Public Health Law Map - Beta 5 - Medical and Public Health Law Site

from general disclosure, but it should be available to the other committee members.
The committee members should demand that the hospital or other institution indemnify
them against any losses related to the peer review activities.
Defensible peer review depends on creating a clear record of the alleged deviations
from standard practice. The record also should demonstrate that none of the reviewers
was an economic competitor of the physician being reviewed. If it is impossible to
assemble a review panel without financial conflicts, the committee should employ an
outside reviewer or consulting service. Given the reality of medical business practices,
it would seem necessary to use outside reviewers in all but the largest hospitals. Even
in these facilities, subspecialty care will require outside review.
This record must be specific as to the facts of each incident, how these facts deviate
from accepted practice, and the actual or potential harm resulting from this deviation
from accepted standards. If there is no demonstrable harm or potential harm from the
deviation, the deviation does not affect patient care and is not a proper basis for an
adverse peer review action. The record should be objective and should be free of
personal attacks on the physician in question. Copies of patient records should be
attached and annotated as necessary to establish the validity of the facts in question.
All complaints by patients and other medical care providers should be investigated and
incorporated into the record.
The record should demonstrate that the physician was warned about the deviations
from standard practice and was given an opportunity to correct these deviations. These
warnings should be communicated in writing, with the physician asked to respond in
writing. If the nature of the deviation was such as to necessitate immediate suspension
of medical staff privileges, this should be documented. The arrangements to care for
the suspended physician’s patients should be discussed, as should patients’ reaction to
their physician’s suspension. Emergency suspensions are merited only when there has
been little delay between the institution’s learning of the problem and its taking action
against the physician. It is impossible to defend an emergency action taken after
months of discussion.
F. Deselection
Peer review and hospital privileges, at least in the past, had a critical check and
balance—the hospital did need physicians to admit and care for patients, and in many
communities the number of physicians was limited, relative to the number of hospitals.
The federal antikickback laws, at least in theory, prevented the hospitals from just
bribing physicians to admit to the hospital. Since the hospitals were competing for
patients, the more physicians on staff the greater the chance that a given patient would
be admitted to the hospital.
1. MCO Physician Market Strategy
MCOs face different incentives and a different market for physicians. Whereas
hospitals have to compete for patients indirectly by persuading physicians to
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