ERIC's Column

The due-process and "reasonableness" standards of the HCQIA are gully-low. In most of the litigated cases to date, the courts equate "reasonable effort" and "reasonable belief" with the weight of the paper-trail produced, irrespective of its content. If the defendant-hospital can produce a huge weight of documentation, in the form of hearing transcripts, investigative material and the like, the court is likely to be satisfied that the hospital and its agents have met the "reasonableness"-standards of HCQIA, with respect to "effort to ascertain facts," and "belief," whether or not the content of the documentation supports any rational conclusions. The evidence in support of that assessment is the total absence of any analysis of documentation-content reported in applicable caselaw. Lawyers in black robes, whom we laughingly call, "judges," rarely to never have any education or training in science or medicine. They focus on procedural matters only, leave all that substantive stuff that they can't understand secure in the black box and rely on the hospital's agents to assess it. The very phrasing of the four elements of HCQIA, quoted in the article, guarantees that approach, i.e., guarantees a disjunct between scientific facts and verdicts. The lawyers in black robes will never have to assess the science, hence the truth.

HCQIA is a pre-Daubert act; i.e. the landmark-case of Daubert v. Merrell Dow Pharmaceutical Co., Inc., (1993), which established new and improved standards for admissibility of scientific evidence into litigation, the first since the much lower Frye-standards of "general acceptance in the scientific community," from the 1920s, does not apply to litigation carried out under HCQIA. The old Frye-standard, with all its severe, concomitant inaccuracy, still applies to HCQIA. The improved Daubert-standard does not apply because 1993 is six years after 1986 and ex post facto application is forbidden. That's an insane result, scientifically speaking, of course, but the generic principle has ample and ancient precedent, as documented by Jonathan Swift, centuries ago, in Gulliver's Travels:

It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

HCQIA omits any definition of "effective peer-review." The transcript of the congressional committee-hearings that preceded enactment of HCQIA leaves the unmistakable impression that "effective" means draconian, severe, uncompromising and the like, with no need for accuracy, proportionality or even fundamental rationality, such as scientific validity. The emphasis is on faith in the impartiality and fair-mindedness of peer-reviewers, even in the face of abundant evidence that peer-reviewers are rarely to never either impartial or fair-minded.

The main idea is retribution: the attending physician must suffer as
his patients have suffered, whether or not his patients' suffering be a consequence of the physician's acts. The worse the patients' diseases, hence, the worse the patients' suffering, as their diseases progressed along their natural courses, the worse must be the attending physician's suffering too. Capital punishment for physicians whose patients have died of their diseases is applicable to physicians' careers only, though not yet in effect against the physicians, themselves, but that may well be in the works. To make the process fair, the ground-rules should extend immunity from punishment to scrutinized physicians, inasmuch as they, too, are "participants" who "assist" in the process. Thereby removing the punitive potential of peer-review for both sides of the dispute would be a major step forward but legal precedents forbid it.

The author, Bryan G. Hall, attributed all fault in the strange case of Dr. Magrinat to Dr. Magrinat, himself. It's OK to disapprove Dr. Magrinat's ill-advised assault of the lab-tech with the telephone-receiver. That assault was obviously a poor choice, as was Dr. Magrinat's spouting off to the patient and his family against the staff, but, by focusing on those incidental consequences of the hospital's failure to provide an emergency surgical back-up team, Hall has failed to keep his eyes on the prize. The main issue is patient-care. What about the patient's angioplasty? Hall didn't seem to care much about that. Dr. Magrinat was arguably a victim of adverse circumstances, not in his control. Hall disregarded the contributory negligence of the hospital in its appalling, underlying failure to provide a surgical back-up team for the emergent coronary angioplasty, even as it provided a consent-form that called for a surgical back-up team for coronary angioplasty. It seems easy to imagine Dr. Magrinat's frustration at the hospital's one-sided and short-sighted "risk minimization" approach, even as it exacerbated risk by failing in its substantive duty to support the physician in his effort to optimize patient-care. Hall pointed to the Magrinat-case to justify "aggressive" peer-review. Well, what about a more balanced approach to include "aggressive" regulation of hospitals that have internally contradictory procedures, such as those cited?

Hospitals are continually droning on about how "disruptive physicians" disrupt the smooth operation of the hospital. Well, two can play that game. If the hospital had provided an emergency surgical back-up team, Dr. Magrinat's projected coronary angioplasty could have proceeded smoothly, with an eminently beneficial result for the patient. The hospital's abysmal failure to provide the on-call emergency surgical back-up team for the occasion resulted in non-cooperation of the lab-tech, hence, egregious disruption of the smooth operation of the procedure, hence, by extension, disruption of an otherwise smooth hospital-operation.

The cited case of Zamanian v. Christian Health Ministry, from Louisiana illustrates a problem that's big also in Florida: that was the first case in recorded history that came to trial in a LA-court. Similarly, FL-courts won't touch cases of hospital-physician dispute. The physician has to win at the administrative level or not at all.

Hall's proposed remedies are superficial and probably ineffective. Change of venue may seem a good step and it may be a slight improvement over conducting hearings in the hospital of origin but physicians in one venue are no better trained in legalistic procedures than they are in any other venue. His suggestion still leaves everything in a legalistic black box to the one-sided discretion of peer-reviewers who, more often than not, acquire an immediate
prejudice against the accused on the specious basis, "where there's smoke there's fire." The same applies to the conduct of peer-review by state-appointed reviewers. Waving a magic wand to grant access to state-courts cannot possibly work in states, such as LA and FL, where all the legalistic precedent supports refusal of courts to substitute their judgment for that of hospital-agents.

Hall's claim, "with the expansion of the accused physician's ability to obtain discovery of the peer review hearings, and by removing the immunity shields, peer review committees will be required to rely more on medical doctrine and principles and less on "personally driven agendas."[156]" doesn't survive a moment's scrutiny. The fear is the litigation, itself, not the substance of the case. Peer-reviewers fear litigation and its expense, not losing the case, as such. Hall presupposes the existence of "medical doctrine and principles." Peer-reviewers will claim that they already rely on "medical doctrine and principles." None of that helps anything. Legislatures at state and federal levels have now universally endorsed peer-review, as a principle, without producing a scintilla of evidence that it has ever accomplished any of its purported purposes. Peer-review is a totally non-evidence-based construct, based on faith, alone. What induces Hall to believe that the jackass-bozo-legislators who have enacted peer-review as a requirement and surrounded it with a stone wall of immunity would now consent to remove that stone wall and leave peer-reviewers to litigation? The whole idea is absurd. The hue and cry would resound across the nation, "Omigod, without immunity, peer-reviewers would be reluctant to conduct effective peer-review. Horrors!" Never mind that peer-review is a crock of baloney or worse, from first to last. It just has to be protected. Hall's proposal on those lines is absurd and a non-starter.

Hall's suggestion that hospital-administrators might do anything to help make peer-review honest is really naïve. Dishonesty and malice are fundamental prerequisites to entry into any course of study leading to a career in hospital-administration. Hospital-administrators are the chief instigators of bad-faith peer-review. This proposal is of the fox/henhouse variety.

Hall's proposed remedies along the lines of training, graded approach and continuous quality improvement are constructive and good. I have proposed those suggestions for years and with much more specificity but nobody in SSI or AAPS has paid any attention, nor do I expect that anyone will in future. As long as those who claim to oppose BFPR disregard such constructive solutions, the likelihood that any legislator will enact such remedies into law will remain beyond reach.

Eric N. Grosch

1. The peer review was done in the belief that such action furthered quality healthcare.
2. Those bringing the action made a good-faith effort to obtain the facts.
3. The physician reviewed was given adequate notice and afforded due process.
4. The hospital had a reasonable belief that peer review action was warranted.

Prerequisite 1 relies upon "belief" without specifying whose belief shall govern.  Prerequisite 2 relies upon the "good faith" of those who decide to bring the action.  Prerequisite 4 relies upon the hospital's "reasonable belief" that the peer-review action was warranted.  Those bringing the action will doubtless claim a belief that that action furthered quality healthcare and that they had made a good-faith effort to obtain the facts.  If they had failed to obtain the facts, their mere claim of "good-faith" effort to do so would suffice.  The law thus permits action against the accused practitioner in the absence of supportive facts, a feature of the horrors of the Spanish Inquisition. Agents of the hospital will doubtless claim belief that the peer-review action was warranted.  Similarly, the accused physician will doubtless claim a belief that the action did not further quality healthcare, that those who brought the action against him had failed to make a good-faith effort to obtain facts and that the peer-review action was not warranted.

The accused physician, the hospital and others who brought the action would have no way of gathering any evidence to determine the factuality of the claims of their respective opponents, certainly not to prove whether or not those opponents had any such beliefs, in each case, since belief, a cardinal aspect of religion, is, by its nature, a matter of individual conscience, inaccessible to outside parties for examination.   Those provisions are therefore null and void for vagueness and unenforceability, as is, accordingly, the Health Care Quality Improvement Act of 1986.

The  term, "quality health care" is vague, since it fails to specify low-quality, intermediate-quality or high-quality healthcare and fails to provide criteria for determining any such degree of quality of health care. 

The Congress that enacted the Health Care Quality Improvement Act of 1986 thus violated the constitutional first-amendment prohibition against enacting any law  respecting the establishment of religion. 

Competing interests: None declared

Competing interests: None declared