Peer Review and Medical Staff Resources
Washington Peer Review Law and WSMA Involvement
In the 2012-13 legislative session, the WSMA helped draft and pass legislation amending Washington law, which now requires medical staff peer review bodies to follow procedures established in the medical staff bylaws. Further, the law clarifies the limits on remedies in lawsuits brought by a provider challenging adverse peer review actions, and limits the circumstances in which attorneys’ fees can be awarded to the prevailing party in those challenges. The WSMA saw a need for this legislation to a large extent because of a Washington court case, Smigaj v. Yakima Valley Memorial Hospital. Dr. Smigaj’s unfortunate experience brought attention to the pernicious consequences of improperly conducted peer review, and prompted the WSMA'ss legislative action. This summary of the case highlights some of the problems physicians might face in peer review actions.
2014 WSMA peer review workgroup survey and recommendations
In September 2013, the WSMA House of Delegates passed Resolution B-1, Fair and Professional Medical Staff Peer Review. On February 9, 2014, the WSMA Board of Trustees formed a workgroup to identify the scope of medical staff peer review problems in Washington hospitals, the nature of the problems medical staffs are encountering in peer review, and to make recommendations to the Board of Trustees for addressing the identified problems. A workgroup was formed to conduct a survey, review the survey's results, and make recommendations. You can read more about the workgroup and its recommendations here.
WSMA model medical staff bylaws
163 pages of material for model medical staff bylaws (updated December 2010).
The WSMA's model medical staff bylaws provide a template for medical staff bylaws which focuses on protecting the self-governing status of the medical staff and the rights of its members. The model bylaws include a detailed disruptive behavior policy which clearly outlines behaviors which are appropriate, inappropriate, and disruptive. The policy lays out a series of steps for the medical staff to take to address varying degrees of disruptive behavior. The model bylaws also include a detailed fair hearing policy which allows the medical staff to take appropriate corrective actions while protecting the due process rights of the affected practitioner. The WSMA Model Medical Staff Bylaws were updated in 2010 to comply with the requirements of the revised Joint Commission Standard MS 01.01.01.
Joint WSMA/WSHA principles of peer review/corrective action
The WSMA and the Washington State Hospital Association collaborated in developing a set of general principles of medical staff peer review/corrective action. The principles were developed by members of both organizations and have been approved by their respective executive committees. The principles state that peer review processes must be fair, clearly defined, flexible enough to allow actions proportional to the issue at hand, and emphasize that formal hearings should be the last resort, and should focus on the issue involved, not attorneys.
WSMA peer review services
The WSMA provides peer review services to hospital medical staffs and large clinics. The purpose is to objectively review the work, training and experience of one or more members of a medical staff. Peer review consultations are provided upon written request. If you are interested in engaging this valuable service, please call Denny Maher, JD, MD, director of legal affairs at (206) 956-3640 or toll-free at (800) 552-0612.
More information about WSMA peer review services.
Further reading and references
The WSMA works to ensure the implementation of peer review procedures which are adequately protected in medical staff bylaws, fair for all parties involved and consistently followed by hospital administration. In alignment with this commitment, the WSMA promotes information on peer review and the related concept of “just culture.” Below are several resources for individuals interested in learning more about these important concepts. The WSMA provides this information to illustrate the range of issues and opinions regarding medical staff peer review. Information included in this list does not necessarily imply endorsement of the material or its content by the WSMA.
The American Medical Association has prepared information on peer review, including an explanation of the Health Care Quality Improvement Act (HCQIA) of 1986. The site also has compiled a series of important court cases involving peer review, along with helpful summaries of those decisions. Finally, the AMA Policy Finder leads searchers to a variety of AMA policy statements on such issues as peer review immunity, legal protections, and appropriate peer review procedures. A few examples of the many relevant AMA policies include H-375.997 Voluntary Medical Peer Review; H-375.983 Appropriate Peer Review Procedures; and H-375.962 Legal Protections for Peer Review.
The American Health Lawyers Association – Physician and Hospital Institute has prepared a brief white paper, entitled MS.01.01.01: An Opportunity To Make Peer Review Less Litigious? The author, Michael A. Cassidy, describes a Joint Commission Medical Staff Standard related to peer review and ways to make the peer review process less likely to lead to law suits.
Just culture principles
The Medical Quality Assurance Commission has approved this Endorsement of Just Culture Principles to Increase Patient Safety and Reduce Medical Errors, encouraging health care systems to implement a Just Culture into their organizations by integrating the elements outlined in the document.
The National Center for Biotechnology Information provides access to a wide range of medically relevant peer reviewed articles, including scholarly articles on just culture and the value and dangers of peer review in clinical settings.
Two examples include Fair and Just Culture, Team Behavior, and Leadership Engagement: The Tools to Achieve High Reliability, by Allan S. Frankel, Michael W. Leonard, and Charles R. Denham; and Multi-Stage Open Peer Review: Scientific Evaluation Integrating the Strengths of Traditional Peer Review with the Virtues of Transparency and Self-Regulation, by Ulrich Pöschl.
The Agency for Healthcare Research and Quality, part of the U.S. Department of Health and Human Services, features several resources discussing peer review including an online video describing just culture, entitled Understand Just Culture.
Challenges to peer review and the issue of sham peer review
One law review article challenges the efficacy and fairness of medical staff peer review and the laws that support the current system: Physician Peer Review Immunity: Time to Euthanize a Fatally Flawed Policy, by Charles R. Koepke, MD, JD. Another article, by Charles I. Artz, Esq., also discusses problems with the application of immunity for peer review bodies under the HCQIA in his article, Swinging Pendulum of Peer Review Immunity.
Roland Chalifoux, Jr., DO presents an overview of sham peer review and its relationship to the HCQIA in So What is Sham Peer Review?
The American College of Emergency Physicians also provides its Information on Sham Peer Review.
The Association of American Physicians and Surgeons has several articles and other resources for physicians who believe they’ve been treated unfairly during a peer review process. The website features numerous videos and articles, including Sham Peer Review: Napoleonic Law In Medicine, by Verner S. Waite, MD and an editorial entitled Sham Peer Review: New Tactics and Pitfalls for Employed/Exclusively Contracted Physicians by Lawrence R. Huntoon, MD Ph.D.
A full list of the AAPS’s journal articles are available, listed by volume number, at the Journal of American Physicians and Surgeons website. The page has a search feature which allows the viewer to peruse articles by topic.
WSMA Policy Adopting Principles of Fair Peer Review
At its 2015 Annual Meeting, the House of Delegates reaffirmed WSMA policy asserting that peer review processes should be conducted in a fair and professional manner for reviewing bodies to be granted immunity in court. Furthermore, the House voted to reaffirm the following six principles, as originally adopted by the House of Delegates at its 2013 Annual Meeting:
1) Medical Staff and Hospital Bylaws must be followed. RCW 70.41.200 and 2007 c 273 s 22 and 2007 c 261 s 3 have been amended to include this provision, but RCW 7.71 should also be amended.
2) The legislative intention of HCQIA and WA RCW 7.71 is to “foreclose federal antitrust actions” which were the basis of 1988 US Sup Ct decision, Patrick v. Burgets, but the intention was not to endorse “economic credentialing” in the absence of substandard physician performance. Financial bias is a prohibited motive in physician peer review.
3) “Fairness" is unbiased case selection in the peer review process. Cases that fall out of standard medical practice shall be handled in a uniform and standard way between all members of the department.
4) "Professionalism" requires that peer review body decisions conform with standard medical practice and outside expert review. WSMA will continue to develop resources for unbiased expert review.
5) Peer review procedures must allow the protections afforded in other statutes that recognize and protect health care providers and facilities from participating in, or refraining from participating in, actions or practices to which they object on the basis of conscience or religion.
6) When "disruptive physician behavior" is cited in peer review sanction, quality of care complaints that are not disruptive must be excluded. This is defined in the amendment written by the Senate Law & Justice Committee.