How to ensure integrity for the peer review process
If you believed a physician was incompetent, would you report him to your state medical board? Even if it meant risking being sued?
Opponents of tort reform say that instead of capping malpractice judgments, physicians should better police themselves through credentialing and peer review.
Unfortunately, those processes are threatened by retaliatory lawsuits -- or the threat of them -- against "whistleblower" physicians, and by two recent state appellate rulings, which found that physicians who speak up about colleagues enjoy only a limited protection from lawsuits. And the cost of defending a lawsuit begs the question of whether there's any real value to such qualified immunity.
If physicians and their advocates are to remain credible as they lobby for malpractice caps, they must offer sensible solutions to this problem.
In 1997, four Connecticut physicians complained to a state medical board about a colleague. The board suspended the physician from practice. Although his license was later reinstated, in 2000 he sued the physicians for defamation. A trial court ruled that the defendants had only qualified immunity, forcing them to continue a costly legal defense. The case, now four years old, is on appeal to the Connecticut Supreme Court.
In California, a physician who was denied hospital privileges filed a similar lawsuit. The hospital apparently based its decision on a 25-year-old memo describing the physician negatively. While the courts halted the physician's suit three years after it began, along the way the state Supreme Court made a point of reinterpreting California law: physicians there do not have an absolute privilege.
Neither court explained why other professionals, namely lawyers, have been granted broader or absolute immunity in attorney peer reviews. That is wrong. As the sole dissenting judge in the Connecticut case wrote, "qualified immunity comes too late in the day to ward off the chilling effect the threat of a lawsuit can have in the peer review process."
But an absolute privilege presents other significant problems. How do you protect a competent, though unpopular, physician from a more powerful peer? And what's to stop physicians from abusing peer-review for competitive reasons?
Here's one suggestion: Accusing physicians should enjoy absolute immunity -- provided they address their concerns only to proper authorities, such as state medical boards. The boards should conduct vigorous investigations, free of conflicts, of physicians accused of wrongdoing or incompetence, and should also examine charges by an accused physician that his accuser testified untruthfully. Should it find that a "whistleblower" spoke untruthfully and in bad faith, it would consider ethics charges against that physician. These processes should start and finish outside the American legal system.
Would this ensure the integrity for the peer review process while protecting the rights of both the accused and the accuser?
I welcome your suggestions.
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This article originally appeared in the June 2004 issue of Physicians Practice.