The Peer Review Process - What is it? Is it Fair?
The Peer Review process is the evaluation and discipline process that medical staff, usually through the MEC utilizes to ensure quality patient care. It is a quasi-judicial process that has a very loosely defined investigative and complaint gathering process. Once discipline is proposed and a doctor seeks a peer review hearing, the process becomes more formal. A peer review hearing is governed by state law (adopting federal standards) or federal standards in the absence of state legislation. The by-laws further define the rules and the process. Medical Board reporting, loss of privileges and National Practitioner Data Bank (NPDB) reporting are all possible outcomes.
We are often asked, is the peer review process fair? In reality it can be and physicians "in the right can be vindicated".
AMA Peer Review Standards
The AMA Code of Medical Ethics section 9.4.1 is titled “Peer Review & Due Process”
It outlines the best case scenario for a peer review hearing. The AMA code describes Peer Review as “promoting professionalism and maintaining trust.” However, most physicians subject to an MEC investigation or the peer review process find that it is more political than professional in its origination and investigation.
Peer Review is usually triggered by staff complaints. Nurse complaints about physicians are often given great significance by medical staff. Physician vs Physician complaints often mask turf wars and professional jealousy.
While the AMA standards require that “physicians ... who are involved in reviewing the conduct of fellow professionals ... adhere to principles of a fair and objective hearing...” the inquiries are often personally driven and decision making is often highly subjective.
Medical Staff By-Law Peer Review Rules
The Medical Staff by-laws will contain the specific rules for peer review. Some by-laws require in house appellate review of negative peer review decisions prior to allowing the physician to access the Superior Court. Others have no such provision. While fundamental fairness exists at peer review hearings the process is skewed in the sense that the hearing officer is selected by the Medical Staff without consultation with the doctor.
Legal Immunities for Peer Review Participants
There are broad immunities that protect the people who prosecute a peer review action. This can sometimes protect unfair accusations and even invented evidence.
California Civil Code section 43.8 says that “there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of the communication of information in the possession of that person...when the communication is intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing or veterinary arts.”
Likewise, a civil lawsuit against a peer review entity or participating physician can be dismissed on motion under California Code of Civil Procedure section 425.16 (the anti-SLAPP) lawsuit.
Summary suspensions are difficult to stop and can result in immediate reporting to the Medical Board.
Peer Review defense starts at the slightest hint of trouble. It is (very) fast moving process in most cases so that prevention or intervention may be ineffective once the process has a formal start.
The Horowitz Physician group features physician lawyer Dr Mark Ravis (MD/JD) and Daniel Horowitz whose jury trials and courtroom work has protected the licenses of many medical professionals.