Sham Peer Review A Worldwide Phenomenon HPARA 1

Sham Peer Review: A Worldwide Phenomenon HPARA 1 st National Conference & AGM Novotel Darling Harbour Sydney, Australia April 8, 2016 Lawrence R. Huntoon, M. D. , Ph. D. Association of American Physicians and Surgeons Affiliated with HPARA

This Talk is About BAD FAITH Peer Review, NOT about GOOD FAITH Peer Review – which I, AAPS and other ethical physicians fully support All Peer Review is NOT Bad Faith Good Faith Peer Review should be • • • Collegial Educational Fair Done for the purpose of improving quality care and protecting patients Should incorporate substantive DUE PROCESS for the accused physician

This talk is about ABUSE of the “disruptive physician” label, NOT about truly disruptive physicians who exhibit bad behavior e. g. Those who repeatedly scream and yell obscenities, run naked or drunk through the halls of the hospital, threaten to bodily harm others or those who throw sharp instruments in the OR to make a point

Definition: Sham Peer Review – An adverse action taken in bad faith by a professional review body for some purpose other than the furtherance of quality health care and that is disguised to look like legitimate peer review. Sham Peer Review is typically carried out in the hospital via a triallike proceeding that can best be described as a “Kangaroo Court. ” Kangaroo Court – David Townend, J. D. , “Hospital Peer Review Is A Kangaroo Court, ” Medical Economics, February 7, 2000 A Kangaroo Court is An elaborately scripted event intended to appear fair while having the outcome predetermined from the start [Wikipedia]

In Sham Peer Review, the truth and the facts don’t matter because the outcome is predetermined and the process is rigged

Sham Peer Review has a lot in common with Bullying n n n Perpetrators/Bullies – Those with power over others Victims – Those in a vulnerable position Enablers – Bystanders who are aware of the bullying/sham peer review and who do nothing to stop it

There are Numerous Underlying Motives for Sham Peer Review n n n n Anticompetitive motives – “Turf” battles Retaliation against a physician whistleblower Discrimination Professional jealousy Personal animus Physician-hospital contracts that have gone sour (not bringing in the anticipated revenue for a hospital or not living up to hospital’s expectations for expansion of its business) Others

Label, Then “Kill” “Disruptive Physician” This is the most lethal label a physician can be given in the hospital today. This label is typically followed by a sham peer review of the targeted physician and the end of the physician’s medical career. The term “disruptive physician” is purposely general, vague, subjective, and undefined so that hospital administrators can interpret it to mean whatever they wish. (“When I use a word, it means just what I choose it to mean – neither more nor less”- the Humpty Dumpty Rule in “Through the Looking Glass”) Legal seminars teach how hospital administrators can best define this term so as to meet their needs (elimination of targeted physician) New Joint Commission Standard on “Disruptive” conduct ( LD . 03. 01 effective Jan 1, 2009) includes non-verbal behaviors such as facial expression and body language

Disruptive Physician Profile n n n Whistleblower = Disruptive Physician Economic Competitor = Disruptive Physician Politically Incorrect Strong Advocate for Quality Care Charismatic, Energetic, Creative, Charming Independent Thinker – Failure to Submit to Hospital “Authority”, “These men, O King, have paid no attention to you; they will not serve your god or worship the golden statue which you set up” Daniel 3: 12 Highly Competent – “Always Right” n Makes Rounds at Odd Times n Inappropriate nonverbal behavior – new Joint Commission Std. LD. 03. 01 n Defends Himself vigorously when attacked Hospital bar advocates use of P. U. L. S. E. (Physicians Universal Leadership Skills Enhancement ) Surveys to “objectify” the “disruptive physician” label. These behavioral n assessment surveys were developed (2002) by Larry Harmon, Ph. D. a psychologist, co-founder and co-director of the Physicians Development Program in Miami, Florida. Surveys are often conducted on-line, and behavioral results are presented in graphs and are color-coded – Green for acceptable behavior, Red for unacceptable behavior. (SPR tactic – PULSE survey done on a single targeted physician)

Risk Factors (factors that increase risk of being targeted for sham peer review) Solo Physicians Small Groups New Physicians who are not in the “clique” (Common Factor – lack of political power and connections in the hospital) Economic Competitors - those who compete with the hospital/others Whistleblowers - physicians who are outspoken patient advocates – quality care/patient safety Economic “Outliers” – treating sicker than average patients (Zamanian v. Christian Health Ministry, 715 So. 2 d 57 (La. App. 4 th Cir. 1998) – Hospital retaliated against Dr. Zamanian via bad faith peer review because he kept patients in hosp. longer than Medicare would authorize, causing hosp. financial loss – jury awarded $6 Mil. , overturned on appeal) High Risk Specialties – cardiology (esp. interventional cardiol. ), Neurosurgery, Ob-Gyn, Anesthesia, Surgical Specialists, Psychiatry, ER Physicians. Foreign Physicians Innovators/ Entrepreneurs Highly Competent Third-Party-Free Physicians Older Physicians (Common factor – anything that makes a physician different from the rest of the “herd” or more vulnerable)

Just How Far Will Some Go to Get Rid of a Physician?

Michael Fitzgibbons, M. D. n n n Had black gloves and a gun planted in his car and an anonymous caller called 911 and accused him of a road rage incident (waving a gun in traffic) which never occurred Had drugs planted in his car while it was in the police impound lot after police had already searched his car Had the tires of his car slashed, which resulted in catastrophic tire failure while his 23 -year-old daughter was driving it on the freeway. The car went out of control and flipped over. Fortunately, neither his daughter nor the Japanese exchange student riding with her were injured Retaliation Against Physician Whistleblower: the Shocking Case of Dr. Michael Fitzgibbons Lawrence R. Huntoon, M. D. , Ph. D. http: //www. jpands. org/vol 18 no 2/huntoon. pdf

Raymond A. Long, M. D. n n n Former CDC Official investigated and determined that someone at the hospital deliberately contaminated irrigation fluids for his orthopedic shoulder surgeries (so hospital would be able to accuse him of having an unacceptably high post-op infection rate) Someone illegally entered his house, and put methamphetamine, Lithium and Mercury into orange juice he had in his refrigerator – the doctor and a friend got sick Tires on his car were slashed on 3 separate occasions His car was broken into on 3 occasions with laptop computer and briefcase stolen His parents received multiple phone calls and a private investigator showed up late one night at his parent’s home stating that they were looking for him Sham Peer Review: the Shocking Story of Raymond A. Long, M. D. Lawrence R. Huntoon, M. D. , Ph. D. http: //www. jpands. org/vol 20 no 2/huntoon. pdf

Tactics Characteristic of Sham Peer Review http: //www. jpands. org/vol 14 no 3/huntoon. pdf (Fall 2009) Tactics Characteristic of Sham Peer Review Presented at AAPS meeting Houston, TX Feb 5, 2010 http: //www. youtube. com/watch? v=Lpv. Ywjw. ID 8 g&list=PLC 959 D 6 D 23 CA 205 D 2&feature=plpp_play_all Sham Peer Review: New Tactics and Pitfalls for Employed/Exclusively-Contracted Physicians http: //www. jpands. org/vol 20 no 1/huntoon. pdf (Spring 2015)

The Following is not an all-inclusive list of tactics which are characteristic of sham peer review: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Ambush tactic & secret investigations Depriving the accused physician of charts, complaints, incident reports needed to defend himself Physician is presumed “guilty” prior to peer review hearing, and burden is placed on physician to “prove innocence” Numerator without denominator tactic and variations thereof Misrepresenting the “standard of care” False and/or trumped up charges Abuse of the “disruptive physician” label Dredging up old cases to justify a summary suspension Ex-parte communications in peer review Hospital attorney or conflicted attorney used to influence peer review process Bias

- Sham Peer Review Tactics Continued - Refusal to allow an independent record of the peer review hearing 13. Improper and/or false report to the NPDB 14. Flaws in logic e. g. GI physician told he is not competent to do endoscopies on 12. weekends, but can continue to do endoscopies on weekdays; Family practice physician told cannot admit patients of other physicians for whom he is cross-covering, but can continue to admit his own patients for the same type of medical conditions – told must send patients of other physicians for whom he is cross covering to the hospital employed hospitalist for admission 15. Failure to follow medical staff bylaws or changing the bylaws in course of peer review to favor hospital and to put targeted physician at disadvantage 16. P. U. L. S. E. Surveys conducted on a single physician at a facility

- - Sham Peer Review Tactics Continued – 17. Attributing deficiencies of hospital/others to targeted physician (e. g. citing deficiencies of a Program Review as due to targeted physician; defective hospital equipment) 18. Breach of Peer Review Confidentiality 19. Ignoring Favorable Findings of Hospital’s Own External Review 20. Attempt to Pass Off a Non-Peer-Review Report as if it Were Valid Peer Review 21. Misleading Targeted Physician About Data Bank Reportability 22. Retroactively Applying New Medical Staff Bylaws or Policies

SURVEY QUESTION ( Peer Review of Tactics Characteristic of Sham Peer Review) Are any of the tactics reviewed in this presentation fundamentally fair to physicians subject to peer review and do any of these tactics comply with due process for the accused physician?

Summary Core Problem = Sham Peer Review and Anonymous Complaints to Medical Boards/”Regulators” Thoughts on Solutions: n n Physicians must take the lead – Must insist on Due Process and Fundamental Fairness in peer review and ostracize those physicians who perpetrate sham peer review Need to advocate for legislation that would eliminate anonymous complaints to Medical Boards/”Regulators” and to hold accountable those who file spurious bad faith complaints Need to publically expose the problem (media) – need for increased transparency – “Regulators” need to be accountable Need to enlist the help of patients to advocate for legislation that protects good physicians by providing better Due Process protections

The End