What Constitutes the Start of FORMAL PEER REVIEW?
Peer review leaves doctors vulnerable to reporting to the National Practitioner Data Bank or medical boards if they resign when a formal investigation has started. Staying the course can be worse, leading to hearings and negative factual findings in a process that is often unfair to the physician.
So many doctors ask. Has formal peer review started. Here is the answer (and the answer is both muddy and often subjective)
Overview of Peer Review for California Physicians
In California, peer review for physicians (and other licentiates like surgeons, podiatrists, or midwives) is primarily governed by Business and Professions Code (BPC) Sections 805–809.8, which establish a structured process to evaluate professional competence, conduct, and quality of care. This framework integrates with federal protections under the Health Care Quality Improvement Act (HCQIA) and is implemented through medical staff bylaws at hospitals or health facilities. The process aims to protect patient safety while affording physicians due process rights.
Peer review typically occurs in licensed health care facilities, professional societies, or medical groups (with >25 physicians). It involves stages: initial review (informal), formal investigation, potential adverse action (e.g., suspension, revocation of privileges), and a fair hearing if requested. The start of the formal peer review—distinct from preliminary or informal reviews—marks the point where the process escalates to a structured, rights-protected investigation, often triggering reporting obligations.
What Constitutes the Start of Formal Peer Review
Under California law, formal peer review begins when a peer review body (e.g., Medical Executive Committee (MEC), ad hoc committee, or designated panel) initiates a formal investigation based on credible allegations of misconduct or incompetence. This is not merely receiving a complaint but requires a deliberate decision to proceed with fact-finding.
Key legal definitions and triggers from BPC § 805.01:
- Formal investigation: An investigation by a peer review body based on an allegation that one or more of the following may have occurred:
- Incompetence (e.g., substandard care).
- Professional misconduct (e.g., disruptive behavior, ethical violations).
- Mental or physical incapacity affecting practice.
- Acts involving sexual misconduct, harassment, or exploitation.
- Trigger for starting: The peer review body determines the allegation warrants escalation beyond informal resolution. This often follows:
- A preliminary review or "focused professional practice evaluation" (FPPE) under bylaws.
- Appointment of an investigative committee by the MEC or chief of staff.
- No immediate summary suspension (which can start externally under BPC § 805 but is rare and temporary).
The formal phase attaches due process rights (e.g., notice, opportunity to respond) and confidentiality protections under Evidence Code § 1157. Bylaws may specify additional procedural details, such as timelines (e.g., 30–60 days for initial assessment).
Practical Indicators of Formal Start
Hospitals and medical staffs follow bylaws aligned with state law. Common markers include:
| Indicator | Description | Legal Basis |
|---|
| Appointment of Investigative Committee | MEC or chief of staff forms an ad hoc panel to gather evidence (e.g., records, interviews). | BPC § 809; typical bylaws provision. |
| Written Notice to Physician | Physician receives formal notice of allegations and right to respond (may occur at or after committee appointment). | BPC § 809.1; HCQIA due process. |
| Sequestration of Records | Securing patient charts, emails, or data for review; signals shift from informal to formal. | Bylaws; Evidence Code § 1157 (confidentiality). |
| Escalation from Informal Review | Informal discussions or "fast-track" reviews conclude without resolution, leading to formal probe. | Model Medical Staff Bylaws (CMA guidance). |
Reporting Implications (BPC § 805 and § 805.01)
- § 805 Report: Required within 15 days of the effective date of final adverse action (e.g., suspension >14 days, privilege revocation). This is after the formal process concludes, not at the start.
- § 805.01 Report: Required within 15 days after the peer review body makes a final decision or recommendation for disciplinary action following the formal investigation (regardless of hearing). This report is filed with the Medical Board of California (MBC) and can trigger an MBC investigation.
Failure to report incurs fines up to $50,000 per violation.
Phases of Peer Review Process
| Phase | Duration (Typical) | Key Events | Trigger to Next Phase |
|---|
| Initial/Informal Review | 0–30 days | Complaint receipt; informal meetings; FPPE if needed. No formal rights yet. | Allegations deemed credible; committee appointed. |
| Formal Investigation ← Starts Here | 30–90 days | Evidence collection; physician input; committee report to MEC. | MEC proposes adverse action (e.g., discipline). |
| Adverse Action & Notice | Immediate | Written notice of proposed action; physician has 14–30 days to request hearing. | Request for fair hearing (or waiver). |
| Fair Hearing | 60–120 days | Impartial panel; physician rights (counsel, witnesses, evidence). | Panel recommendation to MEC/governing body. |
| Final Decision & Appeal | 30–60 days | Governing body adopts/rejects; possible appellate review under bylaws. | Judicial review (limited; courts defer to bylaws). |
Key Distinctions and Protections
- Informal vs. Formal: Informal stages (e.g., collegial discussions) do not trigger reporting or full due process. Formal starts when bylaws' "investigative phase" begins.
- Physician Rights: From formal start, physicians have rights to notice, response, representation, and a hearing (BPC § 809.2–809.4). Bylaws cannot conflict with these.
- Immunity: Peer reviewers gain HCQIA/state immunity only if process is "reasonable" and follows bylaws.
- Variations: Applies to hospital staffs, medical groups (>25 physicians), and societies. Employed physicians may face dual oversight (peer review + employment termination).
