SHOULD " DUE PROCESS RIGHTS "
BE PART OF HOSPITAL PEER REVIEW?
|By Judge Scott E. Segall and William Pearl, MD|
|Medical peer review is the process by which a committee of physicians
investigates the medical care rendered by a colleague in order to determine
whether accepted standards of care have been met. The professional or
personal conduct of a physician may also be investigated. If the committee
finds that the physician departed from accepted standards, it may recommend
limiting or terminating the physician's privileges at that institution. If
the physician's privileges are restricted for more than 30 days, federal law
requires the peer review committee to report that fact to the National
Practitioner Data Bank (1).
There is no federal statute that requires peer review committees to observe due process, which the Supreme Court has defined as (1) giving written notice of the actions contemplated, (2) convening a hearing, (3) allowing both sides to present evidence at the hearing, and (4) having an independent adjudicator (2). Prior to the Health Care Quality Improvement Act of 1986 (HCQIA) (3), the effects of an adverse peer review finding were restricted to the hospital involved. Because the HCQIA mandates the reporting of disciplinary actions of peer review committees to the National Practitioner Data Bank, such a report could harm a physician's career throughout the nation (1-4).
Medical peer review is usually based on the screening of medical records, which places physicians with poor record-keeping skills at a disadvantage, and ignores the fact that medical records are often a poor indicator of the quality of care (5). Additionally, there is no requirement that the physician be given notice and an opportunity to be heard, and there is no requirement that members of the peer review committee be unbiased. The HCQIA recommends that the physician should get notice of the allegations, time to prepare for a hearing, a list of witnesses, the right to legal counsel, and an impartial fact finder. However, the act concludes "A professional review body's failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of this act)." This failure of the HCQIA to require due process calls into question the fundamental fairness of the medical peer review system.
The purpose of requiring due process is to ensure that the actions taken
are not arbitrary, capricious, or unreasonable. Where there is no due
process, the system invites abuse (8).
Federal law prohibits a federal judge from hearing cases in which his
impartiality might reasonably be questioned or in which he has a financial
interest (11). The same standards should apply to member of a peer review
committee. The potential for abuse when these suggested procedures are not
followed would indicate the need for mandatory due process.
The right to practice medicine without a governmental agency erroneously reporting that a physician has been deficient in his actions is a constitutional property right. Rights, even constitutional rights, can be waived by express agreement, or by the failure to assert those rights. State institutions, however, may not make waiver of a constitutional right a condition for employment (16).
In 1986, New York State enacted a system of physician discipline that includes a hearing presided over by an administrative law judge, to ensure due process (17,18). Although this system provides due process, it has the glaring problem of giving control of hospital privileges to lawyers. A far better solution is for peer review committees to be required to observe due process. Lawyers and other non-physicians may have a role as consultants, but should not be voting committee members.
The effects of an adverse peer review decision are no longer limited to
the relationship between a physician and a hospital. The decision becomes
part of the National Practitioner Data Bank. Medical peer review must
provide physicians the protections of due process.
Scott E. Segall, JD
The opinions or assertions herein are the private views of the authors
and are not to be construed as official or as reflecting the views of the
Department of the Army or the Department of Defense.
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