Ask most physicians in training and or attendings to explain the HCQIA act of 1986 and most will not have a clue regarding this law. Now ask this same group of physicians to define what “peer review” is and almost all will say that it is a tool used by hospitals to improve the quality of care given to patients to improve their outcome from their hospitalization. These same doctors will tell you that peer review is supposed to be performed by doctors of the same specialty who are best able to critique each other in the spirit of making patients better It is a mechanism whereby physicians “police” themselves to become better. It is not supposed to be used as a tool to get rid of someone nor be used by your competitors to remove you from the medical staff and if someone uses peer review inappropriately, then all you have to do is sue the hospital and you'll get justice.

This is what it's supposed to be. Now let me tell you what can happen to you since it happened to me not once but twice. My first experience with this phenomenon occurred at the time of being moved up to active staff after successfully being proctored for 10 cases. My neurosurgical competitor (who was also the chief of staff) decided that he wanted me to be proctored for 20 additional cases. He and a seasoned orthopedic surgeon proctored me. Following these twenty cases, I received a letter from the orthopedic surgeon recommending me to active staff but the neurosurgeon and at his recommendation the credentials and medical executive committee would not elevate me forcing me to request a peer review action following the guidelines of HCQIA. All of a sudden, I was in a different world with different sets of rules all written to protect the hospital. This was a hearing that could affect my ability to practice at that facility, as well as other facilities since you have to report any adverse actions. Additionally, the results of this “hearing” which is looked as a civil trial yet does not follow any “rules of evidence” was essentially a kangaroo court as the primary accuser was my competitor with no outside experts reviewing the info for the hospital. The “review panel is not made up of your peers but made up by other doctors many who don't have a clue of what the “standard” is for your specialty.

The panel listened to my accuser/competitor while I presented several expert neurosurgeons but nonetheless I was not advanced to active staff. This would later be submitted to the National Practitioner Data Bank and would be reviewed by the State Board of Medical Examiners. This was reviewed by the State Board and I was cleared of any wrongdoing. I submitted this to the Hospital administration but nonetheless he submitted their report to the Data Bank which according to HCQIA cannot be reversed by a State Board agency. Essentially, my competitor committed legal homicide as HCQIA recognizes the hospital but not the State Board and I was placed in the Data Bank nonetheless.

Several months later, a similar situation occurred at another hospital where my main competitors were orthopedists who, incidentally were friends of my neurosurgeon competitor who thru political manipulation had my privileges suspended for an allegation that was not correct and later tried to cover up that allegation with 13 “cases” eleven of which had never been considered by the Quality Assurance department. I once again was forced to have a “peer review” hearing (average cost-$6,000) where the only experts they had was one orthopedic competitor while once again I had five outside experts as well as several patients who had never complained and were happy with their results. These “allegations” were brought out by my competitors disguised as Quality Assurance issues when in fact there had not been any breech of the “Standard of Care”. The Hearing panel sided with me and recommended that I be given active staff status but my orthopedic competitors who were also on the Credentials and Medical Executive as well as the Board of Trustees, overruled the hearing panels' decision as allowed by HCQIA and hospital bylaws resulting in my termination of privileges and this adverse action reported to the State Board. In a strange twist of fate, the hospital closed its doors two months later since it was bankrupted.

While both of these situations may seem abominable and unbelievable, they did happen to me and are happening to others. The sad fact about these situations are that legal recourse is not as easy as it's seems since the info obtained at the hearing and anything said by your “accusers” is considered privileged and the accuser is “immune”. This is according to HCQIA of 1986. As long as the hospital follows its bylaws and the accused physician has his/her hearing, then the facility and accusers are protected by the courts and judges who feel that HCQIA is law. According to HCQIA, even if the hospital and the accusers are wrong in their accusations, they are immune.

Attempts to modify and/or rescind this law have not been a high priority with the AMA, AOA, and Congress. The major physician organizations have instead published “standards” in order to remove any bias from these hearings. Unfortunately, until these “recommendations” become law, hospitals and there staffs have no need to change. This is because the hospital lawyers always want the hospital protected from lawsuits and secondly, most doctors on staff haven't a clue that this unfair system even exists. What is worst, some hospitals know exactly how to play this game and have used this HCQIA law not to improve its staff but to rid itself of doctors whom the established staff members don't want around either for anticompetitive reasons or political and/or personal reasons.

What essentially exists is a system without any checks and balances that can become a death sentence for a practicing physician regardless of the fact that the allegations are wrong. Due process, a means that ensures that you as a citizen are presumed innocent until proven guilty does not occur within hospitals or state licensing agencies. A terrible distruction of our civil rights has occurred as a result of educated individuals becoming licensed professionals. We as physicians have forfeited our civil rights and the rights to a civil trial. Instead we have substituted civil law with administrative law because of our “privilege” to practice medicine. This seems ironic, since a driver's license is also considered a “privilege” yet if accused, that person will be tried in a civil proceeding and has their due process. It is high time for doctors to become more informed in what can await them before it happens to them.

Simple changes in the HCQIA legislation will still ensure improvements in patient care while still protecting good doctors. It is time to change the legislation whereby an accuser and/or the hospital have the burden of proof to remove a physician not base the decision on allegations and innuendo. Additionally, if the accuser(s) are found to be guilty of falsely accusing a fellow doctor, then the accused should have the right to try this unethical physician in a court of law. Currently, one can falsely accuse someone and have that doctor removed without any repercussions. This is no different than legal homicide since the accused physician will be forever marked, and have difficulty finding work in a hospital. This is because the attorneys who work for hospitals do not want any “marked” physicians since having them on staff even though they are innocent, may in their mind increase the hospitals chances of bad publicity or lawsuits. More importantly, in many circumstances, mine included, the doctors at one hospital are also and make up committees at that hospital. This in and of itself makes it very easy to “blackball” the doctor. This trend is being observed throughout the country. An interesting side note is the fact that if it were true that “peer review” is really working, why then are we still plagued with increasing claims. Also notable is the fact that in many cases where the accused physicians has lost his privileges at the hospital, it is his competition and not the accused that has the majority of malpractice cases at the court house leading one to speculate if “peer review” is being used to protect ones competition!

No doubt that there is a problem with HCQIA. The question is whether or not we as a profession want to review antiquated laws that have demonstrated that loopholes exist which in effect are removing your rights to due process.

Sincerely

Roland F. Chalifoux Jr., D.O.

1400 Dartmouth Drive

Southlake , Texas 76092

Home and fax: 817-488-3243

Cell phone: 682-556-0151