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In a recent survey, nearly a quarter of responding physicians admitted reluctance to refer a colleague for peer review.

AAOS Now

Published 10/1/2008
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S. Jay Jayasankar, MD

Medical peer review and risk management

Risk management aims to lessen the likelihood of harm materializing from hazards. The goal of medical peer review is to improve quality and patient safety by learning from past performance, errors, and near misses. Thus, medical peer review is a risk management tool.

In a 2006 survey, however, nearly a quarter of the responding Massachusetts physicians said that they would be afraid to refer a colleague for peer review, and a third admitted to fearing referral for peer review. These fears reflect the fact that hospital and other professional disciplinary actions are reportable to the National Practitioner Data Bank (NPDB) and thus present a threat to both licensure and hospital or health plan participation. These fears also inhibit physician advocacy on behalf of patients

Meanwhile, public sentiment that physicians tend to protect each other to the detriment of the public, behind what is often called a “white wall of silence,” is growing.

How did this double whammy come about even as we physicians perform peer review for quality improvement? Doesn’t this core professional commitment vindicate the public trust that allows us, as the “learned profession” of medicine, to self-regulate?

A short look back
In 1984, Timothy A. Patrick, MD, a general surgeon in Astoria, Ore., won $2 million in a suit against his former partners (upheld by the U.S. Supreme Court in 1988).

Dr. Patrick claimed that his partners misused hospital peer review for economic reasons and prevented him from practicing.

In 1986, Congress enacted the Health Care Quality Improvement Act (HCQIA), which provided immunity from lawsuits for physicians conducting peer review in good faith. The law includes disciplinary process under “peer review” and presumes good faith unless proved otherwise by the sanctioned physician.

HCQIA also created the NPDB. Physician sanctions must be reported to the NPDB and institutions are required to review NPDB records before licensing or privileging physicians. To promote free discussion without fear of disclosure, most states have enacted confidentiality laws that protect medical peer review proceedings.

Medical peer reviewers are protected from liability as long as they satisfy the following HCQIA fairness standards that require the peer review and sanction be done:

  • In good faith for achieving quality improvement
  • After reasonable efforts to obtain the facts
  • After “adequate notice and hearing” to ensure fairness
  • In the belief that the sanction is warranted by the facts

Understanding and implementing these standards are essential to ensuring immunity, preventing miscarriage of peer review, and promoting the intended goal of quality improvement. Hospitals, where most medical peer reviews occur, need to indemnify peer reviewers because the HCQIA immunity is not invulnerable; it may be pierced, for instance, if a civil rights violation such as discrimination is charged.

Unintended consequences
Now it seems, however, that the pendulum has swung too far, with more frequent, unintended consequences. HCQIA does not include any oversight provisions and physicians are discouraged from challenging any miscarriage of justice. The onus to prove lack of good faith, due process, or fact-based good cause for sanction is on the sanctioned physician, whose access to needed information is blocked by state confidentiality laws. A recent (June 2008) report by the American Medical Association (AMA) on inappropriate peer review found that proving that the standards were not met is a formidable task.

When medical peer review is used to thwart competition or silence physicians who speak up for quality, both quality and access are adversely affected. The clash of economics and ethics in hospitals is reminiscent of a century ago, when E.A. Codman, MD, was prompted to help found the Committee for Hospital Standardization, the forerunner of the Joint Commission (previously the Joint Commission on the Accreditation of Healthcare Organizations), within the American College of Surgeons.

The value of medical peer review
Peer review is a valuable tool for learning and evaluation. It is increasingly used in both care and evaluative settings, such as for maintenance of specialty board certification. It is being considered for use in licensure maintenance. If medical peer review does not predictably provide fairness and transparency, and thus create trust, it may increasingly be performed by nonphysicians, to the detriment of both the public and the medical profession.

Other associations have detailed standards for peer review and peer reviewers. To help make peer review more discriminating, valid, effective, educational, and transparent, the Massachusetts Medical Society (MMS) developed and adopted Model Principles for Incident-Based Peer Review for Health Care Facilities. Most of these principles have since been adopted by the AMA as well.

Readers may wish to consider reviewing these principles and adopting them into their institutional bylaws. Educational programs would also help improve the effectiveness of medical peer review. Efforts such as these will ensure both protection for the reviewers and fairness for the reviewed as well as maintain focus on quality improvement.

Properly conducted medical peer review is key to improving our collective and individual learning, raising the quality of patient care, and increasing the trust of both the public and the profession.

S. Jay Jayasankar, MD, is a member of the AAOS Medical Liability Committee. He can be reached at jaymd@massmed.org

References:

  1. Unpublished. Conducted by the Massachusetts Medical Society.
  2. Title IV of Public Law 99-660 The Health Care Quality Improvement Act of 1986, as amended, 42 U.S.C. §§11101 et seq; commonly referred to as HCQIA. It provides peer review immunity and created the NPDB.
  3. Gibson R, Singh JP: Wall of Silence, The Untold Story of the Medical Mistakes that Are Killing Millions of Americans. Lifeline Press ; ISBN: 0-89526-112-X; The Health Care Blog, June 14, 2004. May be accessed at http://www.thehealthcareblog.com/the_health_care_blog/2004/06/quality_the_whi.html; The star.com, March 17, 2007 May be accessed at http://www.thestar.com/printArticle/193080; “A conspiracy, not a profession...Every doctor will allow a colleague to decimate a whole countryside sooner than violate the bond of professional etiquette by giving him away.”- George Bernard Shaw on medicine.
  4. Patrick v Burget 486 U.S. 94 (1988); May be accessed at http://supreme.justia.com/us/486/94/
  5. Feyz v. Mercy Memorial Hosp., 264 Mich. App. 699, 692 N.W.2d 416 (2005).
  6. Livingston EH, Harwell JD: Peer Review. Am J Surg 2001;182:103-109.
  7. May be downloaded at http://www.ama-assn.org/ama1/pub/upload/mm/471/bot24.doc
  8. Waite VS, Walker R: Medical and surgical peer review [editorial]. Am J Surg 1994; 168:1
  9. Reverby S: Stealing the golden eggs: Ernest Amory Codman and the science and management of medicine. Bull Hist Med 1981;55:156-171.
  10. Medicare Improvements for Patients and Providers Act of 2008 may be accessed at http://www.opencongress.org/bill/110-h6331/text
  11. Federation of State Medical Boards Special Committee on Maintenance of Licensure Draft Report on Maintenance of Licensure February 2008 may be accessed at http://www.fsmb.org/pdf/Special_Committee_MOL_Draft_Report_February2008.pdf
  12. Model Principles for Incident-Based Peer Review for Health Care Facilities may be accessed at http://www.massmed.org/AM/Template.cfm?Section=Search&template=/CM/HTMLDisplay.cfm&ContentID=19558
  13. AMA BOT Report 23 A-05 may be accessed at http://www.ama-assn.org/ama1/pub/upload/mm/38/a-05bot.pdf
  14. “Is peer review worth saving?” in Medical Economics. May be accessed at http://www.memag.com/memag/article/articleDetail.jsp?id=147405