Friday, 24 June 2011

Mr Nunn Orthopaedic Surgeon and David Cameron PM do their best by Dr Helen Bright

Click on the photograph to watch the video

Mr Nunn, Orthopaedic Surgeon who would know only to well what happens when infection spreads through the bones and kills objected to filming crew not complying with hospital hygiene rules. It certainly is best to be safe. David Cameron, PM did the best he could in the situation and asked filming crew to come back after they take their ties off. It is great to have PM who is not a tyrant.

Under Labour government doctors could not assert their authority in the interests of patients, but I think the times need to change at St Thomas Hospital, London too. What about changing some appointments at the board?

Mr Nunn should come back to his work if this incident is the only reason why he was asked to have some time off work by hospital management.

Thursday, 23 June 2011

Edith Piaf: La Foule (The Crowd)

Please, click on photograph to listen to brilliant singing by Edith Piaf.
There is power in numbers to bring people together but also to make them part for ever. It happens in politics, science, social interactions, and what not.

Perhaps, even English word "fool" meaning deficient in judgment has the same origin as "foule" in French.

One can think of so many examples where crowds stopped something beautiful from happening: patients and doctors separated because of the mobbing of doctors(or patients), mothers separated from children because of injustice and prejudice against them, couples thorn apart by nationalism, and so on.
Lyrics of La Foule:
Je revois la ville en fete et en délire
Suffoquant sous le soleil et sous la joie
Et j'entends dans la musique les cris, les rires
Qui éclatent et rebondissent autour de moi
Et perdue parmi ces gens qui me bousculent
Étourdie, désemparée, je reste là
Quand soudain, je me retourne, il se recule,
Et la foule vient de me jeter entre ses bras...

Emportés par la foule qui nous traîne
Nous entraîne
Écrasés l'un contre l'autre
Nous ne formons qu'un seul corps
Et le flot sans effort
Nous pousse, enchaînés l'un et l'autre
Et nous laisse tous deux
Épanouis, enivrés et heureux.
Entraînés par la foule qui s'élance
Et qui danse
Une folle farandole
Nos deux mains restent soudées
Et parfois soulevés
Nos deux corps enlacés s'envolent
Et retombent tous deux
Épanouis, enivrés et heureux...

[ From: ]

Et la joie éclaboussée par son sourire
Me transperce et rejaillit au fond de moi
Mais soudain je pousse un cri parmi les rires
Quand la foule vient l'arracher d'entre mes bras...

Emportés par la foule qui nous traîne
Nous entraîne
Nous éloigne l'un de l'autre
Je lutte et je me débats
Mais le son de ma voix
S'étouffe dans les rires des autres
Et je crie de douleur, de fureur et de rage
Et je pleure...

Et traînée par la foule qui s'élance
Et qui danse
Une folle farandole
Je suis emportée au loin
Et je crispe mes poings, maudissant la foule qui me vole
L'homme qu'elle m'avait donné
Et que je n'ai jamais retrouvé...

Wednesday, 22 June 2011

Unforgettable: General Medical Council response to Department of Health Consultation on Whistleblowing

General Medical Council (GMC) responded to consultation by Department of Health regarding whistleblowing with advice that National Health Service staff are trained in human rights and how discrimination affects whistle-blowers. This is exactly what GMC does not do. When Freedom of Information request was made regarding training of GMC Fitness to Practice (FTP) panelists, GMC did not respond for months in full knowledge of the answers and thus breached Freedom of Information Act 2000.

CLICK HERE to read request made under FOIA and GMC responses.

No, there is no training of FTP panelists in Human Rights or about organizational reprisals against whistle blowers. Even when FTP panel were asked to admit into evidence scientific papers about Whistleblowing and discrimination during whistleblower's disciplinary hearing (sham peer review) they refused it. Ignorance is bliss for that lot. Sham peer review is still the rule at GMC.

Illustration: Gila lizard with painful venom that improves memory

CLICK Here to read GMC Response to Department of Health Consultation on Whistleblowing:

My favorite bit is this one, of course:

Department of Health Question to GMC: What proportionate measures might we implement that could enhance this positive effect?

GMC answer: Practical and focused training on human rights/discrimination issues would help to ensure that all staff identify where patients or colleagues are put at risk of receiving poor or less favourable treatment as a result of reasonable adjustments not being made.

Simply, unforgettable.

Professor Dinesh Bhugra's Parting Sobs

If you click on the picture of Professor Dinesh Bhugra on the left, from Guardian, you will be able to read their article titled: Mental health services in crises over staff shortages.

Professor Dinesh Bhugra must be leaving or retiring to be shooting like this. Normally, he has been perceived as being very compliant with all the previous government policies that lead to some of the situation in psychiatry he describes as novel, but has been present throughout Labour government. A lot of money has been put into psychiatry, but money is not everything and psychiatrists can easily create wards overflowing with patients by simply not discharging patients and/or inappropriate medication prescribing which can lead to addiction or side effects that make people feel ill leading to longer periods of hospitalization. Also if psychiatrists do not take any risks with patients or staff to challenge them but let them live in ignorance so that nobody gets upset and there are no complaints about the doctor one gets overflowing wards. Nobody grows.

120% bed occupancy means some patients are on leave as planned but their beds are filled by new patients rather than left vacant in order to improve efficiency of the service delivery and reduce costs to tax payers.

Professor Bhugra founded/facilitated Spirituality Special Interest Group at The Royal College of Psychiatrists at the time the previous prime minister was in a missionary state (although, probably not the position as well, but then we do not know, really).

The members of Spirituality Special Interest Group were able to launch attacks on progressive psychiatry with devastating effects for the patients. Professor Bhugra, if he prayed, had no effect whatsoever according to the situation he feels is true. He does not say anything about his own effectiveness. Religious psychiatrists, and religious patients' relatives as well as single activists attacked non-religious psychiatrists via General Medical Council Fitness to Practice sham peer reviews. In multi-faith working spirit of Blair administration more psychiatrists than ever were eliminated from clinical practice. Professor Bhugra was not noticed for standing in front of GMC with a protest placard saying: " Enough is enough" or similar.
Psychiatrists are the least religious of all doctors according to some researchers and The Royal College of Psychiatrists have tarnished their own image by putting faith before science. No wonder UK is short of psychiatrists. It is off putting to have image of psychiatry ruled by the religious as well as having medical regulator who bends over backwards to accommodate any nonsense in the name of political correctness. Human Rights Act 1998, in fact, allows the regulator to put patients' health first.

Professor Bhugra made the name for himself by writing on racial discrimination/cultural aspects in psychiatry. But when Doctors4Justice wrote to him that The Royal College of Psychiatrists published NHS London Section 12(2) Approval Policy which was racially discriminatory and breached Race Relations Act and other laws, he never responded to the best of our knowledge. Click on these links (colored) to read more.

The application form published by The Royal College of Psychiatrists in 2011 on their website was designed in 2005 by NHS London and never complied with Race Relations Act. In addition, NHS London has failed to monitor ethnicity of the applicants (psychiatrists). Therefore, as NHS London produced a racially discriminatory policy (it discriminated against locum psychiatrists doctors, the majority of whom are from ethnic minorities) NHS London (and other Strategic Health Authorities), certainly, did not wish to have their work monitored.

When in 2010 Equality Human Rights Commission wrote to NHS London after Doctors4Justice complained in 2009 about racial discrimination in their Section 12 Approval policy, NHS London Medical Director made various promises to Equality Human Rights Commission. He did not deliver the goods when we last checked in 2011. To make the matters worse, NHS London Information Access Team showed evidence of Anger management problems with fictitious claims of our requests being vexatious when we asked for statistics of ethnicity monitoring of the applicants (psychiatrists). They even suggested if we are not happy we could complain to their Chief Executive. Ha, ha. We do know that Chief Executives of all English Strategic Authorities were sent the copies of the Section 12(2) Approval Policy and just did nothing despite indirect racial discrimination and lack of ethnicity monitoring in the applications (with the exception of two out of eight) during Blair administration.

Psychiatry is a difficult and unpopular specialty and some foreign doctors and English doctors drifted there because of personal necessity rather than by their first choice.

Ethnic minorities always have less choice in medicine/employment, so one finds the largest numbers of ethnic minority doctors in the most unpopular psychiatric sub-specialties and unpopular medical specialties in general.

Then, there are some brilliant psychiatrists who just love psychiatry and are really good at it. At times they get clobbered by the less capable ones if they upset them. It is very easy to upset those who are doing something wrong and especially when told so. Again, to the best of our knowledge, Professor Bhugra did not defend whistleblowers just in case it proved risky for him. Neither did British Medical Association or any medical defense organization step in to do the decent thing despite the desperate pleas from doctors. "You are not being charged with talking to the press but with misconduct" they all crowed in unison. Breeding mediocrity may be official standard but it is not in keeping with the needs of the population. Eventually, one gets the results one has in the British hospitals.

Professor Bhugra laments that psychiatric patients complain of having too little to do. Well, my patients always had plenty to do as they had treatment/development programs in different spheres in their lives. Anyone can construct those with patients help and expression of interests.

Some of my colleagues complained I gave them too much to do at times, but so what! In one hospital where I worked only 10% of all patients had diagnosis on my arrival and they were there as in patients for years already. When I left my six months training post, 70% of my patients had diagnosis. Yes, of course, there were complaints about me, but that is to be expected in sleepy, dusty places where staff thought not having diagnosis in those patients who had learning difficulties was normal and to be expected. One of my consultants (boss, actually) could not stand my dynamic approach and started writing complaints about me. We had a secretary in common who could see the progress being made with all my hard work. The secretary typed complaint letters against me, consultant signed them and secretary binned the letters without sending them. This is how we worked as a team in a dysfunctional world and saved a number of lives. In her spare time this secretary with a heart of gold worked as a Samaritan. We remained friends for many, many years after I left.

Monday, 13 June 2011

Jan Eastgate, Scientology official arrested and released on bail

A senior Scientology official, a winner of an award for her activities in promoting human rights has been arrested and released on bail following allegations of perverting the course of justice. Click on photo to watch video of the news.

The allegations are that she instructed a girl and her mother to lie to police about sexual abuse by girl's stepfather. Allegedly, she told mother and daughter to hide abuse or otherwise the girl would be taken into care.
Ms Eastgate has been arrested and released on bail and is due to appear in court soon.

It is certainly true that even without any instructions to pervert the course of justice, police may have plenty of difficulties in investigating child abuse anyway and on daily basis. There are not just the frequent problems of denial by the abusers, but that of evidence (proof) and reliability of witnesses at the level required by the courts.

Children themselves can be very fearful, feel ashamed and take many years to work through different stages of the trauma following abuse. Many self -harm and some kill themselves.

Those children who are not believed by their family even when they speak up suffer for many years. The reasons for denial by family members include financial dependency on alleged abuser in nuclear family and fear of social shaming and blaming.

Scientology is a religion and there are many others. However, surely, mother is responsible for accepting alleged advice by Ms Jan Eastgate and for her other beliefs religious and not religious. Equally responsible is Ms Jan Eastgate if the allegations are true.

Psychologists and social workers as well as psychiatrists have supported many victims of abuse and Scientology has reputation of being anti-psychiatry.

The case of Ms Jan Eastgate has many interesting psychological and political aspects. There is a worldwide shortage of psychiatrists and it is very difficult for many people to get help even when they are begging their General Medical Practitioners for referrals to psychiatrists (in London, UK, for example). Patients are told they cannot be referred to psychiatrists because there is not enough psychiatrists to see them. Perhaps, Australia has decided to lead the world and show itself as being psychiatrists friendly unlike some places, like UK , where significant persecution of psychiatrists has taken place at the hands of the religious lot and not just Scientologists.

There are activists who see it as their mission to do in as many psychiatrists as possible. Doctors who have never experienced the relentless onslaught of telephone calls from such activists have no idea just how stressful and dangerous some of these people are.

Psychiatrists have been made bankrupt, lost their registrations with medical regulator and their reputations in a wider social context.

Religiously biased medical institutions did absolutely nothing to stop this kind of abuse of properly qualified professionals because they had so much support from the government of the past days who lavished money on them (millions) and later on promoted infiltration by such religious activists into medical organizations.

Earlier on, in 1988, Dr Bisa Haeger and Dr Joy Dalton psychiatrists published the first investigation in the world into the attitudes of psychiatrists about child sexual abuse. They found psychiatrists were well informed about the psychological consequences of abuse but had not many cases of victims on their books despite the prevalence research which showed it could be somewhere around 50% of psychiatric patients. Click HERE to read the study. It would be interesting to see how things have changed in the last twenty years in terms of social attitudes of psychiatrists to child abuse.

CLICK HERE to watch video of Scientology conference and their mission to destroy psychiatry sent by the Anonymous commentator below.

Monday, 6 June 2011

Racism and Abuse of Peer Review Process in UK medicine

Looking at Fitness to Practise and Investigation Committee decisions at the General Medical Council in the last year or so (just under) out of 439 cases, 299 doctors are of ethnic origin as judged by their foreign names. Therefore, according to my calculations 68% of those appearing before GMC are likely to have looked foreign to their peers before they referred them to GMC.
It seems that essentially there is abuse of process in order to hide some failures. It may well represents the attitude; "Who are you to tell me what to do? Go back to your own country! And if you do not want to I shall make sure you do."

There is abuse of peer review system in UK and there are known gangs of doctors and other staff in NHS who abuse GMC to get rid of doctors for personal reasons of inadequacy and revenge and repeatedly so. Locum doctors are particularly vulnerable.

The abuse of peer review process in the hospital where doctor works and GMC is essentially the same malice. Some doctors are tortured for years through internal disciplinary procedures of their hospital.

Doctors who raise issues related to exercise of their rights are likely to be victimized too. In USA there has been ongoing review of this abuse of process:


B of T Report 24 - A-08


Inappropriate Peer Review

Presented by:

Edward L. Langston, MD, Chair

At the 2007 Annual Meeting, the American Medical Association (AMA) House of Delegates adopted amended Resolution 18. Resolution 18 directed the Board of Trustees to report on abuses of the peer review process. The resolution asked that the report consider situations in which medical staff peer review has been employed for reasons other than maintaining and improving public health, such as to be rid of a competitor or to sanction a physician who disagrees in good faith with hospital policies. This informational report responds to that request.[1]

While charges of peer review abuse are made with some frequency, they are difficult to prove, and there have been few confirmed cases of such abuse. Estimates of the occurrence of abuse are speculative.

Perceptions of Peer Review Abuse

A sanction by a peer review body can be a devastating blow to a physician, emotionally, financially, and professionally.[2] Those who have been so sanctioned frequently claim to be victims of “sham” peer review.

Various organizations publicly proclaim their distaste for peer review and advocate for a reduction of the legislative protections established in the Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C. §§ 11101, et seq.[3] For example, the web sites for the Semmelweis Society,, and the Center for Peer Review,, recite numerous instances of what they deem “sham” or “bad faith” peer review. Likewise, the American Association of Physicians and Surgeons (AAPS) asserts on its web site that “[s]ham peer review is not only very real, but is epidemic in this country.” AAPS characterizes HCQIA as “[t]he enabling source of this insidious and spreading evil” (

AMA publications have noted the vociferous critics of peer review. In its January/February 2004 issue, AMAVoice highlighted three physicians who had spoken against hospital practices and then been threatened with or actually experienced a loss of privileges. While the article did not specifically refer to inappropriate peer review, that was the implication. The article quoted one of the featured physicians as saying: “There’s definitely a ‘kill the messenger’ mentality in medicine today.” Another said: “If you do speak up for the patient … you risk being labeled disruptive, which can lead to termination. The system has been perverted.” Subsequently, the May/June 2004 issue of AMAVoice published a letter from three other physicians on the medical staff of one of the highlighted hospitals, asserting the integrity of its credentialing process. Immediately following that letter, AMAVoice stated that its earlier article “did not intend to cast doubt on [the hospital’s] commitment to patient care.”

Similarly, the October 10, 2005 issue of AMNews published an article entitled “Peer Review Under Fire: Real Problems or Trumped-Up Accusations?” While the article quotes sources, including an AMA spokesperson, who support peer review and vouch for its integrity, it primarily repeats the charges of those who attack the process. Likewise, on August 15, 2005 Time Magazine ran an article on “Doctors Who Hurt Doctors,” suggesting that peer review abuse is widespread within the medical profession and that peer review confidentiality statutes further such misfeasance.

The Massachusetts Medical Society surveyed Massachusetts physicians in late 2006 to ascertain their experiences with and attitude toward peer review. While 88% of the respondents perceived peer review as helpful for clinical quality improvement, 15% indicated that they were aware of peer review misuse or abuse.[4]

In short, accusations of improper peer review are readily made, and those accusations can lend themselves to media coverage. By the same token, it is easy to charge that peer review manifests the medical profession’s desire to avoid scrutiny of a supposedly tainted process. Actual proof of wrongdoing, however, is a different story.

Legal and Practical Impediments to Proving Peer Review Abuse

Successful peer review depends on the cooperation of the medical profession. Physicians are very aware that a doctor who has suffered an adverse peer review outcome may have the motivation and sometimes the financial resources to challenge the action in litigation. Such awareness can potentially chill participation in the peer review process. Successful peer review therefore depends on minimizing litigation over hospital peer review decisions (AMA Policy H-375.979, AMA Policy Database).

Congress, when enacting HCQIA, found that peer review is needed to maintain and improve quality medical care. It has also found that physicians must be protected from liability for engaging in peer reviews, if they are to participate in the process (42 U.S.C. §§ 11101). For these reasons, HCQIA has erected several legal safeguards against attacks on the peer review process.

One such safeguard is immunity from monetary damages for peer review bodies and those who assist in the peer review process (42 U.S.C. § 11111(a)(1)).[5] This immunity is provided so long as the peer review action has met certain minimal procedural standards and was taken “in the reasonable belief that the action was in the furtherance of quality health care” (42 U.S.C. § 11112).[6] While a peer review action taken for reasons other than the furtherance of quality health care would necessarily fail this standard and thus not be entitled to immunity, HCQIA also states that a professional review action is presumed to have met the standard. Thus, the physician who is attacking the peer review process must overcome a presumption that those who participated in the process are entitled to immunity from damages. In a close case, this burden may cause a challenge to the peer review action to fail. In light of this barrier, those who would otherwise seek to overcome an adverse decision may be dissuaded from even mounting an attack.

A second safeguard is a provision in HCQIA that allows an award of attorneys fees against a physician who has unsuccessfully sued to contest a peer review action, if the lawsuit was brought without a reasonable basis. This provision states that:

“[T]he court shall, at the conclusion of the action, award to a substantially prevailing party defending against any such claim the cost of the suit attributable to such claim, including a reasonable attorney’s fee, if the claim, or the claimant’s conduct during the litigation of the claim, was frivolous, unreasonable, without foundation, or in bad faith” (42 U.S.C. § 11113).

The fear of incurring such a sanction may deter an otherwise meritorious case from being filed.[7]

Third, while HCQIA does not create a privilege against the disclosure of peer review documents, the laws in almost all of the states do.[8] A physician who challenges the peer review outcome has the burden of proving the impropriety of the process. Without the evidence available through the discovery of peer review information, that evidentiary burden may be more difficult to overcome.

A fourth legal obstacle arises from the complaining physician’s inherent burden of proof. The physician claiming an inappropriate peer review may have to show more than that the peer reviewers were mistaken. He or she may also have to show that the peer reviewers were motivated by bad faith or some other discriminatory animus. It is always difficult to prove that one’s opponent acted with wrongful intent, rather than through simple error.

Aside from these legal impediments against challenges to an unfavorable peer review outcome, a physician may face practical and social obstacles. The complaining physician must rely solely on his or her own resources to prosecute the case, while the legal defense costs are likely to be paid at least partially, if not wholly, by an insurer or by a hospital. Psychologically, the complainant stands alone, while the defendants can provide each other with moral support. Furthermore, the peer reviewed physician knows that if he or she loses a lawsuit against the peer reviewers or the peer review body, the physician could suffer public disgrace and might become ostracized from others within the medical profession.

For all of these reasons, one can expect that only an exceptional situation is likely to result in a legal finding that an adverse peer review resulted from improper motives, rather than an honest desire to further quality health care.

Proven Cases of Inappropriate Peer Review

In Patrick v. Burget, 486 U.S. 94 (1988), the United States Supreme Court upheld a jury verdict, based on a finding that a peer review proceeding had been conducted in bad faith and to disadvantage a competitor, rather than to improve patient care. Following Patrick, the AMA adopted Policy H-375.983, “Appropriate Peer Review Procedures,” which cautions hospitals and medical staffs to observe the HCQIA guidelines at 42 U.S.C. § 11112 in conducting peer review.[9]

In 1989, the Colorado General Assembly designated a “Committee on Anticompetitive Conduct,” which consists of certain members of the Colorado State Board of Medical Examiners. The Committee is required to investigate complaints of “unreasonable anticompetitive conduct” in medical peer reviews. C.R.S. § 12-36.5-106.[10] Pursuant to a request made under the Colorado Open Records Act, the Committee indicated that since 1990 it has found two cases of anticompetitive peer review.

In Rosenblit v. Superior Court, 282 Cal. Rptr. 819 (1991), a peer review action had been instituted against an endocrinologist who employed a different method for managing diabetes than the approach used by his colleagues on the medical staff at his hospital, and the physician’s staff privileges were revoked after an adverse finding by a hearing panel. The Court of Appeal found numerous procedural errors in the peer review, including improper notice, refusal to provide an opportunity to copy the medical records that were to be used against him, refusal to allow legal representation, and denial of an opportunity to test the members of the hearing panel for bias. In reversing the revocation of the physician’s staff privileges, the court stated: “The record demonstrates Hospital was dedicated to removing Rosenblit rather than providing a physician with a fair opportunity to defend his treatment regimen.”

Clark v. Columbia/HCA Information Services, 25 P.3d 215 (Nev. 2001), found that a physician had overcome the presumption of good faith that ordinarily attaches to a peer review action. The evidence there showed that a peer review board had found the physician “disruptive” because he had reported substandard patient care to government authorities and to the Joint Commission on Accreditation of Healthcare Organizations.

In August, 2004, a jury found a Dallas hospital and three of its physicians liable to a cardiologist for defamation, violation of contract, and intentional infliction of emotional distress for an unfair suspension of privileges, based on an allegedly faulty peer review. It entered a $366 million verdict for the aggrieved physician, an amount later reduced by the trial court. See Poliner v. Presbyterian Hospital of Dallas, 239 F.R.D. 468 (N.D.Tex. 2006) (reducing jury award). That case, however, is on appeal.

These are the only cases known to the AMA in which there has been an actual finding by an impartial government body of improperly motivated peer review. While other cases have found an abridgement of procedural rights in the peer review process, such abridgements may, but do not necessarily, prove a motivation for the peer review other than unbiased concern for public health.


The AMA believes that medical peer review should be an organized effort to evaluate and analyze medical care services delivered to patients and to assure the quality and appropriateness of these services. It is primarily an ongoing, educational process, whose purpose is to maintain and improve the quality of medical care (Policy H-375.997).

However, peer review can sometimes be an adversarial, fault-finding process. It then becomes complex and contentious, and procedural safeguards must be followed to protect individual rights. Witnesses’ statements can conflict, and their testimony can be motivated by selfish as well as altruistic purposes. Errors may be made, both in the procedures followed and in the substantive conclusions reached. However, the commission of a mistake is not the same thing as the perpetration of a deliberate wrongdoing.

Abuse of peer review is easy to allege but, for the reasons discussed above, can be difficult to prove. Considering the nature of the proceedings, it is to be expected that such charges will be raised by physicians who disagree with the results. In fairness, though, those who raise such claims should have the burden of proving them. Since the passage of HCQIA in 1986, the AMA is aware of only exceptional, isolated instances of peer review determinations that have resulted from improper motivations, rather than a good faith desire to improve patient care.

This may partly be explained by the difficulties in proving such a case and the legal disincentives against bringing this type of lawsuit. More likely, though, is that peer review abuse is a rarity. The legal obstacles make a claim of inappropriate peer review difficult to prove; they do not make it impossible. If abusive peer review were indeed “epidemic,” there would probably be a more substantial track record of definitive and proven malfeasance. The absence of such a record suggests that the claims of widespread or frequent “sham peer review” are speculative.

The Board believes that Policy H-375.983 provides important guidance to medical staffs of the procedural safeguards that will minimize the likelihood of inappropriate peer reviews. H-375.983 is quite detailed, and any amendments to it that might create further complexity could obscure its value as an understandable guideline. The full text of H-375.983 is attached to this informational report.


H-375.983 Appropriate Peer Review Procedures

(1) Our AMA urges state medical associations to investigate applicable state law to determine if additional state agency supervision of peer review is needed to meet the active state supervision requirement set forth by the Supreme Court.

(2) Peer review procedures and actions should, at a minimum, meet the Health Care Quality Improvement Act of 1986 standards for federal immunity: (a) In any situation where it appears that a disciplinary proceeding may be instigated against a physician that could result in the substantial loss or termination of the physician’s medical staff membership and/or clinical privileges, the advice and guidance of legal counsel should be sought. The accused physician should have legal counsel separate from the health care organization or medical staff. The health care organization and the medical staff should each have separate legal counsel. The attorney of the body bringing the peer review action, be it the health care organization or the medical staff, should undertake the procedures needed to prepare for the hearing including the written notice of charges, the marshaling of evidence and the facts, and the selection of witnesses. This health care organization or medical staff attorney should be instructed that his or her role includes assuring that the proceedings are conducted fairly, bearing in mind the objectives of protecting consumers of health care and the physician involved against false or exaggerated charges. The attorney for the body which is not bringing the peer review action should work to ensure that proper peer review processes as outlined in the medical staff bylaws are followed. The role of the attorney for the accused physician is solely to defend his or her client. (b) The medical executive committee, through its attorney, may consult with the health care organization, through its attorney, regarding appointment of a hearing officer. If an attorney is sought to be the hearing officer, those solo attorneys or attorneys from a firm regularly used by the hospital, medical staff, or the involved medical staff member or applicant for membership for legal advice regarding their affairs and activities, should not be eligible to serve as hearing officers. The hearing officer shall gain no direct financial benefit from the outcome. (c) The attorney advising the medical staff or, in the limited situation where the hospital is prosecuting the correction action, the attorney advising the health care organization, and the attorney representing the physician involved should be accorded reasonable latitude in cross-examination, but acrimony should not be allowed by the hearing officer. (d) Substantial latitude should be permitted in the presentation of evidence, medical reference works and testimony, within reasonable time constraints and at the discretion of the hearing officer. (e) A court reporter should be present to make a record of the hearing proceedings, and the pre-hearing proceedings if deemed appropriate by the hearing officer. The cost of attendance of the court report shall be borne by the hospital, but the cost of the transcript, if any, shall be borne by the party requesting it. (f) Within the discretion of the hearing officer, witnesses may be requested to testify under oath. (g) The role of the hearing panel should be defined in the medical staff bylaws. The role of the hearing panel may include, without being limited to, such duties as: acting as an objective arbiter of evidence, examining witnesses, determining adherence to the standard of care, providing well-reasoned documented opinions and decisions, and other duties noted herein. The hearing panel should only consist of physicians, none of whom are direct economic competitors with the physician involved or who stand to gain through a recommendation or decision adverse to the physician. It is desirable that members of the hearing panel be physicians who have the respect of the medical community, and should include a fair representation of the same specialists/subspecialist physicians as the physician involved, whenever feasible. (h) Physicians serving on the hearing panel should receive information and training in the elements and essentials of peer review. Clinical guidelines, standards and practices used for evaluation of quality of care should be transparent and available to the extent feasible. Wherever feasible, data collection and analysis, or similar assessment instruments, and multiple reviewers should be used to increase reliability in evaluating whether peer review disciplinary proceedings are warranted. Where feasible, statistical analysis to compare with peers’ performance must be used with appropriate case mix adjustments. (i) Physicians who are direct economic competitors of the physician involved may testify as witnesses, whether they are called by the physician or the hearing panel or the health care organization, but a physician should not be deprived of his or her privileges solely on the basis of medical testimony by economic competitors. In any proceedings that result in the termination of privileges, there should be testimony from one or more physicians who are not economic competitors or who do not stand to gain economically by an adverse action, but who are knowledgeable in the treatment, patient care management and areas of medical practice or judgment upon which the adverse action is based. (j) The hearing panel should credit the evidence brought before it in a manner reflective of the specificity of the evidence and the personal or economic biases of witnesses. (k) When investigation is underway and indicates that a disciplinary proceeding is warranted for the purpose of reducing, restricting, or terminating a physician’s hospital privileges, he or she should be notified that resignation will result in a report to the National Practitioner Data Bank. (BOT Rep. MMM, A-88; Reaffirmed: Sunset Report, I-98; Reaffirmed: BOT Rep. 8, I-01; Reaffirmation A-05; Amended with change in title: BOT Action in response to referred for decision BOT Rep. 23, A-05)

[1] This informational report is limited to a discussion of improperly motivated physician peer reviews, a violation of both legal standards and of medical ethics. It does not address all situations in which a physician’s procedural rights may have been violated in the peer review process. That a peer review has violated a physician’s procedural rights does not ipso facto imply that the peer review was improperly motivated.

[2] Some commentators have questioned whether, in light of its burdens, peer review is even justified. E.g., Livingston, EH, Peer Review, Am. J. Surg. 2001; 182: 103-109; Scheutzow, SO, State Medical Peer Review: High Cost but no Benefit - Is It Time for a Change? Am. J. Law Med. 1999. AMA policy, however, unequivocally and properly supports peer review. See Ethical Opinion E-9.10 and Policies H-375.990, H-375.994, H-375.995, H-375.996, and H-377.998, AMA Policy Database.

[3] HCQIA is a federal law that recognizes the value of peer review as a mechanism to reduce medical errors, primarily in hospital settings. The statute encourages peer review by immunizing participants in peer review actions from potential liability on account of lawsuits that may be brought by those adversely affected by the peer reviewers. 42 U.S.C. § 11111 (discussed at greater length infra). HCQIA also establishes the National Practitioner Data Bank, which serves as a repository of peer review determinations, orders from medical licensure boards, and judgments or settlements in professional liability suits that concern physician competence. 42 U.S.C. §§ 11131, et seq.

[4] 24% of the respondents to the Massachusetts Medical Society survey indicated that they had actually been subjects of peer review. Of those who had been such subjects, a substantial percentage indicated that they felt the process was unfair and would be afraid of a future peer review and/or would be afraid to refer a colleague for peer review. Those who felt the process was unfair often complained of harassment from colleagues or hospital administrators or a lack of support from colleagues.

[5] Immunity from monetary damages is not afforded for claims based on civil rights violations, including violations arising from discrimination on account of race, color, religion, or national origin. 42 U.S.C. § 11111(a)(1).

[6] State laws may provide comparable immunities, which are also generally triggered by adherence to procedural safeguards in the hearing process. The AMA’s “Physician’s Guide to Medical Staff Organization Bylaws” (4th Ed.), at pp. 52-55, sets forth a more comprehensive explanation of the applicable procedural standards for peer review actions under HCQIA and selected state laws.

[7] In addition to 42 U.S.C. § 11113, Fed. R. Civ. P. 11 provides that a party who files a frivolous lawsuit may be required to pay the attorney’s fees and costs of the defendant. See Wei v. Bodner, 1992 U.S. Dist. LEXIS 10897 (D.N.J. 1992) (Anesthesiologist required to pay defendants’ fees and costs of over $450,000). An attorney who brings a frivolous lawsuit to challenge a peer review action may also be sanctioned under Rule 11. Smith v. Ricks, 31 F.3d 1478 (9th Cir. 1994), cert. denied, 514 U.S. 1035 (1995).

[8] However, federal law does not recognize a comparable peer review confidentiality privilege. The AMA has for years been urging passage of such a protective measure (H-375.972).

[9] Policy H-375.983 was subsequently expanded to include additional procedural protections, even beyond those required under HCQIA.

[10] The AMA was unable to find any other state law comparable to Colorado’s, in which a state agency is specifically charged with investigating improperly motivated peer reviews.