doctor of quality-of-care issues based on trumped-up or exaggerated accusations. Verner Waite, MD, founder of the 90-member Semmelweis Society, an organization calling for changes in peer review, looked at 1,000 peer review cases and concluded that at least 80% of them were initiated for economic reasons and were not done in good faith.

Others calling for change say that, whatever the number, their fight is motivated by the severe consequences facing any physician caught up in what critics call "sham peer review."

Current laws make it difficult for the wronged physician to clear his or her name, critics say. Practicing medicine becomes especially difficult when a doctor is added to the National Practitioner Data Bank because of a peer review finding.

Individual doctors and their lawyers have fought back in the courts. Dedicated to changing the peer review process are organizations such as the 6,000-member Assn. of American Physicians and Surgeons; the Semmelweis Society; and the Center for Peer Review Justice, which claims 1,500 supporters. They have suggested changes in the system that range from having peers outside the hospital conduct reviews to stripping some of the confidentiality now tied to the process.

"In theory [peer review] is a nice idea, but in practice, it doesn't work because you can hide behind the confidentiality," said Clay Culotta, a Maryland-based attorney who represents physicians on several issues, including peer review, licensure and civil rights. "I'm not saying that every doctor peer reviewed isn't deserving of being reviewed. But there are people who look to abuse the system."

If so, such abuse is rare, said Mark Kadzielski, an attorney with Fulbright and Jaworski in Los Angeles, who represents hospital medical staffs in peer review cases. He said improving quality is the driving force in most cases. In 25 years of practice, he said, he knows of only a handful of cases in which economic motives tainted the peer review process.

"[Economic competition] is an excuse. In most circumstances that is all it is," Kadzielski said.

How the system has evolved

The Health Care Quality Improvement Act of 1986 was pushed by legislators and was key to establishing the framework for the peer review system that's in place today.

The law, commonly known as HCQIA, calls for a review panel consisting of peers who are not in direct economic competition with the physician under review. HCQIA outlines its requirements for due process and limits peer review to quality-of-care issues. It also grants confidentiality to the peer review process and gives immunity to those who conduct peer review in good faith.

Critics say the appeals processes in place for doctors who believe they have been improperly peer reviewed often are conducted by physicians they say are biased. They also say that confidentiality guarantees under HCQIA and state laws make it extremely difficult to go to state or federal courts to prove that peer review was done in bad faith. That, they say, allows for abuses in the system even though, in writing, protections against bad-faith peer review are in the law.

Traditionally, courts have been reluctant to get involved in these types of cases because of the confidentiality of the process. But judges and juries increasingly are receptive to arguments that improper peer reviews could be initiated by economic competitors or hospitals targeting whistle-blowers.

Some recent court rulings have favored physicians who believed the peer review system was wrongly used against them:

• A federal court in 2001 said a North Carolina hospital must turn over 20 years of peer review records so that ob-gyn Ron Virmani, MD, can use them in his discrimination lawsuit against the hospital in which he alleges that he was improperly peer reviewed.
• The Nevada State Supreme Court in 2001 said a Truckee Meadows Hospital peer review board could be held responsible for revoking the privileges of Reno child psychiatrist Kenneth M. Clark, MD. The court said the peer review didn't revolve around quality. Instead, it centered around punishing a physician for being a whistle-blower.
• A Dallas jury in 2004 told Presbyterian Hospital of Dallas and three of its physicians to pay $366 million to cardiologist Lawrence Poliner, MD, finding them liable for defamation, violation of his contract and intentional infliction of emotional distress when they unfairly suspended his privileges following peer review. The U.S. District Court judge ordered the two sides into mediation before entering a judgment, which is likely to be appealed.

"Prior to these cases, the doctors who participated in sham peer review thought that they had the law on their side, but we are starting to see a crack in the immunity shield," said Lawrence Huntoon, MD, PhD, a member of the Assn. of American Physicians and Surgeons' board of directors and editor-in-chief of the organization's Journal of American Physicians and Surgeons.

A different view of peer review

While some say that making peer review more transparent by taking away some of the confidentiality might be one answer to weeding out system abuses, many other physicians say that without confidentiality, physicians would not be willing to serve on peer review committees, and that would jeopardize quality of care.

American Medical Association policy states, among other things, that peer review should be confidential and impartial and should not be done by economic competitors.

Nancy H. Nielsen, MD, PhD, speaker of the AMA House of Delegates, said the impartiality is well adhered to and that keeping confidentiality in place is important in the present legal climate.

Already, she said, some physicians are afraid to come forward with complaints because they fear confidentiality won't be guaranteed should their actions be challenged in court.

And the AMA cautions against a system that would open up peer review panels. Dr. Nielsen worries that opening up the system would cause physicians to report fewer errors and make them less likely to serve on panels.

"Our desire for confidentiality is so we can learn," Dr. Nielsen said. "It's not to put a shield up from us doing the right thing."

Seeking changes to the existing system

Some critics of the peer review process don't necessarily want to see it abandoned.

"Peer review is a sound and necessary process," said William Hinnant MD, Semmelweis Society president. "Doctors need to police doctors. [But] the doctors who police have to be in no way related to the hospital or the doctor involved."

William B. Monnig, MD, a member of the governing council of the AMA Organized Medical Staff Section, said educating hospitals can go a long way in resolving any problems. Peer review is done by peers who are not competitors and not experts from the outside telling doctors what to do, he said.

In a small community, where a doctor under review might not have a peer because he or she is the sole specialist or the only other one is a direct competitor or a partner, Dr. Monnig said it makes sense to go outside to seek an equivalent of a peer or expert in the field. He noted that medical specialty societies are a good place to look for someone who could help find the proper reviewers. But Dr. Monnig emphasized that it's important that the outside reviewers' report go back to the medical executive committee, not the hospital board.

In 2003, the Massachusetts Medical Society adopted 27 principles for incident-based peer review that its members hope will help improve patient safety while ensuring that physicians are treated fairly. The principles also have been discussed at the AMA House of Delegates, and currently a report that outlines policy modifications and additions is before the AMA Board of Trustees.

S. Jay Jayasankar, MD, who has been involved with peer review issues for a decade and is now an adviser for the Massachusetts Medical Society's committee on medical service, which he chaired for nine years, has suggested that the peer review system might work better if it were split into two different processes. For untoward incidents as well as near misses in which physician discipline is not involved -- but where the near mistakes can offer lessons to change the system -- the process could remain anonymous and confidential.

But if an individual physician faces discipline, Dr. Jayasankar makes the argument that the physicians who are doing the accusing and disciplining should be named, and there should be open due process, although the process still would protect patient confidentiality.

Dr. Jayasankar pointed out that the American justice system allows people to know their accuser and allows them to challenge the accusations against them. He said understanding and separating these two parts in peer review would provide fairness for the physician being accused, protect the interest of patients and the public and help improve the health care system.

"If peer review takes away a good doctor, it hurts the public," he said.

"And the public loses if bad doctors are not weeded out, because they are protected by the process."