WHAT IS SHAM PEER REVIEW AND WHAT ARE THE REMEDIES?
Sham peer review refers to instances where a professional review body, typically a committee of licensed medical personnel, acts in bad faith, using the process for reasons other than promoting quality care. Sham peer review is often deliberately orchestrated and can be considered a form of civil conspiracy in violation of a physician’s license rights. However, it is easy to make such an accusation and difficult to prove in court. As physician lawyers we are expert at seeing the start of sham peer review before formal proceedings start. There are two aspects to sham peer review. Procedural violations and substantive (fact based) violations (inventions!).
Sham peer review is a process and it will usually involve various procedural irregularities, such as an unusually long process, seeking references from sources not provided by the subject of the review, failing to recuse biased reviewers, and disproportionately weighing negative comments. The primary goal of legitimate peer review processes is to protect the public by excluding practitioners who provide substandard care or engage in professional misconduct [1], [2], [3], [4]. However the most severe aspects are the substantive aspects. Promoted narratives of “disruptive physician”, selective and repeated critique of performance that singles out bad results and ignores the overwhelming number of excellent outcomes.
Once the stage is set for false accusations the procedures can move quickly and punitively. In theory, the review processes must be conducted fairly and should not be used arbitrarily or discriminatively to exclude competent practitioners. In practice there are often few procedural rights.
In general, if a physician believes they have been subjected to a sham peer review, the first step is typically to exhaust the internal remedies provided by their hospital or healthcare organization. This principle is known as the doctrine of exhaustion of administrative remedies. It takes months if not years to reach this judicial review stage and by then massive damage has already been done.
There are exceptions to the exhaust the process rule but they are simple to express on paper but difficult to achieve in practice. If the physician can provide detailed justification that the peer review process is a sham, they may claim that the exhaustion of remedies is futile. This is also true if the physician alleges the peer review process as the instrument of discriminatory treatment, or when an administrative agency is not involved [5].
In terms of remedies, the available options are largely dependent on the specific facts of the case and the applicable laws. These may range from defeating any qualified immunity that the reviewers might usually benefit from to filing a lawsuit. Notably, there's no implied private right of action in section 809 of the California Business and Professions Code, which sets forth the statutory scheme for peer review.
Section 809.2 of the Business and Professions Code,states that a licentiate who timely requests a hearing concerning a final proposed action has the right to inspect and copy any documentary information relevant to the charges. If not provided access to this information at least 30 days before the hearing, it may constitute good cause for a continuance [6].
In a case under Section 1094.5 of the Code of Civil Procedure, the inquiry extends to questions including whether there was a fair trial and whether there was any prejudicial abuse of discretion, such as the respondent not proceeding in the manner required by law [7]. However, it's crucial to remember that not every violation of a hospital's internal procedures provides grounds for judicial intervention [2], [3].
The Horowitz office fights sham peer review in an aggressive yet tactical manner. We understand the tremendous burden placed on you personally by the threat to your license.
Cited Cases & Statutes Explained
- Mileikowsky v. West Hills Hospital & Medical Center Supreme Court of California • April 06, 2009 • 45 Cal.4th 1259 • 203 P.3d 1113 "
…The primary purpose of the peer review process is to protect the health and welfare of the people of California by excluding through the peer review mechanism "those healing arts practitioners who provide substandard care or who engage in professional misconduct." (S 809, subd. (a)(6).) This purpose also serves the interest of California's acute care facilities by providing a means of removing incompetent physicians from a hospital's staff to reduce exposure to possible malpractice liability. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199, 46 Cal.Rptr.3d 41, 138 P.3d 193; Arnett v. Dal Cielo, supra, 14 Cal.4th at p. 12, 56 Cal.Rptr.2d 706, 923 P.2d 1.)…"
2. Powell v. Bear Valley Community Hospital Court of Appeal, Fourth District, Division 1, California. • March 26, 2018 • 22 Cal.App.5th 263 • 231 Cal.Rptr.3d 381 "…"The primary purpose of the peer review process is to protect the health and welfare of the people of California by excluding through the peer review mechanism 'those healing arts practitioners who provide substandard care or who engage in professional misconduct.' " (Mileikowsky, supra, 45 Cal.4th at p. 1267, 91 Cal.Rptr.3d 516, 203 P.3d 1113.)
"Another purpose, also if not equally important, is to protect competent practitioners from being barred from practice for arbitrary or discriminatory reasons. Thus, section 809 recites: 'Peer review, fairly conducted, is essential to preserving the highest standards of medical practice' ( (S 809), subd. (a)(3) ), but '(p)eer review that is not conducted fairly results in harm both to patients and healing arts practitioners by limiting access to care' ( (S 809), subd. (a)(4) ). Peer review that is not conducted fairly and results in the unwarranted loss of a qualified physician's right or privilege to use a hospital's facilities deprives the physician of a property interest directly connected to the physician's livelihood." (Ibid.) However, "(n)ot every violation of a hospital's internal procedures provides grounds for judicial intervention." (El-Attar, supra, 56 Cal.4th at p. 990, 157 Cal.Rptr.3d 533, 301 P.3d 1146.)…"
3. Sadeghi v. Sharp Memorial Medical Center Chula Vista Court of Appeal, Fourth District, Division 1, California. • October 23, 2013 • 221 Cal.App.4th 598 • 164 Cal.Rptr.3d 420 "…"The primary purpose of the peer review process is to protect the health and welfare of the people of California by excluding through the peer review mechanism 'those healing arts practitioners who provide substandard care or who engage in professional misconduct.' (Citation.)" (Mileikowsky, supra, 45 Cal.4th at p. 1267, 91 Cal.Rptr.3d 516, 203 P.3d 1113.) "Another purpose, also if not equally important, is to protect competent practitioners from being barred from practice for arbitrary or discriminatory reasons. Thus, section 809 recites: 'Peer review, fairly conducted, is essential to preserving the highest standards of medical practice' ( (S 809), subd. (a)(3)), but '(p)eer review that is not conducted fairly results in harm both to patients and healing arts practitioners by limiting access to care' ( (S 809), subd. (a)(4)). Peer review that is not conducted fairly and results in the unwarranted loss of a qualified physician's right or privilege to use a hospital's facilities deprives the physician of a property interest directly connected to physician's livelihood. (Citation.)" (Ibid.) However, "(n)ot every violation of a hospital's internal procedures provides grounds for judicial intervention." (El-Attar v. Hollywood Presbyterian Medical Center, supra, 56 Cal.4th at p. 990, 157 Cal.Rptr.3d 533, 301 P.3d 1146.)…"
4. Natarajan v. Dignity Health Supreme Court of California. • August 12, 2021 • 11 Cal.5th 1095 • 492 P.3d 294 "…Primary goals of peer review statute are to protect the health and welfare of the people of the state by excluding through the peer review mechanism those healing arts practitioners who provide substandard care or who engage in professional misconduct and to protect competent practitioners from being barred from practice for arbitrary or discriminatory reasons. Cal. Bus. & Prof. Code S 809 et seq.…"
5. Kaiser Foundation Hospitals v. Superior Court Court of Appeal, Third District, California. • April 04, 2005 • 128 Cal.App.4th 85 • 26 Cal.Rptr.3d 744 "…We also conclude that a physician facing peer review cannot avoid the process by claiming that the hearing officer and/or panel members appointed by the hospital are impermissibly biased. Because subdivision (c) of section 809.2 provides a method for raising the issue of bias in the administrative proceeding, the exhaustion of administrative remedies doctrine requires the physician to raise the issue of bias before the hearing officer. The physician cannot escape that requirement simply by claiming the hearing officer is biased.…" "…Dr. Dennis contends there is "no rationale or authority for requiring (her) to exhaust remedies before proceeding on the Unfair Competition Counts" because the peer review panel has no "special expertise" applicable to those counts. However, the expertise of the peer review panel is only one of the justifications behind the exhaustion of administrative remedies requirement. In Westlake, the Supreme Court identified several "policy considerations which support the imposition of a general exhaustion requirement." (Westlake Community Hosp. v. Superior Court, supra, 17 Cal.3d at p. 476, 131 Cal.Rptr. 90, 551 P.2d 410.) In addition to recognizing the " 'expertise' of the organization's quasi-judicial tribunal," the "exhaustion of remedies requirement serves the salutary function of eliminating or mitigating damages" and "promote(s) judicial efficiency by unearthing the relevant evidence (in the administrative proceeding) and by providing a record which the court may review." (Ibid.)…" "…In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410, the California Supreme Court held the exhaustion of administrative remedies doctrine applies to hospital peer review proceedings. According to the court, "before a doctor may initiate litigation challenging the propriety of a hospital's denial or withdrawal of privileges, he must exhaust the available internal remedies afforded by the hospital." (Id. at p. 469, 131 Cal.Rptr. 90, 551 P.2d 410.)…"
6. Business & Professions Code § 809.2. Hearing concerning final proposed action by peer review body; procedures; voir dire; inspection of documents; decision; witnesses; continuances; commencement CA BUS & PROF § 809.2 "…If a licentiate timely requests a hearing concerning a final proposed action for which a report is required to be filed under Section 805, the following shall apply: (d) The licentiate shall have the right to inspect and copy at the licentiate's expense any documentary information relevant to the charges which the peer review body has in its possession or under its control, as soon as practicable after the receipt of the licentiate's request for a hearing. The peer review body shall have the right to inspect and copy at the peer review body's expense any information relevant to the charges which the licentiate has in his or her possession or control as soon as practicable after receipt of the peer review body's request. The failure by either party to provide access to this information at least 30 days before the hearing shall constitute good cause for a continuance. The right to inspect and copy by either party does not extend to confidential information referring solely to individually identifiable licentiates, other than the licentiate under review. The arbitrator or presiding officer shall consider and rule upon any request for access to information, and may impose any safeguards the protection of the peer review process and justice requires.…"
7.CCP § 1094.5. Review of administrative orders or decisions; filing record; extent of injury; abuse of discretion; relevant evidence; judgment; stay; disposal of administrative records; application to state employees CA CIV PRO § 1094.5 "…(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.…"