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What is Sham Peer Review?

hand holding a gun

What is Sham Peer Review?

Peer review is a federally mandated process designed to protect patient safety.  Weaponized peer review is a perversion of this process so that sham peer review targets good physicians for non-medical reasons.  Our image for this post is not a medical image.  It is a hand holding a gun.  You get the point.  Sham peer review is like going to the parking garage and having someone put a gun to your stomach.  It can be that sudden and that threatening albeit to a career and not directly to your life.

Sham peer review involves false accusations.  These are usually not simple statements and disagreements with back and forth arguments.  That is normal in any high stress environment.  Sham peer review is orchestrated.

Sham peer review is planned and often coordinated.  Cases with negative outcomes are noted and blame is noted - against the target physician.  We know that at times medicine has good outcomes with bad treatment or bad outcomes with the best of choices.  There is also simply the unexpected and unanticipated, especially with atypical presentations.  So, if someone is keeping book on outcomes and documenting blame without an objective review this is a classic sham peer review set up.   Once the peer review process starts the ability to defend and document even the most reasonable choices may be lost or diminished.  Evidence in terms of what was said but not documented in writing can be lost or invented.  Suddenly a "patient safety" is an unfounded but expressed "concern".

Staff conflicts are spun.  Sometimes leadership requires a direct and critical approach.  Sometimes being a bully involves a direct and critical approach.  What is the difference?  Should all physicians take management courses so that their leadership style meets current political and social norms?   In hospital secret reporting systems can be filed with poisonous accusations and chatter at the lunch room can lead to piling on.  But it can be worse.  It is not outside our experience to see competing physicians or nurse vs. physician conflicts being deliberately escalated so that complaints mirror each other and incidents are exacerbated if not entirely created.  

Interim steps such as PIP's (Performance Improvement Plans), escalated OPPE's (called OPPE but internally treated as a level of discipline or investigation), "friendly" warning letters, offers for "training" courses and other set up tools are common.  

Many incidents reflect political, personal or business conflicts unrelated to patient safety.  However they are framed by intelligent people or MEC lawyers in a manner to allegedly impact patient safety.    In some ways a sham peer review is worse than a real peer review.  With real peer review there can be dialogue and collaboration.  With sham peer review everything you do or say is twisted and used against you.

Sham Peer Review Harms

The result of these shams are lightening fast procedures without much due process with resulting major damage to a physician's license, reputation and career. 

The result of any peer review including planned sham review, is often the resignation of the target physician, reporting to the National Practitioner Data Bank and/or medical board privilege restrictions and summary suspension. These are often interrelated as summary suspensions beyond 14 days in California are mandatorily reportable to the medical board. A summary suspension must be reported to the NPDB if it is either effect or imposed for more than 30 days and it is based on the professional competence or professional conduct of the doctor and any patient health, care, safety concerns are involved.

Sham peer review often involves very loose applications of standard of care with individuals making case by case judgments on a highly personalized basis. The standard of care is not applied objectively. The criticisms are fit to meet a standard of care failure.

Sham peer review can arise from professional jealous, competition for referrals and in response to whistleblowing or criticism. Once a physician is in power at a hospital a new physician who competes with the more established physician is vulnerable to peer review. We have seen cases where a younger surgeon wanted training in TAVR. This competed with another MD and a series of criticisms followed. Were they fair? Or were the retaliatory? That case is now pending in the federal court.

Ganging up creates sham peer review when staff is encouraged (often by gossip) to file complaints in hospital or HR complaint systems. Bullying, threatening, disrespectful are just some of the terms that are bandied about and then turned into a disruptive physician complaint. The disruptions must be tied to a patient care issue which is when the sham peer review process becomes ugly. The ammunition of weeks or months of registered complaints are then added to a particular patient outcome and the peer review process takes off at a stunningly fast pace.

Sham Peer Review is Technically Not Protected but Sham Peer Review is Protected

A physician who is subject to sham peer review has the right to sue but the protections of anti-SLAPP statutes are onerous. In California there was a landmark case (Bonni v. St Joseph Health System) which upheld the physician’s right to sue for sham peer review but also upheld the right of the defendants to throw out large portions of his case under peer review protections. In California the physician was financially responsible for paying the winning side’s attorney fees for the causes of action and factual allegations that were dismissed.

The fact gathering process is given broad immunity under HCQIA and even broader immunity in many states such as California. The HCQIA protections are described in 42 U.S.C. §11112(a). These are the minimum protections and provide full or almost full immunity for conduct done ostensibly to protect the patients. There are requirements of notice and fair hearing and a reasonable belief that the conduct involving the peer review process was done in good faith.

State rules and HCQIA at 42 U.S.C. §11112(b) and (c) describe the basic fair hearing requirements which include:

1. The right to a fair hearing.
2. Prompt hearings (usually within 30 days)
3. Notice of the procedures governing the hearings.
4. Notice of which witnesses are being called and the basics of their testimony.

The selection of the hearing officer and panel do not meet courtroom standards and the appointments are usually done by medical staff and the MEC.

The hospital by-laws should be compared to the minimum/minimal state and HCQIA standards and the more advantageous rules should apply to the target physician. Again, the summary e.g. emergency protection provisions of state laws and HCQIA dispense with notice and hearing requirements and allow suspension of privileges when there is “imminent danger to the health of any individual,” (42 U.S.C. §11112(c)).

Against this almost all powerful backdrop, peer review actions if done in good faith are essentially immune from suit. Yes, the decisions can be challenged without risk to the target physician but lawsuits for sham peer review end up subject to state anti-SLAPP motions and motions to dismiss based upon privilege.  In a later post, we will write more about the SLAPP statutes, the Bonni case and the dangers to physicians who fight back.  

The best defense against sham peer review is early intervention. Our physician lawyers are unfortunately very familiar with sham peer review. Please call us sooner rather than later.

View Our Webpage on Physician Peer Review Law.

For more detail, the American College of Emergency Physicians has an excellent article on Sham Peer Review

An excellent AAPS video on sham peer review is here