The term “peer review” embodies what the evaluation of a doctor should be: an assessment by other physicians. However, it can be co-opted by personal grievance or business competition, and so doctors need to be aware of how to safeguard their interests. The easy advice is what not to do: no doctor should plunge in on their own. There is no substitute for hiring a lawyer who is experienced in the review process and its potential ramifications in state licensure, National Practitioner Data Bank reporting, and insurance coverage.
Doctors tend to have take-charge personalities and are accustomed to controlling tough situations. A doctor who is the subject of a peer review will likely believe that because the reviewers are colleagues, they can just explain the situation to them and get it to stop. Lawyers are admittedly expensive, but there is too much at stake in a peer review to risk it as a “DIY project.”
So, let’s say that the lawyer is now in place. Is their role to engage with the process, or to sue to terminate, or undo it? The answer is yes to all of the above. The reason is grounded in the reality of how a court will approach the issue. This begins with a presumption of qualified immunity, but it does not end there.
The Health Care Quality Improvement Act established that protection to encourage doctors to serve as peer reviewers. A reviewer or entity can get a case against them dismissed if they can show that the review was undertaken in a good faith belief that it was to further healthcare quality and patient safety and that the procedures were fair to the doctor.
You may think that actually looks very good for the doctor because they can sue successfully to enjoin a review or strike its results if that review was meritless or denied them due process. That is where the other issues that will impact on a court’s approach come in, though. There is a great advantage to the reviewing entity from the start because courts actually begin from the doctrine of non-review as to the medical substance of these investigations. In non-legalese, that means that they are starting from the fact that the reviewing entity knows medicine and they do not. That then rolls into presumptive credence that the reviewing entity is acting virtuously based on medical facts to protect patients.
Courts will also look at hospitals and medical groups not just as citadels of care but as businesses, and in that respect they will also apply the Business Judgment Rule. This holds that the governing board of an entity has the right to determine and direct its own internal business affairs. In the case of a healthcare business, those include medical standards. Courts will therefore err on the side of self-policing through peer review. In other words, convincing a court that immunity is not deserved is not just going to be an uphill battle–it is a battle that may never get joined in the first place.
Challenging a peer review will therefore have a dual objective: to lay the groundwork for a possible eventual lawsuit, yes, but also to fundamentally correct the process while it is ongoing to avoid ever having to take that stacked-against-the-doctor route. That is where the lawyer comes in because every procedural irregularity will matter and should be challenged on the record.
Of course, not all poorly conducted peer reviews are shams. Some are just sloppy. However, any lapse should be addressed when it happens because the issue is a denial of proper procedure to the doctor even if there is no negative intention. So, what are points that the lawyer should be addressing?
To start with, is the claimed peer review committee itself properly constituted? Only a formalized review body with due process and an appeal option qualifies for immunity. Ad hoc committees will not. The actual staffing of the committee is then a critical issue even if the establishment of the committee is facially appropriate. The doctor should look for competitors and anyone with a personal grudge and advise their lawyer of such immediately. Recusals should then be demanded. These will likely be refused but a record of an inherently biased committee will matter greatly to a later court if the doctor is arguing that immunity should not be granted.
If the committee itself passes muster, then the next issue is whether the doctor is receiving the due process that they are entitled to. Peer review hearings come under the Administrative Procedure Act, but that statute only deals with the general issues that the review is supposed to be a neutral forum, that the subject is entitled to have legal representation, that they can confront witnesses, and that a verbatim transcript should be maintained rather than just minutes or notes. HCQIA then requires minimum due process including notice, access to evidence, a hearing with a record, calling and cross-examining witnesses, and the right to appeal, for immunity to attach to the reviewer. However, the doctor’s critical rights will be set by the by-laws of the hospital or group and the terms of their contract with it, and those must be satisfied to show that the review is not a sham.
Notice is the threshold due process step. Procedurally, there is no “double secret probation” in peer review, and the doctor is entitled to promptly know that the process has been started and what the allegations are. The method of notice, such as being in writing and by certified mail, must also comply with the bylaws of the reviewing entity. If the notice is defective, then it should be challenged even though the defect will likely then just be corrected. The challenge shows that the doctor is aware of their rights and is paying attention from the start. Substantively, notice also goes to the doctor’s contractual right to correct a problem that they are notified about. This will not apply in a situation in which there is an imminent threat to patients, allowing the hospital or group to act immediately, but in most cases the cause of a review will be one that has developed over time and would have been subject to this option, making instead initiating a summary proceeding an act of presumptively bad faith.
The actual procedures of the review should then be assessed. A failure to keep records of all documents used should be challenged. This goes to both a lack of the formality required for immunity and the very basis for the review, since a valid process will have documentary evidence but a sham one will not.
The doctor is also entitled to see all complaints, including incident reports as well as any formal requests for intervention, and the lawyer should demand those in writing if they are not provided. This is a particularly critical point because anonymous reporters and uncredited hearsay (eg, “Lots of staff say that Dr. Subject is abusive”) go to the doctor’s right to cross-examine witnesses, and allegations by competitors or solely by administrators rather than doctors on medical matters suggest a bad faith action. All such should then be challenged in writing.
A peer review committee must also maintain appropriate records of its proceedings. A medical staff secretary should be taking notes and transcribing them into formal minutes that are then approved by the committee. These minutes should indicate which committee member reviewed an aspect of the case, their comments about it, and any responsive discussion. Purely conclusory notes or vague minutes undermine due process because the doctor cannot know what is being done in their case, and so they should be challenged. A failure to produce a real record can then be presented to a later court as evidence that the claimed review was just a rubberstamping exercise that did not qualify for immunity.
Any hearing in which the doctor participates should be transcribed. If the committee refuses, then the doctor should offer to pay for a court reporter themselves and their lawyer should file a written objection if that offer is refused. (Personal taping is not a substitute for a formal transcript because a tape that the doctor created and controls is inherently suspect if offered as evidence later.) Any actions suggesting a sham process, such as not permitting cross-examination, barring the doctor’s expert from testifying, or inappropriate behavior by committee members during the hearing should then be noted and objected to in that record.
The doctor should stay vigilant for breaches of confidentiality and inform their lawyer immediately if they hear about their case in any setting other than the committee room. Comments about the review turning up on the grapevine are evidence that the process is a sham intended to harm the doctor’s reputation, and speaking outside the process can strip a reviewer of their immunity. Any such incidents should be cited by the lawyer on the record.
The decision of the committee may itself demonstrate that the process was a sham if it is arbitrary or punitive, such as requiring psychiatric clearance for a doctor whose mental state was not in issue, or actually exceeds the power of the committee, such as stating a privilege revocation when that can only be recommended. Such a result should be challenged formally by the lawyer.
Finally, the doctor should personally follow up with the Data Bank because a report cannot be made before the process is finalized, which includes appeals. Pre-emptive reporting by the reviewing entity is a serious violation and an indication of a sham review and the lawyer should be immediately informed if it has taken place so that they can demand a retraction.
In summary, doctors should work with their lawyer from the start to push back against improper process as it occurs, ideally to correct the problems and ensure a fair review, but also critically to preserve facts that will convince a later court to pierce the immunity shield.
