Over the past six years, thousands of physicians have become hospital employees. This heightens the issue of whether hospital-employed physicians are conflicted when performing medical peer review. Jane Orient, MD, executive director of the Association of American Physicians & Surgeons, has observed a growing divide between hospital-employed physicians and community physicians.
The rise of hospitalist medicine has generally improved physicians’ lifestyles and allowed for a greater focus among care settings. It has also created its own unique problems. Since primary care physicians often do not round on their own patients in hospitals, hospitalists have to completely rely on their physical examinations and the limited patient history to which they have access.
“Patients are cared for by physicians that don’t know them,” says Dr. Orient. “Primary care can’t often speak with the hospitalist. Hospitalists can only rely on what is in the record. They have no first-hand knowledge. They have no long-standing relationship with the patient or family.”
The emergence of an “us and them” mentality between hospital-employed physicians and community physicians also creates a host of other unfortunate problems. For starters, hospital-employed physicians are often tasked with performing peer review for medical staff appointments. Dr. Orient says this weakens the independence of peer review, making it susceptible to outside influence.
“It used to be that the majority of the doctors on medical review committees were independent,” says Dr. Orient. “Now the majority are hospital employees. Peers are biased by their employment.”
The traditional model of hospital peer review requires physicians to periodically review each other’s performance to grant medical staff appointments and thereby confer privileges to practice medicine at the hospital. Only licensed physician peers are qualified to assess the performance and credentials of other physicians. For example, only obstetricians are qualified to review other obstetricians.
Traditionally, after the medical review committee has reviewed a physician’s credentials and performance, they submit their recommendation to the board of directors for acceptance. Physicians cannot practice medicine at a hospital without being credentialed, approved by a group of their peers, and accepted by the board of directors.
Dr. Orient and many others are suspicious of a growing sham peer review phenomenon. This term may be used to describe interference in the peer review process with the specific intent to get rid of a privileged physician. The sudden loss of hospital medical staff privileges can severely handicap a physician’s ability to acquire privileges at other hospitals and also hurt them financially by restricting their ability to practice medicine.
“A doctor may find that he has been investigated confidentially without his knowledge for a long time,” say Dr. Orient. “He is summoned to a meeting with no warning. Many files are produced. He may not see the charges. It may be completely sudden. His whole career may be at stake and he has no idea why.”
The question of whether independent physicians have a legal right to a medical staff appointments at private hospitals has been highly debated and litigated for over 85 years dating back to a Supreme Court decision in 1927 (Hayman v. Galveston). Over the years, the courts have upheld decisions for both sides.
“The courts don’t want to take on this issue,” says Dr. Orient, referring to a general reluctance to engage in a battle of medical experts. “Quality guidelines may not fit with individual patients. The guidelines may be too complicated to implement appropriately.”
Medicare’s Conditions of Participation and The Joint Commission accreditation requirements both require the essence of due process for medical staff appointments. At a minimum, the presence of due process indicates the opportunity to at least receive due notice, have a hearing, receive a written statement of the reasons for denial of appointment or reappointment, and the opportunity to appeal to the board of directors.
According to Dr. Orient, the optimal solution is to engage completely independent physicians to perform peer review. This would remove all possible conflicts of interest and biases which may otherwise exist. It is already commonplace for physician reviewers to excuse themselves when they have a relationship with the physician being reviewed. For example, a female general surgeon would voluntarily excuse herself when her surgeon spouse is the one being reviewed.
However, simply being an independent, community physician has not yet been widely recognized as a basis for discrimination. Nor has simply being a hospital-employed physician been widely recognized as a conflict of interest.
When asked to identify any hospitals that are good models for how to implement independent peer review, Dr. Orient responded, “I don’t know any organizations that do. Staying on the hospital staff is becoming more and more difficult.”
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Jane Orient, M.D., is the executive director of Association of American Physicians & Surgeons (AAPS), located in Tuscon, Arizona. AAPS can be contacted by phone at (800) 635-1196 or by email at aaps@aapsonline.org.