October 15, 2005

“If You Think That Hurricanes Katrina and Rita Will Be Expensive, Have You Seen How Much Hurricane Healthcare Is Costing Us Yearly!

The toll of this year’s deadly and financially devastating natural disasters is still not fully known although preliminary estimates have the costs around 200 billion with approximately 1300 deaths. Although these numbers are exorbitant, it pales in the yearly costs to what Americans are losing each year due to medical mistakes occurring in hospitals. While some of the blame for Katrina and Rita may be attributable to some individuals in political office, the same is not true regarding the Healthcare Hurricane.
 The public was first made aware of hospital complications by the Institute of Medicine report in 1999. A follow-up to that study completed in July 2004 by Health Grades titled “Patient Safety in American Hospitals” demonstrated the devastating effects of errors and complications and established a loss of human life of approximately 200,000/yr. According to Kip Viscusi, an economist at Harvard University, the overall value of a human life is estimated to be worth 4-8 million dollars. In other words, these deaths account for annual loses for our economy of 800 billion to 1.8 trillion dollars. Just think how much money is being spent unnecessarily promoting bad healthcare. Hospital administrators and other CEO’s of major hospital chains including Tenet, Humana, and HCA have not changed their behavior or conduct despite several multi-billion dollar settlements with the U.S. Department of Justice dealing with patient safety issues. Lucian Leape’s JAMA article and his comments to USA Today on 5/18/2004 stated “We have to turn the heat up on the hospitals as there is no economic incentive for hospitals to reduce medical errors because they make more money by treating the resulting problems.” We cannot allow this organized sabotage to persist and undermine quality medical care in our country. William Parmley MD observed in “Clinical Peer Review or Competitive Hatchet Job” that we have to learn from the experience of years of repeated failures. Too often, the physician members of the “old boys’ network” use peer review as a tool to protect each other from suspected acts of negligence or to eliminate their competitors.”
The Healthcare industry, unlike the aviation industry, has no “Blackbox”, i.e. the FAA to effectively oversee hospitals. The public, unfortunately, thinks that JCAHO certificates are approval stamps indicating that a hospital is safe. This is not true and in fact these ratings standards determine the reimbursement rate from Medicare. JCAHO has been ineffective in holding hospitals accountable for performing fair peer review even though this organization is responsible for its accreditation. On November 24, 2002, Dennis O’Leary, MD, President of JCAHO said, “There are some who believe that this whole system has to be blown up and start over again, I happen to be one of those advocates”. In 2004, the GAO (Government Accountability Office) provided its own devastating analysis. No wonder patients are afraid of hospitals. A Wall Street Journal article by Laura Landro on 9/11/03 called “How to keep the Hospital from making you Sicker” described serious flaws in hospital care.
 The IOM failed to recognize another major reason why health care professionals are reluctant to report errors: retaliation. Physicians across the country have been consistently retaliated against for reporting errors by being labeled “disruptive” by hospital administrators and physicians who hold the power in hospitals, and by subsequently having their hospital privileges suspended and/or revoked through a bad-faith peer-review process. This is performed under the guise of immunity provided to Hospitals and Physicians who review their peers by the Health Care Quality Improvement Act of 1986. Physicians who wish to be whistle blowers and improve the hospital environment are sometimes the victims of sham peer review and their reputations are destroyed. Federal law only protects physician “whistleblowers” that are either employed by the hospital, or managed care entity. Most physicians do not have formal employment contracts with hospitals and as a result are at risk for attempting to improve patient care issues. One can only wonder how many physicians are hesitant to even voice concerns because of the oppressive political power hospitals have. In Redding, California with a Tenet hospital (2002), apparently, hundreds of patients had inappropriate coronary artery bypass surgery and though it appears that there were physicians who knew about it, nobody emphatically voiced any concerns or took any decisive and assertive actions.  Although numerous people were being hurt, neither the Medical Executive Committee, nor the Credentials Committee, nor even the Board of Trustees did anything to change the situation. By the time the FBI raided the facility, they knew and saw everything but it was too late for the victims and people who had died as a consequence of unnecessary and non-indicated cardiovascular surgeries “Unhealthy Diagnosis”, 60 Minutes, CBS July 25, 2003. Utilizing sham peer review to silence “whistleblowers” will only serve to deprive the community of good and ethical physicians, and create an environment where physicians are afraid to advocate for patients in the hospital.
            What has immunity brought us? It surely has not brought anything close to improved quality, and better behavior of many physicians. Apparently, organized medicine feels that peer review has been such a bona fide success that the immunity hospitals have been legislated is warranted and the destruction of a few physicians’ careers is an acceptable consequence. Geertruyden in his article “The fox guarding the henhouse” demonstrates how HCQIA along with state peer review statutes have helped proliferate the process of bad faith peer review. Peer review, controlled by hospital administrators’ greed and economic interests has totally failed to achieve the quality control that Congress assigned to it, as hospital administrators are the “gate keepers” who control which records are submitted to the peer and chart review committees and which physicians escape scrutiny . Hence they cover up the wrong doings of those physicians who represent significant revenues in order to secure their stream of profits. See “Rape of the Medical Peer Review Process by Tenet Health system”.  Such “peer review” existed in Redding and still exists today in most hospitals other than some isolated cases according to Donald Bartlett and James Steele in “Critical Condition- how US healthcare became big business and bad medicine. Finally, a comprehensive investigation of systemic failures of peer review nationwide was published by Steve Twedt in the Pittsburgh Post-Gazette “Cost of Courage” from 10/26/03-10/29/03.
The solution to this problem is quite simple; the obstacle lies in the fact that the American Hospital Association currently enjoys its position of judge, jury, and executioner when it comes to controlling its hospital staffs. Why give up this power so easily particularly when a change in legislation will weaken its position?  One simple and effective amendment to HCQIA is to shift the burden of proof from the accused to the accuser. In addition to this the accused would have to demonstrate by a preponderance of evidence that the accused is deserving of discipline. In addition, if it was demonstrated that the accused fabricated any allegations, this would waive any immunity protection afforded by HCQIA.

Current examples of how the current system is crumbling:
Dr. Larry Poliner was awarded $360 million dollars from an outraged jury which was shown how three competing Cardiologists with the help of the hospital attempted to use sham peer review to strip Dr. Poliner of his hospital privileges and ability to improve cardiac care to patients in the community.
Dr. Muhindar Chadha efforts helped enlighten the Connecticut Supreme Court see how a the Charlotte Hungerford Hospital used sham peer review by making deliberate false claims and accusations on his practice of psychiatry  to remove him from staff in an attempt to discredit his reputation for being a whistleblower and a competitor to the group already there.
Dr. Danae Powers an anesthesiologist from Pennsylvania was just trying to prevent harm to patients from a senior staff anesthesiologist who was falling asleep during surgeries and the hospital tried to get rid of her for trying to improve the situation.
Dr. David Springer received an award of $1 million dollars for being dismissed because he tried to help out patients at a Delaware state run hospital. Because he was a whistleblower, the facility used this to improperly fire him from the hospital.
Dr. Kenneth Clark won a major victory for demonstrating how hospital based sham peer review was not immune from prosecution. The Nevada Supreme Court held that peer review boards could be held responsible for revoking hospital privileges that were not based on health care issues. The decision stated that hospitals could not punish a physician by revoking his privileges for trying to help improve patient care and safety by being a “whistleblower”.
Dr. Gil Mileikowsky an Ob/Gyn helped to expose unnecessary surgical procedures on innocent patients at a Tenet hospital six years ago. As a result of his testimony, the hospital drummed up charges of “substandard patient care” to remove him from their facility. He is still waiting for his “due process” hearing.
Dr. Ron Virmani’s case demonstrated how the Federal Court in North Carolina forced the hospital which used sham peer review to open up the peer review records for the past 20 years as the court felt that Dr. Virmani had been shammed politically and economically and not as a result of bad medicine.
These cases are but a small example of how ethical physicians have placed patient care first while moving in the direction of increasingly holding bad actors, be they hospitals or unethical physicians accountable for their bad actions. 
Conclusion
            The quality and integrity of health care in the United States is critical to the sustaining prosperity. People expect competent and highly skilled medical professionals when they utilize the health care system. Existing quality control measures imposed by state and federal laws seek to provide a continuous monitoring system that utilizes peers in the medical profession to evaluate their colleagues. Today's system relies too heavily on immunity and confidentiality protections to shield a peer reviewer from liability for his participation even if that reviewer is arbitrary, capricious, and has ulterior motives. The current immunity and confidentiality protections have the effect of providing a safe-harbor for physicians who have ulterior motives, whether economic or political. These physicians abuse the peer review system and the safe-harbor provisions to eliminate the competition in their community. At a minimum, the safe-harbor provisions that protect accusing physicians from liability for claims made in bad faith, combined with the incredible burden accused physicians must overcome to show bad faith, must be removed. Further, an effort should be made to expand a reviewed physician's appellate options at the state level or at the federal level with an HCQIA Agency to ensure an unbiased and truly independent review of his work. Should the arbitrary peer review process continue without any changes to the protections currently afforded to peer review committees - or the review process itself - many outstanding physicians who become the target of an adverse peer review and are unable to afford costly litigation to clear their name, will simply be eliminated as they will have no alternative but to quit the medical profession. In the end, it is the American public who suffers from a law whose intention was to protect and encourage competition in the healthcare market. This and the fact that doctors for the most part do not have “whistleblower” protection only act to perpetuate poor healthcare to our public since trying to improve the system is fraught with professional life altering consequences.
            The Healthcare Quality Improvement Act of 1986 (HCQIA) was Congress’s attempt to allow hospital’s to regulate themselves without any federal oversight agency. Quite naturally, the American Hospital Association (AHA) has resisted these changes and has been lobbying Congress to maintain the status quo. After all these years, however, and countless loss of life and billions of dollars from not doing adequate quality control, it is time to revamp the hospital industry regardless of the AHA and its money. The evidence is clear, HCQIA is not working and needs to be amended and a HCQIA-Agency is needed to ensure that the public is getting the best care possible at the best possible price. This country will go bankrupt and the health of Americans is in question if we do not act swiftly. We cannot allow this organized sabotage to persist and continue to undermine the quality of the delivery of medical care in our country. Knowing that billions of dollars can be saved and thousands of patients can be properly treated yearly should be the goal of every American as well as our elected officials in Congress.
            The alternative to our American citizens is too costly in both life and limb and unlike the past two hurricanes, is avoidable.

For more information, visit www.semmelweis.org and www.aapsonline.org/peerreview