Medical peer review is a fact of life for practicing physicians. Intended as a collegial and self-policing
system, it should operate as an honest and ethical monitoring of the propriety of patient care and
physician behavior by fellow physicians. Since peer review is an ongoing part of healthcare operations and
patient care in hospitals and other healthcare facilities, unless a physician has a strictly in-office practice,
and especially if a physician is dependent on hospitals due to his/her subspecialty (e.g., surgery, OB, GI,
interventional cardiology), a Texas physician must understand how medical peer review really works and
how to best navigate a peer review situation.
MYTH NO. 3
IGNORE IT AND IT WILL GO AWAY.
A physician should take immediate action as soon as he/
she receives a letter or is notified that a possible peer
review issue has been raised, even if informally. Many
malpractice policies have peer review coverage, so a
physician should check on whether there is any available
coverage. With counsel, the physician should communicate
the medical facts with corroborating evidence from the
medical file so that the peer review committee (PRC) may
understand the clinical care given, or the facts relating
to the questioned behavior. It is essential to get a written
narrative from the physician’s point of view before the
PRC and into the physician’s peer review file, so that both
sides’ allegations will be reflected. This narrative should
specifically address criticisms and clearly cite to the facts
in the medical record. If the PRC has an expert report at
this early stage, a physician should obtain his/her own
expert opinion for immediate rebuttal purposes.
MYTH NO. 4
YOUR BEST DEFENSE IS A GOOD OFFENSE.
Although possibly effective in other adversarial
situations, an aggressive offense in peer review often
proves disastrous. Instead, a physician must focus on
defending the medicine or behavioral allegations that
have been made against him/her. The medical facts must
be presented in an unbiased, reasoned tone, and with
respect for the facility’s duty to investigate. The physician
should avoid an accusatory or emotional tone, and take
responsibility as necessary instead of pointing fingers.
And although it can be very tempting, a physician should
not point to the “dirty laundry” of the administration.
Even preemptive complaints regarding legitimate patient
care issues may detract from the factual defense of the
complaint or play into the notion that the physician is in
fact disruptive.
MYTH NO. 5
NO INVESTIGATION EXISTS.
If peer review is focused on the physician in any way, an
“investigation” may exist such that a resignation or lapse
of privileges may result in the facility submitting a National
Practitioner Data Bank (NPDB) report with a copy to the
May 2019 Dallas Medical Journal 11
MYTH NO. 1
MEDICAL STAFF BYLAWS ACTUALLY
AFFORD A PHYSICIAN DUE PROCESS.
The medical staff bylaws (MS bylaws), which are unique to
each facility, govern the due process rights of a physician
facing peer review. They contain crucial deadlines and
rights for initial peer review levels and once adverse action
is taken. A physician needs to be aware of and strictly
comply with them. This process (usually termed the “Fair
Hearing Process”) may suggest to the physician that he/
she is actually obtaining due process, similar to a court of
law. In reality, certain tweaks take away real “due process”
protections. For example, the MS bylaws typically shift
the burden of proof (such that the physician is presumed
guilty, having the burden to show any adverse action
was arbitrary and capricious), provide that the rules of
evidence do not apply (which means hearsay is allowed),
and provide for no witness subpoena power (meaning no
ability to compel facility staff to appear as witnesses). In
this process, the facility appoints the judge, jury, and court
of appeals, and everything takes place at the facility’s
venue. Although in very rare situations a physician may
prevail; in most cases, it’s truly a Herculean task. And
while “due process” is pursued, a messy “record” is
created that may later be disclosed to the Texas Medical
Board (TMB).
MYTH NO. 2
GETTING COUNSEL SHOULD INTIMIDATE
THE FACILITY.
A physician should hire counsel experienced in
assisting physicians in medical peer review as soon as
possible—it is rarely too early to do so. This attorney
may provide legal advice behind the scenes, or may lead
communications, depending on how far the process has
advanced and the physician’s strategic goals. Counsel
should make all possible efforts to avoid escalating
the matter, which means counsel should reach out to
the hospital without hostility. A physician should avoid
using general employment attorneys without specific
physician peer review experience. Also, do not hire a
“bulldog lawyer” to intimidate the facility, as nasty letters
and threats of litigation do not help, and will likely make
things worse.
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