‘Sham Peer Review’: How hospitals exert control over physicians who dare to speak out
Hospitals can use these proceedings to oust doctors who don’t follow the ‘party line’, or who are considered disruptive.
Guest post by Dr. Paul Marik, Chairman and Chief Scientific Officer, Front Line COVID-19 Critical Care Alliance
In 1986, Congress enacted the Healthcare Quality Improvement Act (HCQIA), which promoted peer reviews to determine if a physician or dentist was incompetent or engaging in unprofessional conduct or behavior, resulting in actions that could impact his or her clinical privileges.
The Act provided protection from liability for the members of the review board, “who, in the reasonable belief that the action was in the furtherance of quality health care, warranted by the facts known, and after a reasonable effort to obtain the facts, take actions which adversely affect the clinical privileges or professional society membership of a physician.”
This was, seemingly, a well-intentioned move. Recently however, the Act has carried a number of unintended negative consequences, not least of which is the rise of ‘sham peer reviews.’ These are essentially ‘kangaroo courts’ used to consign highly qualified and guiltless physicians into obscurity.
What is ‘sham peer review’?
Sham peer review is an adverse action taken in bad faith by a hospital for purposes other than “the furtherance of quality health care.” It is a process disguised to look like a legitimate peer review, but which in actual fact is not objectively reasonable precisely because it is not performed in the interests of patients.
A sham peer review happens when the hospital invents some pretext by which to attack a physician and acts to disguise the adverse action by conducting such a review. In such cases, as Dr. Lawrence Huntoon described in a 2009 Journal of American Physicians and Surgeons editorial: “The truth and the facts do not matter because the outcome is predetermined and the process is rigged.”
After Huntoon released his paper, he gave dozens of talks on the subject and has been approached by many doctors who, on hearing him describe the process, said they recognized tactics that had been used against them, as well.
Sadly, sham peer reviews have become fairly common. Hospitals in the United States have mounted these proceedings for at least four decades to rid themselves of physicians who get in their way, don’t fall in line, or who are considered disruptive. Hospital officials are especially resistant to whistleblower physicians who bring patient safety or care quality concerns to the public’s attention.
My very own kangaroo court
To be honest, I had never heard of sham peer review until recently, when the tactics were waged against me by Sentara Norfolk General Hospital in Virginia.
On November 9, 2021, I filed suit against Sentara Healthcare for instituting a policy that prevented myself and other physicians from administering proven, safe, ‘off label’, FDA-approved, life-saving therapeutics for the treatment of COVID-19. The case was heard in the Circuit Court of the City of Norfolk on November 18. As agreed by all parties, I was scheduled to work in the Intensive Care Unit at Sentara Norfolk General Hospital the weekend starting November 20.
When I arrived at work that day, I found a hand-delivered envelope (it had no postmarks) on my desk. Inside was a letter from the Sentara Medical Staff Office, marked overnight delivery, which indicated it had also been sent by email, though no email was ever received.
Signed by the President of Medical Staff, Sentara Hospitals, and the President, Sentara Norfolk General Hospital, the letter said:
“The purpose of this letter is to inform you that a series of events have recently been reported to Hospital Administration and Medical Staff leadership at Sentara Norfolk General Hospital that have caused significant concern about your ability to conduct yourself in a professional and cooperative manner in the Hospital, which is essential for the provision of safe and competent patient care.”
The letter went on to list a number of outrageous claims, with no substantive evidence to support them, and with no patient details that would allow me to refute them. Based on the alleged incidents, the letter continued: “Medical Staff leadership has determined that your behavior causes such concern that there are grounds to impose a precautionary suspension of your Medical Staff appointment and clinical privileges.”
Although the hospital claimed this action was unrelated to my legal case and that the timing was purely coincidental, it is categorically clear that this sham peer review process was nothing more than corrupt retaliation.
The sham review playbook
Sentara’s actions follow a typical pattern of hospitals bringing trumped up, fabricated, and thoroughly false charges against a targeted physician to initiate a sham peer review. Although no court of law would permit depriving an accused person of files or records needed to defend themselves, as it is fundamentally unfair and in violation of due process, hospitals that employ sham peer review frequently refuse to provide records to the physician under review.
Consider this: In the criminal justice system, accused serial murders, rapists, child molesters, drug dealers and thieves are entitled to due process and presumed innocent until proven guilty. But accused physicians in the hospital sham peer review process are presumed guilty and afforded limited (if any) due process.
Based on erroneous and phony charges, the physician’s hospital privileges are summarily suspended and the physician is usually given 14 days to respond in writing. The charges and the physician’s response are then supposedly shared with a Medical Executive Committee (MEC). The physician then meets in person with the MEC, but is usually denied legal representation.
The MEC has frequently not been given either the complaint or the physician’s response. Since the hospital has no legitimate case against the targeted physician, the MEC will often change course and focus instead on fraudulent conduct or behavioral accusations. The hospital accuses the physician of a pattern of unprofessional behavior yet, once again, these accusations have no supporting evidence.
Appearing before the kangaroo court
My MEC appearance (my very own ‘kangaroo court’) happened on December 2, 2021. Not only was I not allowed legal representation, no other person could accompany me — not a colleague, friend or business representative. The proceedings were not recorded and no transcripts were made available.
I was confronted by about 25 angry people, none of whom introduced themselves.
I had come fully prepared to respond to the accusations raised in Sentara’s letter, but the Chair did not want to discuss these charges. Instead, following the sham playbook, the panel pivoted and raised new allegations of “unprofessional behavior.” When I asked for specific examples and who had generated these complaints, the answers were not forthcoming.
During the course of my entire career, I have prided myself on my professional conduct, being courteous and polite to students, residents, nurses, patients, and families. In my more than 35 years on the job, during which time I have published more scientific articles in medical journals on critical care than any other physician in America, I have never been sued, never had a single patient complaint, and consistently received positive evaluations from those with whom I work. No one has ever lodged a complaint about my “unprofessional behavior.”
It begs the question: where did the MEC dig up these claims?
The whole experience was disturbing and exhausting but unfortunately, it wasn’t over yet. On December 6, I received another letter, stating: “When the MEC met with you on December 2, it was felt that your behavior was consistent with the concerns that have been raised most recently. Your demeanor was extremely hostile, and you appeared angry and defiant. You vehemently denied that your behavior has ever been questionable and accused the MEC of retaliating against you for filing suit against Sentara Healthcare, despite the fact that the matter does not involve Medical Staff leadership and was not the subject of this inquiry.”
I was, of course, serious about defending myself and intense with regard to fighting for my rights and privileges to practice medicine. Can anyone blame me for being defiant, when the meeting was not a two-way dialogue to engage and better understand, but rather a one-way litany read at me? I needed to be assertive in order to get my points across.
Later, an individual witness to the proceedings confided to me that the accusations were, in fact, all fabricated and the entire thing was “pure retaliation.”
Profits before patients?
So why would a hospital do this? Because accusations involving behavior or conduct are much easier for a hospital to prosecute, since typically the only “evidence” required is the accusation itself — not who made the accusation, when it was made, or a copy of the complaint. In the end, the physician is, of course, found guilty of being disruptive, with his or her privileges revoked and name reported to the state board of medicine and the National Practitioner Data Bank (NPDB) — an action that effectively ends a physician’s career.
Even if the charges are subsequently proven to be fraudulent, it is nearly impossible to remove the suspension of privileges from the NPBD. Furthermore, if the physician resigns or lets his hospital privileges expire while under the sham peer review investigation, it is reportable to the NPDB.
Taking action against sham peer review
Suffice it to say, sham peer review perverts a process intended to protect patients and colleagues from ill, incompetent, unethical, dangerous, and unprofessional practitioners.
So what can doctors do to protect themselves? Huntoon advises them to:
Learn about the tactics associated with sham peer reviews, and the factors that may place some physicians at risk;
Be aware that there is an unwritten ‘Sham Peer Review Miranda Warning’ i.e., anything you say or do in a hospital can and will be used against you in the kangaroo court of sham peer review; and
Study their medical staff by-laws, to know what rights they have in peer review hearings and appeal proceedings.
Lastly, Huntoon implores ethical physicians to support their peers who are being attacked with sham peer review.
“Sham peer review has a lot in common with the psychology of bullying, and sometimes it only takes a few bystanders speaking out against the bullies to stop the abuse.”