A.M.A. on due process; on immune peer review

Here is what we know the AMA has done with regard to assuring an honest 'jury of strangers' respects due process in peer review. There appears to be no provision for the impartiality of the judges:

AMA Policies Regarding Due Process

E-9.05 Due Process

The basic principles of a fair and objective hearing should always be accorded to the physician or medical student whose professional conduct is being reviewed. The fundamental aspects of a fair hearing are a listing of specific charges, adequate notice of the right of a hearing, the opportunity to be present and to rebut the evidence, and the opportunity to present a defense.

These principles apply when the hearing body is a medical society tribunal, medical staff committee, or other similar body composed of peers. The composition of committees sitting in judgment of medical students, residents, or fellows should include a significant number of persons at a similar level of training.

These principles of fair play apply in all disciplinary hearings and in any other type of hearing in which the reputation, professional status, or livelihood of the physician or medical student may be negatively impacted.

All physicians and medical students are urged to observe diligently these fundamental safeguards of due process whenever they are called upon to serve on a committee which will pass judgment on a peer. All medical societies and institutions are urged to review their constitutions and bylaws and/or policies to make sure that these instruments provide for such procedural safeguards. Issued prior to April 1977; Updated June 1994. (II, III, VII)

H-265.998 Guidelines for Due Process

While it is not possible to develop universal guidelines for due process, voluntary utilization of the following general guidelines for due process, adapted in each instance to suit the circumstances and conditions of the institution or organization and within the requirements of the applicable laws of the jurisdiction, should assist in providing the type of hearing which the law in each jurisdiction requires: (1) The physician should be provided with a statement, or a specific listing, of the charges made against him. (2) The physician is entitled to adequate notice of the right to a hearing and a reasonable opportunity to prepare for the hearing. (3) It is the duty and responsibility of the hearing body to conduct a fair, objective and independent hearing pursuant to established rules. (4) The rules of procedure should clearly define the extent to which attorneys may participate in the hearing. (5) The physician against whom the charges are made should have the opportunity to be present at the hearing and hear all of the evidence against him. (6) The physician is entitled to the opportunity to present a defense to the charges against him. (7) The hearing body should render a decision based on the evidence produced at the hearing. (8) In any hearing, the interest of patients and the public must be protected. (BOT Rep. II, A-80; Reaffirmed: Sunset Report, I-98)

H-220.951 Medical Staff Membership

The AMA (1) requests the JCAHO to require that conditions for hospital medical staff membership be based only on the physician's professional training, experience, qualifications, and adherence to medical staff bylaws; and (2) will work toward protecting the due process rights of physicians when medical staff privileges are terminated without appropriate due process as described by the medical staff bylaws. (Res. 721, I-91; Reaffirmed by Res. 802, I-94)

H-230.987 Hospital Decisions to Grant Exclusive Contracts

The AMA supports the concept that individual medical staff members who have been granted clinical privileges are entitled to full due process in any attempt to abridge those privileges by granting of exclusive contracts by the hospital governing body. (Res. 119, I-85; Reaffirmed by CLRPD Rep. 2, I-95)

© Copyright 1997-2000 American Academy of Emergency Medicine
All rights reserved

REPORT OF THE BOARD OF TRUSTEES

B of T 25 - A-02

Subject: Peer Review Immunity

Presented by:            Timothy T. Flaherty, MD, Chair

Referred to:            Reference Committee G

                        (David J. Utlak, MD, Chair)

At the 2001 Interim Meeting, Board of Trustees Report, Peer Review Immunity, adopted as amended by the House of Delegates ask our AMA 1) to monitor legal and regulatory challenges to peer review immunity and non-discoverability of peer review records/proceedings and continue to advocate for adherence to AMA policy, and 2) to produce an additional report with recommendations that will protect patients and physicians in the event of misdirected or negligent peer review at the local level while retaining peer review immunity for the process. This report recommends that 1) medical staffs adopt bylaws that provide for a peer review process that is consistent with Health Care Quality Improvement Act criteria and AMA policy, 2) medical staffs consider bylaw provisions that include an option or alternative for external peer review when there is a reasonable allegation by the reviewed physician, and 3) if states believe that negligent or misdirected peer review is a problem, they consider legislative action establishing an administrative review panel to review physicians claims of unfair peer review prior to judicial involvement.

AMA Policy

Current AMA policy supports peer review activities by physicians and discourages involvement in a peer review process by physicians who are economic competitors of the involved physician. AMA policy also supports confidentiality protection of peer review documents and proceedings (Policies H 375.972, H 375.983, H 375.987, H 375.989, H375.990. H 375.992, H 375.993, H 375.997.

Background

Board Report 8-I-01, Peer Review Absolute Immunity for Lawsuits, adopted as amended as Peer Review Immunity, discussed the history and purpose of the Health Care Quality Improvement Act (HCQIA) and described in detail, the requirements that must be met in order to invoke immunity under the act. The limited immunity provided by HCQIA does not preclude all claims for damages against a peer review committee. The report specified those situations in which immunity would not apply, namely, 1) civil rights violations; 2) peer review which does not meet HCQIA criteria for fair process and notice and 3) suits for injunctive relief.

The report also acknowledged the potential for abuse as well as the occasional personal agendas that may motivate peer review actions. It recommends that, among other things, medical staffs adopt/implement medical staff bylaws that are consistent with HCQIA and AMA policy.

Discussion

Physicians sanctioned by a peer review panel face a daunting process if they challenge a peer review action and seek money damages. The time and expense involved in judicial proceedings is significant. Moreover, HCQIA generally enables a defendant to prevail in damage actions so long as the peer review committee has provided due process and notice to the physician under review.

HCQIA immunity provides protection for good faith peer reviewers but was not intended to protect illegitimate actions taken under the guise of furthering quality care. Congress did not want to see patient care undermined when privileges are unfairly terminated. Congress specifically recognized the potential abuse in the peer review process and limited immunity to actions that met the criteria articulated in the Act. Further, Congress did not place any barriers or impediments in the way of physicians who chose to file a complaint with federal antitrust agencies, bring matters to the attention of the state boards or licensing authorities, or file an action to enjoin the actions of a peer review committee or hospital. Physicians who feel that they have been the victim of unfair peer review have always had the opportunity to seek injunctive relief, for instance suits alleging violation of due process or suits alleging antitrust, so long as the claimant is not seeking money damages. HCQIA immunizes peer review participants from money damages; it does not insulate peer reviewers from suits. Physicians can also raise their concerns to the attention of the Department of Justice (DOJ) or the Federal Trade Commission (FTC) or the state board of medical examiners at no cost.

Current AMA policy recommends that hearing panels consist of members who are not in economic competition with the involved physician. Furthermore, When an objective fair peer review process is at risk due to participation of competitors, persons motivated by retaliation, discrimination, cronyism or other personal agendas, a mechanism for external review would provide physicians with some assurance of fairness. Medical staffs have discretion to establish procedures that provide for external peer review either as a standard bylaw provision or whenever there is a reasonable allegation that the peer review panel is biased. While one process may not necessarily be workable for all medical staffs, a variety of approaches can be established in bylaws which involve external peer reviewers. It should be noted, however, that even when HCQIA and state immunity is assured, it may be difficult for medical staffs to recruit physicians for external peer review. Some communities may have only one hospital and some physicians may still be reluctant to participate in professional matters of other medical staffs.

Private peer review organizations also exist to provide external peer review for medical staffs. These organizations provide independent physician evaluation to assist medical staff and committees and can provide board certified physicians in all specialties. Physicians who believe that peer review is the responsibility of medical staff members may meet utilization of these professional consultants with some resistance. The cost of using private peer review organizations is an issue which needs to be addressed and requires creative solutions on the part of both hospital and medical staff

State medical societies or specialty societies may also be a resource in peer review by recommending physicians they know are willing to assist in peer review when requested by a party to peer review.

Because local external peer review may be unworkable in some communities, because local external peer review may not guarantee an objective and fair process, and because some medical staffs may be resistant to establishment of external review panels, a state remedy may be required.

Some states have legislated a process for judicial review of negative credentialing actions. Washington D.C., Arizona, and Virginia, for example, have enacted laws establishing a process for judicial review of negative credentialing decisions. These laws give the courts parameters by which to determine whether a credentialing decision should be upheld.

Other states have created administrative review boards to hear the merits of physicians claims prior to court proceedings. In New York, an impartial panel of 14 persons appointed by the governor reviews the adverse decision. The panel may revise or uphold the decision of the hospital or it may make its own finding. After the panels review, the physician may then file suit, although the panels findings become evidence in any judicial proceeding. AMA staff has reviewed these programs and notes that some physicians are critical of a state-mandated review mechanism. Some physicians believe that state intervention encroaches on the medical professions' responsibility to monitor itself. Other physicians caution that more punitive recommendations than those of the original peer review committee may result

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Colorado established a committee to review claims of unreasonable anticompetitive conduct in connection with privilege or staff membership decisions. The committee may reverse, remand, or modify the action or dismiss the physicians complaint. Any allegation other than anticompetitive conduct may be filed directly with the court.

Conclusion

The potential for discriminating or anticompetitive peer review exists despite the integrity of the medical profession. However, immunity for peer reviewers must not be compromised. Peer review is essential for ensuring and improving quality patient care and immunity is essential to those physicians who participate in peer review.

In order to assure a fair process and avoid time-consuming and costly litigation by physicians who challenge the objectivity of the hearing panel, an opportunity for external review should exist at the local level. However, because of the assortment of bylaws in place in hospitals and possible resistance to incorporate alternatives for external review panels, state legislative action should be considered to offer redress to physicians when states believe that the peer review process is being undermined.

Recommendations

The Board of Trustees recommends that the following recommendations be adopted and the remainder of the report to be filed:

1.       That the AMA recommend medical staffs adopt bylaws that provide for a peer review process that is consistent with HCQIA criteria and AMA policy (Directive to Take Action.)

2.       That the AMA recommends medical staffs consider bylaw provisions that include an option or alternative for external review when there is a reasonable allegation by a reviewed physician. (Directive to Take Action)

3.       That the AMA recommends that if states believe that negligent or misdirected peer review is a problem, legislative action be considered. (Directive to Take Action)