Lawyer for Medical Peer Review

What is the California Medical Peer Review Process?

Daniel Horowitz and Physician/Lawyer Mark Ravis defend doctors at all stages of the peer review process.

The medical peer review is a process designed to police and improve the quality of medical care provided by healthcare professionals. It is often abused so that highly qualified physicians are subjected unwarranted inquiries and threats to their medical license.

The peer review process in theory nvolves the evaluation of a healthcare professional's clinical performance, medical decisions, and overall adherence to standards of care by their peers. This is generally interpreted as other healthcare professionals in the same geographical area and when possible in the same or similar field or specialty.  Unfortunately it is often tainted by internal sniping, cherry picking of difficult cases and unfair criticisms.

The DREADED 805 REPORT

Peer review moves quickly and adverse consequences can take place in matter of weeks.

California Business & Professions Code section 805 requires reporting of discipline (including interim discipline) of physicians to the Medical Board of California.  Summary suspensions almost always result in reporting.  Here is the reporting part of the statute (edited and highlighted):

Section 805 - 805 report by peer review body  

 (b) The chief of staff of a medical or professional staff or other chief executive officer, medical director, or administrator of any peer review body and the chief executive officer or administrator of any licensed health care facility or clinic shall file an 805 report with the relevant agency within 15 days after the effective date on which any of the following occur as a result of an action of a peer review body:

The items that must be reported are summarized as follows:  (Sourced from the Medical Board of California website)

• A peer review body denies or rejects a licensee’s applications for staff privileges or membership for a medical disciplinary cause or reason;
• A licensee’s staff privileges, membership, or employment are revoked for a medical disciplinary cause or reason;
• Restrictions are imposed, or voluntarily accepted, on staff privileges, membership, or employment for a total of 30 days or more within any 12 month period for medical disciplinary reasons;
• If the resignation, leave of absence, withdrawal or abandonment of application or for renewal of privileges occurs after receiving notice of a pending investigation initiated for a medical disciplinary cause or reason;
• A summary suspension of staff privileges, membership, or employment is imposed for a period in excess of 14 days.

This reporting period is a commonly used “hammer” wielded by the attorney for Medical Staff against the target physician.  The physician is often trapped.  Once the process is started can the physician just pack up and move to a better environment?   Here is what the NPDB says.  Basically it parses the issue.  Is it a resignation while “under investigation?”   Or is it a resignation during a “routine review process” e.g. a non-triggered OPPE.

A physician on staff at a hospital resigned her clinical privileges during a routine review that applied to all practitioners holding clinical privileges. Should this be reported to the NPDB?

No. A routine review process under which a health care entity evaluates, against clearly defined measures, the privilege-specific competence of all practitioners is not considered an investigation for the purposes of reporting to the NPDB. Therefore, this resignation would not be considered a resignation while under investigation and should not be reported to the NPDB. If, as a result of the routine review, the health care entity decides to start a targeted investigation of a specific physician, and that physician resigns during the targeted investigation, the resignation would be considered a resignation while under investigation and should be reported to the NPDB.

Peer Review Triggers

The most common “hostile” Peer review triggers are complaints by patients, nurses or other physicians.   Many hospitals have internal (computerized) complaint systems so that groups such as nurses can gang up and file multiple complaints in a short period of time.  There are normal medical staff/MEC contacts through the OPPE process but an OPPE can be routine or a prelude to an FPPE as well.  

FPPE (also called an FPR)

An FPPE (sometimes termed an FPR, Focused Practitioner Review) a PIP (Performance Improvement Plan), failures to obtain privileges, failures to obtain broader privileges, adverse medical events, complaints about a physician’s demeanor  are often “dealt with” on an informal basis.  Do not be fooled by the informality.  Any on the record MEC interaction will carry immediate consequences and long term threats.  The informal resolutions may resolve matters or may be the “we gave him a chance” prelude to a summary suspension.  

Self Help is Often Harmful

Efforts to bypass an attorney can cement negative impressions and reduce the options available once you obtain competent medical legal counsel.   Remember, Organized Medical Staff has an attorney advising them.  You should retain counsel as well.  

There have been cases where physician self help has led to criminal charges of intimidating a witness!

  Large medical groups and hospitals almost always have the best possible legal representation hiding behind their collegial “aw shucks” approach.  In most cases they expect that you will retain counsel and may take advantage of you if you don't.  

Dr. Mark Ravis has this to say about self help.  “They don't teach peer review in medical school.  Don't learn the law when your medical license is at stake.”

Peer Review Conduct & Misconduct is Protected

The Peer Review process is not just the hearing.  Legally, any criticism may be deemed “peer review”.  Peer review activity is largely protected so that people lodging complaints (even in bad faith) have protection from being sued. (See Bonnie v. St. Joseph)

A California medical license attorney knows the dangers of California Evidence Code section 1157.  Evidence Code section 1157 provides near complete protection from disclosure of any statements made by participants in the peer review process. (Federal law does not generally recognize this privilege.) California law balances the need for confidentiality vs. the need of a physician to sue for false accusations. 

Peer Review Hearings

The Horowitz Medical Law Group consists of the most experienced medical lawyers and paralegals working with Daniel Horowitz.    The medical peer review process is a quasi-judicial proceeding that has some aspects of fairness and due process.  There is no substitute for a top experienced trial lawyer when an evidentiary hearing is scheduled in the peer review process.  Evidence preparation, witness preparation and the hard won battle scars of a true trial lawyer can make the difference between success and failure.  Daniel Horowitz has literally thousands of contested evidentiary hearings and jury trials as lead counsel.  He is the best medical case lawyer for a contested peer review hearing.