Neon Beach

From Medscape General Medicine™

Editorial
Editorial in Response to "What Is Sham Peer Review?"
Posted 11/15/2005

Charles Bond, Esq.

There is an epidemic of sham peer review[1] sweeping the country. The pattern is hard to see because it crops up individually in the confidential setting of medical staff committees from hospital to hospital, but the incidence and severity are increasing at such alarming rates that it is undeniable that the peer-review system, originally meant to resolve quality problems in a collegial and confidential manner, is being converted into a weapon to shatter the careers of targeted physicians.

Sham peer review is characterized by Draconian discipline -- usually summarily imposed -- that is founded upon little or no basis in fact. Often, charges are based on nebulous "psychological" or personality issues -- eg, the so-called "disruptive physician." Notably, a major national hospital law firm is now featuring a seminar for medical staffs on how to distinguish "whistleblowers" from "disruptive physicians." The fact that they link advocacy for good patient care and hospital discipline in the same seminar speaks volumes.

Summary suspension or revocation of privileges is like firing an employee without notice: It is a means of intimidation through a direct threat to the doctor's livelihood. Hospital and hospital lawyers know that sham peer review can be economically devastating to the targeted physician -- both from loss of hospital admitting privileges and from the inevitable damage to the doctor's reputation. When coupled with mandated reports to the state medical licensing board and the National Practitioner Data Bank, hospital discipline -- even if it is a sham -- can ruin a physician's career and make it virtually impossible for the doctor to relocate and start again.

It is not coincidental that this sham peer review epidemic is accompanied by a resurgence of economic credentialing (the use of selection criteria for medical staff membership related to the hospital's financial well-being rather than to the physician's qualifications), so-called conflict of interest policies (guidelines to limit competition from doctors), and codes of conduct (which create an entire set of rules for physicians enforced by hospital administrators, not the medical staff). Medical staff leaders are being bundled up and shipped off to retreats at fancy resorts to hear hospital lawyers such as Horty Springer & Mattern and consultants such as the Greeley Company espouse these policies that are unmistakably designed to advance the strategic objectives of hospitals.

Since 1990, the hospital industry has had a strategic plan to control doctors. That is why, in the 1990s, there was a boom in hospital purchases of physician practices, and the creation of physician hospital organizations, management services organizations, etc, in the 1990s. By and large, those strategies did not work, so hospitals have shifted their attention to the credentialing and peer-review processes as ways to deny doctors access to the hospital and thereby control physicians.

The objective of sham peer review, economic credentialing, and the hospital industry's attack on the medical staff is to control physicians so hospitals can vertically control health delivery in their market area. In most markets across the country, hospitals enjoy monopoly or monopsony power, so if hospitals achieve vertical control over physicians, they are able to control not only the local economics of healthcare but, ultimately, the quality of care in the area. The threats to the medical profession and to patient care are real and obvious.

Compounding the problem of sham peer review is sham due process, in which hospital lawyers -- who usually control sham peer-review proceedings -- afford the targeted physicians little or no meaningful rights to exonerate themselves. Sham peer review and sham due process are made possible by medical staff bylaws, which for the most part are written by lawyers selected and paid for by the hospital. Not surprisingly, these hospital lawyers create bylaws that protect the hospital's interests, not the interests of the medical staff or individual physicians. In voting on medical staff bylaws, most physicians are either naive or apathetic, thinking, "Peer review only happens to bad doctors; it'll never happen to me." Experience shows, however, that it is often good, strong doctors who are targeted by sham peer review. No physician is immune from attack. So, when reviewing bylaws, every physician should think, "There but for the grace of God go I."

In these complex times, it is essential that medical staffs hire and pay for their own pro-physician legal counsel and stop relying on hospital-furnished attorneys who, not surprisingly, protect the interests of hospitals over the interests of medical staffs and individual physicians. The American Medical Association and state medical societies have advised medical staffs for over 20 years to hire their own counsel. The common excuse offered by medical staffs for not hiring independent counsel is that they cannot afford it. They can.

Indeed, to fight back against the hospital industry's anti-physician offensive, physicians must reinvigorate and reinvent their medical staff to make the medical staff a separate, independent, self-sustaining entity. To create a separate legal identity, the obvious path for the medical staff is to incorporate. This new, separate corporation may, in turn, enter into a services contract with the hospital to perform medical staff duties. The only difference is that, instead of volunteering all that time for the hospital, the medical staff will charge for its services. Indeed, such hospital/medical staff services contracts seem to be required by Stark II regulations.

The revenue stream from the medical staff/hospital contract would provide more than ample funds to operate an independent pro-physician medical staff; the medical staff could then disburse stipends to its leaders and volunteers (instead of being directed by the hospital administrator) and replace the hospital-paid lawyers who are orchestrating the national campaign of sham peer review. This will not increase hospital costs, since medical staff stipends and lawyers' fees are already budgeted and expended each year. It will simply put the medical staff in control of those expenditures and, ultimately, in control of their own destiny.

Physicians must view the threat of sham peer review as ominous and real, and act to put an end to it. At stake is nothing less than the future of the profession and the well-being of patients throughout America.

References
Roland C Jr. So what is a sham peer review? Medscape General Medicine. 2005;7(4). Available at: http://medgenmed.medscape.com/viewarticle/515862. Accessed November 15, 2005.





Charles Bond, Esq., Bond Curtis LLP, Berkeley, California. Email: cb@bondcurtis.com

Readers are encouraged to respond to George Lundberg, MD, Editor of MedGenMed, for the editor's eye only or for possible publication via email: glundberg@medscape.net


Disclosure: Charles Bond, Esq., has disclosed no relevant financial relationships.

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No wonder no one wants to jump onto the UV Positive bandwagon!!

mr belvedere

Docs don't rock the boat in this debate because of peer scrutiny and the wrath of the various and sundry medical associations (mobs) out there - docs have everything to lose and nothing to gain by rocking the boat.

__________________
"A dusty bible leads to a dirty life ..." -Synonymous

Neon Beach

Sad ain't it?? Worse than Junior High.

Electric_Sun

Little secret guys, , , closer, , , they own the boat!

and it's more like a yacht

__________________
Ban Virgin

Neon Beach

Isn't there some sort a whistle blowers law?

clubtan1

As always, it all comes down to money and power. The entire medical industry attempts to protect their ability to make huge profits. To do so, the industry must control all of the players starting with the licensed physicians. The Peer Review Board is a means to do just that. If one does not play the game as the hospital owner/administrators want, one is effectively "Black Balled" in the tight, medical community. Considering the vast amount of time, effort and money it takes to become a doctor, most are unwilling to rock that boat which allows them the ability to generate huge sums of money thus providing a comfortable life.
What I've begun to see over the last several years are doctors moving away from the hospital trauma settings and toward the more specialized, cosmetic businesses. Low risk but high profit margins. They are moving away from the Big Brother hospital setting to a more lucrative private specialized practice. Being in a private practice, doctors only have to deal with the State Board Peer Review Committee. A less intrusive body as compared to a hospital peer review board.
In time, I see the whole medical industry, if left unchecked, evolving to the point where they can and will control government to an even higher degree. Controlling government means controlling the people. The medical industry is the perfect storm. It's about controlling the life and death issues of the people. Play the game and you will get good medical care and we will allow you to live. Rock the boat and we will ignore your pain and suffering.
It's all about money and power. Who has it and who doesn't.

Electric_Sun

^^^..if you want to hear some horror stories, talk to chiropractor

__________________
Ban Virgin

bronzeman11

Much too intellectual a topic for the bronzeman.

__________________

Go Giants !!!!!!!!!!!!

Kay

Very true.

Dr Burzynski of Houston, Texas, has been harassed by the FDA for over a decade because of his pioneering and controversial use of a preparation he calls "antineoplastons" in the treatment of otherwise untreatable brain tumors. In 1991 five experts from the National Cancer Institute visited Burzynski's clinic, reviewed the records of seven of Burzynski's patients with "incurable" brain tumors. In their report, they verified anti-cancer activity in all seven cases, as well as five complete remissions. In spite of the NCI's recommendation for further study and clinical trials, harassment of Burzynski and his patients and seizure of his clinical records and files continued.
http://leda.law.harvard.edu/leda/data/217/mstennes.pdf#search='BURZYN%20%20fda%20c ase'

1950's, Maine: Wilhelm Reich, M.D.
http://www.orgone.org/wr-vs-usa/wr40225a.htm, in one of the most infamous cases of FDA thuggery, was railroaded through the courts for his unorthodox views on medicine, politics, and society in general. His books and research journals were incinerated. Dr. Reich died in prison and his coworker, Dr. Michael Silvert, committed suicide after being released from prison. The FDA harassed many associated with Reich, and carried out invasions of these individuals' homes without warrant or court order. Such actions were typical of the raids generally conducted during the McCarthy periodhttp://www.orgone.org/wr-vs-usa/wr0.htm. Reich himself was well aware of the mechanisms behind such abuses of power, as evidenced by his book, The Mass Psychology of Fascism

1987; Ft. Lauderdale, Florida: Based upon a perjured search warrant, the Life Extension Foundation, a non-profit organization supplying supplements to low income individuals, is raided by armed FDA agents and US Marshals. Breaking down the doors, the agents spent 12 hours seizing every nutrient product, file, and newsletter they could get their hands on, including many personal affects of owners and employees. Even telephones and computers were "ripped from the wall". Four years later, another raid took place, after the Foundation relocated to Arizona. Employees were intimidated into thinking they had been "shipping illegal drugs" (vitamins!), but no charges were filed against anyone. The raid took three days to complete. Requests for the return of property were consistently refused. Lawsuits against the FDA are in progress.


1990, Oregon: FDA agents raided Highland Laboratories and removed everything except office furniture. No employees were informed of the legal grounds for the raid and were threatened with violence if any of them attempted to enter their workplace. The FDA never charged anyone with a violation, but no property has ever been returned.

1991, California: FDA agents raided NutriCology, a nutrition supplement company operated by Stephen Levine, Ph.D., a molecular geneticist from the UC Berkeley. Levine spent $500,000 to defend against three different FDA injunctions, all of which were thrown out of court.

1990; Mt. Angel, Oregon: Nine FDA agents, 11 US marshalls, and 8 heavily armed Oregon state police raid Highland Laboratories, kicking in both front and back doors. Over an 11 hour period, virtually everything except tables and chairs is carted off to waiting trucks, including many items not listed on the search warrant, at a total value of $37,000. Nobody was informed about the grounds for the raid, the "supporting affidavit" being suppressed by the court. The seized property was taken to an undisclosed location. Mr. Kenneth Scott, owner, and other Highland employees were threatened with violence if they attempted to enter the company premises, and the daughter of the owner was held "in house arrest" for 12 hours at a location several miles away. Highland subsequently reopened, and hired a separate outside mailing service to satisfy FDA requirements. In response, the FDA raided the mailing service, which was a small business run out of the home of a woman in another town. Finding nothing there except mailing equipment and business records, FDA agents threatened to confiscate the woman's checkbooks and cash, failing to do so only after being begged not to. When she asked them "Why are you doing this?", the agent replied "Somebody's got to do it!!" Because of the raids, the owner of the mailing firm subsequently closed her business, and refuses to file charges out of fear of government reprisals(!!). No charges were ever filed by the FDA against anyone, nor has any of the seized property been returned. The FDA still has not given anyone reasons for their outrageous tactics, which were designed simply to put the firm out of business.

http://orgonelab.org/fda.htm

1990; El Cajon, California: The FDA attempts to railroad Sissy Harrington-McGill, 57-year old owner of a pet food store, for violation of a proposed "Health Claims Law" because her literature stated vitamins would help keep pets healthy. Her store was raided and ransacked without a search warrant. When her day in court arrived, Harrington-McGill requested a jury trial -- the judge refused her request, dictating that he alone would judge the case. She was tried and convicted of violation of the Health Claims Law, even though it had not yet been passed by the US Congress at the time the FDA raided her, or at the time of her trial or conviction. Ms. Harrington-McGill repeatedly informed the federal judge of this fact, but he ignored her complaint. For this first-time misdemeanor "violation" of a non-existing law, she was sentenced to 179 days in prison, with a fine of $10,000. She was led away in chains and served 114 days in prison before being released after the U.S. Congress refused to pass the "Health Claims Law". Lawsuits against the FDA have been filed.

The above are only small examples from a very long list of similar FDA abuses of power in recent years.

clubtan1

It's all about power and money. Who has it and who doesn't. I rest my case.